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  • application for judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court Kearns J having referred to the provisions of s 50 of the Act of 2000 continued at p 595 para 14 It seems to me without in any way deciding an issue which was not before this court that the word decision of the High Court in s 50 can be taken as including any determination of the issue of costs which forms part of its decision in the case Similarly s 42 8 of the Freedom of Information Act 1997 provides The decision of the High Court on an appeal or reference under this section shall be final and conclusive 15 Section 39 of the Courts of Justice Act 1936 which was re enacted by s 48 of the Courts Supplemental Provisions Act 1961 provided as follows in relation to appeals to the High Court from the Circuit Court The decision of the High Court or of the High Court on Circuit on an appeal under this Part of this Act shall be final and conclusive and not appealable 16 Again I have no difficulty in construing these sections as altogether precluding any further appeal even one confined to costs By contrast however s 123 4 of the Residential Tenancies Act 2004 which if I may say so is unsatisfactorily drafted in a number of respects is much less clear If the relevant sub section simply referred to the determination of the High Court on such an appeal one could well argue that the decision of the High Court in relation to costs was incorporated in the determination However the wording contextualises the determination of the High Court by reference specifically to the point of law concerned 17 The resolution of a point of law may on occasion compel a trial judge to determine a case in a particular way which may be contrary to the factual merits of the case I am not saying any such situation arises in the instant case but it is not difficult to imagine other cases where this could occur In such a situation an appeal confined to the issue of costs might have significant merits 18 For that reason I think any statute which purports to remove altogether even a limited right of appeal on an issue such as costs should be so phrased as to make that intention clear That is not to say that express wording in a statute is a prerequisite for this purpose but rather that the overall intention that no further appeal should lie from any aspect of the decision of the High Court Judge should be obvious from a reading of the provision in question Murray J in the course of his judgment in Browne v Kerry County Council observed as follows This Court has given due consideration to the terms in which the relevant s 50A 7 is expressed and finds that it is substantially to the same effect as the s 50 4 f i in the 2000 Act referred to by Mr Justice Kearns Murray J then went on to make the following observations The Court considers that the determination of the question of costs following a decision on the merits of a case in judicial review is an intrinsic and inherent part of the proceedings and that the determination of the judicial review as referred to in s 50A 7 and in particular the reference to the decision of the Court in that section encompasses the decision of the Court on costs that necessarily follows in one form or the other as part of the determination of the proceedings Therefore the Court considers that the question of costs is not an issue which the legislature intended should be capable of being treated as separate from the High Court decision and the subject of a separate appeal without the necessity of a certificate from the High Court to that effect The Court considers that the dicta of this Court in the Canty case obiter as they were were a correct interpretation of the meaning and effect of a restriction excluding an appeal to this Court from a decision of the High Court unless a certificate has been granted Such restrictions on appeal to this Court do require to be strictly interpreted being an exception to the general right of appeal to this Court by virtue of which litigants are denied an opportunity to review a decision of a court of first instance Having taken account of the principle of strict interpretation the Court nonetheless is satisfied that the meaning and effect of the section in question is to include within the scope of the section the decision of the Court on the application as a whole including the question of costs Accordingly the claimant appellant has no right of appeal to this Court Accordingly the Court in that case was satisfied that it did not have jurisdiction to entertain the appeal of the appellant solely on the question of costs and struck out the appeal The decision in the case of Browne v Kerry County Council was recently considered in the judgment of the Supreme Court in respect of two appeals heard together Minister for Justice Equality and Law Reform v Noel McPhilips and Minister for Justice Equality and Law Reform v Gerry McGinley 2015 IESC 47 An issue arose in those cases as to whether the appellant was entitled to appeal the decisions of the High Court in each of the cases on the question of costs only by virtue of the provisions of s 16 11 of the European Arrest Warrant Act 2003 as amended which provides as follows An appeal against an order under sub section 1 or 2 or a decision not to make such an order may be brought in the Supreme Court if and only if the High Court certifies that the order or decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court Reference was made in the course of the judgment to the earlier decisions of the Supreme Court in Canty v Private Residential Tenancies Board and Browne v Kerry County Council In his judgment Murray J referred at paragraph 30 to the passage from the judgment of Kearns J in Canty previously referred to as follows 30 As regards that sub section Kearns J at paragraph 14 of his judgment observed It seems to me without in any way deciding an issue which was not before this court that the word decision of the High Court in s 50 can be taken as including any determination of the issue of costs which forms part of its decision in the case 31 These observations were obiter but in the Browne case the Court considered that they were a correct interpretation of the meaning and effect of a restriction excluding an appeal to this Court from a decision of the High Court unless a certificate has been granted I would confirm that I consider that dictum of Kearns J to be a correct statement of the law Thus the determination of the High Court of the question of costs in this case forms part of the decision in the case Murray J in the course of his judgment went on to say at paragraph 37 Counsel for the appellant did argue that the issue of costs was a distinct matter from any decision on the merits Also he pointed out that the decision on the question of costs was adjourned and dealt with after argument on a separate day to the decision on the substantive proceedings This tended to highlight it was submitted the distinct and separate nature of the question of costs In my view the fact that the issue of costs is dealt with separately on a separate day does not affect the interpretation which I have given to the meaning of decision in s 16 11 A decision on costs is an intrinsic part of the court s decision It is determined in one form or another in conjunction with the other issues on the merits in each case The question of costs is not the only matter which can be dealt with on a different and separate day to the handing down of a decision on a substantive aspect of proceedings It is not unusual for the form of an order or a particular aspect of an order which is to be made consequent upon a decision in proceedings to be adjourned for argument on a separate date Adjourning part of a decision for final determination at a later date does not mean that such part could be treated as not forming part of the court s decision in the proceedings within the meaning of s 16 11 Finally it is worth noting the observations of Murray J as to the constitutional limits on the right of appeal He stated 39 Counsel also referred to the provision of the Constitution which gives a right of appeal subject to such limitations as may be imposed by law other than an issue concerning the validity of any law He correctly pointed out that it is a well established principle of construction that any statutory provision which restricts a right of appeal from the High Court should be strictly construed 40 As pointed out earlier the Oireachtas has expressly restricted any right of appeal to certified questions of law which is of exceptional public importance and where it is also desirable in the public interest for such an appeal to be brought Thus no appeal may be taken from a decision of the High Court under s 16 even though it may involve an important question of law or indeed be one of public importance but not exceptionally so and so forth Applying the principle of strict construction of the Act I think it is clear that the Oireachtas had in mind any appeal from the decision including all elements of the decision of the High Court and it is impossible to conceive that with such a broad restriction it was envisaged that an issue confined to the costs only should be litigated further on some separate form of appeal to this Court to the exclusion of all other components of the High Court decision That would be writing into the sub section an exception which simply is not there Accordingly the appeals in those matters were struck out Discussion The argument made on behalf of the appellant placed emphasis on the constitutional right of appeal provided for in Article 34 4 3 as it was prior to the Thirty Third Amendment of the Constitution namely The Supreme Court shall with such exceptions and subject to such regulations as may be prescribed by law have appellate jurisdiction from all decisions of the High Court and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law A line of authorities has considered the extent to which appeals from the High Court to the Supreme Court could be restricted or curtailed Thus in People v Conmey 1975 I R 341 Walsh J observed at p 360 any statutory provision which had as its object the excepting of some decisions of the High Court from the appellate jurisdiction of this Court or any particular provision seeking to confine the scope of such appeals within particular limits would of necessity have to be clear and unambiguous That passage has been cited with approval in subsequent decisions such as The People DPP v O Shea 1982 I R 384 Irish Asphalt Limited v An Bord Pleanála 1996 2 I R 179 Hanafin v Minister for Environment 1996 2 I R 231 and A B v Minister for Justice Equality and Law Reform 2002 1 I R 296 As can be seen it has been emphasised time and again that any restriction on the right of appeal contained in legislation must be clear and unambiguous as was also acknowledged by Murray J in the passage cited above The decision in A B v Minister for Justice Equality and Law Reform is an example of a decision in which it was found that there was ambiguity in the legislation in relation to the question of a right of appeal against a refusal to extend time to apply for judicial review and the right to appeal that issue was not restricted by the general policy considerations to be found in s 5 of Illegal Immigrants Trafficking Act 2000 It is undoubtedly the case that in order to restrict a right of appeal the language used in a statute must be clear and unambiguous The interpretation and effect of the statutory provision at issue in this case s 50A 7 of the Act of 2000 was considered in the decision of this Court in the case of Browne v Kerry County Council The judgment of Murray J in that case expressly adopted the dicta of Kearns J set out in Canty v Residential Tenancies Property Board referred to above on the interpretation of the similar terms used in s 50 4 f i of the Act of 2000 Subsequently the decision in Browne was considered again by this Court in the case of McPhilips and McGinley referred to above The Supreme Court in Browne was satisfied that the determination of the question of costs following a decision on the merits of the case in judicial review is an intrinsic and inherent part of the proceedings and that the reference to decision of the Court in s 50A 7 encompasses the decision of the Court on costs and that accordingly the question of costs was not an issue which could be the subject of a separate appeal without the necessity of a certificate from the High Court to that effect Given the decision of this Court in Browne v Kerry County Council a decision which has been applied most recently in the case of McPhilips and M cGinley it follows that this appeal must be struck out in circumstances where there is no certificate of the learned trial judge certifying a point of law unless this Court could be persuaded to depart from its decision in Browne or alternatively can distinguish the decision in Bro wne v Kerry County Council from the circumstances of this case The jurisprudence of this Court in relation to departing from its earlier decisions has been set out in a number of important decisions over the years These include Attorney General and Anor v Ryan s Car Hire Limited 1965 1 I R 642 in which it was made clear that the Supreme Court could depart from an earlier decision where that decision was wrong As Kingmill Moore J stated at pp 653 to 654 But where the Supreme Court is of the opinion that there is a compelling reason why it should not follow an earlier decision of its own or of the Courts of ultimate jurisdiction which preceded it where it appears to be clearly wrong is it to be bound to perpetuate the error In my opinion the rigid rule of stare decisis must in a Court of ultimate resort give place to a more elastic formula Where such a Court is clearly of opinion that an earlier decision was erroneous it should be at liberty to refuse to follow it at all events in exceptional cases Subsequently in Mogul of Ireland v Tipperary North Riding County Council 1976 I R 260 Henchy J set out the applicable principles which have since been considered on many occasions and applied He stated at p 272 Therefore the primary consideration is whether this Court is clearly of opinion that the decision in Smith s Case was erroneous If the point were res integra one might reach the opposite conclusion but I do not think it is possible to assert a clear opinion that Smith s Case was wrongly decided A decision of the full Supreme Court be it the pre 1961 or the post 1961 Court given in a fully argued case and on a consideration of all the relevant materials should not normally be overruled merely because a later Court inclines to a different conclusion Of course if possible error should not be reinforced by repetition or affirmation and the desirability of achieving certainty stability and predictability should yield to the demands of justice However a balance has to be struck between rigidity and vacillation and to achieve that balance the later Court must at the least be clearly of opinion that the earlier decision was erroneous Even if the later Court is clearly of opinion that the earlier decision was wrong it may decide in the interests of justice not to overrule it if it has become inveterate and if in a widespread or fundamental way people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand In such cases the maxim communis error facit jus applies Thus it is clear that in order to depart from the decision in Browne it would be necessary for this Court to conclude that the decision of the Supreme Court in that case was erroneous or to use the phrase used previously by Kingsmill Moore J clearly wrong In reaching the decision in Browne the Supreme Court had regard to the earlier

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  • only three criteria in this case the only possible one is that it contains a mark constituting a clear indication of first preference 4 For the reasons set out by my colleagues with which I agree the sequence 3 4 5 or any similar sequence does not satisfy the statutory requirement of clearly indicating a first preference In this regard it is important firstly that the voter has failed to comply with the instruction to place a 1 whether in numeral or word on the ballot paper Secondly it is significant that what is alleged to be a mark in this case indicating a first preference is itself a numeral other than 1 The number 3 only makes sense in the context of other numerals To that extent the number 3 implies the existence of a number 1 and also that they are different and that they are mutually exclusive In the same way third implies the existence of first and that they are by definition different things Normally to say that something is third means that is not and cannot be first 5 This however is only a starting point It might be thought of as the default position There are a number of circumstances where the context might lead to a different conclusion In simple terms if a person explains that every time they say three they mean one then the default position might be overridden Similarly if it is known that a person has an irrational fear of the numbers 1and 2 or has a computer where the striking the key 1 always produces the number 3 then once again the default position might be overcome The question of interpretation of any communication depends firstly on the words used but also on the context in which they were used and finally on the degree of certainty required 6 Here however it is a requirement of the process that the decision maker and therefore interpreter be unaware of the identity of the person completing the ballot paper and furthermore know nothing about them The method of communication is deliberately reduced to one of the most simple and normally unambiguous forms known in a first past the post election an X in the appropriate box will suffice in a proportional representation election the use of numbers indicating preference Furthermore the returning officer or the court must consider that the mark clearly indicates a first preference 7 It was accepted that a numeric sequence like 3 4 5 or 4 5 6 might occur on a ballot paper in a single election held on a given day in circumstances where the number 3 or 4 as the case may be was the lowest number and therefore the highest preference on the ballot paper completed In such a circumstance a returning officer has only the numbers and the ballot paper for context It was accepted by all parties that it was at least possible that such an event could occur and that there were possible explanations for it which were not consistent with the candidate against whom the number 3 had been marked being the voter s first preference It is not necessary to assign any particular likelihood to the different possible explanations it is enough that it is possible that the number 3 might suggest a first preference but might also suggest as indeed the number normally implies a third preference The Memorandum for Guidance of Local Authority Returning Officers at the Local Elections Friday the 23rd of May 2014 issued by the Department of Environment Community and Local Government made the practical suggestion that in such circumstances the returning officer should discuss the matter with agents This might resolve the matter one way or another on a practical basis but it is at a minimum indicative that the matter is open to doubt I also doubt that it is in fact a matter for individual agreement if it is the case that such a sequence might be taken as indicating a first preference but might not then it is difficult to say that it indicates such a preference clearly Counsel other than counsel for the Minster seemed to take the position that in such circumstances while the number 3 in a sequence 3 4 5 etc might suggest a first preference and even indicate such a preference it could not be said to clearly indicate a first preference and such a vote would be invalid If this was the position they inclined to I think they were correct to do so 8 Accordingly in my view the case narrows to the point where it must be argued that the fact of another election being held on the same day which would give a plausible reason for the existence of ballots in the local election where the highest preference on the ballot paper was a number such as 3 is sufficient to satisfy the statutory test and clearly indicate a first preference In my view this is not sufficient to satisfy the statutory requirement Once it is accepted that it is possible to have the sequence 3 4 5 on a ballot paper without the number 3 indicating the voter s first preference then it does not seem to me to be sufficient that it can be said that it is more likely than not that the candidate with the 3 marked beside them was in fact the voter s first preference Nor is it sufficient that it can be said that the vast majority marked in such a way are ballots in which the candidate with 3 marked beside them is in fact the voters first preference Each ballot paper must be taken on its own If some of them could have been marked in this way in circumstances where the voter intended by the number 3 to indicate that that candidate was his or her third preference then to determine in all cases that the number clearly indicated

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  • the admissibility of ballots That is an issue to which it may be necessary to return 3 8 So far as the main issue is concerned the relevant provisions of the legislation are as follows Article 80 2 of the Regulations sets out what constitutes a valid or invalid vote in the following terms 2 Any ballot paper a which does not bear the official mark or b on which the figure 1 standing alone or the word one or any other mark which in the opinion of the returning officer clearly indicates a first preference is not placed at all or is not so placed as to indicate a first preference for some candidate or c on which the figure 1 standing alone indicating a first preference or the word one or any other mark which in the opinion of the returning officer clearly indicates a first preference is set opposite the name of more than one candidate or d on which anything is written or marked which in the opinion of the returning officer is calculated to identify the elector shall be invalid and not counted but the ballot paper shall not be invalid by reason only of carrying the words one two three and so on or any other mark which in the opinion of the returning officer clearly indicates a preference or preferences 3 9 In addition it is necessary to note the statutory definition of a first preference which is set out in article 80 1 of the Regulations as follows a first preference means any mark which in the opinion of the returning officer clearly indicates a first preference 3 10 In like manner article 80 1 also sets out the definitions for other preferences as follows second preference means any mark which in the opinion of the returning officer clearly indicates a second preference standing in succession to a first preference third preference means any mark which in the opinion of the returning officer clearly indicates a third preference standing in succession to a second preference and so on b next available preference means a preference which in the opinion of the returning officer is a second or subsequent preference recorded in consecutive order for a continuing candidate the preferences next in order on the ballot paper for candidates already deemed to be elected or excluded being disregarded 3 11 The principal substantive issue comes down to a question of whether it was open to the returning officer to form a lawful opinion that ballots containing a sequence of numbers not starting with 1 could be said to have clearly indicate d a first preference 3 12 It is also of some relevance to note that guidance was issued to returning officers as to a range of questions which might arise in the context of conducting the count That guidance is contained in a document entitled Memorandum for the Guidance of Local Authority Returning Officers at the Local Elections Friday 23rd May 2014 the Guidance 3 13 In the context of the votes which are contested in this case the Guidance says the following at pp 52 53 A sequence which starts with the number other than 1 e g 3 4 5 6 discuss with agents see below In this connection and for the purpose of consistency returning officers should accept as valid individual ballot papers which include a sequence of preferences e g 4 5 6 or 6 7 which suggest that voters followed on from preferences recorded on the ballot papers at another election held on the same day 3 14 While there was broad agreement on all sides that the Guidance did not have any legal effect nonetheless it does need to be recorded that the decision taken by the returning officer was in accordance with the Guidance which seems to suggest that votes with a sequence of numbers not starting with 1 should be included 3 15 Finally so far as the legislation is concerned it is important to note that in order for an election petition to be successful it is necessary that any error identified must have been likely to have affected the result of the election see s 5 1 of the 1974 Act This Court in its recent judgments in Jordan v Minister for Children and Youth Affairs 2015 I E S C 33 made clear that when used in electoral legislation Jordan was of course concerned with a referendum the term affected in that context means an effect on the actual outcome rather than simply an effect on the votes cast in a particular direction In the context of the referendum under consideration in Jordan it would have been necessary therefore that the appropriate threshold of materiality be established by reference to the possibility that the ultimate outcome of the referendum might have been altered It follows therefore that in the context of an election in order that an error be regarded as having affected the result any such error must be demonstrated to meet a threshold of likelihood of having actually altered the outcome of the election in the sense that there would be a difference in the candidates elected Finally it must be noted that the relevant provision of the Regulations concerning marks expressing a clear preference makes reference to the opinion of the returning officer In that context there may also be a question as to the extent to which a court should afford some margin of appreciation to a returning officer 3 16 Against that general background it is next necessary to turn to the issues 4 Issues 4 1 Counsel for Mr Kennelly did seek to raise on the hearing of the appeal a point concerning what was said to be an unfair procedure or practise adopted by the returning officer It was said that he or his representatives were not given a reasonable opportunity to make representations at a particular point in the process I am however satisfied that this Court on this appeal is confined to considering those issues which were properly before the Circuit Judge and which are specifically referred to in Mr Kiely s notice of appeal It does not seem to me that the issue thus sought to be raised on behalf of Mr Kennelly is properly before the Court and I do not consider it appropriate to comment further on it 4 2 Next it is necessary to touch on a question which was debated by a number of parties at the hearing of this appeal As noted earlier a question was raised as to whether it was appropriate in the context of a recount being called to revisit the question of the proper inclusion or exclusion of votes where the returning officer had prior to starting to count the numbers of ballot papers containing a first preference for each candidate determined that certain ballots were either valid and thus included in such counting or invalid and thus excluded as being spoiled The issue concerned whether the concept of a recount properly construed in accordance with the legislation included a reassessment of the original decision of the returning officer in that regard However it will not be necessary to consider that point if Mr Kiely is correct in his principal contention which is that the returning officer was wrong to include or deem valid votes containing a sequence of numbers not beginning with 1 I therefore propose for the moment to leave over the question of the scope of a recount 4 3 It seems to me to follow therefore that there are three principal issues which need to be addressed The first two are connected The first concerns the status of votes containing a sequence of numbers not beginning with 1 The second concerns the extent to which the legislation might be said to confer an adjudicative function on the returning officer to determine whether such votes should be considered valid such that the Court should give some deference to the opinion of the returning officer in that regard I propose to consider both of those questions together 4 4 Third and in the event that Mr Kiely is successful in persuading the Court that the questioned votes were erroneously included the issue arises as to whether Mr Kiely has also established that the wrongful inclusion of the votes in question was likely to have affected the result 5 Discussion 5 1 The context within which those issues arise is the scope of the grounds on which an election petition can successfully be brought The first requirement for present purposes in that regard which is to be found in s 5 1 of the 1974 Act is that there be a mistake or other irregularity 5 2 The question of a mistake or irregularity must be seen in the context of the requirements of article 80 2 of the Regulations as to what constitutes a valid vote Those provisions require in order that a vote be valid that the figure 1 or the word one or any other mark which in the opinion of the returning officer clearly indicates a first preference must be present Clearly the votes in question in this case do not have the number 1 or the word one so they can only be considered valid if they meet the third possibility being that they contain a mark which in the opinion of the returning officer clearly indicates a first preference Similar considerations apply to treating the second number in such a sequence for example a 4 in circumstances where the ballot paper contains the sequence 3 4 and 5 as a second preference and so on 5 3 In substance therefore the issue comes down to the question of whether the inclusion of such votes can be said to amount to a mistake or irregularity It is in that context that the use of the term in the opinion of the returning officer in the legislation also comes into play If the decision to include a vote comes within whatever margin of appreciation is afforded to the returning officer then even if the Court might itself have taken a different view as to whether it would have admitted the vote in question the inclusion of the vote could not be regarded as resulting from a mistake or irregularity and thus could provide no basis for a successful election petition The question comes down to one of whether it was therefore permissible as a matter of law for the returning officer to form the opinion that sequences of numbers not beginning with 1 can clearly indicate first and other preferences 5 4 I should say first that there may well be cases where the question of whether a particular mark represents a first or other preference does come down to a pure question of judgement One example was discussed in the course of the hearing It is of course necessary even where the number 1 or the word one is used that it be placed on the ballot paper in a way which clearly indicates the candidate on whom the voter intended to confer that first preference It is possible to envisage cases where the number is not neatly placed within the box provided on the ballot paper However in some such cases it may be very clear that the number was intended to be placed opposite a particular candidate thus conferring a first preference vote on the candidate in question The more the number might be separated from a position where it is directly beside a particular candidate and the more it may lie towards overlapping with the position in which one might expect a voter to place the number were they voting for a candidate whose name appeared either immediately above or immediately below the candidate in question on the ballot paper the more it may become necessary to form a judgement as to whether the candidate in whose favour the voter may have intended to give a first preference has been clearly identified At a certain point it may cease to be the case that it can be said that the first preference is clear for the location of the number or word may be such as to create a real doubt as to which of two candidates was the intended beneficiary of the vote concerned But in such a case there is no hard and fast rule It is a matter of impression It involves the exercise by the returning officer of a judgement In my view a court should not second guess the judgement of a returning officer in that regard unless it can be demonstrated that the returning officer s view was manifestly ill founded or clearly wrong The reason for taking that view is that the issue which the returning officer would have to decide in such a case is a pure matter of adjudication and not a matter which involves any question of law at all The only legal question is as to whether a preference has been clearly indicated Whether that is so having regard to the positioning of the number or word concerned is purely a question of judgement 5 5 However a case such as this does raise a more significant issue which involves at least potentially and in part a legal question Is a sequence of numbers which does not commence with 1 capable of clearly expressing a first preference That is at least in part a question of the proper interpretation of the legislation and thus a question of law 5 6 I should start by stating that it appears entirely reasonable for the returning officer to have formed the view in conformity with the suggestion in the Guidance that it was likely that many perhaps most of the voters who completed a ballot paper with a sequence of numbers not starting with 1 did as a matter of fact do so because they erroneously voted sequentially between the two ballot papers which they were completing on the occasion in question It may well be that a voter who made that error could be said to have intended to give a first preference to the candidate to whom they attributed the lowest number on the second ballot paper in question It is undoubtedly probable that quite a number of the ballot papers which were included in the count in this case even though they did not contain the number 1 were completed by the voters in question in that way However there could be other reasons why a voter might have omitted a number 1 on their ballot paper Not all voters start with the number 1 and continue down the ballot paper writing successive numbers until they have reached the end of the candidates on whom they wish to confer a preference Some voters might give lower preferences first and work backwards Alternatively a voter may have decided to confer their first two preferences on the candidates of a particular party but might have proceeded to give lower preferences first before coming back to deciding which of the candidates of their preferred party was to get a first preference and which a second Many other examples can be given Therefore it does not follow that the absence of a 1 on the ballot paper necessarily implies that in each and every case the voter in question made the error of voting sequentially between the two ballot papers There may be other explanations which might suggest that the relevant voter did not intend to give a first preference to the individual opposite whom the lowest number was written on the ballot paper but rather intended to return to give a first or other high preference to other candidates but for some reason did not do so 5 7 I do not doubt that taking one ballot paper with the next the sequential voting between ballot papers explanation is much more likely and that therefore of a set of ballot papers containing the problem with which this Court is concerned in this case it is probable that the majority or even a significant majority can be explained by that error rather than some other mistake But it does not seem to me that that analysis represents the correct approach in law It is not a question of determining whether as a matter of probability the majority of votes displaying a particular problem might have been completed as a result of an error which would lead to the inference that a number other than 1 was intended to confer a first preference Rather the question is whether each individual ballot paper can be said to clearly indicate a first preference for the candidate opposite whom the lowest number had been written In my view it can not be said that this is clearly the case It must be recalled that while the intention of the voter lies behind the exercise the test is as to whether the ballot paper itself conveys a clear preference 5 8 While it might well be said that it is probable that a significant majority of the ballot papers displaying a sequence not beginning with 1 might have resulted from an error in which the voter placed the lowest number opposite the candidate on whom they wished to confer a first preference it cannot be said that this is clearly so in respect of any individual ballot paper not least because there are other explanations For those reasons it does not seem to me that as a matter of law the presence of a number other than 1 opposite a candidate can be said to clearly confer a first preference on the candidate in question It is not necessary therefore to consider whether a number can be a mark within the meaning of the Regulation Even if it is possible that a number might be a mark for that purpose it does not seem to me that a number other than 1 can be taken to have sufficiently clearly indicated that each individual voter intended that larger number to represent a first preference even though it may well be the case that a significant number of the voters did so intend 5 9 As noted earlier it is also necessary to consider the extent to which a court hearing an election petition should defer to the judgment of a returning officer on questions such as the one which lies at the heart of this appeal As also already noted there may well be questions of pure judgement in respect of which the Court should confer considerable deference on a returning officer However the question which arises on this appeal is as to whether a sequence of numbers not beginning with 1 is capable as a matter of law of clearly indicating a first preference That question does not come down to one of pure judgement but rather involves at least to a material extent a question of law or at least the proper application of law to particular circumstances For the reasons which I have sought to analyse I am not satisfied that a sequence of numbers starting with a number other than 1 can clearly indicate a first preference for there is a range of explanations as to why a voter might have omitted a 1 at least some of which are inconsistent with the view that the voter was intending to confer a first preference on the candidate opposite whose name the lowest number appeared 5 10 In those circumstances as a matter of law I am not satisfied that in respect of any individual ballot it can be said that a number other than 1 can clearly demonstrate a first preference Thus the decision to include such ballots amounted to a mistake of law and does not involve the type of decision where the Court should accord significant deference to the judgment of the returning officer 5 11 For the avoidance of doubt I should emphasise that what I am concerned with here is a ballot paper which contains a number other than 1 rather than a non numerical mark which might reasonably be interpreted as amounting to the equivalent of a number 1 Thus it may well be reasonable for a returning officer to interpret a ballot paper which contains an X followed by a 2 3 and 4 as representing a ballot paper with a clear first preference in favour of the candidate opposite whose name the X appears Like considerations may well apply where other marks which might be taken to represent a first preference are found followed by the numbers 2 3 and 4 This judgment is not concerned with such votes Rather this judgement is concerned with ballot papers which contain only numbers but where the lowest number is not 1 or one 5 12 Indeed it is worth noting in passing that if it did transpire that some of the voters whose votes are in question on this petition had made one of the other types of errors which I identified above a significant and additional injustice would be visited on that voter as a result of the inclusion of the vote in question Let us take the example of a voter who remained undecided as to which of the two candidates of a particular party she wished to benefit with a number 1 and who therefore filled in the rest of the ballot paper with numbers beginning with 3 Let us assume that the same voter was then distracted perhaps by completing the other ballot paper and forgot to come back to include a 1 and a 2 for the candidates of the party of her choice The inclusion of such a ballot paper in the count would actually mean that the ballot of the voter in question would be treated as a number 1 for a candidate opposed to the preference of the voter in question That voter could not complain about her vote being excluded because it was her error not to go back and fill in a 1 and a 2 She might however have a legitimate complaint if her vote was actually counted against the candidate s on whom she hoped to confer a first or second preference 5 13 In any event it seems to me that Mr Kiely has established that there was a mistake in the conduct of the count in this case That mistake was the inclusion of votes which cannot be said to have contained the number 1 the word one or an acceptable mark which clearly indicated a first preference Given that finding it is therefore necessary to turn to the question of whether it can be said to have been demonstrated in a proper fashion that such an error affected the result 6 Did the error affect the result 6 1 The starting point has to be to identify the test by reference to which this question must be judged As noted earlier an analogous question in the context of a referendum was addressed by this Court in Jordan The test identified by the Court is to be found in the judgment of O Donnell J where he said at para 85 Accordingly I would hold that material effect on the outcome of a referendum involves establishing that it is reasonably possible that the irregularity or interference identified affected the result Because of the inherent flexibility of this test it may be useful to add that the object of this test is to identify the point at which it can be said that a reasonable person would be in doubt about and no longer trust the provisional outcome of the election or referendum 6 2 There are a number of questions which arise in relation to the proper application of that test in the circumstances of this case The first is a question of evidence As petitioner the onus to prove his case undoubtedly rests on Mr Kiely It is for him to demonstrate that the conditions necessary for the Court to intervene are present There are however questions as to whether Mr Kiely has properly established sufficient facts to warrant the Court s intervention It might be said that there are two aspects of the facts which are not very clear on the evidence and which it is argued against Mr Kiely could have been the subject of better evidence presented on his side Those two aspects of the facts concern the precise number of votes which were included as a result of the mistake which I have already identified and also the question as to which candidates might have been favoured by the inclusion of the votes in question On the basis of what is said to be the inadequacy of the evidence presented by Mr Kiely in that regard it is argued that he has failed to discharge the onus of proof which rests on him 6 3 In that context it must of course be noted that the trial judge did not consider there to have been any error and therefore the question of the materiality of any error was not the subject of a particular focus of the judgment The trial judge held that the outcome of the election would have been the same even if Mr Kiely had succeeded on either the first or second grounds originally raised i e on the ground that the returning officer should not have refused to include the re examination of doubtful ballots in a recount or on the ground that the returning officer should not have adjudicated on doubtful ballots without notifying Mr Kiely or ensuring his presence Those issues were not raised on this appeal However having considered that the returning officer was entitled to admit such votes as in his opinion clearly indicated a first preference the Court did not expressly consider whether the outcome of the election might have been different had these votes not been included This is so even though the trial judge recorded that i t is the Petitioner s case that the admission of ballot papers without a 1 or a one probably would materially have affected the result there being so many of them at p 16 of his judgment 6 4 Be that as it may the principal argument made against Mr Kiely under this heading is that he could and it is said should have exercised the entitlement to apply to the trial judge to be allowed to inspect the ballot papers and thus have put himself in a position to present more detailed evidence as to the practical consequences for the result of the election of the inclusion of the contested votes There is no doubt but that the trial judge would have had authority to allow the votes to be inspected It is however illustrative to note what happened in Bell In that case Hamilton P of his own motion arranged for the questioned ballot papers to be looked at by an experienced returning officer for the purposes of ascertaining whether even if the point made by Mr Bell were correct a different view on the validity of the ballots in question would have made any difference to the result It is interesting to note that at the elections to the European Parliament which were the subject of the petition in Bell differing views on the inclusion of ballot papers containing a sequence of numbers starting with a number other than 1 had been taken by different returning officers Hamilton P did not find it necessary to express a view as to what the correct approach was precisely because having adopted the course of action to which I have just referred it became clear that even if Mr Bell were correct in his legal contention it would not have altered the result However in Bell that factual situation became clear as a result of the decision of the trial judge to conduct a counting exercise under his own direction and with the assistance of an experienced returning officer rather than as a result of the presentation of evidence by the petitioner 6 5 The real question is as to whether there was something amounting to an obligation on Mr Kiely to present detailed evidence as to precisely how many votes were involved and which candidates they favoured Even in that context it must be acknowledged that scrutiny of the relevant votes would not necessarily have given rise to absolute clarity One of the consequences of the exclusion of the relevant contested votes would of course have been that the total valid poll would thus have been reduced with a consequent reduction almost certainly in the quota There would therefore have been potential knock on effects on how certain counts would have been conducted in that a reduced quota might mean a larger surplus for a particular candidate Precisely how through a series of counts the effect of the exclusion of the votes in question would have fed into the ultimate result is not a matter which a simple perusal of the votes in question would necessarily have disclosed The quirks of the proportional representation system including the sequence in which candidates are eliminated the method by which a surplus is distributed including the fact that a different method is adopted in respect of the distribution of a surplus arising on a first count as opposed to a surplus arising on a second or subsequent count and other matters of detail mean that the exclusion of even a relatively modest number of votes could potentially have consequences which would not necessarily be apparent from a simple consideration of the relevant ballot papers 6 6 Be that as it may it seems to me that the answer to this question lies in the test identified by this Court in the judgment of O Donnell J in Jordan 6 7 The starting point has to be the evidence It would appear that the trial judge was satisfied that of the ballots which were specifically referred to the returning officer as being questionable 57 were admitted to the count with 173 being excluded It seems reasonable to infer that the ballots the admission of which is questioned in these proceedings must have formed part of the 57 ballot papers ultimately admitted There does not appear to have been direct evidence as to just how many of the 57 ballot papers which were thus admitted had originally been queried on the basis of having a sequence of numbers not beginning with 1 or one Doubtless some the relevant 57 ballot papers were queried on other grounds but were nonetheless found to be valid Thus only a proportion of those 57 votes could be said to have involved ballots with a sequence of numbers not including 1 However as already noted there were only two votes in it on the final count It would not have taken much to change the result There seems to me to be a realistic possibility that there might have been enough votes of the questioned type included so that having regard to the quirks of the proportional representation system to which I have already referred it would not be unrealistic to regard it as possible that the result could have been different had those votes not been included 6 8 To use the terminology adopted by O Donnell J in Jordan it is reasonably possible that the inclusion or exclusion of the contested votes might have affected the result Likewise the point was reached where a reasonable person would be in doubt about and no longer trust the result as declared on being told that the returning officer had by a mistake included in the count votes which ought properly to have been excluded 6 9 The fact that it might have been possible for Mr Kiely to present better evidence in that regard does not take away from the fact that the evidence which was before the trial judge gives rise to an inference that there was a realistic possibility that the result might have been different had the votes in question been excluded In my view Mr Kiely met the onus of proof which rested upon him Any other party could of course have also sought the examination of the contested ballot papers If such an examination had taken place during the hearing of the Petition and if as in Bell it had thereby become clear that the exclusion of the ballots in question would not have availed Mr Kiely then the fact that he had met the prima facie burden of proof would nonetheless not have availed him But no other party chose to present such evidence either 6 10 Indeed it seems to me that the very fact that one of the orders which a court can make in the course of an election petition is to direct that the ballots be counted afresh means that it cannot be the case that there is an absolute onus in all cases on a petitioner to present evidence of what is contained in the ballot papers If such an onus rested on a petitioner then the Court would have that evidence at the hearing and it is very difficult to see what point would be served by requiring the votes to be counted afresh That is not to say that there may be cases where it would be impossible for the petitioner to discharge the onus of proof to the appropriate standard without presenting some evidence as to what was contained in the ballot papers However for the reasons which I have sought to analyse I am not satisfied that this was such a case for the evidence which Mr Kiely presented to the trial judge was in my judgment sufficient to discharge the onus of proof that rested on him 6 11 In my view therefore it follows that not only has Mr Kiely demonstrated that there was an error in the conduct of the count but also that that error meets the threshold of materiality identified by this Court in Jordan Before going on to consider the consequences of those findings I wish to make a number of brief observations 7 Some Observations 7 1 First I should say that in the light of those findings it is unnecessary to consider whether the failure to reassess the admissibility of contested ballot papers on a recount amounts to a mistake or irregularity There was in any event a mistake which is sufficient to meet the statutory test under s 5 1 a of the 1974 Act 7 2 Next it is necessary to say something about what is sometimes referred to as the sanctity of the bundles There is a certain degree of randomness in the conduct of a multi seat proportional representation count under our system The reason for that randomness stems from the way in which physical ballot papers are transferred when the surplus of a candidate who exceeds the quota is being distributed In general terms all relevant ballot papers being all ballot papers in favour of a candidate who is elected on the first count or all of the ballot papers which were transferred to the candidate concerned on a subsequent count where the transfer in question had the effect of bringing the candidate over the quota are examined and the surplus is distributed proportionately Thus far there is no element of randomness 7 3 However when it has been determined that a particular number of votes is to be transferred as a result of a surplus the physical ballot papers being the relevant proportion required to be transferred are taken from the top of the bundle in

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  • relevant ballot papers and established to the satisfaction of all sides that even if these ballot papers had been included the petitioner would not have been elected either way referenced in Whelan Politics Elections and the Law Dublin 2000 The transcript of that decision of 24 November 1989 has been furnished Hamilton P considered all the relevant ballot papers it appears with assistance from an expert and did a count which established that the election result would have been the same There was no reason not to do the same on this election petition Here as there were 57 ballot papers to be excluded it is not beyond proof to show the probable effect of that on the outcome of this election These precedents while not binding this Court indicate that only by producing the disputed ballots to a judge can a candidate on an election petition establish that the result of the election would have been different 5 The figures recorded as primary fact by the trial judge His Honour Judge Moran of the South Western Circuit are that there were 230 doubtful ballots The returning officer rejected 173 of these and admitted 57 as valid Turning shortly to whether a recount involves a reconsideration of all 230 ballot papers it is the 57 admitted that are here of importance The transcript of the hearing elucidates that the extraction and calculation of the effect of these renders it possible to demonstrate the probable outcome of their exclusion from the recount Those challenging an election result must do that On 18 June 2014 the second day of the hearing before Judge Moran the deputy returning officer Michael McMahon responsible for the Listowel electoral area explained how the issues concerning ballot papers with a numerical sequence beginning later than a 1 were dealt with by him Any ballot paper which was rejected was stamped rejected and was put aside This did not form part of the count and consequently those ballot papers were never included in the bundles upon which the proportional representation system is based As to an admitted ballot where there had been a dispute or a potential dispute this was stamped valid and then subject to the procedure as explained by the witness thus In some cases where I made it clear without interfering with a mark that was on the ballot paper I made it clear what my ruling was in either in admitting it or in terms of future counts because I didn t want a situation where a vote might be disputed or that the staff wouldn t be clear what my decision was Beside the three four and five in a green biro I wrote one two three to give a clear indication these papers are then going being given back to the counters who had already raised them as doubtful papers and I m giving a clear indication to those counters of what I m allowing He described the process of taking about an hour These ballot papers are identifiable from the stamp and from the green biro corrections There absence from the case should be fatal to the proof of the petition 6 The trial judge dealing with this issue although holding against the petitioner on the issue by deciding that a recount cannot include a re examination of doubtful ballots and in holding that the returning officer did not have a duty to ensure that the petitioner was present at any adjudication of doubtful ballots and holding that it was valid that later numerical sequence beyond one commencing with 1 allowed such votes as valid also held as follows First Mr Patrick Enright solicitor and election agent for Mr Kennelly one of the candidates testified that he was at the adjudication of doubtful ballots that very little was said by any of the persons present but he Mr Enright made the most representations and that very little if anything which he said influenced the returning officer to change his mind Mr Enright s recollection is that there was just one doubtful ballot which aroused any real interest Secondly the petitioner on whom is the burden of proof has not produced any evidence to contradict the said evidence of Mr Enright Thirdly there was no controversy about the adjudication of doubtful ballots and there is no reason to conclude that the returning officer would have or should have altered any decision by reason of the presence of the petitioner or by reason of any representation made by the petitioner or anyone on his behalf 7 While the above describes a consensus among the candidates present at the doubtful ballot examination in favour of admitting ballot papers commencing within an apparent first preference beyond 1 it remains a matter of speculation where physical proof was possible that the exclusion of 57 ballot papers from the thousands cast would have resulted in a different election outcome Of course that is possible but the onus is on the petitioner to establish a different outcome That outcome can be for or against Dan Kiely or for or against another candidate but probable proof that the complained irregularity would lead to a different result is required Hence the dissent on this point 8 On the main issue of 3 4 5 etc becoming 1 2 3 and so on it is difficult not to feel sympathy for the returning officer Experience in prior elections had shown two distinctive approaches taken by the Irish electorate One was a form of expression which was by demonstrating a first preference with a tick or an X and continuing with the next preferences as 2 3 4 That process demonstrates a clear choice and one which on any reasonable analysis is unambiguous There is nothing to indicate that the admission of such ballots falls foul of the relevant legislation The other however demonstrates a dangerous ambiguity Certainly it is the case that the evidence before Judge Moran was that where a

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  • to prosecute and in the same breath to defend a claim both on behalf of and against the Estate If he wished to pursue a cause of action he should not have sought a grant or if he had already obtained same he should renounce it in which case an independent person would be required to extract a grant of representation with Will annexed so as to administer the Estate and as part thereof to consider the merits of the claim made and if necessary to defend it This applied to both applications made under ss 117 and 121 of the Succession Act 1965 respectively 20 The learned judge stated that it is clear from the provisions of s 9 2 b of the Civil Liability Act 1961 as amended the 1961 Act that the relevant limitation period for maintaining a cause of action which has survived against the estate of a deceased person is that which first expires the period of two years after the date of death or at most a twelve year period from the 5th February 1990 the transfer date The court was satisfied that the plaintiff did not have standing to challenge the Deed of 5th February 1990 and that the purported claims were not maintainable by reason of the efflux of time and in the face of the statutory period for the bringing of same There had been undue and inordinate delay and the reasons advanced to explain it could not excuse it 21 The transfer was made in 1990 and registered in 1991 Rita McHugh died in January 1998 Proceedings did not issue until more than six years later on the 4th March 2004 Furthermore the plaintiff remained on the land for some time after his mother s death The Court was satisfied that such a delay was inexcusable in the circumstances Even in light of the plaintiff s submission that he was not aware of the defendants ownership of the lands until they sought possession shortly after his mother s death it was still a further six years before he took action The Court was satisfied that s 9 2 of the Civil Liability Act 1961 precludes the plaintiff from making a claim after two years from the date of the death of the deceased Accordingly the Court granted the defendants application and made the orders as next appearing High Court Order 22 The High Court in an Order dated the 28th February 2012 and perfected on the 3rd May 2012 ordered that the action be dismissed and that the plaintiff pay all costs including reserved costs The lis pendens registered on the lands in Folio 43217 F was vacated The plaintiff was refused liberty to deliver a defence to the Counterclaim judgment was entered against him in respect of that claim with damages to be assessed by a judge sitting alone A stay on the High Court Order was refused Further although not so expressly stated the learned judge in his judgment also effectively refused to allow the plaintiff to deliver an Amended Statement of Claim In this regard however let it be immediately said that even if allowed the amendments would not in the learned judge s view cure the inordinate and inexcusable delay point and more specifically could not overcome the statutory bar contained in s 9 2 of the 1961 Act Notice of Appeal 23 By Notice of Appeal dated the 18th May 2012 the appellant indicated his intention of appealing to this Court against the judgment and Order of the High Court The grounds relied upon are numerous involving much repetition and duplication rather than setting these out or even attempting to paraphrase them I think that I do no injustice whatsoever to Gerard McHugh if I quote para 8 of his affidavit sworn on 20th February 2015 it reads The plaintiff contends and will contend at the hearing of the plaintiff s motion and the hearing of the plaintiff s appeal and any subsequent hearing in relation to this case the following A That the plaintiff is entitled to be considered the legal personal representative of his mother the late Rita McHugh and in March 2004 to bring proceedings in this case B That the said Deed of Transfer dated 5th February 1990 was a wholly improvident Deed and would likely be declared null and void and struck out by a court on a number of grounds said grounds have been set out in the plaintiff s submissions elsewhere C That the plaintiff s case should not have been dismissed by Justice Murphy on the grounds that it is barred under the Statute of Limitations D That the plaintiff is not guilty of causing inordinate delay either in bringing his case against the defendants Myles and Anthony McHugh or in bringing said case to trial and that any such delay should not be deemed to be inexcusable and E That the Supreme Court is empowered under O 58 8 of the Rules of the Superior Courts 1986 to allow the plaintiff adduce evidence as contained in the plaintiff s documents index and not least in circumstances where there is such a clear dispute on facts Notice of Motion 24 On the 12th December 2013 the appellant issued a motion returnable before this Court seeking permission to include in the Books of Appeal a collection of documents described as an Exhibit Index so that the same might be referred to and used by him as part of his appeal This application was grounded upon a supplemental affidavit in which over almost 100 paragraphs in fairness all very brief he identifies each document what in broad terms it covers and how in his view it is relevant to the appeal As the respondents objected to the admission of virtually every such document the court decided to adjourn further consideration of the application to the appeal proper Hence that issue is also before this Court Submissions of the Appellant 25 In his Written Submissions for Permission to Appeal Gerard McHugh described the judgment of Murphy J as being based on two grounds a that he was not the legal representative of the deceased at the time of bringing the proceedings in 2004 and b that his case was outside the time allowed for bringing such action under the Statute of Limitations and further that there was inordinate and inexcusable delay He strongly challenged both of these conclusions 26 The plaintiff in person presented his address on these issues and responded in a succinct and admirable manner to any engagement instigated by the court He referred to s 10 1 of the Succession Act 1965 the 1965 Act which provides that both the real and personal estate of a deceased person shall on his her death notwithstanding any testamentary disposition devolve on and become vested in his her personal representative s He said that an executor who carried out certain acts or functions in relation to an estate might be deemed to have accepted the office His intention from the outset he submitted was to prove the Will and as the sole beneficiary he also had a particular interest in the prosecution of these proceedings 27 Mr McHugh also referred to McGlynn v Gallagher 2007 I E H C 329 a case which he said touched upon the locus standi of a beneficiary to bring an administration suit In that case the plaintiffs had extracted a grant of probate 18 months after the death of the deceased having been nominated as executors in her last Will and Testament Edwards J dismissed the first named defendant s appeal from a comprehensive order of the Circuit Court which endeavoured to cover every aspect of that long running litigation The plaintiffs had a grant of probate and the court was not entitled to look behind it While the defendants were beneficiaries and the plaintiffs were not the issue of the locus standi of such beneficiaries to seek a Grant simply did not arise in these circumstances 28 The appellant submitted that the jurisdiction of the court to strike out or stay proceedings exists so as to ensure that an abuse of process does not take place Barry v Buckley 1981 I R 306 per Costello J Thus proceedings will be stayed if they are frivolous or vexatious or if it is clear that the claim as advanced must fail The other purpose of the jurisdiction is to ensure that litigants are not subjected to the time consuming expensive and worrying process of being asked to defend a claim which is unstateable and which therefore cannot succeed His claim he submitted did not fall into either of these categories 29 Mr McHugh conceded that his claim under s 117 of the 1965 Act and his reliance on estoppel principles could not be asserted against the defendants respondents Nevertheless the remainder of the cause of action was a serious and significant claim concerning the validity of the deed of transfer Where a relationship giving rise to a presumption of undue influence is established and where it is shown that a substantial benefit has been obtained the onus lies on the donee s to prove that the gift or transaction in question resulted from the free exercise of the donor s will Carroll v Carroll 1999 4 I R 241 was cited as an authority for this proposition 30 On the issue of delay it was also submitted that there could be no possible prejudice in allowing the case to proceed as all of the key witnesses were available to give evidence Respondents Submissions 31 The respondents identify the issues arising on this appeal as being a whether the plaintiff should be permitted to maintain a claim to set aside the Transfer b whether the plaintiff should be entitled to amend his Statement of Claim to include a plea of estoppel against the Defendants and c whether the default judgment in respect of the Defendants counterclaim ought to be set aside 32 The respondents submit that the High Court Order as made by the learned trial judge constitutes a final order for the purposes of the Rules of the Superior Courts 1986 The Minister for Agriculture v Alte Leipziger AG 2000 4 I R 32 at pp 44 and 50 Woods v Woods unrep 3rd April 2003 Accordingly leave to adduce any new evidence is required They say that the appellant cannot satisfy two of the requirements for the admission of such evidence being those identified in Lynagh v Macken 1970 I R 180 Firstly he has not explained why the evidence which he now seeks to adduce was not used in the High Court Secondly he has not sought to explain the influence which such documents might have on the result of case It is not appropriate they say for the court to form its own view as to either of these matters there must be evidence to meet the criteria which in the respondents view simply does not exist in this case 33 In Keating on Probate 4th ed the author having referred to Ingall v Moran 1944 1 K B 160 at para 21 28 says It is well established that an executor can institute proceedings and maintain an action before probate of the testator s will is obtained but a grant will be necessary before the hearing of the action 34 In the present case on no occasion from the time of death in 1998 through the issue of the Statement of Claim in 2004 and right up to 2011 did the appellant seek to sue or maintain a cause of action in his capacity as executor of the deceased his only claim in this regard being limited to obtaining a Grant of Probate to the Estate of the deceased person Mr McHugh did not extract a Grant until 2011 some 13 years after the date of death and over 20 years subsequent to the Deed of Transfer In the interim he had put forward claims under ss 117 and 121 of the Succession Act 1965 as well as claiming promissory estoppel against the deceased these claims were entirely inconsistent with the position of a legal personal representative 35 The respondents submit that allegations based on the alleged breach of legitimate expectation and promissory estoppel were barred in law by the time of the institution of the within proceedings Any claim which the plaintiff could now bring as executor would appear to be in equity in which case the principle of laches as well as those involving inordinate and inexcusable delay would apply 36 The respondents say that the appellant in the institution and in the prosecution of these proceedings has been guilty of inordinate and inexcusable delay and that his claim on this ground alone should be dismissed It is said that the principles underlying such a rule are well established Firstly the court must determine that the delay has been both inordinate and inexcusable the onus of establishing the same is on the party so alleging Secondly even where an inordinate and inexcusable delay is found to exist the court must exercise a judgment on whether in its discretion the balance of justice is in favour of or against the continuation of the case Rainsford v Limerick Corporation 1995 2 I L R M 561 at p 567 Rainsford Primor Plc v Stokes Kennedy Crowley 1996 2 I R 459 37 The respondents address two specific issues in this context both of which have been the subject of judicial discussion in recent years firstly the impact of the European Convention on Human Rights ECHR on applications to dismiss and secondly the extent to which a defendant s inactivity is taken into account when addressing the balance of justice point The former i e the Convention was looked at in cases such as Gilroy v Flynn 2005 1 I L R M 290 Stephens v Paul Flynn Ltd 2008 4 I R 31 Desmond v M G N Ltd 2009 1 I R 737 Rodenhuis and Verloop BV v HDS Energy Ltd 2011 1 I R 611 and Comcast International Holdings Inc v Minister for Public Enterprise 2012 I E S C 50 Comcast The respondents submit that despite a difference in judicial views as to whether the ECHR requires a tightening up of the test applicable to cases of delay such that the courts should be less indulgent than previously in practice the relevant principles remain unchanged 38 As regards the role of alleged inactivity on behalf of a defendant as an ingredient to be considered when determining where the balance of justice lies Rainsford the respondents state that later decisions suggest that little weight should be given to this consideration Anglo Irish Beef Processors v Montgomery 2003 I R 510 De Braam Mineral Water Company Ltd v BHP Exploration Inc 2011 I E H C 46 The respondents acknowledge the judgment of McKechnie J in Comcast where certain circumstances were identified which might result in a defendant s inactivity being treated as a significant factor militating against granting an application to dismiss however it was forcibly argued that no such factors are present in the instant case 39 The respondents say that in light of facts of this case the trial judge could not have come to any conclusion other than that there had been inordinate and inexcusable delay in the commencement of these proceedings given that they had issued in March 2004 almost six years after the plaintiff had become aware of the Transfer and had been evicted from the lands Furthermore they state that Mr McHugh then failed to progress the proceedings to the point where the pleadings were closed and the issues were properly defined for a further period of seven years Thus the High Court was justified in concluding that there had been inordinate and inexcusable delay in prosecuting the claim The respondents further assert that a trial which was concerned with factual issues which occurred over twenty years ago could not be fair They submit that the Court should also have due regard for the value of the subject land and that the continuation of the present litigation would be disproportionate to that value 40 The respondents further submit that the High Court was correct in dismissing all other aspects of the appellant s claim a situation which in effect he himself has acknowledged by indicating that the only cause of action with which he now wishes to proceed is the challenge to the Deed of Transfer 41 As regards the Counterclaim they say that in the absence of a reply and defence thereto the High Court was entitled to grant judgment in such circumstances and that the order so declaring should stand Any issues in relation to quantum can be addressed in the context of the hearing to assess damages 42 The respondents answer to the motion which had been issued para 24 supra is to say that the proposed amendments to the Statement of Claim even if allowed could not have saved the claim from being dismissed by the court in the exercise of its inherent jurisdiction and as such the court was correct to refuse the relief prayed for in that motion 43 By a supplemental legal submission the respondents addressed the level of review that this Court should engage in when considering an appeal against a discretionary Order of a High Court Judge They say that the Court should not interfere with such an Order provided that as in this case it is within the limits of the trial judge s reasonable discretion Decision 44 The jurisdiction to terminate an action without a due merits consideration of the issues involved is one which produces a truncated form of justice and is one even if very well established which is inherently capable of creating an unforeseen injustice unless the many safeguards

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  • it is that the prosecution will not proceed with the charge because the privilege of the informer is not theirs to waive The defence are in addition to scrutiny by the prosecution within their rights to seek to ask the court of three judges sitting as the Special Criminal Court to look at the documents themselves and to rule if innocence is anywhere supported therein 13 On behalf of Thomas Redmond however it is asserted that this safeguard is not satisfactory Even though it is accepted on his behalf that judges can read documents and not have regard to them as evidence as to whether the prosecution have proved the charge beyond reasonable doubt in other words not be prejudiced thereby that procedure is asserted to be unsatisfactory On behalf of Thomas Redmond it is argued that even if the court looked at the documents in the possession of the Chief Superintendent the judges themselves could just as easily be misled by unreliable informants Essentially it was claimed on this appeal that without confrontation with the informant to assess the reliability of his information that the accused was a member of the self styled IRA a trial would be fundamentally unfair and contrary to Article 38 1 of the Constitution The appointment of a special advocate apart from and in addition to defence counsel it is claimed for Thomas Redmond would make that situation better but not perfect In fact it was conceded on behalf of Thomas Redmond that the special advocate procedure would not save the impugned subsection from unconstitutionality A special advocate would not be entitled to communicate any interaction he might have with the informer to the accused thus undermining lawyer client confidentiality and trust The scope for cross examination on the basis of the special advocate s reports to ordinary defence counsel would be limited it is claimed and would certainly be less than that which would apply in an ordinary criminal trial Thus the system as it now is and the system as it might be reformed to incorporate special advocate procedures would both fail Thomas Redmond argues to secure a fair trial It might be further commented that the privilege of an informer would be infringed were he or she obliged to be reveal his or her identity to such a special advocate The ostensible necessity for the subsection 14 Before the High Court in the plenary action and before this Court on appeal argument on both sides addressed the backdrop against which the impugned section of the Act of 1972 was introduced and which continues today McMahon J summarised the evidence which he accepted in the High Court in that regard thus Detective Superintendent O Sullivan testified that he had served in An Garda Síochána for thirty two years and had spent over twenty years and involved in the investigation of subversive crime His responsibilities are State security the gathering and analysis of intelligence and the investigation of subversive crime within the jurisdiction Referring to the increased activities and attacks of the IRA in the 1930s he explains the necessity for the introduction of the Offences against the State Act in 1939 The IRA was declared to be an unlawful organisation and that suppression order still continues in this jurisdiction In detailed evidence to the court gave a brief history of the IRA and the emergence of a breakaway faction in around 1969 now known as the Provisional IRA Having outlined the objectives of the IRA he gave a description of the treatment meted out to people who are suspected of assisting police investigations which included interrogations and torture and sometimes resulting in executions The fact that it is an oath bound secret organisation divided into cells creates problems for the gardaí making it very difficult to infiltrate the organisation and gather evidence to prosecute member volunteers The organisation is very energetic and trying to identify members of the public who provide information to the police and are very assiduous in collecting evidence including closely examining books of evidence to identify any such persons If anyone is identified in this manner it usually results in serious torture or death This represents a serious problem for the gardaí who bring prosecutions before the ordinary courts where witness and jury intimidation are not unknown In 1972 the Government introduced an amendment to the Offences against the State Act 1939 Section 3 2 of this Act seeks to address the difficulties which confronted the law enforcement agencies in these situations The witness also gave evidence that there are only about 69 members of the force of Chief Superintendent status or higher who can give evidence under this provision In fact he testified that only 17 or so have the relevant experience to give such evidence in practice The threat continues today In 1994 the leadership of the Provisional IRA adopted a policy of cessation of military operations This caused unrest with some hardliners and after the October Convention in 1972 for these policy matters were discussed within the republican movement a breakaway group styling itself 32 County Sovereignty Committee subsequently the thirty two County Sovereignty Movement was established It was from this grouping that the Real IRA was born This group is committed to securing its objectives by physical force and was strongly opposed to the political process favoured by the Provisional IRA Subsequently a campaign of violence throughout Ireland and the United Kingdom was carried out by this group Detective Superintendent O Sullivan gave details of the threat which this group represented for the State and the institutions of the State He gave direct evidence of the many investigations into the activities of the IRA in which he was involved and declared that a common feature in all of these investigations is the presence of fear intimidation and the threat of reprisals As a result witnesses have refused to give evidence in court even when they have initially made statements to the gardaí When asked by counsel for the State Has it ie section 3 2 been an important tool in terms of prosecuting at obtaining convictions in respect of alleged offences of membership of subversive organisations such as the Provisional IRA and the other variants of the IRA the witness replied Yes Judge In the last number of years it has been of enormous help to An Garda Síochána in endeavouring to combat the threat posed by the IRA and I believe if it were not there we would not have succeeded in counteracting that threat He went on to say that the threat is an ongoing one and that without section 3 2 the hands of the police would be tied in their efforts to combat terrorism and the threat posed by the IRA 15 To the evidence briefly referred to and the arguments summarised above it might be added that the self styled IRA has purported to carry out a campaign of sadistic violence and terrorism with the ostensible aim of achieving a united Ireland on behalf of all of the people of this island both before and after the Act of 1972 was passed There has been no mandate for this Dissent from the decision to cease violence in 1994 continues to pose a real threat of igniting further civil conflagration within this island As this Court has previously commented through the judgment of Geoghegan J at p 121 in Kelly the legislative backdrop enables a reasonable inference that the subsection was enacted out of bitter experience High Court judgment 16 In the High Court McMahon reasoned thus that the impugned section was in conformity with constitutional guarantees At the end of the day what is significant about s 3 2 is that it merely makes admissible evidence of what is the Chief Superintendent s belief The court does not have to accept it much less convict on it Its abnormality in that regard is recognised in the system by the reluctance of the D P P to proceed on such evidence only as well as the reluctance of the Special Criminal Court to convict on it only Its frailty is well highlighted by the defence in this case the material on which the Chief Superintendent bases his belief is hidden from the accused and his legal advisors Insofar as informers are involved there is no opportunity offered to the accused to test their motives their history their integrity or what private agendas they may have They are shadows or ghosts as counsel for the defence describes them with whom the accused cannot engage To that extent the accused is certainly placed at a disadvantage and has to engage in the normal adversarial process labouring under a handicap Nevertheless when such evidence is admitted the weight given to this evidence alone or combined with other evidence is a matter for the trial court In assessing the weight in deciding how this piece of untested evidence feeds into the trial court s decision the court will no doubt bear in mind the unusual nature of this evidence and all the weaknesses it has as evidence being unavailable to and untested and unchallenged by the defence Many judges for these reasons might well deem such bare opinion evidence insufficient to convict and may if that is the only evidence before the court say that the State has failed to prove its case beyond reasonable doubt That is what happened in The People D P P v Binéad 2007 1 I R 374 By ruling that it would not convict without supportive or corroborative evidence of that belief the trial court clearly recognised the disadvantage which flows from and accrues to the defence in a trial from the admission of such belief evidence with an accompanying claim to privilege which may limit in a particular case the ability to test fully by cross examination the underlying material facts leading to that belief I am not willing to say however that it could never be sufficient The circumstances of each case will differ and that is why so much responsibility is at the end of the day placed on the trial court It is also important to note that the Chief Superintendent gives his evidence in open court The court has the obligation and the opportunity to assess the honesty of that belief This belief evidence can be subjected to cross examination The court can examine if it considers it necessary the material on which the belief is based admittedly out of sight of the accused and make its own assessment as to whether it is sufficient to support the belief Director of Public Prosecutions v Special Criminal Court 1999 1 I R 60 The People Director of Public Prosecutions v Binéad 2007 1 I R 374 at 396 Contrary to the argument advanced by the plaintiff I do not accept that there is a presumption that the Chief Superintendent is telling the truth The accused can challenge the privilege He can cross examine the Chief Superintendent perhaps a risky tactic in many cases and he can give evidence himself Fennelly J speculates that if the accused gives evidence to that effect that he is not a member of the relevant organisation it would be very difficult to convict him on the Chief Superintendent s bare evidence and I agree Finally an appeal lies from the Special Criminal Court s decision to the Court of Criminal Appeal and in some limited circumstances on an exceptional point of law to the Supreme Court For all these reasons and given the ongoing threat that the named organisations still present to the security of the State I am not satisfied that s 3 2 is unconstitutional or indeed contrary to the Convention on Human Rights 17 The challenge cannot be seen in isolation either from the facts as found by the trial judge or from the context in which the impugned section is set The legislative and constitutional context 18 Article 40 6 of the Constitution guarantees subject to public order and morality liberty for the exercise of the right of the citizens to express freely their convictions and opinions and of the right of the citizens to form associations and unions Whereas laws regulating the manner in which the rights to form an association or a union may be passed under Article 40 6 2º such laws may not contain any political religious or class discrimination Therefore proscribing an organisation as unlawful only accords with the constitutional guarantee of fundamental rights of association where the purpose of that organisation or its methodology constitutes an attack upon the public order of the State In nature the State is Christian and democratic According to the Preamble to the Constitution the people of Ireland enacted the Constitution seeking to promote the common good with due observance of Prudence Justice and Charity so that the dignity and freedom of the individual may be assured true social order attained the unity of our country restored and concord established with other nations Article 1 of the Constitution affirms the inalienable indefeasible and sovereign right of the Irish nation to choose its own form of government and to determine its relations with other nations Ireland thus has but one government and one military While the island on which we live is divided into two jurisdictions the text of the Constitution makes clear that any move towards unity must accord with the nature and fundamental doctrine of the State In particular Article 3 provides It is the firm will of the Irish Nation in harmony and friendship to unite all the people who share the territory of the island of Ireland in all the diversity of their identities and traditions recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people democratically expressed in both jurisdictions in the island Until then the laws enacted by the Parliament established by this Constitution shall have the like area and extent of application as the laws enacted by the Parliament that existed immediately before the coming into operation of this Constitution 19 Any invocation of the Constitution by the Oireachtas within the text of legislation is highly unusual In the context of outlawing an association of citizens s 18 of the Act of 1939 clearly set out both the legislative framework for proscribing an organisation as unlawful and the legislative purpose for such an enactment Section 18 provides In order to regulate and control in the public interest the exercise of the constitutional right of citizens to form associations it is clear by declared that any organisation which a engages in promotes encourages or advocates the commission of treason or any activity of a treasonable nature or b advocates encourages or attempts the procuring by force violence or other unconstitutional means of an alteration of the Constitution or c raises or maintains or attempts to raise or maintain a military or armed force in contravention of the Constitution or without constitutional authority or d engages in promotes encourages or advocates the commission of any criminal offence or the obstruction of or interference with the administration of justice or the enforcement of the law or e engages in promotes encourages or advocates the attainment of any particular object lawful or unlawful by violent criminal or other unlawful means or f promotes encourages or advocates the non payment of moneys payable to the Central Fund or any other public fund or the non payment of any local taxation shall be an unlawful organisation within the meaning and for the purposes of this Act and this Act shall apply and have effect in relation to such organisation accordingly 20 This section does not have automatic effect by virtue of having been passed by the Oireachtas Instead it is dependent on the Government under s 19 of the Act of 1939 being of opinion that any particular organisation is an unlawful organisation Where that is so a declaration may be published proscribing the organisation as unlawful In the history of the State the only organisation in respect of which the Government has been of that opinion is the organisation falsely styling itself the Irish Republican Army or the IRA or Óglaigh na hÉireann of which the offshoots of the Continuity IRA or Real IRA continue to be under that proscription Any such declaration that an organisation is to be outlawed may under the legislation be challenged before the High Court which upon hearing evidence may under s 20 of the Act of 1939 overturn the declaration of the Government subject to appeal in the ordinary way It is an offence under s 21 of the Act of 1939 to be a member of such an unlawful organisation Section 21 provides 1 It shall not be lawful for any person to be a member of an unlawful organisation 2 Every person who is a member of an unlawful organisation in contravention of this section shall be guilty of an offence under this section and shall a on summary conviction thereof be liable to a fine not exceeding fifty pounds or at the discretion of the court to imprisonment for a term not exceeding three months or to both such fine and such imprisonment or b on conviction thereof on indictment be liable to imprisonment for a term not exceeding two years 3 It shall be a good defence for a person charged with the offence under this section of being a member of an unlawful organisation to show a that he did not know that such organisation was an unlawful organisation or b that as soon as reasonably possible after he became aware of the real nature of such organisation or after the making of a suppression order in relation to such organisation he ceased to be a member thereof and dissociated himself therefrom 4 Where an application has been made to the High Court for a declaration of legality in respect of an organisation no person who is before the final determination of such application charged with an offence under this section in relation to that organisation shall be brought to trial on such charge before such final determination but a postponement of the said trial in pursuance of this sub section shall not prevent the detention of such person in custody during the period of such postponement 21 Article 38 1 of the Constitution in prohibiting trial on any criminal charge save in due course of law requires the application of basic principles of justice to the criminal process State Healy v Donoghue 1976 IR 325 at p 335 per Gannon J In terms of the many cases opened on this appeal the most apposite explanation as to the basic elements of the guarantee to every accused of a fair criminal trial is to be found in the judgement of Costello J in Heaney v Ireland 1994 3 IR 593 at p 605 606 where he said It is an Article coached in peremptory language and has been construed as a constitutional guarantee that criminal trials will be conducted in accordance with basic concepts of justice These basic principles may be of ancient origin and part of the long established principles of the common law but they may be of more recent origin and widely accepted and other jurisdictions and recognised in international conventions as a basic requirement of a fair trial Thus the principle that an accused is entitled to the presumption of innocence that an accused cannot be tried for an offence unknown to the law or charged a second time with the same offence the principle that an accused must know the case he has to meet and that evidence illegally obtained will generally speaking be inadmissible at his trial or all principles which are so basic to the concept of a fair trial that they obtain constitutional protection from this Article Furthermore the Irish courts have developed a concept that there are basic rules of procedure which must be followed in order to ensure that an accused is accorded a fair trial and these basic rules must be followed if constitutional invalidity is to be avoided 22 On this appeal the State have not argued that a trial which includes evidence of belief under s 3 2 of the Act of 1972 infringes the prohibition in Article 38 1 but is somehow excused by reason of the serious nature of the threat to the existence and authority of the State which an unlawful organisation represents A real and substantial risk that an unfair trial will result in consequence of a legislative provision is not to be regarded differently from situations where trials have been prohibited on judicial review or stopped by the trial judge due to causes such as extreme delay or other forms of serious prejudice such as the loss of vital evidence of genuine help in establishing the innocence of an accused All such analyses are in any event fact dependent 23 Where there is a real and substantial risk of an unfair trial due to either delay in prosecution or adverse publicity or the absence of witnesses or the loss of evidence which defect or defects could not be cured by appropriate rulings and directions of the trial judge and by other actions to make the trial process fair the trial should be prohibited see Nash v DPP Supreme Court unreported 29 January 2015 at paras 14 and 15 While the community has the right to be protected from the recurrence of crime and while the substance of this right must embrace the detection and prosecution of offenders any ruling as to where the balance of fairness has been overstepped in legislation must take into account the nature of the threat involved which the offence seeks to prohibit the responses open to an accused facing such a charge and whether the danger of unfairness complained of is on the one hand real or on the other hand unsubstantiated Where it is demonstrated however that the admission of particular categories of evidence takes a criminal trial out of the core guarantees of the rights of a person accused of crime and presumed to be innocent legislation enabling that step cannot conform to Article 38 1 establishing that trials shall be in due course of law In the balance of rights as between the community and the accused demonstrated unfairness in consequence of the admission of particular categories of evidence will mean that the community s right to ensure that offences are prosecuted must yield to the constitutional requirement that such prosecutions embrace due process see B v DPP 1997 3 IR 140 per Denham J 24 The Constitution it must be remembered always contemplated that threats to the State such as those represented by the various iterations of the self styled IRA could occur Thus Article 38 derogates from the ordinary rule that criminal charges should be tried in the ordinary way either by judges in courts of summary jurisdiction or by a judge sitting with the jury where the charge was serious Article 38 3 1º provides Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order 25 In that context s 3 2 of the Act of 1972 is operative only while Part V of the Offences Against the State Act 1939 is in force Only where the Government makes a declaration in accordance with Article 38 3 1º of the Constitution can Part V of the Act of 1939 be operative The structure and organisation of those special courts before which alone a charge of membership of an unlawful organisation can be tried of which the only one is the Special Criminal Court are a matter of law under with Article 38 3 2º Under the now current Rules of the Special Criminal Court 1972 the trial bench will consist of three judges from the three jurisdictions in which crime is tried in the State namely the High Court the Circuit Court and the District Court Such judges are likely to be criminal law experts Decisions as to conviction or acquittal are given by way of written ruling in contrast to the declaration of a verdict of guilty or not guilty by a jury in the ordinary way or exceptionally where it may be necessary to have an answer to a question from the jury as posed by the trial judge Operation of the section 26 No comment is made hereby as to civil proceedings or as to the admissibility of opinion or belief evidence where the standard of proof is that of probability These comments are confined to criminal charges in the context of Article 38 1 of the Constitution It is established that proof beyond reasonable doubt of the offence of membership of an unlawful organisation is not otherwise available save through the reception of evidence from a Chief Superintendent that the accused is in that officer s belief a member of an unlawful organisation It is also clear that the proscribed unlawful organisation constitutes a usurpation of the authority of the State and remains a threat to the entire community Any source of evidence as to membership of that secret terrorist organisation cannot come as in the ordinary way from witnesses to the commission of crimes or from surviving victims of crime The evidence as accepted by McMahon J establishes that were any person to leave the self styled IRA and turn State s evidence against his or her comrades the result would probably be murder Hence the source of evidence in these unique circumstances can only be from the expertise of a small number of very senior police officers who are tasked with the role of intelligence in order to penetrate this closed and retributive sphere No other criminal charge carries or could ever be predicted to carry those unique challenges As may readily be appreciated other crimes may be opportunistic or planned spontaneous or organised but such crimes leave physical signs in their wake or can be testified to by those unfortunate enough to be their victims or by those who have otherwise relevant evidence to give Membership is the only crime in respect of which such belief evidence may be given and rightly so The unique set of challenges and dangers which this necessary prohibition represents is not reproduced or echoed in any other criminal offence Any endorsement of constitutionality from this Court cannot therefore be adopted as a precedent for use in relation to any other area of criminal evidence or procedure Further it is in the context of it being open for an accused to defend himself or herself against the charge and the multiple safeguards available that the impugned section of the Act of 1972 must be judged Safeguards 27 Through any claim of privilege on any kind of criminal charge the normal entitlement of an accused to see all evidence relevant to a charge is infringed This does not mean that the result is necessarily an unfair trial In many other areas it is necessary to use confidential information to forward police investigations and a prosecution may for instance be initiated in consequence of a complaint by an informer The withholding of such information from the defence does not render a trial unfair Through the invocation of a challenge the accused may require first the prosecution and then the judge if it is a jury trial or judge where it is a summary offence tried without a jury or judges where the Special Criminal Court is the court of trial to examine the documents in question with a view to scrutinising whether the innocence at stake exception should overrule the privilege As the Supreme Court stated per Geoghegan J in Kelly at p 121 the section of the Act of 1972 impugned in these proceedings authorises the giving of evidence about the basis for the Chief Superintendent s belief but not to the extent that it interferes with or defeats a legitimate plea of privilege As the normal rights of an accused are being infringed it would seem to me that there must be a constitutional requirement that such limitation be kept to a minimum 28 As a matter of the development of the common law some categories of evidence are subject to a warning by the trial judge to the jury of the dangers of acting on such evidence alone Such categories include visual identification and accomplice to crime evidence While there is no requirement in the Act of 1972 that the belief of the Chief Superintendent be corroborated or be supported by other external evidence to that belief it is clear that over the decades of the operation of the section a practice has developed in the office of the Director of Public Prosecutions that such a charge should not be brought without supporting evidence While in the past it has seemed possible that such evidence alone might ground a conviction for membership of the self styled IRA it is also clear that any bench of judges in the Special Criminal Court proposing to adopt such a course would be cognisant of how serious a step this would be While it does not assist to decide that a formal warning should be recorded in any such judgment of the Special Criminal Court dependant only on such belief evidence what matters is that this step would have been regarded as extraordinary As Geoghegan J noted in Kelly at p 122 It has been the practice apparently of the Special Criminal Court not to convict on the belief evidence alone In my view that practice is commendable though not absolutely required by statute There may be exceptional cases where the Special Criminal Court in its wisdom would be entitled to convict on the belief evidence alone Equally commendable is the practice of the Director of Public Prosecutions of which the court has been informed not to initiate a prosecution based solely on the belief evidence These self imposed restrictions by the Special Criminal Court and by the Director of Public Prosecutions are with a view to ensuring a fair trial In this case there was plenty of outside evidence and it was well within the discretion of the Special Criminal Court to convict the appellant for the reasons given by the Court of Criminal Appeal As is apparent both in Kelly and in this case there was supporting evidence It is inappropriate to comment thereon as the weight to be attached to evidence depends on the building blocks of the prosecution case any challenge or evidence offered by the accused and how such evidence fits into the particular factual matrix of any case Peculiarly this is a matter for the court of trial Weighing the evidence in the context of the particular building blocks of the prosecution case in the context of any matter pointed to by the accused and in the light of any evidence offered by the accused is a matter of considering whether when the tribunal of fact retires it comes to the conclusion that there is evidence there to convict on that charge or whether proof beyond reasonable doubt is lacking 29 In terms of how it may operate only on a charge of membership of an unlawful organisation only in the context of a declaration by the Government that the ordinary courts are inadequate to secure the effective administration of justice only before a bench of three professional judges in the Special Criminal Court only where a written ruling explains the acceptance or rejection of that evidence the impugned section of the Act of 1972 is bounded by safeguards which point to its exceptional nature and which support the guarantee of a trial in due course of law in Article 38 1 Whereas in argument on this appeal on behalf of Thomas Redmond it has been asserted that the very small number of gardaí with the necessary rank to give such evidence may be deceived it is significant that on the evidence before McMahon J rank is not of itself regarded as sufficient without the officer possessing also the necessary experience The nature of that expertise and experience may of course be challenged through cross examination on behalf of the accused As Geoghegan J commented in Kelly at pp 120 to 121 It is essential to consider the purpose of section 3 2 of the 1972 Act Prima facie if the Garda Síochána have reliable information that somebody is a member of a prescribed organisation there might be nothing to prevent them marshalling the necessary witnesses to give direct proof of this However it is perfectly clear that the legislation has been passed in the context of preserving the security of the State and the legitimate concern that it will not in practice be possible in many if not most cases to adduce direct evidence from lay witnesses establishing the illegal membership Such witnesses will not come forward under fear of reprisal The Special Court itself was established to avoid the mischief of juror coercion and intimidation In relation to all anti terrorist offences as a matter of common sense there would be equal apprehension about intimidation of witnesses It is a reasonable inference to draw that the subsection was enacted out of bitter experience It is carefully crafted ensuring that the belief evidence must come from an officer of an Garda Síochána not below the rank of Chief Superintendent This is with a view to establishing trust and credibility as far as possible Counsel for the appellant accepts the concept of informer confidentiality but any extensive probing in relation to the basis of the information irrespective of whether names are requested or not may inevitably undermine the protection of the informer by affording clues to his identity Even without the statutory provision informer privilege may involve more than merely refusing to divulge the name of an informer Surrounding evidence which would be likely or might tend to disclose the identity of the informer would itself be protected by the privilege in the sense that it may not be allowed to be adduced under cross examination 30 It was further urged on behalf of Thomas Redmond that cross examination was so restricted by the section as to neutralise this important aspect of fair procedures as a defence safeguard This is not so The experience and expertise of even a Chief Superintendent claiming privilege can be challenged and challenged with effect where the underlying facts are exposed as grounding the belief in an officer of insufficient standing The life choices and activities of the accused as not supporting membership of the self styled IRA can be put to such a witness by the defence Such questions have the potential to undermine belief evidence as may evidence of denial by the accused or other relevant defence evidence That senior officer further is constricted not to hold back evidence with the purpose or effect of taking the defence unawares In The People DPP v Cull 1980 2 Frewen 36 an appeal in respect of a conviction for membership of the self styled IRA evidence served prior to the trial only referred to the belief of the Chief Superintendent When the accused came to give evidence material not disclosed through pre trial service of documents by the prosecution was put to him This was regarded by the Court of Criminal Appeal as irrelevant and prejudicial It is inherent in the section that the rights of the accused be respected by proper disclosure to the accused in advance of the trial In this a trial for

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  • 3 As described in the judgments of my colleagues when one is dealing with applications for summary judgment the test is somewhat nuanced for the protection of a defendant If there is a real conflict on the facts or law the matter must be remitted for plenary hearing I would point out that a simple bald denial of indebtedness whether in correspondence or on affidavit will not be sufficient to discharge the burden so far as a defendant is concerned A defendant s evidence must set out in a clear way why the sum claimed is said not to be due and owing to a plaintiff 4 I turn to the instant case There was no conflict whatever on the facts No affidavit was filed by the defendant appellant Ms Mary Murray an Ulster Bank official swore an affidavit for the plaintiff She deposed that she herself was one of the signatories of the bank s letter of demand dated the 1st February 2013 This letter demanded immediate repayment of the sums due and owing on foot of the facility letters Ms Murray s testimony was primary evidence of her own actions By no stretch of the imagination could this be characterised as hearsay evidence This was rather first hand evidence adduced by the main plaintiff s deponent as a signatory of the letter As described in the judgments of my colleagues the plaintiff s threshold test in this case is satisfied Here it is also satisfied particularly by virtue of the fact that the Bank s deponent can herself testify that the letter was written and sent which letter contained the averments as to the defendants indebtedness Ms Murray was in a position to swear there was no response to that letter There is no suggestion it was not received As Charleton J points out in his judgment herein these were the assertions in that letter which under the rules of evidence called for a denial In the absence of such a denial a court will be entitled to act on the evidence and grant summary judgment 5 I mention this feature to illustrate the simple point that if a plaintiff s deponent is the author of a letter of demand then there can be no question of hearsay evidence As Laffoy J points out in her judgment herein the facts of this case are therefore are quite distinct from Criminal Assets Bureau v Hunt 2003 2 I R 168 and Ulster Bank v Dermody 2014 IESC 140 If there is no response to the letter of demand a plaintiff s case is proved 6 When seen from these perspectives the highly technical argument advanced on behalf of the defendants appellants and described in my colleagues judgments becomes entirely untenable The plaintiff s case is not based on hearsay It is only common sense that if a plaintiff makes out a prima facie case and a defendant does not adduce any or any meaningful evidence to rebut it a

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  • doubt whatsoever on the matters to which she had averred b Having averred as to the expiration of the term of each of the loan facilities consistently with the terms of the Facility Letters which had occurred by the end of 2006 without repayment in full being effected by the defendants Ms Murray went on to aver that by a letter of demand dated 1st February 2013 the Bank demanded immediate repayment of the sums due and owing to the Bank by the defendants on foot of the Facility Letters She exhibited a copy of the letter of demand She was one of the signatories of the letter her co signatory being described as Relationship Manager The content of the letter of demand is wholly consistent with the Bank s claim as set out in the special indorsment of claim on the summary summons and it is also consistent with the facts as deposed to by Ms Murray in her affidavit It clearly identified each loan facility and set out the amount then due on foot of each It also set out that liability had arisen for an additional sum representing additional unpaid accrued interest in respect of the two loan facilities to the date of the letter of demand c Having averred that the amount demanded had not been discharged Ms Murray at paragraph 19 deposed to the fact that there remained due and owing by the O Briens to the Bank the sum claimed in the indorsement of claim in the summary summons that is to say the sum of 888 920 89 The foregoing uncontradicted averments in my view show that the Bank is entitled to recover from the O Briens and each of them the sum of 888 920 89 claimed in the indorsment of claim on the summary summons or to put it another way that a prima facie case has been made out that the O Briens are jointly and severally indebted to the Bank in that sum in respect of the monies due on foot of the loan facilities including unpaid accrued interest 10 Ms Murray exhibited in paragraph 19 what she described as a statement of account as of the date of the swearing of the affidavit That exhibit comprises three pages each bearing the date 15th October 2013 and the names of O Brien and McDermott at the top Each page is obviously a print off of an electronically maintained statement of account over the period from November 2012 to 6th September 2013 While the print offs contain limited information there is absolutely no doubt about the proper inference to be drawn from them The first which refers to Account 14646125 obviously relates to the loan advanced on foot of the Facility Letter dated 22nd July 2004 and shows sums debited to the account on four dates at three monthly intervals which sums obviously reflect the interest accrued As of 15th October 2013 the sum due in respect of that loan was 360 892 52 The second is in the same format as the first and refers to Account 14646208 which clearly relates to the loan advanced on foot of the Facility Letter dated 8th December 2005 That print off shows a balance due of 511 542 20 as of 15th October 2013 The third which is also in the same format which refers to Account 14646042 clearly refers to the account in respect of unpaid accrued interest and the balance due on that account as of 15th October 2013 was 20 289 80 11 It is true that there is an inconsistency between the sum due as stated in paragraph 19 888 920 89 and the aggregate of the amounts shown to be due on foot of each of the print offs in relation to the three accounts 892 724 52 The explanation for that inconsistency is patently obvious The sum referred to in paragraph 19 reflects what was due and what was claimed prior to the issue of the summary summons whereas the aggregate of the sums appearing on the exhibited statement is calculated to a later date Accordingly that inconsistency does not raise any question as to the reliability of the evidence on the matters deposed to by Ms Murray In any event the sum claimed in the summary summons and the sum for which judgment was given in the High Court is less albeit only by 3 803 63 than the amount actually due as shown by the statement print offs 12 The other matter which by virtue of Order 37 rule 1 was required to be dealt with in the grounding affidavit of Ms Murray is averred to at para 20 of Ms Murray s affidavit She averred that she had been advised by the Solicitors for the Bank Ivor Fitzpatrick that the O Briens do not have a defence to the proceedings either bona fide or at law and further that any appearance entered was for the purpose of delay 13 I am satisfied that in the absence of any assertion by or on behalf of the O Briens that the sum which Ms Murray as a senior employee of the Bank has deposed is due and owing by the O Briens to the Bank is not due the High Court judge was entitled to conclude on the basis of Ms Murray s affidavit that there was a sufficient evidential basis for giving the Bank liberty to enter final judgment against the O Briens Ms Murray could and did swear positively to the facts showing that the plaintiff was entitled to judgment in the sum claimed The Bank did not have to rely and was not relying on an entry in a banker s book being admitted in evidence to establish the O Briens indebtedness to it in the sum claimed in accordance with the provisions of the Act of 1879 as amended so that the necessity to comply with the provisions of ss 4 and 5 of the Act of 1879 as amended did not arise Accordingly the submission made on behalf of the O Briens that there was no admissible evidence before the High Court proving the indebtedness of the O Briens to the Bank is rejected Moreover in my view counsel for the O Briens has not pointed to any relevant authority which suggests that this Court should form a contrary view Authorities cited 14 Only one decision of this Court in relation to the application of the provisions of the Act of 1879 as amended was referred to in argument That was Criminal Assets Bureau v Hunt 2003 2 I R 168 the CAB case There the issue as to admissibility of evidence was one only of a number of issues addressed in the judgment of the Supreme Court delivered by Keane C J with whom the other four judges concurred That issue is explained as follows by Keane C J at p 174 The next issue was as to the admissibility of evidence relied on by the plaintiff for the purpose of establishing the first defendant s liability to tax It was submitted on behalf of the defendants that the plaintiff was not entitled to rely as it had done on bank statements which had come into its possession without proper proof being adduced to the court of the documents in question Without such proof it was said all of the records in question were hearsay evidence which could only be admitted if they came within one of the recognised exceptions to the rule against hearsay It was submitted on behalf of the plaintiff that in the circumstances in which they had come into the possession of the plaintiff the documents were made admissible by virtue of specific statutory provisions By way of explanation the plaintiff was the Criminal Assets Bureau and the specific statutory provisions referred to were the provisions of the Criminal Assets Bureau Act 1996 the Act of 1996 by virtue of which the Criminal Assets Bureau was established 15 Turning to the facts of the CAB case the evidence adduced by the plaintiff on which its entitlement to rely on assessments to tax raised by an Inspector of Taxes by reference to bank statements which the Inspector of Taxes had obtained was explained as follows at p 188 In this case a bureau officer gave evidence of having obtained orders pursuant to S 63 of the Criminal Justice Act 1994 for the production of accounts in the name of the defendants in the named financial institutions On foot of those orders he was furnished with the relevant documents by the financial institutions concerned This information was furnished by him to the inspector who subsequently gave evidence and who said that it was on foot of that documentary evidence that he raised the assessments which were the subject of the proceedings In the frequently cited succeeding paragraph at p 189 Keane C J stated as follows It is clear that in accordance with the rules of evidence normally applicable in civil proceedings the documents in question could be proved only by their authors giving sworn evidence and being subject to cross examination unless advantage was taken of the provisions of the Bankers Books Evidence Acts 1879 to 1959 The documents in question accordingly should not have been admitted in evidence in the High Court unless as the plaintiff contends they were admissible under the provisions to which I have referred 16 There was undoubtedly an element of complexity in the CAB case because the plaintiff was contending that the documents in question were admissible in evidence by virtue of the provisions of s 8 5 and 7 of the Act of 1996 Keane C J rejected that submission and his conclusion on the inadmissibility of evidence issue was set out as follows at p 189 In the present case if Detective Garda Fleming had for any reason been unavailable to give evidence the inspector would have been entitled to give evidence that he had made the assessments on foot of the bank statements furnished to him by Detective Garda Fleming provided that the statements were properly proved but not otherwise I am accordingly satisfied that the evidence in question should not have been admitted in the High Court The crucial statement in that passage is provided that the statements were properly proved but not otherwise presumably it being envisaged that they would be properly proved by taking advantage of the provisions of the Act of 1879 as amended or otherwise 17 The decision in the CAB case in my view is of no relevance to the outcome of the Bank s motion in this case The Bank did not have to take advantage of the Act of 1879 as amended to establish its entitlement to judgment in the sum claimed because the Bank put evidence before the High Court which was not contradicted which as I have found above showed that the plaintiff was entitled to summary judgment in that sum 18 In a case in which the Bank also was plaintiff Ulster Bank Ireland Limited v Dermody 2014 IEHC 140 the Dermody case in which judgment was delivered by the High Court O Malley J on 7th March 2014 that is to say just four days after judgment was given by the High Court in this case the decision of the Supreme Court in the CAB case was found to be relevant to the determination as to whether the Bank as plaintiff in that case was entitled to enter final judgment on foot of a summary summons As in this case the matter came before the High Court by way of appeal against a decision of the Master dismissing the plaintiff s claim In her judgment O Malley J identified the central issue as whether the plaintiff in that case was entitled to rely on a grounding affidavit sworn by an employee of Ulster Bank Limited which was described as a company related to the plaintiff company i e the Bank which dealt on its behalf with its debt collection process In that case the claim was on foot of a guarantee 19 Recognising that she was bound by the decision of the Supreme Court in the CAB case O Malley J stated that the evidence of the deponent in that case Mr Evans was not admissible to prove the truth of the contents of the records unless it came within the provisions of the Act of 1879 as amended O Malley J continued at para 50 The issue that arises then is whether Mr Evans can be said to be an officer of the plaintiff bank within the meaning of the Acts In my view he cannot I accept that for the purposes of the Acts an employee may be considered to be an officer of the bank However Mr Evans is not an employee of the plaintiff but of a separate legal entity I can see no legal or factual difference between the service that Ulster Bank Limited provides to Ulster Bank Ireland Limited in debt collection cases and that provided by Certus to Bank of Scotland as considered by Peart J in Stapleton 20 The reference to Stapleton in that passage is a reference to the decision of the High Court Peart J in Bank of Scotland Plc v Stapleton 2013 3 I R 683 the Stapleton case The judgment in that case pre dated the order of the High Court in this case having been delivered on 29th November 2012 It was a decision on an appeal from the Circuit Court against an order for possession in favour of the plaintiff Bank of Scotland Plc as mortgagee over lands owned by the defendant The action and the appeal were heard in both the Circuit Court and the High Court on oral evidence The oral evidence given on behalf of Bank of Scotland Plc referred to in the judgment as BOS was given by Ms Finnegan As outlined Peart J in the judgment at para 5 her capacity to give such evidence was challenged by the defendant on the basis that she was not employed by BOS and therefore her evidence must of necessity be hearsay given that she had no personal knowledge of the books and records of BOS Earlier at para 4 Peart J had stated that Ms Finnegan was an employee of Certus which provided what she described as customer support to BOS borrowers and administrative support to BOS A letter of authority on BOS headed paper was put in evidence and that letter authorised Ms Finnegan to give evidence on behalf of BOS in the particular proceedings 21 As is recorded in the judgment of Peart J Ms Finnegan referred in her evidence to certain copy statements which she received from BOS which related to the defendant s mortgage account and showed the amount due She stated that from her personal computer in Certus she was able to access the records of BOS herself and she could therefore be satisfied as to the amount owing by the defendant and that she could therefore give evidence from her own knowledge of the books and records of BOS Her evidence was that the amount shown in the statements produced to the Court to be due was due and owing by the defendant thereby entitling BOS to the order for possession sought 22 Peart J identified the issue at para 7 as whether the letter of authority was sufficient to render Ms Finnegan a competent witness as to the arrears on the defendant s mortgage account or whether her evidence in that regard was inadmissible hearsay Peart J then went on to consider against those facts the application of the Act of 1879 as amended He considered a number of authorities including the judgment of Keane C J in the CAB case He set out his conclusion as follows at para 16 Where a bank needs to prove by sworn testimony the amount it is due by a defendant customer that evidence must be provided by an officer or partner of the bank in other words an employee of the bank itself and not some person employed by some other company to whom the task of collecting the debt has been outsourced for whatever reason To allow otherwise would be akin to a foreign bank engaging a solicitor here to collect the debt and that solicitor coming to court and giving evidence as to the amount due to the bank having been authorised to do so by the bank The evidence is necessarily hearsay and inadmissible It offends first principles and in my view there is no basis in law for permitting it 23 The reference in that passage to the necessity to provide evidence by an officer or partner of the bank is reflective of s 4 of the Act of 1879 That section provides as follows A copy of an entry in a banker s book shall not be received in evidence under this Act unless it be first proved that the book was at the time of the making of the entry one of the ordinary books of the bank and that the entry was made in the usual and ordinary course of business and that the book is in the custody or control of the bank Such proof may be given by a partner or officer of the bank and may be given orally or by an affidavit sworn before any commissioner or person authorised to take affidavits Insofar as a litigant is relying on an entry in a banker s book to prove his claim it is undoubtedly the case that a copy of the entry should only be received in evidence when proof of the three matters outlined in s 4 is given by a partner or officer of the bank that is to say by

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