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  • incorporating terms and conditions relied on by Irish Asphalt into the contract Irish Asphalt contends that while there was a master contract between the parties separate and distinct contracts were formed in relation to each delivery of aggregate On the basis that each delivery docket contained the sentence This material is sold subject to the terms and conditions available on request it is contended that the terms and conditions relied on by Irish Asphalt were incorporated into each separate and distinct contract by signature reasonable notice or course of dealing Noreside contended that there was one contract between the parties namely that concluded on the 26th or at the latest the 27th March 2003 which contained all the necessary terms and conditions negotiated between the parties On that basis the delivery dockets were not contract making documents they were simply documents generated in the course of the execution of the pre existing contract Even if that view was wrong and there were separate and distinct contracts each time a delivery was made the delivery dockets did not alter or vary the pre existing terms or provide additional terms to the contractual arrangements made between the parties The status of the delivery dockets and the signing of same I am satisfied that the parties herein reached a concluded agreement following their negotiations on the 26th March 2003 This could be described as the master contract I am also of the view that on every subsequent occasion when an order was placed and a delivery of aggregate was made a separate and distinct contract was made in respect of each such delivery which incorporated the terms and conditions of the master agreement negotiated between the parties as to the price for the goods to be supplied depending on whether the goods were to be collected or delivered credit terms and so on It was always open to the parties to vary the terms and conditions of the master contract between them The question at issue between the parties is whether the use of delivery dockets on numerous occasions had the effect of varying the terms of the contracts by the incorporation of Irish Asphalt s terms and conditions into the series of contracts made over the course of Noreside s project at Griffith Avenue as contended by Irish Asphalt The answer to this question gives rise to an analysis as to whether or not the delivery dockets relied on by Irish Asphalt are contractual documents I now propose to consider this question McMeel in the Construction of Contracts 11th Ed at para 15 56 commented on the question of whether or not a particular document is a contractual document as follows A first hurdle to overcome is whether the document is of a character that it could be reasonably expected would contain terms and conditions Is it a contractual document This can either be satisfied by actual knowledge of the receiving party that it contains terms or by an objective test would the reasonable recipient expect it to contain conditions This is relevant to all modes of incorporation A distinction has to be drawn between documents which effect or form part of the background to the formation of the contract and post contractual documents The former are an obvious source of terms whereas a court may conclude that the latter came too late to prove an argument of incorporation Auld L J has drawn this distinction A document may have a contractual purpose as a contract making document or in the execution of an existing contract Documents such as a time sheet an invoice or a statement of account are within the latter category They do not normally have a contractual effect in the sense of the making or the varying of a contract Grogan v Robin Mededith Plant Hire 1996 CLC 1127 at 1130 CA That may be an appropriate distinction to draw so far as one off arguments about incorporation by signature or notice are concerned It may go too far if the argument is that incorporation has arisen by a course of dealing or of industry standard terms In that context both invoices and other administrative documents are often the basis of an argument of incorporation based on the parties practice Mr Darling Q C on behalf of Irish Asphalt placed particular emphasis on the last paragraph of the passage quoted above from McMeel Treitel The Law of Contract 12th Ed contains the following explanation of the nature of a document at paragraph 7 006 Nature of the Document An exemption clause is not incorporated in the contract if the document in which it is set out or referred to is not intended to have contractual force e g if the document is a mere receipt for payment On the other hand the mere fact that a document is called a receipt will not prevent it from having contractual effect A document will have such effect if the party to whom it was handed knew it was intended to be a contractual document or if it was handed to him in such circumstances as to give him reasonable notice of the fact that it contained conditions It will also be contractual if it is obvious to a reasonable person that it must have been intended to have this effect This will be the case if the document is of a kind that generally contains contractual terms Whether a document falls into this class depends on current commercial practice which may vary from time to time As I have said it is my view that each delivery of aggregate was a separate and distinct contract which incorporated the terms of the master contract concluded by the parties The evidence as to the creation of these contracts was that a delivery of aggregate was ordered by oral call off in a telephone call by an operative or site foreman of Noreside received by an operative of Irish Asphalt and then delivered to Noreside s construction site which arrangement was then recorded by the delivery docket which noted the amount of aggregate provided the particular type of aggregate and whether the aggregate was either collected or delivered to the site They were simply for the purpose of recording what occurred As is clear from the passage referred to above from McMeel such documents may come too late to prove an argument of incorporation The status of a delivery note in any given situation will depend very much on the facts and circumstances of the particular case The fundamental question in this case is whether the delivery dockets have contractual effect These delivery dockets contain a reference to terms and conditions but none are expressly set out or identified Are these delivery dockets intended to have contractual effect There is no doubt that the delivery dockets herein were important documents in the execution of the contracts given that they were relied on for the purpose of checking that the amounts set out on invoices that had to be paid by Noreside to Irish Asphalt was correct To that extent there is no dispute between the parties that the delivery dockets had an important role to play in the overall contractual relationship between the parties This Court was referred to an extensive range of case law and academic commentary in the written and oral submissions of Irish Asphalt herein and in the case of James Elliot Construction Limited v Irish Asphalt Limited which was heard immediately before this case The case law and academic commentary was considered at length in the judgment of the Court in that case That case also concerned the role of delivery dockets of the same defendant appellant which contained the same phrase on the delivery dockets It is not necessary to set out in detail all of the authorities referred to in the judgment of the Court in James Elliot Construction Limited v Irish Asphalt Limited delivered immediately before this judgment but it would be useful to refer to a number of the relevant authorities Thus in the case of Spurling Limited v Bradshaw 1956 1 WLR 461 reliance was placed on a document described as a landing account That case concerned a defendant who had had dealings with the plaintiff warehousemen A number of barrels of orange juice were delivered for storage and thereafter the defendant received a landing account which referred on its face to conditions printed in small type on the back including an exemption clause The barrels of orange juice were subsequently found to be empty or so damaged as to be useless The warehousemen sued for their charges for storage and the defendant counterclaimed for damages Denning L J at p 467 stated It is to be noticed that the landing account on its face told Mr Bradshaw that the goods would be insured if he gave instructions otherwise they were not insured The invoice on its face told him they were warehoused at owner s risk The printed conditions when read subject to the proviso which I have mentioned added little or nothing to those explicit statements taken together Next it was said that the landing account and invoice were issued after the goods had been received and could not therefore be part of the contract of bailment but Mr Bradshaw admitted that he had received many landing accounts before True he had not troubled to read them On receiving this landing account he took no objection to it left the goods there and went on paying the warehouse rent for months afterwards It seems to me that by the course of business and conduct of the parties these conditions were part of the contract Similarly in the case of British Road Services Ltd v Arthur V Crutchley Co Ltd 1968 1 All ER 811 there was a reference to a delivery note Following a long established course of business between the plaintiff carriers and the defendants delivery notes for goods transported by the plaintiffs and delivered at the defendants warehouse would be handed back to the plaintiffs lorry drivers on the defendants receiving the goods stamped Received on AVC that is the defendants Conditions Lord Pearson at p 816 of the judgment in that case commented as follows Now I come to the terms of the contract between the plaintiffs and the defendants It was not proved that the plaintiffs conditions of subcontracting were ever sent to the defendants and the defendants in evidence denied that they were subcontractors to the plaintiffs The plaintiffs form of delivery note contained the words All goods are carried on the plaintiffs conditions of carriage copies of which can be obtained upon application to any office of the plaintiffs Under the long established course of business between the parties however the plaintiffs driver brought his delivery note into the defendants office at the Cotton Street warehouse and asked in effect if he could bring his load into the warehouse If there was room in the warehouse the permission would be given and the delivery note would be rubberstamped by the defendants with the words Received under AVC Conditions followed by the date and the address of the warehouse The delivery note thus converted into a receipt note would be handed back to the plaintiffs driver and he would bring his load into the warehouse as instructed by the warehouse foreman If this had only happened once there would have been a doubt whether the plaintiffs driver was their agent to accept the defendants special contractual terms This however happened frequently and regularly over many years at this and other warehouses of the defendants Also the defendants invoices contained the words All goods are handled subject to conditions of carriage copies of which can be obtained on application It may perhaps be material to add that the defendants conditions of carriage were not peculiar to them but were the conditions of carriage of Road Haulage Association Limited At any rate I agree with the decision of the Judge that the plaintiffs conditions were not and the defendants conditions were incorporated into the contract between these parties The effect was that while the nature of the defendants liability as bailees to the plaintiffs was unaffected the liability was limited in amount to 800 per ton which when credit is given for sixty bottles of whisky recovered after the theft produces a total in this case of 6 135 At first glance it may be difficult to see why there was a different approach taken to the plaintiffs terms and conditions in that case and those of the defendants However the reason is clear from the judgment of Lord Pearson it was not proved that the plaintiffs conditions of sub contracting were ever sent to the defendants by contrast the defendants terms and conditions although not peculiar to them were the conditions of carriage of the Road Hauliers Association Limited and were incorporated into the contract by reference to the rubberstamping of the words Received under AVC Conditions on the delivery note In other words there could have been no doubt as to what the terms and conditions were Another case of interest and one which was relied on by the learned trial Judge herein is the decision in the case of Continental Tyre and Rubber Company Ltd v Trunk Taylor Company Ltd 1985 S C 163 In that case the delivery note which contained the phrase All offers and sales are subject to company s current terms and conditions of sale was a non contractual document as it was a document the only purpose of which was to record performance of a particular transaction with a view to payment Finlay Geoghegan J placed particular reliance on the judgment in that case and accepted that the purpose of the delivery dockets herein was to record the supply of aggregate with a view to payment whilst acknowledging that the documents were crucial documents but in the execution of the contract already agreed That case concerned the sale and delivery of tyres and a claim in respect of sums due in respect of those tyres The tyres were alleged to have been rejected by customers of the defendants as not being of merchantable quality The pursuers in the case on the assumption that the warranty as to merchantable quality had been breached pleaded that their liability was excluded by reference to their standard conditions of sale on a delivery note They also relied on an argument that a recent and consistent course of dealing meant that the terms of the delivery note had been incorporated into the contract Lord Brand the Lord President at page 168 of his judgment stated What has been called the delivery note does not so describe itself It is not and does not bear to be a contract note or sold note of the kind considered in Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association 1966 1 W L R 287 which purported to record the terms of the parties agreement and which was tendered before performance It is not and does not bear to be either an acknowledgement of order form of the kind considered in Grayston Plant Ltd v Plean Precast Ltd 1976 S C 206 purporting to record the terms on which the supply is made or to be made The signature of the defenders employee is as the form shows required for one purpose and one purpose only Opposite the box containing the signature are the following words Please note that your signature is proof that the quantity and description of the goods shown on this docket were received correctly There are not averments that the legend near the top left hand corner of the docket referring to the pursuers conditions of sale which is in small print and not in bold type was ever drawn to the attention of the person who signed it and it is not averred that signature of the docket was required before the delivery was made cf the very different circumstances in British Road Services Ltd v Arthur v Crutchley Co Ltd where the delivery note was overstamped referring to the conditions upon which the warehouse keeper would receive the load and handed to the plaintiffs driver before he brought his lorry into the premises see the opinion of Lord Pearson at pp 816 and 817 Reliance on a reference to terms and conditions said to be available on request was not sufficient to result in the incorporation of those terms and conditions into the contract between the parties in that case For completeness I should also refer to the decision in the case of Grogan v Robin Meredith Plant Hire 1996 C L C 1127 which was referred to in McMeel in the passage set out above and relied on by Finlay Geoghegan J in the course of her judgment That was a case in which the first named defendant a plant hire company approached Triact a civil engineering contractor seeking work It was orally agreed that Triact would hire from the defendant a driver and a machine for an all in rate of 14 50 an hour Neither party mentioned any other terms At the end of the first and second weeks Triact s site manager signed a timesheet recording the hours that had been worked by the first defendant s driver Toward the bottom of the timesheet was printed All hire undertaken under CPA conditions Copies available on request Under the standard conditions of the Contractor s Plant Association if incorporated into the contract Triact was bound to indemnify the first defendant against any liability incurred to third parties in the course of the hire In the third week of hire the machine was involved in an accident in which the plaintiff was injured The plaintiff issued proceedings against the first defendant and Triact seeking damages for personal injuries There was consent to judgment by the defendants The first defendant claimed that the CPA conditions were incorporated into the contract by the signing of the driver s timesheet on Triact s behalf Triact was therefore liable to indemnify the first defendant in respect of its liability to the plaintiff In the High Court it was held that the contract had been varied so as to incorporate the CPA conditions The appeal was allowed In the course of his judgment Auld L J said I reject MT Turner s proposition that the court should look only at the words of a signed document and disregard its nature or function The central question adopting and adapting the useful statement of principle in Chitty on Contracts 27th ed vol 1 para 12 008 is whether the time sheet in this case comes within the class of a document which the party receiving it knew contained or which a reasonable man would expect to contain relevant contractual conditions Another way of putting it as Kerr J did in Bahamas Oil Refining Co v Kristiansands Tankrederie A S The Polyduke 1978 1 LI Rep 211 at pp 215 216 is whether the document purport ed to have contractual effect It has to be borne in mind too that the circumstance to which the question relates the presentation and signing of a time sheet for work done under an existing contract is one of alleged variation not the initial making of a contract Auld L J continued A document may have a contractual purpose as a contract making document or in the execution of an existing contract Documents such as a time sheet an invoice or a statement of account are within the latter category They do not normally have a contractual effect in the sense of making or varying a contract The purpose of time sheets is not normally to contain or evidence the terms of a contract but to record a party s performance of an existing obligation under a contract Auld L J went on to say If as appears that was the common understanding of the purpose of the time sheets the fact that they made reference to the CPA conditions not previously part of the contract cannot in my view be of any contractual significance Certainly such a reference on an essentially administrative and accounting document raised in the execution of an existing contract did not have the clarity of meaning and purpose required to effect a variation incorporating them into the contract The question in Chitty to which I have already referred and have adopted is whether the document purports to be a contract or to have contractual effect The answer in each case requires consideration not only of the nature and purpose of the document but also the circumstances of its use as between the parties and their understanding of its purpose at the time As I said previously the learned trial Judge placed considerable reliance on the judgment in that case leading to the conclusion by the trial Judge that the delivery dockets in this case were crucial documents in the context of both the construction and quarrying industry Their purpose was to record the amount and type of aggregate supplied together with the date and place of delivery with a view to payment However whilst accepting that they had a contractual purpose in the execution of the contract they did not have contractual effect in the sense of making or varying a contract A number of points emerge from the authorities referred to above First of all a delivery docket can be a contractual document whether it is or not depends on the facts and circumstances in a particular case The purpose for which the delivery docket was created may be of relevance The next point to note and one which seems to me to be of critical importance is that the delivery docket or other document at issue must contain the relevant terms and conditions relied on or at the very least contain a reference to specific terms and conditions such as the AVC conditions relied on in the case of British Road Services Ltd v Arthur V Crutchley Co Ltd referred to above In that case the plaintiff did not succeed in having its conditions of subcontracting incorporated into the contract even though those terms and conditions were stated to be available upon application while the defendant s terms and conditions were incorporated by means of a stamp placed on the delivery note stating Received under AVC conditions In other words a party contending that the terms of a previously negotiated contract have been varied by a document such as a delivery docket must be able to show that the document concerned comes within the class of a document which the party receiving it knew contained or which a reasonable man would expect to contain relevant contractual conditions This may be by reference to specific terms and conditions either set out on the document itself or reference on the document to terms and conditions well known in a particular industry such as the AVC conditions referred to above It is difficult to see how a bland reference to terms and conditions being available on request without more will suffice for the purpose of making a contract or varying a contract Thus in my view the learned trial judge was correct in concluding that the delivery dockets were not contractual documents and did not have contractual effect They did not contain terms and conditions of the contract They made no reference to price They were created for the purpose of recording the type and amount of aggregate delivered and whether that aggregate was collected or delivered on site This view is given further support by the fact that the signature on the delivery dockets was placed in a box headed Materials received on behalf of Customer In the circumstances the fact that the delivery dockets were signed on behalf of Noreside by its site foreman operative or haulier does not have the effect of incorporating Irish Asphalt s terms and conditions into the contracts between the parties by way of signature Reasonable notice and course of dealing Lewison in The Interpretation of Contracts at p 127 commented It is not necessary to the incorporation of trading terms into a contract that they should be specifically set out provided that they are conditions in common form or usual terms in the relevant business It is sufficient if adequate notice is given identifying and relying upon the conditions and they are available on request Clear words of reference suffice to incorporate the terms referred to Other conditions apply if the conditions or any of them are particularly onerous or unusual In the event that the delivery dockets were found not to be contractual documents and thus incorporated by signature into the contracts between the parties Irish Asphalt contends that the delivery dockets provided on some 1 190 occasions to Noreside constituted reasonable notice of their terms and conditions and thus were incorporated into the contract between the parties Generally terms and conditions contained in an unsigned written document will not be incorporated into a contract unless the party to be bound had reasonable notice of those terms and conditions The reason for this is straightforward Terms and conditions relied on by a party in the context of an alleged breach of contract will often limit or exclude liability They may provide for any contractual dispute to go to arbitration There may be other important terms for example in relation to retention of title It has been said that the more onerous an exemption clause contained in terms and conditions is the greater the requirement for notice This was graphically explained by Lord Denning M R in the case of Thornton v Shoe Lane Parking 1971 2 QB 163 at 170 where he stated of an exemption clause it is so wide and so destructive of rights that the court should not hold any man bound by it unless it is drawn to his attention in the most explicit way In order to give sufficient notice it would need to be printed in red ink with a red hand pointing to it or something equally startling Thus in a case such as this where the terms of Clause 8 of Irish Asphalt s terms and conditions could only be described as onerous it follows that in order to rely on the provisions of Clause 8 it is necessary for Irish Asphalt to demonstrate that it had given reasonable notice of those terms and conditions to Noreside It is not disputed that Mr Regan of Noreside checked the delivery notes carefully for the purpose of ensuring that the amounts due by Noreside to Irish Asphalt on foot of invoices received by Noreside accurately reflected the goods supplied Mr Regan in his evidence confirmed that he checked the quantity date and delivery docket number against invoices Insofar as the phrase The material is sold subject to our terms and conditions available on request is concerned he said that he could not say with force that he had seen that phrase but when asked if he was aware that it was on the delivery dockets he said Possibly yes It was never alleged before the High Court that the actual terms and conditions relied on by Irish Asphalt had been provided in any way to Noreside The critical point emphasised by Irish Asphalt was that each delivery docket contained the proviso referred to above as to the terms and conditions being available on request The essence of the case made by Irish Asphalt is that Mr Regan a person of authority within Noreside saw the delivery dockets therefore he knew of the existence of terms and conditions relied on by Irish Asphalt and was willing to contract on that basis He chose to turn a blind eye to Irish Asphalt s terms and conditions and thus he took the risk of not actually ascertaining the specific terms and conditions Put simply he knew there were terms and conditions but chose not to find out what they were In the course of the written submissions reference was made to McMeel op cit at page 287 where the author explained the concept of incorporation by reasonable notice in the following terms The second alternative route of incorporation is by reasonable notice This is the principal mode of incorporation for unsigned printed documents It first came to prominence in the nineteenth century ticket cases as the industrial revolution and the railway age made standard terms a feature of everyday life In the leading case of Parker v South Eastern Railway Company Mellish L J distinguished the case of incorporation by signature and continued The parties may however reduce their agreement into writing so that the writing constitutes the sole evidence of the agreement without signing it but in that case there must be evidence independently of the agreement itself to prove that the defendant has assented to it In that case also if it is proved that the defendant has assented to the writing constituting the agreement between the parties it is in the absence of fraud immaterial that the defendant had not read the agreement and did not know its contents Now if in the course of making a contract one party delivers to another a paper containing writing and the party receiving the paper knows that the paper contains conditions which the party delivering it intends to constitute the contract I have no doubt that the party receiving the paper does by receiving and keeping it assent to the conditions contained in it although he does not read them and does not know what they are See 1877 2 CPD 416 420 This passage suggests that in the ordinary case it is sufficient to prove that a document containing terms was provided by one party to or sent to the other and was retained without demur As with incorporation by signature Mellish L J was emphatic that reading or familiarity with the terms was irrelevant In Circle Freight International Limited v Medeast Gulf Exports 1988 2 Lloyd s Rep 427 CA the invoices each stated in small print at the bottom All business is transacted by the company under the current trading conditions of the IFF a copy of which is available on request This was in the words of Bingham L J both clear and legible and placed immediately below the price where the eye would naturally alight on it The exporters never requested a copy and none was sent Having reviewed the authorities Taylor L J concluded it is not necessary to the incorporation of trading terms into a contract that they should be specifically set out provided that they are conditions in common form or usual terms in the relevant business It is sufficient if adequate notice is given identifying and relying upon the conditions and they are available on request 1988 2 Lloyd s Rep 427 433 A number of points emerge from the passages referred to above First of all although one can be bound by terms and conditions that one has not read the document relied on by the party asserting the terms and conditions should actually contain either the conditions themselves or in some other way identify the terms and conditions relied on As Taylor L J concluded in Circle Freight it is not even necessary for the conditions to be set out specifically He pointed out that it would be sufficient if adequate notice was given identifying and relying upon the conditions In that case there was a clear reference to the IFF terms on invoices created for the purpose of the contracts between the parties Taylor L J added in the course of his judgment at p 433 the following observation Here the parties were commercial companies There had been a course of dealing in which at least eleven invoices had been sent giving notice that business was conducted on the IFF terms at a place on the document where it was plain to be seen Mr Zacaria knew that some terms applied He knew that forwarding agents might impose terms which would frequently be standard terms and would sometimes or frequently deal with risk He never sought to ask for or about the terms of business The IFF conditions are not particularly onerous or unusual and indeed are in common use In these circumstances despite Mr Gompertz s clear and succinct argument to the contrary I consider that reasonable notice of the terms was given by the plaintiffs Putting it another way I consider that the defendants conduct in continuing the course of business after at least eleven notices of the terms and omitting to request a sight of them would have led and did lead the plaintiffs reasonably to believe the defendants accepted their terms In those circumstances it is irrelevant that in fact Mr Zacaria did not read the notices Thus it was held that the IFF conditions were incorporated in the contract It is noteworthy that the invoices relied on made specific reference to IFF conditions Therefore the plaintiffs had in the view of the Court given adequate notice identifying the conditions they relied on A further authority referred to in the submissions on behalf of Irish Asphalt was the case of Baden v Societe Generale S A 1993 1 WLR 509 which was relied on in relation to the concept of knowledge Peter Gibson J in the course of his judgment described knowledge as follows i actual knowledge ii wilfully shutting one s eyes to the obvious iii wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make iv knowledge of circumstances which would indicate the facts to an honest and reasonable man v knowledge of circumstances which would put an honest and reasonable man on inquiry That case concerned the question of knowledge in the context of constructive trusteeship It seems to me that there is a significant distinction between the type of knowledge a person can be said to have in the context of a constructive trust and the requirement to give reasonable notice of a particular state of affairs to another person Knowledge in the manner explained by Gibson J cannot be a substitute for the requirement of a party to give reasonable notice It is for the party relying on an exemption clause to give reasonable notice of its terms and conditions and not for the party to be bound to be put on enquiry as to whether or not there may be terms and conditions containing an onerous exemption clause I am not of the view that the case relied on assists the argument of Irish Asphalt on the question of reasonable notice The essence of the argument of Irish Asphalt is that the proviso on the delivery dockets This material is sold subject to the terms and conditions available on request was reasonable notice of the terms and conditions applicable I cannot agree At no stage was Noreside ever provided with a copy of Irish Asphalt s terms and conditions The terms and conditions were not identified in any shape or form or specified by reference to any known industry wide terms and conditions The position could have been otherwise if the proviso had identified some specific terms and conditions such as the IFF conditions referred to in the Circle Freight case However that did not happen in this case and accordingly in my view Irish Asphalt failed to give reasonable notice of its terms and conditions to Noreside Further this is not a case in which the course of dealing between the parties could be relied on by Irish Asphalt to incorporate its terms and conditions into the contracts between the parties The fact that the proviso is

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  • J also noted that the list of factors to be weighed against the legitimate State interests in any proportionality consideration is not exhaustive and will require a careful assessment of the actual circumstances of the sponsor refugee On the basis of the finding that the State does not have a right to avoid the burden of supporting the dependents MacEochaidh J held that no lawful or proper proportionality assessment had taken place 4 4 MacEochaidh J then went on to address the Minister s consideration of the application under article 8 of the European Convention on Human Rights where the reasons documents states Everyone has the right to respect for his private and family life his home and his correspondence If the Minister refuses the applicant s application for family reunification in respect of the family members this decision would engage the applicant s right to respect for family life under Article 8 1 of the ECHR Family Life Having weighed and considered the facts of the case it is not accepted that any interference with the applicant s right to family life will have consequences of such gravity as to constitute a violation of Article 8 As a result the decision to refuse the application for family reunification herein does not constitute a breach of the right to respect for family life under Article 8 of the ECHR 4 5 MacEochaidh J expressed the view that these paragraphs do not reflect a lawful approach to the assessment of ECHR rights There had not in his view been a full assessment of dependency outside of financial dependency sufficient to lead to the conclusion that interference with family life would not have consequences of such gravity as to constitute a violation of article 8 He considered that while the reasons document had attempted to follow the authority of R Razgar v Secretary of State for the Home Department 2004 3 All E R 821 in its assessment of article 8 rights in so doing an approach had been taken to the article 8 assessment which was not in accordance with law and was a misunderstanding of the phrase consequences of such gravity as used by the House of Lords in Razgar MacEochaidh J held that the phrase in question does not mean that that there must be grave consequences arising from such a negative decision before the Convention rights of the applicant are engaged In that regard the trial judge relied on the clarification of Razgar by Sedley L J in V W Uganda v The Secretary of State for the Home Department 2009 EWCA Civ 5 in which it was stated that the reference to consequences of such gravity simply reflects the fact that more than a technical or inconsequential interference with one of the protected rights is needed if art 8 1 is to be engaged Having determined that the decision maker commenced the assessment of article 8 rights by indicating that a negative decision by the Minister would engage Mr S s rights and then proceeded to ask whether any interference with family rights might have consequences of gravity MacEochaidh J held such an approach is not in accordance with law He went on to state The analysis should start by asking whether a negative decision on family reunification would interfere with article 8 rights and then ask whether that interference would have consequences of such gravity as to potentially engage Article 8 rights bearing in mind the proper meaning of consequences of such gravity Following that analysis the decision maker may decide that the interference is justified notwithstanding the engagement of rights 4 6 As noted earlier there are two broad areas of dispute on this appeal arising out of that judgment The first concerns the proper interpretation of s 18 of the 1996 Act to which I now turn 5 Section 18 5 1 Section 18 in relevant part provides as follows 1 Subject to section 17 2 a refugee in relation to whom a declaration is in force may apply to the Minister for permission to be granted to a member of his or her family to enter and to reside in the State and the Minister shall cause such an application to be referred to the Commissioner and a notification thereof to be given to the High Commissioner 2 Where an application is referred to the Commissioner under subsection 1 it shall be the function of the Commissioner to investigate the application and to submit a report in writing to the Minister and such report shall set out the relationship between the refugee concerned and the person the subject of the application and the domestic circumstances of the person 3 a Subject to subsection 5 if after consideration of a report of the Commissioner submitted to the Minister under subsection 2 the Minister is satisfied that the person the subject of the application is a member of the family or the civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 of the refugee the Minister shall grant permission in writing to the person to enter and reside in the State and the person shall be entitled to the rights and privileges specified in section 3 for such period as the refugee is entitled to remain in the State b In paragraph a member of the family in relation to a refugee means i in case the refugee is married his or her spouse provided that the marriage is subsisting on the date of the refugee s application pursuant to subsection 1 ii in case the refugee is on the date of his or her application pursuant to subsection 1 under the age of 18 years and is not married his or her parents or iii a child of the refugee who on the date of the refugee s application pursuant to subsection 1 is under the age of 18 years and is not married 4 a The Minister may at his or her discretion grant permission to a dependent member of the family of a refugee to enter and reside in the State and such member shall be entitled to the rights and privileges specified in section 3 for such period as the refugee is entitled to remain in the State b In paragraph a dependent member of the family in relation to a refugee means any grandparent parent brother sister child grandchild ward or guardian of the refugee who is dependent on the refugee or is suffering from a mental or physical disability to such extent that it is not reasonable for him or her to maintain himself or herself fully 5 The Minister may refuse to grant permission to enter and reside in the State to a person referred to in subsection 3 or 4 or revoke any permission granted to such a person in the interest of national security or public policy ordre public 5 2 As already noted this case is concerned with subsection 4 It is clear therefore that the statutory scheme in respect of such a case is that a person may apply to the Minister who is required to refer the matter to the Commissioner The Commissioner reports on the relationship between the refugee concerned and the person the subject of the relevant application under subsection 2 Nothing turns on the application or that report on the facts of this case 5 3 It is clear that in the case of family members other than those in respect of whom an automatic right arises under subs 3 the Minister has under subs 4 a discretion First the relevant family member must be a dependent member of the family concerned There was no dispute but that subject to the identity point the relevant persons in this case were dependent on Mr S However the Minister took issue with the interpretation placed on the term dependent by the trial judge In that context in the written submissions filed the Minister suggested that the trial judge erred in law by holding that that the concept of dependency under s 18 4 included moral dependency and a need for personal proximity The Minister suggested that the concept of dependency was not in issue at the hearing before the High Court and that no submissions or argument had been heard on the matter before that court 5 4 Given that the relevant persons were accepted as being dependent it does not seem to me that the question of the breadth of the definition of dependency arises on the facts of this case I would therefore leave to a case where the question of whether a relevant person was or was not dependent turned on the breadth of that definition the questions of interpretation raised by the Minister under this heading 5 5 However there were other questions raised by the Minister on this appeal in respect of the proper interpretation of section 18 As noted earlier the trial judge had found that the Minister was not entitled to regard the potential financial dependency of the members of Mr S s family on the State in the event of family reunification being granted as a factor which could weigh against the granting of family reunification The Minister argued that the section conferred on him a broad discretion to manage and control the immigration system of the State In that regard it was argued that an interpretation which sought to exclude the possibility of taking into account financial consequences was contrary to that broad discretion and was thus an inaccurate interpretation of section 18 5 6 In response Mr S submitted as a starting point that there is a presumption against unfettered statutory discretion East Donegal Co Operative Livestock Mart Ltd v Attorney General 1970 I R 317 This point was accepted by the Minister It was next suggested by Mr S that there is no requirement to be found in s 18 to the effect that the refugee and his family members must be financially self sufficient either on a literal or a purposive interpretation of the statutory regime 5 7 On the question of the literal interpretation of s 18 4 Mr S placed reliance on the fact that there is in s 18 4 b a definition of a dependent member of the family It follows that in order for a proposed reunification to be permitted the person in respect of whom the application is made must be dependent in that sense in order for that person to come within s 18 4 a On that basis it was accepted on behalf of Mr S that dependency is a qualifying criteria without which family reunification under s 18 4 a of the 1996 Act cannot be granted However it was argued that there was no reference otherwise to dependency and in particular no reference to the fact that a potential dependency on the State could be regarded as a disqualifying or exclusionary factor It was submitted by Mr S that had the legislature intended to make financial dependency relevant to the exercise of the Minister s discretion then express provision should have been made for same In support of this argument Mr S pointed the Court to the fact that under s 18 4 a a family member of a refugee to whom reunification is granted is entitled under s 3 2 a ii to receive the same social welfare benefits as those to which Irish citizens are entitled On that basis it was said that if the Minister were permitted to refuse reunification to a family member due to the fact that they would require recourse to social welfare benefits the effect would be to nullify section 3 5 8 In the alternative Mr S submitted that on a purposive interpretation of s 18 and in agreement with the findings of MacEochaidh J the legislative intent would be avoided if the Minister were entitled to rely on the likelihood of the need for social welfare support to refuse family reunification applications It was submitted by Mr S that the nature of the criteria which govern the statutory discretion of the Minister under s 18 4 must be ascertained by reference to the legislation as a whole including the legislative scheme underlying the Refugee Act 1996 In this respect it was submitted that in line with the findings of the trial judge the legislative purpose of s 18 is to facilitate the reception of refugees and to ensure their personal wellbeing while in the State 5 9 The Court was also referred to s 4 of the Immigration Act 2004 as amended 2004 Act and similar earlier provisions That Act makes general provision for the granting of permission to enter and reside in the State It was pointed out that under s 4 3 and s 4 10 of the 2004 Act the ability of an applicant to support himself or herself within the State is a relevant consideration on such applications Similarly it was noted that the right of an EU citizen to reside in Ireland for more than three months is subject to an express statutory requirement that he or she have sufficient resources to support himself or herself Following on from this it was suggested that the very existence of s 18 indicates that the legislature intended to make special provision for family reunification in the case of refugees both distinct and separate from applications for permission to enter and reside pursuant to s 4 of the 2004 Act or its predecessors In that context it is also of some relevance to refer to the general power which the Minister had to allow persons to enter the State at the time of the enactment of the 1996 Act That regime was to be found in the Aliens Order 1946 article 5 of which dealt with leave to enter and the conditions attached to same Of particular relevance is the requirement that an applicant must be in a position to support himself and any dependents Article 5 of the Aliens Order was subsequently amended by S I No 24 1999 Those provisions were replaced by the 2004 Act 5 10 Given that specific statutory measures were included in s 18 of the 1996 Act for the purpose of permitting entry into the state by family members of a refugee counsel for Mr S argued that the position of such parties must have been intended to have been enhanced above and beyond the entitlement of an ordinary person not being a member of the family of a refugee to enter the State 5 11 The real issue under this heading is therefore as to whether the trial judge was correct in determining that the Minister was not entitled to have any regard to the fact that the two family members concerned would be likely to have been a cost to the state in the form of social welfare payments and health provision I turn to that question 6 Discussion 6 1 There can be no doubt but that s 18 4 confers a wide discretion on the Minister in deciding whether to allow family reunification in respect of those family members who do not enjoy an automatic entitlement As was argued on behalf of Mr S and accepted on behalf of the Minister that discretion is not absolute The legislation is as the trial judge correctly pointed out sparse as to the criteria to be applied by the Minister It seems to me that the proper inference to draw from the absence of detailed criteria is that the Oireachtas was mindful of the fact that the range of circumstances which might properly be taken into account in any individual case could vary enormously from one situation to another Any attempt to impose specific criteria would run a real risk of unintended consequences which could have unfortunate and unanticipated results both for the State and for meritorious applicants 6 2 On the basis that the Oireachtas has conferred a wide discretion on the Minister it would be necessary in order that a factor might be ruled out from the Minister s proper consideration for such a factor to be outside the scope of matters which could properly be taken into account under the statute in a family reunification application I cannot see that the legitimate economic interests of the State can be so classified Those interests are real Scarce state resources have to be applied carefully not least in times when those same resources are stretched in making provision for those already within the country be they citizens those who have been granted refugee status or others within the State who have entitlement to state benefits In my view it would require clear language in the legislation which either expressly provided or necessarily inferred that such economic interests were not to be taken into account in order that it would be proper to interpret s 18 in a way which prevented the Minister from having regard to such economic interests in reaching an overall conclusion in an application under section 18 4 It must be recalled that unlike the position under s 18 3 the less immediate family members covered by s 18 4 do not have an automatic entitlement to family reunification I agree both with the trial judge and with Cooke J in his decision in Hamza that s 18 is designed in the interests of facilitating the reception of refugees and ensuring their personal wellbeing while in the State However it must also be taken into account that the section distinguishes between those on whom an automatic entitlement is conferred and those in respect of whom the Minister is entitled to exercise a discretion While weight and indeed significant weight must thus be placed on the undoubted statutory intention to facilitate family reunification the fact that the discretion under

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  • the respondent However there was not sufficient time to hear counsel for the appellant in reply Accordingly the matter was adjourned to a date to be fixed to hear counsel for the appellant in reply The date fixed for the resumed hearing was 31st July 2014 10 In the interim period between the first hearing and the resumed hearing regrettably the appellant had died Her death was unrelated to the personal injuries which were alleged to form the basis of her claim in the proceedings At the resumed hearing there was before the Court an affidavit sworn by Mr Doyle on 29th July 2014 in which he averred that the appellant had died on 11th July 2014 and exhibited her death certificate He also exhibited what he averred was a true copy of her last will dated 16th March 1998 in which she had appointed him the sole executor thereof Mr Doyle sought an order pursuant to Order 58 rule 8 of the Rules of the Superior Courts 1986 and pursuant to the Court s inherent jurisdiction granting leave to him to proceed with the appeal on the resumed hearing thereof as executor of the last will of the appellant Understandably the will of the appellant relied on by Mr Doyle as being her last will and testament had not been admitted to probate and he had not the status of personal representative at that stage In the circumstances the Court made no order amending the title to the proceedings but decided to hear the remainder of the appeal on a de bene esse basis 11 The legal representatives on record for the appellant helpfully had made available to the Court extensive Points in Reply in writing on the substantive issues Moreover the Court heard oral submissions from counsel for the appellant The position accordingly is that the parties to the appeal have obtained as full a hearing of the appeal as they are entitled to if the Court still has jurisdiction to adjudicate on the appeal 12 Anticipating that it might be argued on behalf of the respondent that the appellant s cause of action and claim did not survive her death counsel for the appellant furnished outline written submissions to the Court addressing that issue and made oral submissions The Court also heard from counsel for the respondent on the issue The Court having reserved judgment on the issue is satisfied that it does not require any further submissions from the parties The law 13 The survival of causes of action on death is now governed by s 7 which is in Part II of the Civil Liability Act 1961 the Act of 1961 Sub sections 1 and 2 of s 7 which are relevant for present purposes provide as follows 1 On the death of a person on or after the date of the passing of this Act all causes of action other than excepted causes of action vested in him shall survive for the benefit of his estate 2 Where by virtue of subsection 1 of this section a cause of action survives for the benefit of the estate of a deceased person the damages recoverable for the benefit of the estate of that person shall not include exemplary damages or damages for any pain or suffering or personal injury or for loss or diminution of expectation of life or happiness The expression excepted causes of action which appears in subs 1 is defined in s 6 of the Act of 1961 which has been amended most recently by the Defamation Act 2009 The appellant s cause of action does not come within that definition which in reality now only captures an action for seduction Section 48 of the Succession Act 1965 provides that the personal representatives of a deceased person may sue and be sued in respect of all causes of action the benefit of which survive for or against the estate of the deceased person Hence the approach adopted by the Court on 31st July 2014 as explained earlier in paragraph 10 14 Sub section 3 of s 7 deals with a situation where a cause of action survives by virtue of subs 1 for the benefit of the estate of a deceased person and the death of such person has been caused by the circumstances which gave rise to such cause of action Clearly subs 3 has no application to the appellant s proceedings or this appeal Similarly subs 4 which provides that the rights conferred by s 7 are in addition to rights conferred on the dependents of deceased persons by Part IV of the Act of 1961 has no application to the appellant s proceedings or this appeal 15 The position of the respondent at the resumed hearing was not that the appellant s cause of action such as was vested in her at the date of her death did not survive for the benefit of her estate in accordance with subs 1 of s 7 Rather the position of the respondent was that having regard to subs 2 no damages were recoverable for the benefit of the estate of the appellant because the only damages claimed in the proceedings were excluded from recoverability by virtue of subs 2 being damages for pain suffering and personal injury In particular it was emphasised on behalf of the respondent that there was no claim for special damages That was not contradicted on behalf of the appellant 16 Counsel for the appellant recognised that the current law as amended and consolidated in the provisions of the Act of 1961 replaced the common law maxim actio personalis moritur cum persona a personal action dies with the person which has been effectively abolished A useful summary of the application of that maxim is to be found in a footnote fn 4 to paragraph 1279 of Volume 103 of the fifth edition of Halsbury s Laws of England being the second volume on Wills and Intestacy where

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  • is important in that context to identify the real issue which arises in these proceedings at least insofar as they involve Mr Keohane s claim against Grehan and Partners That claim is to the effect that Grehan and Partners were negligent in the way in which they handled the transaction concerning the share sale In particular it is said that the instructions given to Grehan and Partners were that an agreement should be entered into with Mr Hynes personally and that Grehan and Partners did not advise Mr Keohane that the written contract presented for signing was with a limited liability company In addition it is said that Grehan and Partners did not advise as to the presence and effect of certain other clauses in the share purchase agreement which it is argued fell well short of protecting Mr Keohane s interests It goes without saying that at least at the level of principle such a claim could succeed If a person instructs a solicitor to procure that he enter into an agreement with an individual and the solicitor and without properly advising him of the fact procures that he signs a contract with a limited liability company instead then there may be a claim in negligence although there might of course be important questions as to what the consequences of any such negligence might be As already noted it is said that the way in which the agreement was structured did not properly protect Mr Keohane and in particular appeared to contemplate that some of the payments to be made to him for the sale of his shares in the company were to come out of the sale proceeds of the company s assets In that sense it was argued that the contract may well have been in breach of s 60 of the Companies Act 1963 In that and other respects it was argued that the contract was defective to Mr Keohane s disadvantage 5 2 I do not read the judgment of the trial judge as taking the view that such claims might not at least in theory be successful Rather the view which the trial judge appears to have taken is that the necessary factual basis for such a claim could not be established As noted above Hedigan J concluded that Mr Keohane s claim was fundamentally premised on the contention that he was understood that he was contracting solely with Mr Hynes and not Studley Having held there was no evidence to sustain this contention the judge ruled it was impossible to run the case on this basis 5 3 It is on that issue that it is necessary to examine the evidence Mr Keohane in his affidavit of the 18th March 2009 denied that he was aware of the fact that he was contracting with a limited liability company and affirmed that it was his belief that he was contracting with Mr Hynes personally He further claimed that he was so advised both by Mr Hynes and by Grehan and Partners On the date the agreement was concluded Mr Keohane stated that portions of the agreement were read to him although he was not allowed to read the document personally It is said that the document was immediately taken away from him when he signed it and that he was refused a copy The account of Ms Betty Keohane the wife of Mr Keohane who was also present at the signing of the agreement in 2000 as set out in her affidavit of the 17th July 2009 is almost identical to that of Mr Keohane This version of events is denied by Grehan and Partners who have given an alternative account in the affidavits of Malachy O Callaghan 5 4 The real question was as to whether based on that evidence it can fairly be said that Mr Keohane s claim as against Grehan and Partners is bound to fail on the facts 5 5 At this stage it is important record what in my view was a very significant development which occurred at the hearing of the appeal As noted earlier the clear focus of the judgment of the trial judge was on the question of whether the allegation that Mr Keohane did not know that he was contracting with Studley was capable of being sustained As also noted Hedigan J concluded that that allegation could not be sustained and that an inability to sustain that allegation rendered the proceedings bound to fail 5 6 However at the hearing of the appeal counsel on behalf of Grehan and Partners acknowledged that in accordance with the jurisprudence to which I will shortly refer the Court would have to accept for the purposes of this application that Mr Keohane would be able to sustain the factual basis of his argument Likewise counsel accepted that there were other potentially sustainable allegations of negligence concerning the way in which the contract was drafted Thus to a very real extent it appeared to me that counsel largely abandoned the reasoning of the trial judge but sought to justify the trial judge s ultimate conclusions on a different basis While it will be necessary to explore that basis in more detail in due course it can in summary be said that the focus of the argument presented to this Court was that there was no sustainable basis on which Mr Keohane would be able to establish any adverse consequences of any wrongdoing which might be proven On that basis it was said that a wrong without damage was not actionable and that proceedings in which it was impossible that damage could be established were in substance bound to fail 5 7 It seemed to me to follow therefore that counsel accepted to a very significant extent indeed the principal criticism which was made by Mr Keohane of the trial judge s judgment being that the trial judge had strayed impermissibly into issues of fact 5 8 Given the approach which was adopted by the trial judge and in the light of the argument as it developed it does seem to me to be important at this stage to revisit and restate the undoubted limitations which exist in the context of a motion to dismiss as being bound to fail on seeking to determine facts I therefore turn to the jurisprudence 6 Jurisprudence 6 1 In my High Court judgment in Salthill Properties Limited anor v Royal Bank of Scotland plc ors 2009 IEHC 207 which was approved in the recent judgment of this Court in Lopes v Minister for Justice Equality Law Reform 2014 IESC 21 I explained the distinction between the jurisdiction which arises under O 19 r 28 and that which arises under the inherent jurisdiction of the court At para 3 12 of Salthill Properties I said the following It is true that in an application to dismiss proceedings as disclosing no cause of action under the provisions of Order 19 the court must accept the facts as asserted in the plaintiff s claim for if the facts so asserted are such that they would if true give rise to a cause of action then the proceedings do disclose a potentially valid claim However I would not go so far as to agree with counsel for Salthill and Mr Cunningham to the effect that the court cannot engage in some analysis of the facts in an application to dismiss on foot of the inherent jurisdiction of the court A simple example will suffice A plaintiff may assert that it entered into a contract with the defendant which contained certain express terms On examining the document the terms may not be found or may not be found in the form pleaded On an application to dismiss as being bound to fail there is nothing to prevent the defendant producing the contractual documents governing the relations between the parties and attempting to persuade the court that the plaintiff has no chance of establishing that the document concerned could have the meaning contended for because of the absence of the relevant clauses The whole point of the difference between applications under the inherent jurisdiction of the court on the one hand and applications to dismiss on the factual basis of a failure to disclose a cause of action on the other hand is that the court can in the former look to some extent at the factual basis of the plaintiff s claim 6 2 However it is important to emphasise that the extent to which it is appropriate for the Court to assess the evidence and the facts on a motion to dismiss as being bound to fail is extremely limited In that context it is perhaps appropriate to go back to one of the earlier important cases on this topic being Jodifern v Fitzgerald 2000 3 I R 321 There Barron J observed at p 332 One thing is clear disputed oral evidence of fact cannot be relied upon by a defendant to succeed in such an application Again while documentary evidence may well be sufficient for a defendant s purpose it may well not be if the proper construction of the documentary evidence is disputed If the plaintiff s claim is based upon allegations of fact which will have to be established at an oral hearing it is hard to see how such a claim can be treated as being an abuse of the process of the court It can only be contested by oral evidence to show that the facts cannot possibly be true This however would involve trial of that particular factual issue He then added at p 333 In my view a defendant cannot succeed in an application to strike out proceedings on the basis that they disclose no reasonable cause of action or are an abuse of the process if the court on the hearing of such application has to determine an issue for the purpose of deciding whether the plaintiff could possibly succeed in the action It is not the function of the court to determine whether the plaintiff will succeed in the action The function of the court is to consider one question only was it proper to institute the proceedings This question must be answered in the light of the statement of claim and such incontrovertible evidence as the defendant may adduce If the claim could never have succeeded then the proceedings should be struck out There is no room for considering what evidence should be accepted or how it should be interpreted To do the latter is to enter on to some sort of hearing of the claim itself In that same case Murray J in explaining the need for caution in such an application stated at p 334 The reason for such caution is self evident The making of an order staying or dismissing the proceedings on the basis of such inherent jurisdiction deprives the plaintiff of access to the courts for a trial of his or her action The object of such an order is not to protect a defendant from hardship in proceedings to which he or she may have a good defence but to prevent the injustice to a defendant which would result from an abuse of the process of the court by a plaintiff Clearly therefore the hearing of an application by a defendant to the High Court to exercise its inherent jurisdiction to stay or dismiss an action cannot be of a form of summary disposal of the case either on issues of fact or substantial questions of law in substitute for the normal plenary proceedings 6 3 In like vein Birmingham J in Burke Anor v Anglo Irish Bank Corporation PLC Anor 2011 IEHC 478 emphasised that a court cannot seek to resolve conflicts of fact in an application to dismiss as being bound to fail but rather is required to accept the facts as deposed to on behalf of the plaintiff 6 4 More recently still in Lopes I said the following at para 2 6 of my judgment At the same time it is clear that certain types of cases are more amenable to an assessment of the facts at an early stage than others Where the case is wholly or significantly dependent on documents then it may be much easier for a court to reach an assessment as to whether the proceedings are bound to fail within the confines of a motion to dismiss In that context it is important to keep in mind the distinction which I sought to analyse in Salthill Properties between cases which are dependent in themselves on documents and cases where documents may form an important part of the evidence but where there is likely to be significant and potentially influential other evidence as well The passage referred to above from Salthill Properties as to the various types of documents cases begins at para 3 9 of the High Court judgment and is as follows It has often been noted that an application to dismiss as being bound to fail may be of particular relevance to cases involving the existence or construction of documents For example in claims based on written agreements it may be possible for a party to persuade the court that no reasonable construction of the document concerned could give rise to a claim on the part of the plaintiff even if all of the facts alleged by the plaintiff were established Likewise a defendant in a specific performance action may be able to persuade the court that the only document put forward as being a note or memorandum to satisfy the Statute of Frauds could not possibly meet the established criteria for such a document More difficult issues are likely to arise in an application to dismiss when there is at least some potential for material factual dispute between the parties capable of resolution only on oral evidence At this end of the spectrum it is difficult to envisage circumstances where an application to dismiss as bound to fail could succeed In between are a range of cases which may be supported to a greater or lesser extent by documentation 3 10 However it is important to emphasise the different role which documents may play in proceedings In cases such as the examples which I have given earlier involving contracts and the like the document itself may govern the legal relations between the parties so that the court can consider the terms of the document on its face and may be able to come to a clear view as to the legal consequences flowing from the parties having governed their relations by the document concerned 3 11 However there are other cases where documents are not vital in themselves save that they may cast light on the underlying facts which may be at the heart of the proceedings concerned Correspondence minutes of meetings memoranda and the like do not of themselves create legal relations between the parties Rather they purport to reflect facts such as what was said at meetings what was communicated from one party to another or the like Parties may explain or seek to clarify what might otherwise appear to be the natural meaning of such documents At the end of the day it will be what view the court takes as to what actually happened that will determine the facts on the basis of which the court will come to its judgment Contemporary documentation is often a very valuable guide to such facts but such documentation is not necessarily determinative It is important in that context not to confuse cases which are dependent on documents themselves with cases where documents may be a guide albeit often a most important guide to the underlying facts which need to be determined in order to resolve the issues between the parties 6 5 It is important for the avoidance of any doubt that the overall principle be clearly stated As pointed out in many of the authorities not least in the judgment of Murray J in Jodifern the underlying basis of the jurisdiction to dismiss as being bound to fail stems from the court s inherent entitlement to prevent an abuse of process Bringing a case which is bound to fail is an abuse of process If it is clear to a court that a case is bound to fail then the court has jurisdiction to prevent that abuse of process by dismissing the proceedings However as again noted by Murray J in Jodifern whatever might or might not be the merits of some form of summary disposal procedure an application to dismiss as being bound to fail is not a means for inviting the court to resolve issues on a summary basis 6 6 It is for that reason that all of the jurisprudence emphasises that the jurisdiction is to be sparingly exercised and only adopted when it is clear that the proceedings are bound to fail rather than where the plaintiff s case is very weak or where it is sought to have an early determination on some point of fact or law It is against that background that the extent of the court s entitlement to look at the facts needs to be judged 6 7 I am in full agreement with the views expressed by Birmingham J in Burke Where there is evidence placed before the court on affidavit on behalf of a plaintiff which if accepted at trial might arguably lead to the plaintiff succeeding then that is an end of the matter But it does not necessarily follow that a plaintiff even has to put evidence of that type before the court In Lopes I observed at para 2 5 In order to defeat a suggestion that a claim is bound to fail on the facts all that a plaintiff needs to do is to put forward a credible basis for suggesting

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  • a direction it shall make the grant in accordance with the direction as soon as may be after the giving by the Board of the direction emphasis added 17 Sections 133 138 and 139 of the Act are not material to consideration At first sight therefore there is both a decision to grant permission and then it is followed by the making of a grant One can therefore reach a tentative hypothesis this was a two step process An entitlement to carry out a development would appear to follow on from a grant not from the primary decision The permission is simply what it says a decision to grant permission it is the grant which from a planning law perspective renders lawful the carrying out of the development Is this hypothesis confirmed by further analysis 18 In what follows one cannot avoid observing a certain incongruity in the case The County Council relies on its own default in order to place a duty on the appellants I emphasise that it was ultimately accepted that the time limitation was that set out in the Rules of the Superior Courts that is three months 19 By statute insofar as a time limit under PDA 2000 might have applied the time permitted for judicial review by way of certiorari of a decision by a planning authority would be eight weeks see s 50 3 PDA 2000 The County Council s case was that its duty was simply to make a decision on the application by the 26th June 2007 and thus whether under statute or the Rules the time ran from then The Council points to the fact that the appellants planning consultant deposed in affidavit to having contacted the Council s planning department on the 27th June 2007 enquiring as to the outcome of the planning application and that he was advised that no decision had issued by that date But was there ever in fact even a primary decision in the sense intended by the statute 20 Relying on s 34 11 a quoted above the Ryans contend that it was not until the 24th July 2007 being the expiry of the statutory 4 week time limit for the bringing of an appeal that a right even to call for the grant of a permission by default was vested in them In response the Council contends that by the afternoon of the 3rd July 2007 the appellants were aware through their lawyers that the Council had not made a decision on the planning application within the 8 week statutory period specified by s 34 8 a PDA 2000 But the appellants rejoin the expiry of the four week appeal period prima facie can not give rise to a grant of permission either 21 In summary then the Council at first contended in this appeal that the grounds for the application for a judicial review arose first either on the 26th June 2007 being the date of its failure to carry out the relevant duty which was amenable to challenge by judicial review or alternatively its failure was either a to issue to the appellants a notification of a decision to grant planning permission by default within 3 working days of the 26th June 2007 see s 34 8 f PDA 2000 and Article 31 of the Planning Development Regulations 2001 S I No 600 of 2001 as amended by the Planning and Development Regulations 2006 S I No 685 of 2006 which provide that notification of a decision by a planning authority in respect of an application shall be made within three working days of the day of the decision or b to make the grant of planning permission to the appellants after the expiry of the statutory 4 weeks for an appeal that is the 24th July 2007 see s 34 11 a i PDA 2000 In either event Council contended the Ryans were out of time as a leave application was not made until the 19th November 2007 22 Alternatively the Council relied on a further line of defence still relevant on the general issue of delay It said that the Court should also have regard to the fact that had hypothetically a decision either to grant or refuse the application for permission actually been made on the 26th June 2007 then pursuant to the provisions of s 50 4 a i PDA 2000 the appellants assuming the matter has been governed by PDA 2000 in the ordinary course of events would have had to make an application for leave to apply for judicial review within a period of 8 weeks beginning on the date of the decision i e by 20th August 2007 The Council submits that where a planning authority decides under s 38 of PDA 2000 to grant a permission the period for the taking of an appeal to An Bord Pleanála from that decision would have expired on the 23rd July 2007 so that even were the court to adopt an expansive approach insofar as the claim for mandamus is concerned the Council s obligation under s 34 11 a i was to make a grant of permission as soon as may be after the expiration of the period for the taking of an appeal i e as and from the 23rd July 2007 It is said this crystallised the period for judicial review time purposes 23 Thus the Council submits on the assumption that time began to run against the applicants from any one of those points and even allowing that it was for a period of 3 months under the Rules for bringing judicial review proceedings that time must have expired on the 22nd October 2007 But the application for leave was not made until the 19th November 2007 Was it out of time The Discretionary Issues 24 The County Council also looks to three discretionary issues which form part of the circumstances which it says should also go to the manner in which the court s discretion should be exercised The Council says that added to or as a component of the elapse of time any one or all of the following three considerations would have warranted refusal of relief i First while the Council s solicitors advised the Ryans solicitors to write to them on the 9th July 2007 more than 7 weeks expired thereafter It was only on the 28th August 2007 that the appellants solicitors first wrote to the County Solicitor asserting that a default permission had arisen The County Council did not receive them until 30th August 2007 It is said there was delay on this basis ii Second when the application was opened before the High Court in the full judicial review hearing counsel for the Ryans appraised the court that a deliberate decision had in fact been taken not to seek any response from the Council until after the expiration of the period allowed to notice parties for bringing an appeal to An Bord Pleanála as provided under s 34 11 PDA 2000 The County Council says this was a conscious and deliberate inaction on the appellants part in order to go beyond the expiration of any potential entitlement that the notice party objector might have had iii Third it was readily apparent from a letter from the County Council s solicitors dated the 17th September 2007 that the Council was not amenable to being regarded as having actually granted a default permission to the applicants on the 26th June 2007 yet despite that the applicants allowed a further period in excess of two months to expire before the application was made to the High Court for leave to apply for judicial review 25 Taking these additional discretionary factors into account it is said that having regard to the provisions of Order 84 Rule 21 1 of the Rules of the Superior Courts the appellants cannot be said to have met their primary obligation of having made the application promptly nor can it be said that the application was made in any event within 3 months of the date when grounds for the application first arose even allowing for some indulgence to the appellants by disregarding particular time periods 26 In response the Ryans submit that they had carefully to consider the precise nature of the remedy which they would seek by way of judicial review They contend that in order to determine the time limitation period it was necessary to consider precisely the process which was involved in the grant of permission and that by default they received a decision to grant permission but they did not receive thereby a grant of permission They submit it was necessary for the planning authority to make a grant of permission under s 34 11 a i PDA 2000 cited earlier and they were not entitled to proceed with the development until they actually had a grant of planning permission For this reason they say what was required was that they should bring mandamus proceedings to compel the planning authority to make a grant of permission 27 For reasons now outlined I accept the appellants submission and the logical consequences which in law must inevitably flow from such acceptance 28 It is certainly the case that a decision by default is a deemed decision However this does not confer any rights to carry out a development unless and until a grant of permission ultimately issues In considering delay therefore time cannot be regarded as having commenced to run from the date of the deemed decision As referred to earlier s 34 11 a i provides that where the planning authority decides under the section to grant a permission i it shall make the Grant as soon as may be after the expiration of the period for the taking of an appeal What is necessary for Mandamus 29 An application for mandamus requires that there be a denial of a right Until the expiration of an appeal period therefore no right was vested in the Ryans to call for the grant It is well established that in the case of an application for mandamus the right to bring an application cannot accrue until there has been a demand and a refusal The State Modern Homes Ireland Limited v Dublin Corporation 1953 I R 202 30 What is necessary is that there must have been an adequate clear and repeated demand for the performance of a particular act It is unnecessary that the word demand be there but there must be enough on the whole of the facts to show to a court that for some improper reason compliance is withheld and or an indication given of an intention not to do what is required Modern Homes demonstrates there must be a distinct refusal to comply with such a demand either in direct terms or by conduct from which a refusal can be conclusively implied This arises from the fact that before an application can be made to the Court to compel a person or body to act in accordance with its duty the person or body has the option of either doing or refusing to do that which is required When were these requirements satisfied in the instant case 31 Bearing in mind there must be both a demand and an express and distinct refusal that demand was only made in a letter of the 28th August 2007 This was not an excessive or unreasonable delay in making a demand in the circumstances The refusal was communicated by the County Council s solicitor in a letter of the 17th September 2007 and received by the appellants solicitors on the 18th September 2007 The Notice of Motion seeking leave to apply for judicial review was dated the 9th November 2007 Leave to apply for judicial review was granted on the 19th November 2007 Thus although the High Court judge may have erred in referring to time as starting to run as and from the 25th September 2007 I do not think this makes a difference Time had not expired The Discretionary Factors 32 Should the three discretionary factors alluded to earlier then alter the situation in any way The fact that an application is made within time may not always be conclusive as to whether delay will be granted However a claim cannot normally be defeated for delay if it is commenced within the relevant time There would need to be some special factor such as prejudice to third parties see judgment of Fennelly J in Dekra Eireann Teoranta v Minister for Environment Local Government 2003 2 I R 270 33 Can any specific prejudice be shown Again the incongruity of the County Council s position is significant The Council can hardly claim that it specifically is prejudiced by virtue of its own neglect or default There is of course the position of the notice parties herein who objected to the application But the County Council cannot rely on any prejudice suffered by third party objectors The County Council adopted the objectors submissions on this issue 34 But I am not convinced that the notice parties themselves suffered prejudice at least in the sense that it should be recognised as a bar to discretionary relief They would need to have demonstrated some clear detriment but that evidence is lacking for reasons now explained First insofar as prejudice might arise it seems to me to derive primarily from the way in which the Act was framed rather than any act or omission specifically referable to the objectors own situation Undoubtedly the third party objectors who were neighbours would have needed to keep a very close eye on the progress of the application in order to avail of a right of appeal but can the expiry of time in itself constitute prejudice Second it has not been shown that the detriment went further and led in a clear tangible way to a real denial of some substantive ground of objection Third I am not persuaded that the objectors can rely on some hypothetical inconsistency with the Local Area Plan It is quite unclear whether the development as envisaged would be at variance from the plan a subject addressed more specifically in considering the Court s discretion The Refusal of Mandamus on Discretionary Grounds 35 Section 18 3 of PDA 2000 provides that a When considering an application for permission under section 34 a planning authority or the Board on appeal shall have regard to the provisions of any local area plan prepared for the area to which the application relates and the authority or the Board may also consider any relevant draft local plan which has been prepared but not yet made emphasis added 36 Having correctly found that the appellants application for planning permission did not involve a material contravention of the County Development Plan the trial judge went on to conclude that it was actually unnecessary for the County Council to show that such an application involved a material contravention of that Plan He held it would be sufficient to show that the application properly made and processed would have required the planning authority to disregard or not to have proper regard to the Local Area Plan It is now accepted on all sides that there is no question of any material contravention of the County Development Plan 37 The trial judge went on to express himself in this way In considering this issue it is paramount that the court should remain mindful of precisely what the applicants are seeking in the present case It is clear from the legislation that regard to the Local Area Plan is an essential prerequisite for any decision to be made by the respondent In essence therefore the applicants are asking the court to deem the respondent to have made a decision which if made in the absence of the court s assistance would amount to an unlawful act because ipso facto no regard could be had to the Local Area Plan in a default permission Had the respondent in the present case made a formal decision in respect of the application within the relevant time period without having regard to the Local Area Plan that decision could readily be impugned on judicial review He continued It seems to me that there is an overriding need to maintain a coherent logic while interpreting the provisions of the 2000 Act in particular while dealing with the complex area of default planning permission The court must remain mindful at all times of the potential consequences of a grant of default permission In view of this I cannot accept the submission of the applicants that this court has power to order the respondent to issue planning permission in respect of a proposal which would contravene the Local Area Plan 38 But these important passages raise or more appropriately beg a number of questions Among these are a What would have been the consequence if the local authority did have regard to the Local Area Plan b What considerations would the County Council have borne in mind in making an assessment having regard to that plan c Could the absence of such a component be characterised as prejudice or detriment either by the Council or the notice parties The answer to all these questions unavoidably raises the question of whether a court may appropriately deal with or engage in what must necessarily be purely planning considerations Is it the business of the courts to have regard to substantive merit based planning considerations As a consequence of the Aarhus Convention both national and European law in this area may now be in a state of further development But on the extant legal authorities the answer to the questions must be no that it is not the business of the courts to enquire into a merits based issue of this type 39 In analysing the High Court judgment it must

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  • is not in any way particularised in the existing statement grounding the application for judicial review 6 The initial letter in this case was sent by the solicitor to the applicants appellants on 15th March 2013 and it includes a paragraph complaining about the capacity of the National Procurement Service or NPS to establish the framework at issue in these proceedings The NPS has purported to establish the framework to award the contracts for and on behalf of the stated organisations and bodies of the State We can find no basis in law for the NPS being entitled so to do Please provide details as to the authority capacity of the NPS so to do with reference to each and every statutory provision relied upon by the NPS in so doing 7 This capacity ground was on the evidence before the Court simply forgotten in the rush to bring out proceedings The error was discovered in late October 2013 and a letter was formulated dated 4th November of that year seeking to amend the statement of grounds to include the issue of capacity and to make a claim in damages This was at a time when the parties were yet to conclude the exchange of affidavit evidence in the in the proceedings By letter dated the 8th of that month the amendment was refused and the following reasons were given Firstly as you are aware specific and strict time limits are provided for in the relevant statutory regulations and Rules of the Superior Courts and it is clear that your clients are far out of the allowed time to raise these matters Secondly if applicants were permitted to avoid the effect of the strict time limits laid down in procurement matters by the statutory regulations the Rules of the Superior Courts and the case law of the courts on the basis of mere oversight those time limits which are in the public interest would be rendered nugatory Thirdly pleadings are closed and extensive affidavits have already been exchanged in this matter If your clients were to be permitted to raise this matter at this juncture it would require an additional verifying affidavit to be delivered by your clients as the issues which your clients seek to raise are not ones simply of law 8 Subsequent to that letter on 16th and 17th December 2013 affidavits were filed on behalf of the appellants and thereafter on 20th February 2014 and 11th March 2014 affidavits were also filed on behalf of the respondent Consequently it is difficult to see the legal point raised as operating in any way as a delaying factor Time limits 9 In various statutory provisions and through secondary legislation strict time limits have been laid down for the commencement of various kinds of cases where the swift determination of these is regarded as involving a particular public interest Thus in planning matters in cases concerning failed applications from refugee status and in public procurement to take a few examples shorter and strict time limits are involved than those generally applicable for judicial review of administrative and quasi judicial decisions Where a case is commenced within time on a particular ground but it is sought to add a new ground outside the terms of the statutory limit for commencing the proceedings it is not available to an applicant to argue an amendment simply on the basis that the case began on time The approach of a court deciding such an application should look to the original time limit as set in legislation whether those time limits are strict or may be extended whether an amendment is permitted expressly or by necessary statutory implication and what level of excuse is needed to justify the addition of a new ground outside time 10 There is an opportunity to amend proceedings under the statutory scheme in force in this case where there is good reason to do so though the Article is silent as to the test In Dekra Éireann Teoranta v The Minister for the Enviornment 2003 2 IR 270 public procurement was directly in issue before this Court An application had been made out of time by the applicant to challenge a public procurement decision The High Court had granted an extension On appeal the Supreme Court reversed that decision Fennelly J considered that this kind of case within the statutory framework in which it is case an especial obligation on an applicant to move swiftly At page 304 he stated The strictness with which the courts approach the question of an extension of time will vary with the circumstances However public procurement decisions are peculiarly appropriate subject matter for a comparatively strict approach to time limits They relate to decisions in a commercial field where there should be very little excuse for delay 11 Denham J after analysing the legislative context also emphasised the limitation that uncertainty in the market in procurement by the State was required to be imposed on judicial review of such decisions She then turned at pages 288 289 to an analysis of when there might be good reason to extend time There was an onus on the applicant to explain the delay and to give good reason to extend the time within which the application may be brought The applicant did not explain the whole delay It explained part of the delay In addition no good reason was afforded as to why time should be extended In exercising its discretion in such applications the court retains its duty to protect the right of access to the courts However there are special weightings which must be given Thus the requirement under European and Irish law that such applications be brought rapidly is important So too is the nature of the contract under review This public contract calls into play the special importance of time and thus the nature of the prejudice to the parties if they are delayed The court may also consider any prejudice

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  • of the reliefs sought by Mr Kelly that is to say an order for possession of the Ewing interest plot was not granted because it was not appropriate to make an order for possession at that stage in a mortgage suit founded on a judgment mortgage As I understand it apart from the sum of IR 500 damages awarded on the High Court appeal in the Circuit Court equity proceedings to William Ewing all of the monies secured by the judgment mortgages represented costs and in all cases the costs had been taxed On the basis that all of the costs had been subject to taxation the Court rejected Mr Ewing s assertion that the monetary claims were inflated I believe that the note prepared by Mr Kevin Rooney of K J Rooney Co the solicitors for Mr Kelly which was lodged in the Supreme Court office on 5th March 2009 of the observations I made in giving judgment is accurate I gratefully adopt Mr Rooney s note In particular I emphasised that the terms of the order were to be the usual terms of a well charging order in a mortgage suit 6 Mr Ewing filed a notice of appeal dated the 28th February 2008 In that document Mr Ewing raised issues of harassment malicious intent attack on religion emotional abuse re occurrence of harassment unsafe evidence no evidence matters of general importance ghettoisation social order appropriate orders a human rights issue compensation and striking out Article 43 2 of the Constitution time limitation and costs degrading punishment Article 3 negation of dwelling Article 8 demeaning of opinion Articles 9 and 14 destruction of domestic environment Article 1 of Protocol 1 7 The Court received full written submissions from Mr Ewing which it has considered carefully 8 The Court also heard oral submissions from Mr Ewing In oral submissions Mr Ewing stressed three matters i The service of the special summons in these proceedings ii That there was no regard to true social order iii The concession in the High Court Service of Summons 9 The submissions in relation to the service of the summons were considered carefully Mr Ewing said that the summons had not been served on him However I am satisfied that this ground of appeal fails Mr Ewing entered an appearance took part in the High Court proceedings filed affidavits and addressed issues in the High Court There was no issue as to the service of the summons raised in the High Court In addition the endorsement on the High Court special summons states that it was issued by K J Rooney Co whose registered place of business is Colonial Buildings Eglinton Street Galway Solicitors for the plaintiff Mr Kelly who resides at Grange Park Loughrea Co Galway and who is a farmer The affidavit is endorsed and signed by Niall Rooney of Colonial Buildings Eglinton Road Galway and it is stated that the summons was served by Niall Rooney at Abbeyville House Kilnadeema Loughrea Co Galway on the defendant Robert Ewing on the 7th day of September 2006 and indorsed on the 8th September 2006 10 As Mr Ewing filed an appearance and took part in the High Court hearings if there had been any imperfection in the service of the special summons which does not appear to be so any such imperfection has been cured Thus the appeal on this ground fails No regard for true social order 11 The issue of true social order was raised in the High Court by Mr Ewing unsuccessfully This matter was raised before this Court in the written submissions of Mr Ewing 12 It was submitted at Part L 1 of the appellant s notice of appeal that Social order is commonly indicated by residence and these proceedings rather than specifically allege that the appellant s occupation of the dwelling is inconsistent with requirements of true social order i e by way of claim that such alleged costs should be paid and are unlikely to be paid any other way generally allege such inconsistency i e by way of claim that the appellant is not the appropriate person to continue possession or continue to have rights in the dwelling as presently constituted and do so with evidently callous disregard for both the appellant s upgrade and renovation of the dwelling and the nature of his legal concerns as its custodian a disregard in fact for the appellant being its worthy custodian 13 Mr Ewing also submitted at Part L 2 of the notice of appeal that The relevant issue of the appropriateness of a landmark property such as the dwelling being occupied by a non native person with divided cultural sympathies is answered by way of reference to the respondent s unconscionable claim for possession or sale of the dwelling i e the claim of the local malcontent pertaining to such issue in this particular case for such callousness suggests that as far as such issue can be decided by these proceedings the respondent s claim is immoral and fails 14 In oral submissions Mr Ewing said that the learned trial judge had not taken into account the concept of true social order Mr Ewing said that it was the principle issue with deviation and concession and that his views were not taken into account He said that he was not in a dignified situation which implied that he was not dignified 15 As to this aspect of the appeal it was submitted that the issues before the learned High Court judge were set out in her report There have been five sets of proceedings including these proceedings in which matters relating to the dispute between Mr Kelly and Mr Ewing were addressed and decided 16 It being pointed out to counsel that Mr Ewing had raised the issue that the learned High Court judge should have taken into account true social order counsel replied that true social order relates to the dispute between Mr Ewing

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  • by any purely logical process This is because at bottom the question raised is not a legal question or a purely logical question It is a question of values and attitudes so deep that it is an understatement to call it a matter of policy In my judgments in Sinnott and T D 2001 2 I R 545 and 2001 4 I R 259 respectively I give several reasons for the conclusion that the Courts should not impose their own opinions on questions which are not fundamentally of a legal nature at all 10 I do not intend to repeat that discussion here merely to mention it lest failure to note my reservations regarding the expansive attitude to the Courts power expounded by Mr Justice Clarke might suggest acceptance of it The point will inevitably arise in other cases sooner rather than later 11 It is plainly necessary for any Common Law judge confronted with the often very seductive temptation to change the law in the interests of what he or she perceives to be justice to be very clear as to the legitimate scope of a judge s ability to do so Justice Oliver Wendell Holmes was Chief Justice of the General Court of Massachusetts and subsequently for twenty five years a Justice of the United States Supreme Court He was the author of a well known treatise on The Common Law He was a scholar par excellence of the role of the Common Law judge and in particular of the scope for such a judge to develop or evolve that body of law In Southern Pacific Company v Jensen 244 US 205 he said in an influential passage at p 244 of the Report I recognise without hesitation that judges do and must legislate but they can do so only interstitially they are confined from Molar to Molecular motions A Common Law judge could not say I think the doctrine of consideration a bit of historical nonsense and I shall not enforce it in my court No more could a judge exercising the limited jurisdiction of admiralty say I think well of the Common Law Rules of Master and Servant and propose to introduce them here en bloc Justice Holmes language is in part somewhat unusual But molar means of or relating to a very large body or mass molecular on the other hand connotes an extremely small entity This passage was adopted in Kleinwort Benson v Lincoln City Council 1999 2AC 349 at 377 by the distinguished English jurist Lord Goff When a judge decides a case which comes before him he does so on the basis of what he understands the law to be This he discovers from the applicable statutes if any and from precedents drawn from reports of previous judicial decisions In the course of deciding the case before him he may on occasion develop the Common Law in the perceived interests of justice though as a general rule he does this only interstitially

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