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  • this jurisdiction and others engaged in by O Donnell J 4 My principal purpose for adding a brief judgment of my own to those other judgments in this case is to indicate one further question which it seems to me may require further consideration in the future One of the points made by MacMenamin J is that the possibility of obtaining evidence concerning fingerprints on the driver s wheel which is at the heart of the issues in this case might of course have been lost in circumstances where no case could conceivably have been made of any culpability on the part of anyone involved in the investigation The steering wheel could for example been destroyed by a combination of the accident and the urgent attempts of emergency services to deal with its aftermath 5 It is in the context of a comparison between evidence which either never existed or became lost in wholly unblameworthy circumstances on the one hand and the sort of cases involving culpability in relation to missing evidence with which the jurisprudence in this area is concerned on the other that gives rise in my view to a need to consider whether there is a basis for some refinement in the way in which the test is expressed 6 It may be easiest to move away from the facts of this case and consider as an example a case of the most typical type found in the jurisprudence in this area being cases involving CCTV footage 7 It is of course the case that nowadays many areas and not just in the centres of cities and towns have CCTV cameras for one purpose or another Footage from such cameras can often cast useful light on incidents which may be the subject of criminal investigation But until recent times no such footage would have been available Many offences of assault and the like involved often conflicting eye witness or participant evidence which finders of fact be they judges or juries had to resolve as best they could having regard to the criminal standard of proof Sometimes there might be forensic evidence available which might assist However there can be little doubt that a decent piece of CCTV footage can make the task of those having to decide what actually happened an awful lot easier But what if through no one s fault the CCTV footage is not available Perhaps the camera was not turned on perhaps it was defective perhaps it was pointed in the wrong direction It could not of course in those circumstances be argued that an accused could not get a fair trial 8 It might hypothetically have been useful to the accused had there been such footage for it might have corroborated his account of events But it is just not there and deciders of fact have as many predecessors in the past had to do the best they can It is important therefore to emphasise that the test is not just one

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/780156c81b4dd2eb80257c3f005534ce?OpenDocument&TableRow=2.1 (2016-02-09)
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  • where the gardaí were directly put on notice of any requirement for a forensic fingerprint examination within days of the event giving rise to the prosecution The appellant s legal advisers do not say they were misled or misinformed as to the ongoing availability of the car for independent tests This is not a situation where a member of An Garda Síochána allowed a disposal or destruction of the car whilst knowing that a request for forensic examination of the car had been made by the appellant s solicitor These are matters of considerable significance as for reasons outlined later in this judgment they distinguish the facts of this case in a very significant way from Director of Public Prosecutions v Murphy 1989 I L R M 71 Submissions of the appellant 20 In this appeal counsel for the appellant makes the point that Sergeant Finn s conclusion about speed appears to be inconsistent with the witness statement of Patrick Foley the driver of the oncoming car who is recorded as having viewed the Honda car going into some sort of speed wobble and then suddenly veering on to the wrong side of the road The appellant contends that the prosecution intends to adduce expert evidence which rules out any question of mechanical defect or of speed but asserts that as a result of the disposal of the Honda only the gardaí had the opportunity to record any aspect of the damage to that car 21 The essence of this case is however that the prosecution say the appellant grabbed the steering wheel and as a result caused the accident In response Jason Wall says he would have been able to rebut this case by forensic tests showing his fingerprints were not to be found on the steering wheel He says he is denied the opportunity of making this case and that absent this rebutting evidence he suffers irreparable prejudice creating a real risk of an unfair trial The respondent s submissions 22 Counsel for the prosecution seeks to rebut these points by contending that the appellant was Lyndsey Hudson s boyfriend at the time of the accident It is not disputed that he had been a regular passenger in the car before the accident Lyndsey Hudson maintains that not only was Jason Wall in the car nearly every day but that he had frequently been seated in the driver s seat Ms Hudson s rather bald and puzzling statement to this effect is not further explained The circumstances and timing of this alleged sitting in the driver s seat are not elaborated upon Counsel for the Director submits that from these background facts it follows that one would necessarily expect to find the appellant s forensics all over the car and as such any finding of his fingerprints on the steering wheel would be of no evidential value But this is surely not the point 23 Conversely the prosecution suggests that a negative test showing the absence of the appellant s fingerprints could indicate that the surface of the steering wheel was resistant to taking prints and would neither significantly strengthen nor weaken the prosecution or defence cases The prosecution say that nothing reliable would have been gained from a forensic examination of the car for fingerprints More directly to the point the prosecution submits that the appellant s case is pure supposition and hypothesis that what is being done here is to invoke a mere possibility of unobtained exculpatory evidence rather than something more It is said such an invocation falls short of the type of proof necessary in an application of this type 24 The prosecution also say that now two passengers can give direct relevant first hand evidence These are Lyndsey Hudson and now Stephen Wall Both of them are now saying the accident was caused by the appellant s actions Counsel for the Director submits that there is no evidence to contradict these two witnesses as at interview the appellant has maintained he has no recollection of what happened on the night One might comment that this last point might more tellingly be made by the appellant on the basis that his claimed absence of memory might actually reinforce a contention that the unavailability of forensic evidence irretrievably damages his case 25 Counsel for the Director casts doubt on any suggestion of lost memory saying that there is no evidence that the appellant s memory had been affected by an injury in the accident and that in fact he has never denied that he grabbed the steering wheel claiming rather that he cannot remember what happened The appellant has not shown he sustained a significant head injury but his case is nonetheless that he remembers nothing until he woke up on the road surface after the accident 26 To these points I would respond by saying it is not the function of a review court to express any view on the credibility of evidence on either side of the case Moreover for the purposes of this appeal I think the appellant s position should be taken to be as it was later expressed in a letter from his solicitor that is as a total denial of engaging in any conduct which caused the accident The effect of unavailable evidence 27 Underlying this application as in certain other applications of this type there lies an important sometimes only implicit question what would the position be in this case or others if evidence sought by the appellant was simply unavailable through no possible fault of the gardaí for example here if the fire brigade or disposal men had removed and lost the steering wheel or if it was destroyed in the accident Would that simple absence of potentially relevant evidence seen in isolation necessarily mean that it would be unfair to proceed with a prosecution In itself the answer must surely be no this fact would simply be a circumstance of the accident It might be raised by the defence as an issue at the trial but could hardly be a basis for prohibition How far then does a court then go when seeking to weigh the prejudicial effect of actions or inactions of the gardaí in failing to obtain evidence The authorities offer guidance on this The duty of the gardaí in an investigation 28 The duty of the gardaí is to seek out and preserve relevant evidence and also to obtain and keep track of items of real evidence relevant to the case see the observations of Hardiman J in McFarlane v Director of Public Prosecutions Clearly an accused has the right to a proper full and fair investigation but as the authorities now considered show this must be within the realms of reality The decided authorities on this type of application 29 I turn then to consider the application of these authorities in some more detail It might be said the principles in cases of this kind are by now so well developed and defined that they do not require much repetition see Fennelly J s helpful recent summary in Savage v Director of Public Prosecutions 2009 1 I R 185 and see also Braddish v Director of Public Prosecutions 2001 3 I R 127 Dunne v Director of Public Prosecutions 2002 2 I R 306 Bowes v Director of Public Prosecutions 2003 2 I R 25 McFarlane v Director of Public Prosecutions Scully v Director of Public Prosecutions 2005 1 I R 242 It is necessary of course to bear in mind that this is not a case where it is said evidence was lost but rather was not obtained at all The role of the court in judicial review as opposed to trial 30 At risk of dealing with matters that are obvious I would wish to re emphasise the distinction between the function of a court in judicial review on the one hand and that in criminal trial on the other This relates both to the onus and standard of proof In judicial review proceedings the focus will be on an objective assessment as to whether as a matter of reality the prejudice alleged is so truly exceptional as to warrant intervention by reason of the real likelihood of an unfair trial This test is not subjective based on the appellant s concerns nor can it be based on mere bald assertion regarding the degree of prejudice allegedly suffered I do not suggest that is the position here But no criminal trial proceeds on the basis that the investigation beforehand has been such that every conceivable hypothesis can be explored at trial in the light of an infinite range of evidence gathered to meet every possible contingency or potential line of defence Judicial review applications exist only to deal with exceptional cases where the evidence of prejudice that is the failure to obtain identifiably relevant evidence is so plain as to warrant prohibition The duty of this Court is to adjudicate on the basis of the now well established jurisprudence under which it is claimed the appellant s constitutional right to a fair trial is placed at real risk No form of relief other than prohibition is sought Standard of Proof 31 One issue which emerges for consideration is the standard of proof in prohibition cases of this type This threshold is considered in a number of the authorities Most recently in Byrne v Director of Public Prosecutions 2011 2 I R 461 O Donnell J speaking for the other members of this Court Fennelly and Finnegan JJ made a number of observations with which I find myself in agreement He re emphasised that the seminal decision of Braddish was in fact an exceptionally straightforward case where the missing CCTV footage which had been viewed by the gardaí not only showed the incident alleged to have constituted the offence but was the very basis upon which the accused had been identified Subsequent judgments have carefully addressed any over extension of this rule The judgment of this Court in Byrne again emphasises that the principle in Braddish is to be interpreted realistically on the facts of each case see too the judgment of Hardiman J in Braddish the judgment in Scully v Director of Public Prosecutions 2005 1 I R 242 and the judgments of both the majority and minority in Dunne v Director of Public Prosecutions 2002 2 I R 305 The centrality of the unobtained evidence 32 O Donnell J s judgment in Byrne also lays emphasis on the necessity of clearly demonstrating the centrality of the missing evidence to the trial see also the judgments of this Court in Bowes and McGrath v Director of Public Prosecutions 2003 2 I R 25 There is a passage in Byrne quoting with approval observations of Kearns J in the High Court in Scully v Director of Public Prosecutions 2003 IEHC 92 which so well explains the parameters of reference that I quote it here even at risk of over repetition Kearns J pointed out some sort of common sense parameters of reasonable practicality must govern any determination of the scope of the duty on the gardaí when seeking out or preserving evidence This must of necessity imply that some margin of appreciation be extended to gardaí when investigating crime to determine what they may reasonably consider to have some possible relevance in establishing guilt or innocence What is the alternative Is it for the accused person or his legal advisers to dictate the parameters Alternatively must the gardaí go on seeking out and preserving any and every possible piece of evidence which might by the remotest chance admit of being relevant in some fashion in a subsequent trial I think not To set the bar too high for gardaí in seeking out and or preserving evidence is more likely in my opinion to frustrate the administration of justice and due process than to uphold it 33 This Court upheld that judgment on appeal and emphasised albeit in the context of an allegation of delay in particular that it will not be sufficient merely to invoke the possibility that exculpatory evidence at one time existed The duty of an applicant for judicial review goes significantly beyond basing the case on some remote theoretical or fanciful contingency Rather it must be established that there was a real failure to obtain relevant evidence believed to be potentially exculpatory see the judgment of Hardiman J in Scully 34 Obviously these observations are all fundamental indicia in establishing whether there is a real risk of an unfair trial I fully agree that as Hardiman J pointed out in Scully where there is relevant evidence available not only is it both prudent and fair to preserve such evidence but there is a duty to do so But the case here relates rather to unobtained evidence It is now said that the gardaí should have tested the steering wheel The question is whether the investigative duty went that far or whether this is now a mere invocation of a remote possibility raised in the context of a mere remote or fanciful contention that no fingerprints would have been found and based on a mere surmise as to the probative effect of such a test 35 Appropriate questions to raise therefore are first whether it can be established that the gardaí fell below the scope of their duty in the investigation specifically at the time the evidence was disposed of If so does such omission or failure have the consequence that there is now a real risk of an unfair trial Do the facts fall into the exceptional category where the point is so very clear as would warrant interference by judicial review Clearly the issue is now important from the appellant s viewpoint But that is not the true test To proceed on that basis would be to apply to an unwarranted and retrospective view Daly v Director of Public Prosecutions 36 Daly v Director of Public Prosecutions Unreported Supreme Court 11th April 1994 is referred to in Fennelly J s judgment in Dunne This case was not referred to in argument In Daly this Court held that absent the defence putting the gardaí on notice in a timely fashion of a reasonable line of enquiry or that line of enquiry being in itself reasonably identifiable such a duty is not readily to be imputed in applications where the issue relates to unobtained evidence Just as here the appellant had not been arrested charged cautioned or interviewed at the time the evidence was disposed of This Court observed that prohibition of a trial should issue if but only if the issues could not be dealt with by the trial judge in rulings or in the charge to the jury 37 I do not consider Daly determinative but just as this case it raises the question of whether the gardaí owe a duty to a person who has not been arrested charged or cautioned and where the evidence as to an alleged perpetrator is equivocal It might also be thought that the court s consideration and application of the circumstances in Daly differs at least in nuance from that in The State O Connell v Fawsitt 1986 1 I R 362 In this very fact intensive jurisprudence obviously each case depends on its own circumstances I would reserve to an appropriate case a further consideration of the issues of principle raised in Daly and also in Nolan v Director of Public Prosecutions 1994 3 I R 626 as to the circumstances when a review court should consider the alternative remedy issue in light of the fact that the jurisprudence is well established by now A distinction between the facts in this case and the decided authorities centrality of evidence 38 A number of factual aspects arise then for consideration and distinction The missing evidence is not direct evidence such as in Braddish and Dunne where missing CCTV footage showed the crime taking place As Hardiman J pointed out in Braddish It would be difficult to think of evidence more directly relevant than a purported video tape showing the commission of the crime It follows this case is therefore not similar either to Ludlow v Director of Public Prosecutions 2009 1 I R 640 where the missing car tyres were directly relevant to the central question in the case namely the alleged unsafe thread depth of those very tyres That was truly an exceptional and clear case Of course here the evidence is not missing at all in the sense that it was not obtained Thus it falls into a rather different category 39 It is clear too that it is necessary to show at least to a reasonable degree of likelihood that the unobtained evidence might have once existed The mere invocation or possibility of such evidence will not be sufficient Murphy v D P P identifying the scope of the investigative duty 40 In other judgments herein there is reference to Director of Public Prosecutions v Murphy I am not persuaded that Murphy is on all fours with the instant case although there are clear similarities The facts require analysis 41 In Murphy the car destroyed prior to examination was a stolen vehicle It was alleged that the accused drove it The only prosecution evidence was visual identification The applicant accepted he had been in that car Given that the vehicle was stolen the presence of the accused s fingerprints on the steering wheel obviously had a high degree of direct materiality But in itself this was not sufficient to fix the gardaí with a duty 42 A duty to obtain evidence cannot simply be imputed to the gardaí without basis What might be clear in retrospect is frequently not at all clear at the moment a decision in the investigation is made There may of course be circumstances where an omission to obtain evidence is so glaringly

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/988df36f52ce144780257c5c00384769?OpenDocument&TableRow=2.1 (2016-02-09)
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  • inwardly rotating feed rollers are those designed to pick up the silage from the ground The grass is thereafter fed into a pair of smaller rollers prior to entering a large cutter drum The cutter drum shreds the grass which is then propelled from that drum into a further drum known as the blower drum via a short chute The kernel processor shown on the diagram is not a feature on the harvester at issue in this claim The purpose of the blower drum is to drive the grass up and out of the harvester through a lengthy chute from whence the grass is ultimately discharged onto a trailer which is driven alongside the harvester The blower box has four paddles which when the engine is running and the clutch is engaged rotate 30 times per second The grass is then propelled into the lengthy exit chute by reason of the fact that there is a deflector plate at the point where the blower box meets the chute and this deflector plate diverts the grass into the chute rather than permitting it to travel around the blower box In other words on the diagram presented and using the dial of the clock for assistance the grass enters the blower box at approximately 7 00 o clock and leaves it at approximately 1 00 o clock It was accepted by all parties that harvesters of this nature do experience blockages In this particular case Mr Wright marked the areas where such blockages were most likely to take place on the first exhibit These blockages can be seen just prior to where the cut grass enters the blower box and immediately beyond the blower box at the start of the exit chute Red Xs on the diagram reflect the positions referred to by Mr Wright in his evidence The method used for clearing such blockages was described by Mr Wright and was not disputed by any of the parties Leaving aside the appropriate steps to be taken in relation to the engine prior to clearing any blockages the court received evidence as to how the respective blockages would be cleared Blockages of grass in the chute entering into the blower box would be cleared by the operative opening up the hatch of the blower box itself 3 5 Irvine J went on to describe the operation of the blower box as follows at pp 5 and 6 Additional information in relation to the blower box which is of relevance to this action is the fact that the blower box when the engine is running and the clutch engaged revolves at a speed of 1 800rpm with each paddle rotating 30 times per second Very late in the day and in the course of the evidence given by the second last witness in this trial evidence emerged on cross examination that the front rollers could be engaged in a reverse motion and that if this occurred that the blower box would be operating at 540rpm 3 6 Irvine J then went on to describe the manner in which access was obtained for the purposes of attempting to clear blockages which involved the removal of knobs retaining an inspection plate which is difficult enough to access in that the person concerned must bend down and crawl between the two side wheels of the harvester before opening the inspection hatch and gaining access to any grass which has caused the blockage in question There seems no doubt but that it was while Mr Scollard was engaged in attempting to clear such a blockage in the manner just described that the accident occurred However the precise circumstances of the incident were in significant dispute at the trial That leads to the key question which was found against John Deere by the trial judge and which forms the basis of the first main issue on this appeal How did the accident happen 4 How did the accident happen The account given by those present 4 1 The starting point has to be the evidence given by Mr Scollard Having told the court that there had been several clogging incidents on the day in question he gave evidence of a further blockage occurring at approximately 5 p m Mr Scollard stated that when he removed the panel he was faced with a solid wall of grass which he commenced pulling out with his hands He described the grass as tightly packed and difficult to disengage About 4 or 5 minutes later he felt something come down and squash his left hand which he then pulled out of the chute As a result all of his fingers were badly crushed but remained intact Mr Scollard gave evidence that between the time when the blockage occurred and when the accident happened the engine was running but that the blower box was switched off by virtue of the clutch not being engaged 4 2 Mr Tom Wright the first named plaintiff gave evidence that when the blockage occurred he left the engine idling and disengaged the clutch Mr Wright gave evidence that while Mr Scollard went to free the blockage in question he spoke to two farmers including a Mr McCarthy who also gave evidence who appeared to have been next in line to have their silage harvested Mr Wright as the trial judge put it was adamant that he did not get back into the harvester for the purposes of re engaging the clutch nor did he carry out any manoeuvres which might have re engaged the engine for the purposes of putting the front rollers into reverse mode The Mr McCarthy to whom reference has been made gave evidence that he was standing with Mr Wright when Mr Scollard emerged from under the harvester having suffered his injury 4 3 The factual evidence presented on behalf of the Wrights was therefore that there was a blockage that while the engine remained idling the clutch was disengaged and that for some reason the paddles had moved inside the chute while Mr Scollard was attempting to free the blockage thus causing his injury 4 4 That factual evidence was the backdrop to a significant amount of expert engineering evidence which was tendered on behalf of all parties However before going on to deal with that evidence it is important to say something about the role of expert evidence in attempting to provide explanations as to the way in which a particular accident might have occurred This is particularly so in the light of the submissions made on behalf of John Deere concerning an issue which has been addressed in a recent report of the Law Reform Commission and elsewhere and has been colloquially referred to as junk science 5 The Role of Expert Evidence 5 1 Expert evidence can play different roles in different types of cases and in respect of different types of issues Medical evidence can for example be relevant to the question of the likely prognosis of a person injured in an accident Accountancy or business expert evidence can be relevant to attempting to assess damages which have arisen in a commercial context as a result of wrongdoing Many other examples could be given 5 2 However sometimes expert evidence is tendered with a view to assisting the court in its task of deciding what actually happened on a relevant occasion Such evidence can of course be of considerable assistance to a court Expert evidence may suggest that an eye witness account even though given by an apparently truthful and reliable witness may have to be doubted for it may become impossible to reconcile the eye witness account with objectively established forensic findings and expert evidence as to the inferences which ought as a matter of science be drawn from those forensic findings such that the court is forced on the balance of probabilities to conclude that relevant eye witnesses were mistaken Expert evidence tendered on that basis needs to be addressed in context 5 3 For example evidence is often tendered from qualified engineers who seek to re construct a motor accident in the light of some eye witness accounts coupled with forensic findings such as the location of vehicles post accident debris marks on the road and the like which may for example be recorded by members of An Garda Síochána investigating the accident in question A court in attempting to reach a conclusion as to how such an accident occurred must of course take into account all of the evidence including accounts given by participants and independent eye witnesses but also any such expert or forensic evidence tendered However it needs to be noted that such evidence is not necessary to establish the facts Eye witness accounts themselves can if the court is satisfied as to their reliability be sufficient to enable the court to reach a conclusion as to what actually happened Such expert evidence can of course be led for the purposes of attempting to persuade the court that one or other account of the accident as given by the eye witnesses on either side should not be relied on because of what might be said to be an inexplicable inconsistency with the forensic record Where one party has no direct evidence of its own but needs to challenge the account given by its opponent such expert evidence is also often important Obviously where such a case is made then the court needs to engage with all of the evidence and explain its findings of fact by reference to all of that evidence 5 4 In some cases of course expert engineering evidence may be tendered with a view to assisting the court on the question of negligence or other wrongdoing Such evidence may be material to the question of the standards which ought have been applied by for example an employer or even a motorist by reference to for example an appropriate distance to keep from a car travelling in front in the same direction having regard to the speed of the cars concerned and the road conditions prevailing However it is important to keep in mind the distinction between those two types of expert evidence One is relevant to the question of what actually happened and in that regard needs to be seen in light of all evidence touching on that question including eye witness accounts Evidence of the second type is not relevant to what actually happened but is relevant to whether on the facts as found by the trial judge wrongdoing may be established 5 5 Against that background it is appropriate to turn to the expert evidence insofar as it is relevant to the question of what actually happened in this case That is not to say that the expert evidence may not be relevant to other questions but insofar as the expert evidence was tendered for the purposes of assisting the court to come to a view as to what actually happened it is important in addressing that evidence to have regard to the function of such evidence as already analysed 6 The Expert Evidence 6 1 The backdrop against which the expert evidence was tendered was of course the evidence given by those present when Mr Scollard suffered his injuries As has been pointed out all of that evidence was to the same effect It suggested that the engine remained idling but that the gear was disengaged at the time when Mr Scollard went to clear the blockage in question Some of the expert evidence was concerned in reality with whether that evidence could be regarded as reliable In particular some of the expert evidence tendered on behalf of John Deere suggested that the evidence of those present could not be accepted by the Court for there was it was suggested no scientific basis which could explain how a movement of the paddles could have occurred without the engine being engaged 6 2 It is important to note a number of aspects of the way in which the trial before the High Court developed First it is clear both from the transcripts and from the judgment of the trial judge that the real case advanced on behalf of John Deere was to the effect that the Court should not accept the evidence of the eye witnesses for there was it was said no way in which the paddles could have moved without the engine being engaged Against that backdrop a particular focus of the expert evidence given on behalf of the Wrights and to an extent Geary s was concerned with attempting to provide an explanation as to how the accident could have occurred in the manner described by Mr Scollard and consistent with the accounts of the eye witnesses The expert evidence tendered against John Deere needs to be seen in that context In a sense it was not expert evidence which was a necessary part of the case which both the Wrights and Geary s sought to make That case was simple Eye witness evidence was tendered which if believed could lead to a conclusion that for whatever reason the paddles moved without the engine being engaged On that factual assertion the arguments as to negligence were based However given that John Deere as a matter of defence suggested that such evidence could not be believed or at any rate be regarded as reliable because of what was said to be the absence of any acceptable scientific explanation as to how the paddles could have moved with the engine not engaged it became necessary for the parties opposed to John Deere to deal with John Deere s expert evidence by means of directing their own expert testimony to the question of possible explanations for how the paddles could have moved with the engine disengaged 6 3 It does also need to be noted that the expert evidence led by both the Wrights and Geary s was also directed to the question of negligence and whether on the assumption that the accident occurred as those parties asserted it could be said that the accident was caused or contributed to by a design fault Evidence on that latter question was pure expert evidence as to standards rather than evidence tendered to assist the court in deciding what actually happened So far as the expert evidence led by the Wrights and Geary s which was relevant to how the accident actually happened is concerned it seems to me to be appropriate to characterise that evidence as being responsive to the expert evidence on the same point tendered on behalf of John Deere John Deere s experts suggested of course that there was no scientific explanation as to how the accident could have happened in the way which the eye witnesses described 6 4 That leads to a further observation There was some confusion at the hearing of this appeal as to the manner in which expert reports of the witnesses sought to be called by the various parties were exchanged in advance of the hearing in the High Court At the conclusion of the appeal the Court invited the parties to attempt to agree what had actually occurred Happily it was possible for the respective solicitors to reach such agreement which was communicated to the Court by letter of the 28th January 2013 from Messrs A L Goodbody solicitors for John Deere In material part the relevant letter reads as follows The reports put before the High Court were as follows 1 Tony O Keefe 29 April 1997 2 John G Sullivan 13 May 1997 3 Joseph R O Neill Associates 24 February 2006 4 John G Sullivan 13 October 2007 5 A Brennan Company October 2007 The trial commenced on Tuesday 23 October 2007 The exchange of reports took place via counsel as follows From the plaintiffs to the defendant Friday 19 October 2007 From the defendants to the plaintiffs Tuesday 23 October 2007 As between plaintiffs and third party Tuesday 23 October 2007 As between defendant and third party Tuesday 23 October 2007 At the High Court hearing the followed expert witnesses testified Mr O Keeffe consulting engineer tendered by the Wrights Mr Sullivan consulting engineer tendered by the Wrights Mr Foy consulting engineer of A Brennan Co tendered by Geary s Mr O Neill consulting engineer tendered by John Deere and Mr O Shaughnessy consultant plastic surgeon tendered by the Wrights 6 5 As appears from that letter with the exception of the fact that the Wrights expert reports were given to Geary s two working days before the hearing the exchange of expert reports between the remainder of the parties only occurred on the day when the trial commenced It has to be said that this is a highly unsatisfactory state of affairs In a case where it is now being said on appeal to the Supreme Court that such expert evidence is vital in deciding just how the accident in question occurred none of the relevant experts had any real opportunity to engage in advance with the views which the experts for other parties were likely to give in evidence on that or indeed any other point This Court does not have sufficient information to allow it to form any judgment as to how that most unfortunate situation occurred However the Court feels that it must emphasise that it is highly unsatisfactory for a trial judge to be invited to resolve questions arising from different expert testimony where the experts themselves have had little or no advance knowledge of the points on which they might differ 6 6 Be that as it may the problems which derived from the late exchange of expert reports in this case seem to me to have a bearing on the proper approach to the expert evidence To take but one example which it will be necessary to address in early course when questioning the expert evidence tendered against John Deere it became clear that one of the relevant experts was under a misapprehension as to the material which was to be found in the drive belt The basic thesis of the expert witnesses who gave evidence against John Deere was to suggest that the relevant paddle could have moved even though the engine was not engaged because of a release of tension within the mechanism of the combine harvester or because of grass falling in the context of Mr Scollard s attempt to relieve the blockage within the machine In the middle of the case it was made clear that the material found in the drive belt was kevlar It was said by the experts called on behalf of John Deere that kevlar does not retain any significant amount of tension so that there could not have been it was said tension in the machine which had built up and whose release could have caused a movement of the relevant paddles even though the engine was not engaged Mr Foy called on behalf of Geary s and Mr Sullivan called on behalf of the Wrights were in those circumstances left with the difficult task of having to revisit their evidence while the case was at hearing Any proper conduct of this litigation ought to have allowed for a timely exchange of expert reports so that problems of that type could have been identified in advance so that in turn the relevant experts could have been given a reasonable chance to deal with any issues on which the experts called by other parties might differ from them 6 7 Be that as it may it is also important to note that there was expert evidence on the other side of the case which was said also to be relevant to the court s consideration of how the accident actually occurred Medical evidence was tendered which suggested that Mr Scollard s injuries were not consistent with his hand having been caught in the mechanism of the paddles while same were moving under power from the engine It was said that had Mr Scollard s hand come into contact with paddles in those circumstances his injuries would have been both very different and almost certainly much more severe While the relevant witnesses were cross examined on that question no contrary evidence was called on behalf of John Deere on this point 6 8 The trial judge was therefore faced with an assertion on one side which suggested that there was no scientific basis on which the accident could have occurred in the way described by those present unless the paddles were engaged with the engine and on the other side with evidence which suggested that there was no scientific basis on which Mr Scollard could have suffered the injuries which he did if the paddles had been engaged with the engine It is against the background of that evidence coupled with the trial judge s view of the evidence of those who were actually present that the ultimate conclusions of the trial judge concerning what actually occurred needs to be assessed However before conducting that assessment it is next necessary to turn to the submissions made by counsel for John Deere concerning what counsel termed a threshold of reliability which it was said expert evidence should have to meet before the court considered what weight to attach to it in the face of any conflicting expert evidence 6 9 As counsel put it there may be a requirement that expert evidence be of some minimal weight in order for it to be considered further by the court In that context counsel drew attention to the recommendations in the Law Reform Commission s Consultation Paper on Expert Evidence at para 2 396 on pp 128 129 As counsel pointed out the Law Reform Commission in its recommendations placed significant reliance on the jurisprudence of the United States courts in respect of expert evidence 6 10 The Court invited counsel to formulate as precisely as possible the proposition which he wished to assert Counsel did so in the following terms The proposed evidence of an expert witness should be assessed for reliability by the Court before admitting it into evidence to determine 1 if it is based on other admissible evidence 2 if the opinion is supported by scientifically valid principles and criteria which enable the judge to test the accuracy of the expert s conclusions 3 whether the proposition advanced by the expert is both capable of being empirically tested and has if practicable been tested by the expert or where appropriate by somebody else 6 11 Counsel went on to suggest that it might be of assistance to the Court to draw attention to an extract from Hodgkinson James on Expert Evidence where it is said that the true rule was stated by Jacob L J in Technip France SA s Patent 2004 R P C 46 in the following terms But just because the opinion is admissible it by no means follows that the Court must follow it On its own unless uncontested it would be a mere bit of empty rhetoric Wigmore Evidence Chadbourn Rev para 1920 What really matters in most cases are the reasons given for the opinion As a practical matter a well constructed expert s report containing opinion evidence sets out the opinion and the reasons for it If the reasons stand up the opinion does if not not 6 12 However for reasons which I hope will become apparent I am not persuaded that it is necessary to reach any conclusions on the precise current state of the law in this jurisdiction on either the admissibility of or weight to be attached to expert evidence on the facts of this case As has been pointed out the trial judge was faced with the difficulty that both sides tendered expert evidence which suggested that the accident could not have happened in the way for which its opponents contended John Deere asserted that there was no scientific explanation as to how the accident could have occurred without the engine being engaged The other parties asserted that there was no scientific explanation as to how Mr Scollard could have suffered the injuries which he did with the engine being engaged 6 13 The problem of course for the trial judge was that there was overwhelming evidence that the accident did in fact occur Also as a matter of logic the engine either had to be engaged or not be engaged Thus as a matter of probability the trial judge had to determine how the accident occurred in the light of the onus of proof and also having regard to her assessment of the credibility and reliability of the evidence of those present when the accident occurred This was not therefore a case where a trial judge was being invited to place weight on a scientific theory which falls outside established scientifically valid principles and criteria Rather it is a case where the trial judge was being invited to regard eye witness accounts as being unreliable because it was said those accounts were inconsistent with a scientific analysis of how the accident might have occurred On that basis it was said that the expert evidence tendered against John Deere was of little weight because it did not stand up to scientific scrutiny However in the same context it could equally be said that the contention advanced on behalf of John Deere did not stand up to scientific scrutiny because no adequate scientific basis had been put forward as to how Mr Scollard could have suffered his injuries if the engine had been engaged Against that background it is necessary to consider the conclusions of the trial judge 7 The Trial Judge s Conclusions 7 1 In the course of argument it was suggested that the difficult situation in which the trial judge found herself resembled that famously commented on by Sherlock Holmes in amongst other works The Adventure of the Beryl Coronet where he said It is an old maxim of mine that when you have excluded the impossible whatever remains however improbable must be the truth 7 2 This approach has been the subject of judicial comment in particular in the speech of Lord Brandon of Oakbrook in The Popi M Rhesa Shipping Co SA v Edmunds 1985 1 W L R 948 where at p 955 the following is stated My Lords the late Sir Arthur Conan Doyle in his book The Sign of Four describes his hero Mr Sherlock Holmes as saying to the latter s friend Dr Watson How often have I said you that when you have eliminated the impossible whatever remains however improbable must be the truth It is no doubt on the basis of this well known but unjudicial dictum that Bingham J decided to accept the shipowners submarine theory even though he regarded it for seven cogent reasons as extremely improbable In my view there are three reasons why it is inappropriate to apply the dictum of Mr Sherlock Holmes to which I have just referred to the process of fact finding which a judge of first instance has to perform at the conclusion of a case of the kind here concerned The first reason is one which I have already sought to emphasise as being of great importance namely that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so There are cases however in which owing to the unsatisfactory state of the evidence or otherwise deciding on the burden of proof is the only just course for him to take The second reason is that the dictum can only apply when all relevant facts are known so that all possible explanations except a single extremely improbable one can properly be eliminated That state of affairs does not exist in the present case to take but one example the ship sank in such deep water a diver s examination of the nature of the aperture which might well have thrown light on its cause could not be carried out The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense It requires a judge of first instance before he finds that a particular event occurred to be satisfied on the evidence that it is more likely to have concurred than not If such a judge concludes on a whole series of cogent grounds that the occurrence of an event is extremely improbable a finding by him that it is nevertheless more likely to have occurred than not does not accord with common sense This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden 7 3 However some more recent United Kingdom authorities also bear consideration In Datec Electronics Holding Limited v United Parcel Service Limited 2007 R T R 40 Lord Mance did note that Inevitably any systematic consideration of the possibilities is subject to a risk that it may become a process of elimination leading to no more than a conclusion regarding the least unlikely cause of loss 7 4 Having reviewed all the authorities the Court of Appeal of England and Wales in Ide v ATB Sales Limited 2009 R T R 8 concluded per Thomas L J at para 6 the following As a matter of common sense it will usually be safe for a judge to conclude where there are two competing theories before him neither of which is improbable that having rejected one that it is logical to accept the other as being the cause on the balance of probabilities It was accepted in the course of argument on behalf of the appellant that as a matter of principle if there were only three possible causes of an event then it was permissible for a judge to approach the matter by analysing each of those causes If he ranked those ranks in terms of probability and concluded that one was more probable than the others then provided those were the only three possible causes he was entitled to conclude that the one he considered most probable was the probable cause of the event provided it was not improbable 7 5 Sir Arthur Conan Doyle was not of course commenting on legal proof The maxim which he put in the mouth of Sherlock Holmes was not intended as a formal means of legal analysis There may well be as Lord Brandon pointed out in the Popi M circumstances where the level of evidence concerning how some event occurred or what caused it maybe insufficient to allow any legally sustainable conclusion to be reached so that the case will in those circumstances turn on the question as to which party bore the burden of proof 7 6 However it is also necessary to note the second point made by Lord Brandon There may be circumstances where the dictum of Sherlock Holmes is applicable As pointed out in the subsequent cases cited an analysis of the relevant circumstances may reveal that there are as a matter of logic only a small number of possibilities An analysis of those possibilities may demonstrate that an explanation which might in advance have appeared to be intrinsically improbable has in fact become probable or even very probable It is important in that context to distinguish between how one might have viewed a situation in advance and how one views the same event after the event in the light of the available evidence concerning what might have occurred 7 7 Thus a proper analysis of the overall situation may lead the Court to conclude that there are for example only two possible explanations as to the manner in which an event occurred Neither of the possibilities might before the event have seemed likely to provide an explanation for a possible future event which itself might seem unlikely to occur However if the event did in fact occur then one or other explanation however unlikely same might have appeared in advance must be true In that context one of the possible explanations may appear on the evidence to be more probable than the other Such an approach seems to me to accord with a proper evidence based approach coupled with logic and may lead a court to properly conclude that an event which might in advance have seemed unlikely to occur in a particular manner has as a matter of probability actually occurred in that manner Counsel for John Deere made the point correctly so far as it goes that the trial judge came to the view that she was satisfied to a high degree that the facts were as she found them This it was argued was inconsistent with a least improbable approach However for the reasons I have sought to analyse there is no reason in principle why given that a potentially improbable event did in fact occur an explanation which in advance might have been seemed unlikely becomes in fact probable or even highly probable 7 8 On the facts of this case it could well be said that in advance it would have seemed improbable that the paddles could move without the engine being engaged However the fact is that there was overwhelming evidence that the paddles did move There was also evidence which made it appear improbable that Mr Scollard s injuries could have been suffered in the way in which they were if in fact those injuries happened while the engine was engaged 7 9 Thus the trial judge was faced with choosing as a matter of probability between two eventualities One or other of those eventualities must have occurred for the engine either was or was not engaged Therefore the accident undoubtedly occurred in a way which might have in advance appeared to be unlikely The accident either occurred because improbable as it might have seemed in advance the paddles moved without the engine being engaged or alternatively the accident occurred again improbable as it might have seemed in advance in a way which somehow caused contrary to the medical evidence Mr Scollard to suffer injuries which seem incompatible with an injury caused by engaged paddles The trial judge was therefore faced with a choice between two eventualities which without the benefit of hindsight might have appeared improbable but where as a matter of near certainty one or other eventuality did in fact occur Based on that analysis I am more than satisfied that the findings reached by the trial judge were within the range of findings of fact open to her on the evidence and are more than sustainable 7 10 That the trial judge was placed in a difficult position because of the unsatisfactory way in which the expert engineering evidence was presented cannot be doubted However the findings of fact of the trial judge can in accordance with Hay v O Grady 1992 1 I R 210 only be disturbed if there was no evidential basis for them or if the reasoning of the trial judge in reaching those conclusions of fact does not stand up It is important to recall that Hay v O Grady is concerned specifically with the assessment of the facts by a trial judge where the trial

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  • board meeting as being any part of a determination However the learned judge added at paragraph 24 However elsewhere provisions in the Act itself undermine any such misconception To some extent the argument resembles a house of cards if one vital base card is removed the edifice begins to crumble for reasons I will now explain 18 The learned judge referred to the Board s interpretation as being absolutist Since these provisions will be considered later it is not necessary to refer to them in extenso at this point MacMenamin J attached crucial importance to the question of the meaning of the word decision and the time limited by the Act for the making of application for judicial review of planning decisions He cited extensively from ss 50 and 50A of the Act He cited in particular the judgment of Kelly J in Friends of the Curragh Environment Ltd v An Bord Pleanála Others 2009 4 I R 451 At paragraph 31 MacMenamin J said The decision did not take effect until it was finalised or issued That date of notification was the date of the decision from the point of reckoning of time In that case as here the critical question is the reckoning of time How can the Board decision in this case be seen differently or as having taken legal effect until it was finalised or issued Any interpretation other than that applied by Kelly J would imply the rights of a hypothetical applicant could be seriously compromised Such rights include the right of access to the courts to seek relief by way of judicial review and property rights they therefore have a constitutional provenance To my mind and I use the term unavoidably that authority is a determination on the issue in question here Furthermore by way of illustration that very determination was made known by a judgment of the court which took effect at the time of its pronouncement or notification Why then should the principle be different in this Board determination It is difficult to escape the conclusion that the Board s stance here may have been attributable to concerns as to the unusual timeline of this case 19 Following this line of reasoning he thought that the words decision and determination were used interchangeably in the Act MacMenamin J emphasised the need to construe a statute strictly where it interferes with a constitutional right namely the right of access to the courts 20 In each case the High Court certified the same point of law of exceptional public importance pursuant to s 50A 7 of the Act as amended as being a point in respect of which it is desirable in the public interest that an appeal should be taken to this Court It is as follows When does the Board determine an appeal for the purposes of section 37 1 b and section 140 1 a of the Planning and Development Act 2000 as amended The appeal 21 The Board argues for a distinction in meaning between the words determine and decide and their cognates It says that the words are not mere synonyms The concept of determination implies the application of reason in light of the statutory criteria The Board determined the appeals when it considered the substantive merits of the appeal and decided the outcome not when the Board member signed the formal Board order bringing the appeal to an end The determination does not crystallise into a decision until it is formalised in writing 22 In essence the Board relies on the combined effect of the following provisions in which each use of the word determine is underlined 23 Section 37 1 b of the Act provides that where an appeal is brought against a decision of a planning authority and is not withdrawn the Board shall determine the application as if it had been made to the Board in the first instance 24 The same paragraph goes on to provide that subsections 1 2 3 and 4 of section 34 shall apply subject to any necessary modifications in relation to the determination of an application by the Board on appeal under this subsection as they apply in relation to the determination under that section of an application by a planning authority 25 Section 140 1 a provides A person who has made an appeal may withdraw in writing the appeal planning application or referral at any time before that appeal or referral is determined by the Board 26 These combined references to determining do not of course specify the exact point when the determination takes place It is for that reason that the Board invokes s 111 4 which provides Every question at a meeting of the Board relating to the performance of its functions shall be determined by a majority of votes of the members present and in the event that voting is equally divided the person who is chairperson of the meeting shall have a casting vote 27 Section 111 6 Act however provides a Subject to paragraph b and c the Board may perform any of its functions through or by any member of the Board or other person who has been duly authorised by the Board in that behalf b Paragraph a shall be construed as enabling a member of the Board finally to determine points of detail relating to a decision on a particular case if the case to which an authorisation under that paragraph relates has been considered at a meeting of the Board prior to the giving of the authorisation and that determination shall conform to the terms of that authorisation c Paragraph a shall not be construed as enabling the Board to authorise a person who is not a member of the Board finally to determine any particular case with which the Board is concerned 28 The Board rejected the suggestion that the member of the Board authorised under this sub section was involved in making any determination of final points of detail That member was merely formally drawing up the Board s determination in the form of a decision that could then be notified to the parties 29 There are other uses of the term determine Section 137 1 provides The Board in determining an appeal or referral may take into account matters other than those raised by the parties or by any person who has made submissions or observations to the Board in relation to the appeal or referral if the matters are matters to which by virtue of this Act the Board may have regard 30 The Board makes a number of other points based on the text of the Act S 37 1 c provides that paragraph b is to be construed subject to sections 133 138 and 139 Section 132 permits the Board by notice to require the provision of any document particulars or other information which in its opinion may be necessary for the purpose of enabling it to determine an appeal It may give notice that in default of compliance with its request it may pursuant to section 133 dismiss or otherwise determine the appeal Section 133 enables the Board having served a notice under section 131 or 132 and having considered any submissions documents particulars or information supplied without further notice to that person determine or in the case of a notice served under section 132 dismiss the appeal Section 138 gives the Board an absolute discretion to dismiss an appeal where it considers it inter alia to be vexatious frivolous or without substance or foundation or is made with the sole intention of delaying the development 31 It is submitted by the Board that these provisions show that there is a distinction between the determination of an appeal and its dismissal without a determination In either of these cases there would still have to be a formal Order of the Board It follows as I understand the argument that the formal order can never be characterised as the determination since in the case of a dismissal the Board will have decided not to determine the appeal 32 More generally the Board says that the certified point is of singular importance to it It argues that because there will necessarily be an interval of a day or more between the meeting of the Board at which an appeal will be considered and the drawing up of a formal order to reflect the decision that has been made there is a risk of pressure being brought to bear on Board members and staff to divulge the outcome of appeals which have been dealt with at Board meetings before the formal paperwork reflecting those decisions has been completed 33 It submits that there is a danger of the creation of difficulties with the need to respect the laws of the European Union especially in respect of conservation of natural habitats by reference to Council Directive 92 43 EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora O J L 206 22 7 1992 p 7 The Board cites the decision of the Court of Justice in Case 127 02 Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw Natuurbeheer en Visserij 2004 ECR I 7405 That case concerned the licensing of mechanical cockle fishing in the Waddenzee SPA in the Netherlands The Court held that The competent national authorities taking account of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned in the light of the site s conservation objectives are to authorise such an activity only if they have made certain that it will not adversely affect the integrity of that site That is the case where no reasonable scientific doubt remains as to the absence of such effects emphasis added 34 The Board draws attention to the principle of conforming interpretation laid down in many cases notably in Case C 106 89 Marleasing 1990 ECR I 4135 paragraph 8 It says that Irish legislative provisions ought to be interpreted in light of European law and obligations under same 35 In essence the Board submitted that from the moment of the determination of the appeal respectively on 16th March 2011 and 25th January 2011 the Board was functus officio Counsel accepted that it followed from this proposition that the Board had no power to reconsider its decision between that time and the time usually several days later when the matter was reduced to writing in the form of an order expressing the decision of the Board This would be so even if a member of the Board in the intervening period adverted to an important point of substance which should persuade the Board to reconsider It simply would not have the power to do so 36 Each of the respondents submits that the appeals having been withdrawn in each case the Board no longer had anything before it to decide Thus it had no jurisdiction to decide the appeal the appeal it is submitted is not finally determined until the Order of the Board is drawn up signed and sealed Therefore prior to the making of an order the Board is free to consider and reconsider what its decision will be 37 The respondents rely on the judgment of MacMenamin J They argue that because it has been held that for the purposes of the time limit for applying for judicial review the decision of the Board dates not from the time the Board meets and decides internally on the outcome of an appeal but from the date of its written and sealed decision the same date should apply for the purposes of s 140 1 a and the date of withdrawal of an appeal It is submitted that logic demands that the date of the formal written order or decision of the Board and its determination should be the same Conclusion 38 The entire debate on the appeal centres on the use of the word determine when the Board carries out its functions in relation to appeals pursuant to the Planning and Development Act 2000 as amended 39 However the key question is whether the combined effect of the use of the term determine in s 37 relating to the consideration and conclusion of an appeal in s 111 4 in its general reference to meetings of the Board and in s 140 1 a concerning the withdrawal of an appeal is that an appeal cannot be withdrawn at any time between the meeting of the Board where the matter is considered and concluded and the reduction of that determination to writing in the form of a decision 40 The essence of the submissions of the Board is that the Act makes a considered and deliberate distinction throughout between a determination and a decision Considering the matter at the most general level I find it difficult to understand why such a distinction should be necessary There is no obvious reason a priori pointing to a conclusion that the legal effect of an important administrative act should for one legal purpose date from the moment when it is verbally arrived at or concluded and for another from the time of its embodiment in a formal document having legal form and incorporating the reasons for its adoption That however is the clear effect of the submissions of the Board The Board claims that MacMenamin J decided the issue by reference to a point which was not in issue in the Urrinbridge case namely the date from which time limit for commencing judicial review proceedings is to be calculated It accepts that for the purposes of judicial review the time limit runs from the date of the decision for the purposes of s 50A 6 leaving aside the question of whether or not it is the date of notification which applies Once that proposition is accepted the implications of the Board s argument is that the determination has legal effect for the purposes of an application for judicial review only from the date of adoption of the decision but that an appeal cannot effectively be withdrawn between the time of the Board s determination of the matter and the formal adoption of the decision 41 A further counter intuitive implication of the argument that the Board is functus officio from the moment of its determination is that as was frankly accepted at the hearing it has no power to reconvene and reconsider a determination made through error oversight or inadvertence At the hearing it was postulated that a Board member might on further reflection come to realise that a mistake had been made whether of law or of appreciation of the facts Such an error might be fundamental It might be less serious For example it might have been agreed to impose a condition involving an erroneous calculation of technical matters On the Board s submission it would be powerless to correct such an error Its legal obligation would be to continue with the adoption of a clearly erroneous decision The answer to this undoubted dilemma which was proposed at the hearing was that the matter would have to await correction through the process of judicial review That to my mind would be an unnecessarily cumbersome and costly remedy 42 It seems to me obvious that in the ordinary way any deliberating body should be in a position to review its decisions before they have become irrevocable Indeed it is the long established position in law that a court or a judge has power to revise a judgment orally delivered until such time as it has been incorporated in a perfected order of the court 43 It is in the light of these considerations that I turn to consider whether contrary to these instincts the Act mandates such a distinction between the meaning of the words determination and decision as is propounded 44 The words themselves are as used in everyday English language natural synonyms Where the context is the resolution of a legal issue or dispute it would be natural to use them interchangeably That is indeed what MacMenamin J thought about their use in the context of the Act The Oxford English Dictionary 2nd Ed Clarendon Press Oxford 1989 Vol 4 treats them as synonyms of each other Decide as a transitive verb means To determine a question of controversy or cause by giving a victory to one side or the other to bring to a settlement settle resolve a matter in dispute doubt or suspense emphasis added Determine after a first range of meanings connoting putting an end to or limiting means To settle or decide a dispute question matter in debate as a judge or arbiter emphasis added The Thesaurus offered on the computer on which I am preparing this judgment offers decide settle on conclude as synonyms for determine and resolve determine as synonyms for decide 45 As a matter of law the matter must of course be decided in the light of the words as they are used in the Act It is true that the Act uses the word determine when referring to the Board in deciding a word I find it impossible to avoid on the result of an appeal Section 37 1 b provides Subject to paragraphs c and d where an appeal is brought against a decision of a planning authority and is not withdrawn the Board shall determine the application as if it had been made to the Board in the first instance and the decision of the Board shall operate to annul the decision of the planning authority as from the time when it was given and subsections 1 2 3 and 4 of section 34 shall apply subject to any necessary modifications in relation to the determination of an application by the Board on appeal under this subsection as they apply in relation to the determination under

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  • in Westminster on the 1st November 2011 stating What is wrong is that indeterminate sentences are unfair between prisoner and prisoner The Parole Board has been given the task of trying to see whether a prisoner could prove that he is no longer a risk to the public It is almost impossible for the prisoner to prove that so it is something of a lottery and hardly any are released We therefore face an impossible problem As I have said IPP sentences are piling up and they have been handed down at a rate of more than 800 a year even after the changes made in 2008 At the moment more than 6 500 offenders are serving those sentences of whom more than 3 000 have finished what the public regard as their sentence the tariff for what they have done If we do not do anything about it the number of IPP sentences will pile up to 8 000 or 9 000 by 2015 10 of the entire prison population Sometimes their co accused who committed the same crime and were given a determinate sentence were released long ago That is unjust to the people in question and completely inconsistent with the policy of punishment reform and rehabilitation which has widespread support Only Opposition Front Benchers are still in favour of a punishment that leaves a rather randomly selected group to languish indefinitely in prison for their lifetime if necessary Apart from the very outlying people on the right and the left I hope that I have satisfied everybody It is high time that we reformed indeterminate sentences Personally I am amazed that they have survived judicial review and challenge in the courts thus far but if something was not done they would not survive very much further which would lead to unfortunate consequences if a count suddenly started ordering us to release such prisoners and decided that they were being held unlawfully I have recently described them as a stain on the system I said that at a private meeting in the House of Lord although it soon found its way into the press but it is my opinion What we are putting in place is protection for the public far more rational certain determinate sentences which is much more in line with how we think the British system should behave 14 The material before the Court also established that at the Committee Stage of the Bill to abolish indeterminate sentences being the Legal Aid Sentencing and Punishment of Offenders Bill in Westminster on the 21st November 2011 Lord McNally the Minister for State for Justice said I now wish to turn to one of the Bill s most important reforming measures namely reform of the current system of indeterminate sentences for public protection IPPs are poorly understood by the public They lead to inconsistent sentences for similar crimes They deny victims clarity about the length of time an offender will serve The previous Government estimated that there

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  • examining the state of the company s affairs and performing such duties in relation to the company as may be imposed by or under the Act of 1990 Sub section 2 of s 2 as amended provides The court shall not make an order under this section unless it is satisfied that there is a reasonable prospect of the survival of the company and the whole or any part of its undertaking as a going concern Here the Court is concerned with the survival of the Company 14 Of particular relevance to the application of those provisions by reference to the requirements of sub sections 3A and 3B of s 3 of the Act of 1990 in relation to the report of an independent accountant which must accompany the petition under s 2 and the contents of the report to the circumstances of this petition is the approach adopted by the Supreme Court to the application of those provisions in In the Matter of Gallium Limited Having stated that the onus of proof is on the petitioner Fennelly J stated at para 46 However the statutory requirement is to show that there is a reasonable prospect of the survival of the company A petitioner does not by getting over that threshold acquire a right to have an order made I still think it is fair to say that the section confers a wide discretion on the court or alternatively that the court should take account of all the circumstances The establishment of a reasonable prospect of the survival merely triggers the power which remains discretionary The manner in which the Court exercises its discretion under s 2 was elaborated on by Fennelly J in succeeding paragraphs as follows 47 The entire purpose of examinership is to make it possible to rescue companies in difficulty The protection period is there to facilitate examination of the prospects of rescue However that protection may prejudice the interests of some creditors The court will weigh the existence and degree of any such prejudice in the balance It will have regard to the report of the independent accountant 48 The Court has to take account of all relevant interests The independent accountant must consider whether examinership would be more advantageous to the members as a whole and the creditors as a whole than a winding up of the company This does not limit the range of interests to be taken into account by the court under section 2 The interests of employees cannot be excluded In the case of an insolvent company it is natural that the creditors will have the greatest interest in the future if any of the company The court will take a balanced approach as suggested by the reference to the creditors as a whole The evidence 15 The opinion of Mr Tobin in the Independent Accountant s Report based on the projections of the Company s profit or loss over the twelve months to September 2014 which had been prepared by the directors of the Company and which in his opinion appeared to be viable was that subject to certain conditions the Company has a reasonable prospect of survival as a going concern The conditions he stipulated were a the securing of investment to fund a Scheme of Arrangement b the ability of the directors to implement and maintain efficiencies which were planned and were already implemented on an ongoing basis and c the approval of a Scheme of Arrangement by the members creditors and the High Court In relation to the first condition when the matter was before the High Court the prospective investor had been named in the petition which had been verified by an affidavit sworn by Michael Quaid the owner of 100 of the issued share capital and a director of the Company on 2 nd October 2013 In Mr Moloney s first affidavit which was before the High Court it was averred that the Revenue Commissioners had a judgment against the prospective investor for a sum in excess of 45 000 which remained unsatisfied and that the Revenue Commissioners had serious concerns with regard to the prospective investor s ability to invest money in the Company The factual position has changed materially since the matter was in the High Court because that prospective investor has fallen out of the picture In the Scheme Proposals alternative investors have been identified and no issue has been raised as to their ability to invest the agreed sum 120 000 16 In the Interim Examiner s First Report which was before the High Court the Interim Examiner who had then been in place for thirty three days expressed the view that the conditions set out in the Independent Accountant s Report are achievable In his subsequent reports which were prepared for this Court the Interim Examiner maintained the belief that the Company has a reasonable prospect of survival based on projected trading which in turn was based on current turnover and reduced cost In the Interim Examiner s Third Report his view was expressed in a very forthright manner He stated that he was firmly of the view that the projections are reasonable and achievable In the Interim Examiner s Fourth Report the belief of the Interim Examiner that the Company has a reasonable prospect of survival was reiterated in similar terms 17 The attitude of the largest creditors has not changed since the matter was before the High Court As has been made clear the largest creditor the Revenue Commissioners while having raised issues which have been of considerable assistance to the Court have made it clear that they are not opposing the petition The second largest creditor is the Company s main supplier Profile 22 Systems Profile 22 which is based in England The Interim Examiner had put before the High Court an undated letter from Profile 22 confirming that it had continued to supply the Company since the petition was presented and would continue should the

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  • circumstances such as arise in these proceedings However clearly those potentially difficult issues do not arise in the event that the Ministers are prevented from raising the relevant substantive arguments in the first place In those circumstances it is appropriate to turn first to consideration of that issue 2 The Estoppel Issue 2 1 The underlying factual basis put forward for the proposition that the Ministers cannot now rely on the strike to justify non payment stems from the way in which Fuller No 1 was pleaded Amongst the reliefs claimed on behalf of the applicants in Fuller No 1 was at the relief sought at d II of the statement of grounds An Order of Mandamus directing the Respondents to restore the Applicants to the payroll as and from 28 April 2003 In that context it should be noted that the 28th April 2003 was the date on which those officials who were applicants in Fuller No 1 had been removed from the payroll 2 2 In their statement of opposition the Ministers specified at paragraph 7 that it was admitted That the Applicants have been and continue to be deprived of their remuneration however it is pleaded that in so depriving the Applicants the Respondents have acted lawfully and in accordance with the powers conferred upon them by section 16 of the Civil Services Regulation Act 1956 2 3 In the context of that sequence of pleading the undisputed factual backdrop is of some relevance The applicants in Fuller No 1 were involved in part of the rolling industrial action to which reference has been made They were served with notices to the effect that unless they returned to full work they would be removed from the payroll with effect from the 28th April As was emphasised by counsel for the Ministers before this Court there was already experience on both sides as to how matters were likely to develop for a larger number of co officials had already been removed from the payroll earlier in April in identical circumstances It was pointed out that the relevant communications on behalf of the Ministers on both occasions made clear that the removal from the payroll was to last only as long as any relevant officials were actively engaged in the rolling industrial action in the sense of not actually fully working on any particular day or days It was in the nature of that rolling action that different officials declined to do certain duties for a number of specified days and then returned to full working Thus it is said on behalf of the Ministers that it was clear at all times that the only removal from the payroll which would occur would be in respect of those days on which any relevant official declined to carry out their full duties so that the official concerned would be restored to pay in respect of any day or days on which they did in fact work fully 2 4 In simple terms the Ministers case is therefore that any relevant official would have been fully paid in respect of any days on which they returned to full work On that basis it is said that the only reason why the officials concerned were not paid for the period in dispute was because they were on full strike However one characterises matters it is clear that all of the officials who were applicants in Fuller No 1 were on full strike before leave was obtained to seek judicial review and well before the statement of opposition on behalf of the Ministers was filed For completeness one minor twist in the facts should be noted As pointed out the sequence of events was that on different dates groups of officials were removed from the payroll in purported reliance on s 16 as a result of their failure to do full work Within a day an all out strike was called No pay was at the relevant time given to any official in respect of a time after they were removed from the payroll on the basis of the Ministers contention that they were not entitled to such pay However in the course of the proceedings before the High Court it was accepted on behalf of the Ministers as it would have to have been in order to maintain a position consistent with the case being made by the Ministers that any official who subsequent to being removed from the payroll did attend for work even on the basis of doing limited duties was entitled to be paid That concession stemmed from the acceptance by the Ministers that at a minimum the judgments in Fuller No 1 rendered non payment of officials in respect of periods when they were attending for some work unlawful 2 5 It is in the context of those facts that the estoppel issue arises It is argued on behalf of the officials that the only justification put forward on behalf of the Ministers in their statement of opposition not only for their initial deprivation of remuneration but also for any continued deprivation of remuneration was s 16 On that basis it is said that if as is now argued to be the case the true reason for depriving any relevant official of remuneration after the all out strike commenced and thus at the time when the judicial review proceedings were launched and in particular when the Ministers put in their statement of opposition was a separate reason being that the workers were now on all out strike then same could and should have been pleaded in the statement of opposition 2 6 On that basis it is said that it is now too late for the Ministers to seek to make a different case to justify the failure to continue to remunerate the relevant officials Against that background it is next necessary to turn to the way in which the trial judge dealt with this aspect of the case 3 The Judgment of the Trial Judge 3 1 Gilligan J noted at page 8 of his judgment that the case was made that the Ministers were now estopped from seeking to justify the decision to remove those applicants from the payroll on the basis of a justification other than s 16 The trial judge then went on to consider the relevant authorities to which he had been referred being Thoday v Thoday 1964 1 All E R 341 at p 352 Carl Zeiss Stiftung v Rayner and Keeler Limited and Ors No 2 1966 2 All E R 536 at p 565 and in particular the judgment of Hardiman J in this Court in A A v Medical Council 2003 4 I R 302 and the consideration therein of the rule in Henderson v Henderson 1843 3 Hare 100 and the discretionary approach to its application noted by Lord Bingham in Johnson v Gore Wood Co 2002 2 A C 1 3 2 Thereafter at page 11 of his judgment Gilligan J went on to say the following I see no reason why the issue as to the payment of the applicants wages and clarification as regards the position pertaining to their pension entitlements could not have been raised in the earlier judicial review proceedings Counsel for the respondent does not raise any issue in these proceedings as regards the applicants entitlement to maintain these issues before this Court In all the circumstances in the exercise of my discretion I take the view that what is at issue in this case is a separate and distinct point which was not at issue or argued in the previous judicial review proceedings of Fuller No 1 I do not consider in all the circumstances that the raising of the issue by the applicants is in any way an abuse of process Equally I can see no reason why the respondent should not be allowed to make out an argument that the applicants have no right to be paid their wages or a right to their pension entitlements notwithstanding that they were unlawfully removed from the payroll by reason of the fact that in the circumstances which occurred almost immediately after their removal from the payroll they chose to go on strike and to make themselves unavailable for work 3 3 The first argument which therefore arises on this appeal is as to whether Gilligan J was correct or at least was acting within his discretion in a manner which should not be overturned by this Court in reaching the conclusion that the Ministers were not estopped from raising the issues now sought to be relied on I now turn to an analysis of the argument 4 Analysis 4 1 Before going on to deal with the argument made before this Court it is important to record some developments which have occurred in the case As was pointed out by Gilligan J in his judgment a significant number of the original applicants in these proceedings had withdrawn from involvement prior to the hearing in the High Court I understand that the circumstances leading to that withdrawal stemmed from the fact that those of the applicants who had withdrawn had not in fact been removed from the payroll as a result of action taken against them under s 16 arising from an involvement in the rolling industrial action but rather had been co officials who had participated in the all out strike in support of their colleagues who had been removed from the payroll under s 16 In those circumstances the only basis for the removal of those who as it were went out in sympathy was that they were on strike and it was accepted that no claims could be brought on their behalf 4 2 Next it is for completeness of relevance to note that two of the original applicants who remained parties as at the time of the High Court withdrew their appeals at the time of the oral hearing in this Court For ease of reference I will therefore refer to those of the original applicants whose case remained alive at the oral hearing as the continuing claimants I now turn to the arguments raised at the hearing on the estoppel issue 4 3 The first point noted by counsel for the continuing claimants was that the case for estoppel made in the High Court was one made on behalf of the applicants rather than one made on behalf of the Ministers which suggested that the claim rather than the defence was subject to a Henderson v Henderson type estoppel Against that background it is suggested that it is curious that the trial judge made a finding that the raising of the issue by the applicants is not in any way an abuse of process No such suggestion had apparently been made by counsel for the Ministers before the High Court 4 4 While that point may not of itself be of any relevance to this appeal it is apparent that the trial judge proceeded on the basis that the question of actual payment of the applicants in Fuller No 1 was not raised in that case An analysis of the pleadings in Fuller No 1 makes it clear that that is not the case The relief in respect of which leave to seek judicial review was granted by the High Court Quirke J on the 12th May 2003 included as has already been noted at item d II An Order of Mandamus directing the Respondents to restore the Applicants to the payroll as and from the 28 April 2003 Thus there was a very specific claim made in Fuller No 1 seeking an order in effect that the relevant applicants be paid The plea at paragraph 7 of the statement of opposition which has already been cited has to be seen in that light It follows that at least so far as the pleadings were concerned the issues which were before Carroll J in Fuller No 1 included although obviously were far from confined to a claim for payment with a denial that the applicants were entitled to payment In particular that denial was expressly stated to be based on the application of s 16 and s 16 alone Furthermore and of particular relevance to the issue which has now arisen s 16 was stated to be the justification not only for the initial removal from the payroll and thus the initial refusal to pay the relevant applicants but also in respect of any continued refusal to pay The statement of opposition was filed on the 20th May 2003 By that stage all of the applicants in those proceedings were on full strike If therefore the basis for not paying those officials after they had gone on full strike was because they were not entitled to be paid simply because they were on strike then it is surprising that no mention of that justification is to be found in the statement of opposition even as a fallback position 4 5 On the basis of the case which the Ministers now seek to make it would for consistency have been appropriate for the Ministers to have pleaded in late May 2003 that at least in the alternative and whatever about the effect of s 16 the applicants were no longer entitled to continue to be paid by virtue of their being on strike No such plea is to be found 4 6 What then are the consequences of the way in which the Ministers defended Fuller No 1 First it is said on behalf of the Ministers in this appeal that Fuller No 1 turned out to be a very narrow case wholly concerned with the proper statutory interpretation of s 16 In that context it is said that whatever about the claim for payment being included in the relief sought in the statement of grounds no such claim was pressed in the sense that neither the judgment of Carroll J in the High Court or McGuinness J in this Court deals with the order of mandamus It can I think safely be inferred that had such an order been pressed at either hearing the court would have at least dealt with it in some fashion There is on the affidavits a difference of recollection which it is impossible to resolve at this remove as to what might have been said in this Court about the payment issue 4 7 In his replying oral submissions counsel for the continuing claimants agreed that the issue in Fuller No 1 was narrow but suggested that the reason why it was so narrow was precisely because of the way in which the Ministers chose to set out their opposition It seems to me that counsel was correct in so characterising the situation It remains the case that as the case was pleaded the applicants in Fuller No 1 asserted an entitlement to be paid The only basis put forward for resisting that claim was to place reliance on s 16 It was in those circumstances a matter for the Ministers to raise any other basis or justification for not continuing to pay the applicants in that case The issue was narrow precisely because the Ministers chose not to widen it The failure to press for an order of mandamus must again be seen in that context Given that the only basis put forward by the Ministers for suggesting that they did not have a continuing obligation to pay was s 16 it was in my view not unreasonable for the applicants in Fuller No 1 to consider that a victory on the s 16 point would necessarily carry with it an entitlement to be paid It is true that the court was not asked to make the mandamus order It is true that the court did not therefore expressly find that the applicants were entitled to be paid But it is also true that the only basis put forward in the pleadings for suggesting that the applicants were not entitled to continue to be paid was rejected 4 8 In passing I should note that while not all of those who are applicants in these proceedings were parties to Fuller No 1 no argument was in my view quite properly advanced on behalf of the Ministers to suggest that any estoppel which contrary to his submissions might arise could only apply in favour of those who were applicants in Fuller No 1 The fact is that Fuller No 1 arose out of the same dispute between in substance the same parties and it would have been wholly inappropriate to seek to distinguish between those who happened to be applicants in Fuller No 1 and those who were not 4 9 It is also worthy of some note although far from decisive that the Ministers in Fuller No 1 sought to rely on jurisprudence of the English courts which suggested a no work no pay principle such that independent of s 16 the Ministers might have been entitled to remove the applicants from the payroll because of the undoubted fact that they declined to work fully in accordance with their contractual obligations However this Court made clear that it did not consider it appropriate to permit the Ministers to raise in Fuller No 1 that point precisely because no basis other than s 16 had been put forward to justify the removal of the applicants from the payroll It was acknowledged by counsel for the continuing claimants in this Court on this hearing that the no work no pay point sought to be raised on that earlier occasion on behalf of the Ministers was a slightly different one than the one now sought to be relied on The point then sought to be made was that the Ministers were entitled to remove the relevant officials from the payroll because they were engaged

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/c276f9dc80e05de080257c3100493de6?OpenDocument&TableRow=2.1 (2016-02-09)
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  • evidence was not all one way as in this case it was said that a court was required to decide whether an applicant s evidence was credible in the light of all of the evidence before moving on to assess whether there were any special circumstances justifying a trial judge refusing to exercise his discretion in favour of an applicant Motorola contended that their evidence was credible as it had not been challenged by cross examination and that the trial judge should as a result have proceeded to examine the special circumstances limb of the test 4 3 Counsel for Motorola additionally argued in the alternative if he was wrong and the trial judge correct that the appropriate test to be applied was the balance of probabilities test set out in para 18 of the judgment that the trial judge erred in weighing the evidence particularly as to the import of Note 1 and the valuation of the spectrum assets 4 4 Motorola asserted that a fundamental flaw in the analysis of McGovern J was a failure to deal with Note 1 which was said to arise from a confusion between this note and the Emphasis of Matter paragraph in the relevant accounts Counsel pointed to the fact that there is no express reference to Note 1 at any point in the judgment It is contended that this evidence should have been given much greater emphasis by the trial judge as Motorola contend that Note 1 amounts in substance to an admission on the part of Imagine of their inability to pay the costs of the action 4 5 Motorola claims that the trial judge also fell into error in giving unwarranted credit to the valuation of the spectrum assets It is said that Imagine s directors and auditor were both aware of the value of these assets at the time of the publication of 2011 accounts and notwithstanding this still felt it necessary to include Note 1 in their annual accounts As a result it is said that it was not necessary for Motorola to challenge the evidence of value or provide an alternative valuation In essence Motorola says that rather than supporting Imagine s ability to pay the valuation in fact supports the argument to the contrary 4 6 The final submission of Motorola concerned the special circumstances limb of the test which of course only arises if the appeal succeeds on the first limb This submission is concerned with whether Imagine had discharged the onus on it to show that there were special circumstances which would allow the Court to exercise its discretion not to award security for costs Although McGovern J refused the s 390 application on the basis of the failure of Motorola to discharge the first limb he did go on as earlier noted at para 33 to say that the evidence indicated that any inability to pay on the part of Imagine was a direct consequence of the alleged wrongdoing by Motorola This in the trial judge s view would have been sufficient to amount to a special circumstance justifying a refusal to exercise his discretion in favour of Motorola 4 7 Motorola contended that the trial judge did not carry out a sufficiently detailed analysis to come to the above conclusion In particular Motorola referred to the report of their expert which states that 87 of the losses of Imagine are not related to the WiMax project which is at the centre of the dispute between the parties Motorola says that this evidence was not contradicted by Imagine 4 8 In response Imagine argued that the trial judge correctly identified and applied the appropriate test in deciding whether or not Motorola had discharged the onus on it to prove that there was reason to believe that Imagine would be unable to pay the costs if unsuccessful in its action This it is argued necessitated the trial judge assessing the evidence of both sides as to the ability to pay and then coming to a conclusion whether Motorola on the balance of probabilities had proved this aspect of its case 4 9 In respect of the argument in relation to Note 1 it is said that Motorola has misstated and exaggerated its content and that the note does not have the significance ascribed to it by counsel for Motorola It is the submission of Imagine that the note simply points out the fact that failure of the action would have obvious detrimental financial consequences for Imagine in the longer term Imagine also say that the trial judge notwithstanding its non inclusion of the judgment was aware of Note 1 as the emphasis of matter paragraph refers to that note 4 10 Imagine also argued that its accounts were prepared in compliance with Irish Generally Accepted Accounting Practice Irish GAAP and as a result that it was prohibited from including the full value of the spectrum assets in its accounts If the full value had been included it is said there would have been no doubt whatsoever as to Imagine s ability to pay as the valuation of these assets is a multiple of even Motorola s largest estimate of costs 4 11 Finally Imagine relied on the finding of the trial judge that there was cogent evidence for the Court to conclude that the alleged impecuniosity of the Imagine was caused by the wrongdoing of Motorola Even if the vast majority of losses were now non WiMax related Imagine argued that this takes no account of the current and historical adjustments that have had to be made to the accounts as a result of the alleged wrongdoing Against the background of those arguments I now turn to the proper interpretation of s 390 5 Discussion 5 1 I turn first to the central provisions of s 390 itself I should start by indicating that it does not seem to me that anything is added to the section by the inclusion of the words by credible testimony If a court is required to be satisfied of something or to consider that there is a prima facie case for something or the like then a court will of course only be able to form that view on the basis of testimony which the court finds to be credible 5 2 In any event the real question is as to what must appear to the court to be the case as a result of that credible testimony There are two elements to that requirement The court must consider whether there is reason to believe that the company concerned will be unable to pay costs 5 3 It is instructive that the Court of Appeal for England and Wales has recently had to consider almost identical wording in relevant English provisions in Jirehouse Capital and anor v Beller and anor 2009 1 W L R 751 The relevant provision in that jurisdiction is Rule 25 13 2 c of the Civil Procedure Rules That Rule provides that a court may make an order for security for costs when the claimant is a company or other body whether incorporated inside or outside Great Britain and there is reason to believe that it will be unable to pay the defendant s costs if ordered to do so emphasis added It is evident that the portion emphasised is identical in effect to the requirement in s 390 that a court may if it appears by credible testimony that there is reason to believe that the company will be unable to pay the costs of the defendant if successful in his defence require sufficient security to be given for those costs 5 4 Jirehouse concerned an appeal from a decision of Briggs J in the High Court of England and Wales where in dealing with an application under Rule 25 13 2 c the judge applied a test of significant danger that the company would be unable to pay costs ordered against it rather than a probability test It was said that the significant danger test was too low a threshold and that it was not in accordance with the terms of the Rule However counsel in that case did not argue that there was any difference between significant danger and reason to believe and Arden L J proceeded on the assumption that it was not contended that there was a material difference between these two concepts 5 5 At para 26 the judge concluded there is a critical difference between a conclusion that there is reason to believe that the company will not be able to pay costs ordered against it and a conclusion that it has been proved that the company will not be able to pay costs ordered against it In the former case there is no need to reach a final conclusion as to what will probably happen In the latter case a conclusion has to be reached on the balance of probabilities 5 5 However at para 29 the judge acknowledged that it is necessary for there to be something more than a risk of non payment When discussing the arguments of counsel on the appropriate standard to be applied she commented I do not accept the argument advanced by Mr Auld that the test of reason to believe must be elevated to a test of balance of probabilities simply because the matter to which the test relates is something which must be established and not simply identified as a possibility 5 6 Later Arden L J quoted a passage from the judgement of Buxton L J in Phillips v Eversheds 2002 EWCA Civ 486 dealing with the significant danger test At para 33 she observed In my judgment Buxton LJ was not formulating a different test from that of reason to believe but simply expressing those words in his own words In the sense in which Buxton LJ was using the term there was no real distinction between significant danger and reason to believe Since the event in question non payment of an order for costs is a future one what the court has to do was to evaluate the risk or the danger of that event occurring That said however there may be contexts in which a test of significant danger does produce a different result from reason to believe and so it would be much safer to use the statutory words in future 5 7 I find the reasoning in Jirehouse Capital persuasive and I am satisfied that it represents an appropriate approach to the proper interpretation of s 390 5 8 It must of course be taken into account that the court in considering inability to pay costs is in a sense predicting a future uncertain event The question which must be considered concerns the ability of the corporate plaintiff to pay costs at the time when the proceedings have failed That involves not only a consideration of the relevant plaintiff s current ability to meet an order for costs but also any likely change in that ability brought about by the passage of time and of course predicated on the failure of the proceedings 5 9 The balance of probabilities test used to assess evidence in all civil proceedings is of course principally concerned with the standard by reference to which a decision maker judge or jury must assess that evidence in order to make findings as to events which actually occurred Historical facts relevant to the determination of the legal rights and obligations of the parties are frequently of course disputed to a greater or lesser extent When there is conflicting or indeed arguably insufficient evidence in respect of such material facts then the court assesses the matter on the balance of probabilities If by reference to that test the court is satisfied that it is more probable that the facts are as asserted by one party then the court will for the purposes of the case take the facts as being so The fact that the court might have entertained some doubt about the material facts is thereafter irrelevant for the court will assess the case provided it is satisfied on the balance of probabilities on the basis that the facts are so 5 10 It does need to be noted that the same regime does not necessarily apply in respect of the assessment by the court either of the course of future uncertain events or indeed in determining what might have happened in hypothetical circumstances As pointed out by this Court in Philip v Ryan 2004 4 I R 241 in some such cases it is appropriate for the court to assess the range of possibilities and take each of those possibilities into account weighting them if appropriate for the likelihood of them occurring An injured plaintiff who has a 20 risk of developing arthritis as a result of a bony injury near a joint might on one view be said not to have established on the balance of probabilities that he will suffer any future adverse consequences But that is not the way the court approaches the matter The court awards damages on the basis of the risk 5 11 Likewise when a court is required to assess what decisions might have been made had wrongdoing such as for example professional negligence in tendering advice not occurred the court will assess the likelihood of whether different decisions with different consequences might have been made had the wrongdoing not occurred for example had non negligent advice been tendered The court will then proceed to assess the case on the basis of the likelihood of such different decisions being made on the hypothesis of no negligence in the light of whatever consequences might be likely to have followed a different decision 5 12 All of that goes to show that the balance of probabilities test is not strictly speaking in any event particularly apposite for the assessment of future uncertain or hypothetical events The precise position that any company will find itself in at a time when it might hypothetically be called on to pay the costs of unsuccessful proceedings is necessarily uncertain This is so for many reasons First it would be necessary in any event to make some assessment as to whether over the likely period which might be expected to elapse before the proceedings come to a conclusion there may be a material change in the company s financial position A company which is losing significant money in circumstances where there is no particular reason to believe that that situation may change in the short term may well require to be assessed on the basis that its financial position would in any event be worse by the time the proceedings concluded 5 13 Even on the basis of assuming no material change in a company s financial standing it is often the case as the issues in this case demonstrate that the accounts of a company although properly prepared in accordance with relevant standards such as Irish GAAP do not necessarily give a definitive picture as to what funds might actually be available to meet an order for costs There are many circumstances where the book value of assets does not necessarily correspond with the amount of monies which might be realised by the sale of the asset concerned 5 14 That can of course as this case again demonstrates cut both ways Proper accounting practice can require that an asset be included in the balance sheet at a particular value even though there may be cogent evidence to the effect that the market value of the asset concerned is higher or even much higher In the other direction many assets such as plant and machinery are depreciated over the likely lifetime of the asset concerned In the event that the company continues as a going concern such accounting treatment is of course wholly appropriate The costs of the relevant plant and machinery and indeed the anticipation of its necessary replacement is appropriately dealt with by spreading that cost over the depreciation period But it is the universal experience of judges dealing with insolvent companies that the estimate given for the likely sale price of such assets in the event that the company ceases to trade falls in many cases far below the book value Likewise at least in some cases there is anticipated to be likely to be difficulties in recovering all of the debts due to a company should it cease to trade For these and many other reasons there will necessarily be a certain amount of estimation and hypothesis even in the task of assessing whether a company could as of today or as of the day of its most recent accounts be able to pay any specified sum in costs should it be called on to do so I should of course add that there are sound reasons why accounts are required to be prepared in the way that relevant standards require However it is important that courts and indeed experts giving evidence to courts keep in mind that the question that the court may have to address is not necessarily the same as the question that the accounts are designed to answer 5 15 To those points must be added the fact that the range of costs likely to be ordered will itself be something of an estimate and can as this case again demonstrates lead to wildly differing sums being suggested on both sides Furthermore questions concerning the effect of a loss of the proceedings on the company s financial standing including questions as to whether it would in those circumstances be able to continue as a going concern can also arise 5 16 All of this goes to show that an assessment of the ability of a company to pay costs after a loss of proceedings occurring at some future date involves a whole range of estimates and hypotheses which in my view would render attempting to reach an assessment on the balance of probabilities inappropriate in any event For that reason it seems to me that use of the term reason to believe is appropriate It is for that reason that I agree with the analysis in Jirehouse which suggests that reason to believe differs from a matter being established on the balance of probabilities Indeed I would go further and suggest that a test of balance of probabilities would be inherently inappropriate to an assessment of a hypothetical future event redolent with estimates As was pointed out in Jirehouse the fact that there must be reason to believe that the company will be unable to pay necessarily implies that what must be established is something a lot stronger than a mere risk The phrase reason to believe should not be further defined again for the reasons set out in Jirehouse to avoid the risk of changing the test While it does not require the court to assess the matter on the balance of probabilities it does require the court to consider all material evidence and reach an assessment of the range of likely eventualities and thereby determine whether there truly is reason to believe that the company will be unable to pay costs should it lose That requires that the evidence satisfy the court that there is something significantly greater than a mere risk of such an eventuality occurring Against the background of that analysis I now turn to the facts of this case 6 The Facts 6 1 Counsel for Motorola quite understandably placed particular reliance on Note 1 which in its entirety states as follows 1 Going Concern The company and group have incurred significant losses since the commencement of trade Notwithstanding this the company and group balance sheets show a net assets position at year end This position is the result of the directors securing the necessary funding in the form of share capital from its investors Since the year end as set out in note 33 to the financial statements the directors have secured funding from shareholders for working capital purposes Additionally the directors have renegotiated and are about to formalise an arrangement such that certain financing facilities will not become payable within 12 months of the date of approval of the financial statements The directors are satisfied that due to the availability of this additional investment the renegotiated facilities and the fact the group is currently EBITDA positive the company and group will be in a position to discharge its liabilities as and when they fall due and thus continue in operational existence for a period of at least 12 months from the date of approval of these financial statements The company and certain of its subsidiary entities have made a substantial claim for damages against a major supplier of technology equipment and ancillary services The claim for damages relates to material technical failures and under performance on contractual arrangements The claim is being heard in the Commercial court The outcome of the case is likely to have a significant impact on the long term future of the company and group and on its ability to discharge its liabilities While the directors are confident of a settlement in their favour there is an inevitable uncertainty with respect to same The financial statements do not include any adjustments that may be necessary if the going concern basis of preparation was no longer appropriate or if the aforementioned court case was not settled in the company s favour It is also appropriate to set out the emphasis of matter paragraph in the independent auditor s report Emphasis of matter Going concern In forming our opinion which is not qualified we have considered the adequacy of the disclosures made in the financial statements concerning the Company s and the Group s ability to continue as a going concern The Group incurred a loss for the period of 18 494 110 and has accumulated losses at 31st December 2011 of 73 573 601 Primarily due to the uncertainty surrounding the court case along with the other matters explained in note1 to the financial statements indicate the existence of a material uncertainty which may cast significant doubt about the Company s and the Group s ability to continue as a going concern The financial statements do not include the adjustments that would result if the Company and the Group was unable to continue as a going concern 6 2 Again quite understandably counsel placed significant emphasis on the reference in the note to inability to discharge liabilities It is striking that in the submissions made on behalf of Imagine in the High Court and also to quite a late stage in this Court there was little or no engagement with that aspect of the wording of the note The point which was sought to be relied on on behalf of Imagine was to suggest correctly so far as it goes that the success or failure of these proceedings would be bound to have a very significant effect on the overall standing of the company That point could hardly be denied The claim is for well over 100 million That is a sum which if recovered would undoubtedly have a radical and positive effect on the company s balance sheet Likewise a loss of the proceedings meaning that much of the historical losses incurred by the company which are already reflected in its balance sheet could not be recovered and would have to be borne by the company would undoubtedly have a severely negative impact If the note had stopped short of referring to an effect on the ability to discharge liabilities and had simply emphasised the significant effects success or failure in these proceedings might have on the company s financial position then the argument put forward on behalf of Imagine would be meritorious However the fact remains that the directors chose in Note 1 to include a reference to a possible inability to discharge liabilities I have little doubt but that if there was nothing else by way of weighty evidence in the case Note 1 would be sufficient to allow or even require a judge to conclude that there was reason to believe that Imagine will be unable to pay costs However there was significant other evidence 6 3 At this point it is important to note that subsequent to the oral hearing in this case but while the Court was considering its judgment an application was made on behalf of Imagine to admit in evidence its 2012 accounts Indeed there had been criticism of Imagine at the original hearing for what was said to be the somewhat outdated nature of the accounts which were before the Court Be that as it may no objection was raised to the admission of the more up to date accounts although both parties submitted brief submissions on what if anything might be gleaned from those accounts in relation to the issues which arise on this appeal I will turn in due course to what the 2012 accounts say However for present purposes and because the argument at the oral hearing proceeded on the 2011 accounts I will confine my comments to those accounts Finally before leaving this point it should be noted that the Court accepted the 2012 accounts in evidence in this case because there was no objection to that course of action being adopted It should not be taken that the Court will necessarily be prepared in any other case to accept additional evidence after the oral argument has concluded 6 4 The starting point for a consideration of the evidence has therefore to be the accounts which contained Note 1 which are for the year ending 31st December 2011 The balance sheet of the group as of that time was as follows IMAGINE COMMUNICATIONS GROUP LIMITED GROUP BALANCE SHEET 31ST DECEMBER 2011 2011 2010 Note FIXED ASSETS Intangible assets 13 27 816 001 32 383 074 Tangible assets 14 13 414 334 20 471 893 41 230 335 52 854 967 CURRENT ASSETS Stocks 16 8 821 096 9 723 517 Debtors 17 8 108 320 12 187 348 Cash at bank 626 069 2 298 272 17 555 485 24 209 137 CREDITORS Amounts falling due within one year 18 20 729 800 24 059 308 NET CURRENT LIABILITIES ASSETS 3 174 315 149 829 TOTAL ASSETS LESS CURRENT LIABILITIES 38 056 020 53 004 796 CREDITORS Amounts falling due after more than one year 19 18 783 838 15 105 823 PROVISIONS FOR LIABILITIES Other provisions 21 25 335 Government grants 22 36 636 85 488 19 235 546 37 788 150 CAPITAL AND RESERVES Called up share capital 26 3 160 313 3 160 313 Share premium account 28 89 222 968 89 222 968 Other reserves 28 425 866 425 866 Profit and loss account 28 73 573 601 55 020 997 SHAREHOLDERS FUNDS 29 19 235 546 37 788 150 6 5 As pointed out earlier Motorola s estimate of the costs of the proceedings was 4 5 million While Imagine had a strikingly smaller estimate taking that figure for the purposes of argument it is clear that looking at the balance sheet alone the group is in a net asset position being 19 235m more than sufficient to discharge those costs However Motorola makes the point through expert testimony tendered on its behalf that there is reason to believe that the company would not be able to pay that sum in costs in cash either because it did not have ready cash available or because there would be other cash requirements which could not be deferred so as to confer a preference on paying any costs which might be awarded in favour of Motorola If in those circumstances the company was unable to continue to trade it was suggested that it would follow that much of the assets might need to be significantly written down in value so that the net asset position would not be at all as appears in the current accounts and would it was said be likely to be disimproved to the extent that the costs could not be paid It is said that the note itself gives credence to that analysis for the argument goes if that analysis were not correct it is difficult to see how there could be a problem with paying all of the creditors even if the company could no longer trade 6 6 However Imagine countered that argument by making reference to the value of its broadband spectrum In that context two pieces of evidence are relevant The first is a valuation report of Imagine s spectrum assets prepared for Imagine by Dr Mike Jeremy an experienced telecoms and technology analyst in October 2012 At paras 4 11 4 14 of his report he expresses his conclusions as follows 4 11 Valuation The valuation range indicated for Imagine Communications Group s Wireless spectrum is Euro 50m to Euro 120m 4 12 This valuation is based on the combination of underlying demand and growth forecasts for broadband services European spectrum pricing precedents and the goals of the Irish broadband update process In this particular context the applicability of Imagine Communication Group s spectrum for fixed line access substitution and augmented access additional potential value 4 13 The breadth of valuation range is partly determined by the ongoing Irish spectrum auction process which is still underway 4 14 The strategic positioning of Imagine Communication Group s wireless offering provides the opportunity for additional value due to the lack of fixed line broadband infrastructure highlighted by the Irish Government and the applicability of a wireless based alternative 6 7 The second relevant piece of evidence is the supplemental report of James A Murphy a partner in Grant Thornton and auditor to the Imagine Group dated the 5th December 2012 assessing Imagine s ability to pay the potential costs of the case In that respect Mr Murphy stated at paras 1 19 1 21 Irish Generally Accepted Accounting Practice prohibits the recognition of intangible assets such as the spectrum controlled by the Group from being recognised in the financial statements saves in certain circumstances Accordingly in this case we are of the view that the directors are not permitted to recognise the full value of spectrum in the Group s balance sheet I also reiterate the fact that the inherent value in the spectrum controlled by the group is not a relevant consideration when forming an opinion on whether the financial statements are prepared on a going concern basis This does not mean that the spectrum itself is not a valuable asset of the company merely that it cannot be recognised for the purpose of preparing the financial statement in accordance with Irish GAAP or considered in the context of assessing whether the company can continue as a going concern 6 8 It is highly important to note that no contrary evidence as to the value of the broadband spectrum was tendered on behalf of Motorola There was some dispute between the parties in the course of the process as to the extent to which that broadband spectrum might be the subject of charges in favour of third parties including a company associated with Motorola However it seems to me that there is one very simple way of looking at the question of the company s overall financial standing In the course of argument a winding up of the company was doubtless correctly described as a doomsday scenario I am sure that Imagine does not contemplate that it will have to be wound up But if in that doomsday scenario it appears that Imagine would nonetheless be able to pay costs then it seems to me that it follows that it would also be able to pay costs in any less disadvantageous situation The starting point should therefore be to analyse the wind up situation for if that reveals a clear ability to pay costs then it is hard to see how any other analysis is necessary In that context it is important to note that whether or not any particular aspect of the broadband spectrum is charged is not really relevant A charge only effects which creditor gets paid in the event of an excess of liabilities over assets If a company has sufficiently valuable assets to ensure that all its creditors are paid then the existence or otherwise of a charge does not really affect matters If an asset is worth more than the amount owed to the holder of the charge then any surplus will be available for other creditors It was not suggested that any charge if it existed actually increased Imagine s liability by for example making Imagine liable for sums principally due by others and not therefore fully reflected in its accounts 6 9 As appears from the expert evidence to which reference has been made the minimum value of the broadband spectrum is 50 million There is indeed reason to believe that it is even more valuable than that but for present purposes I propose to use that minimum value Taking the company s balance sheet as of December 2011 its entire liabilities whether under the heading of debts falling due within or outside a one year period total just over 39 5m That leaves a surplus of a sum in excess of 10 million even if entirely disregarding all assets other than the broadband spectrum Such an approach would in any event not be justified For the reasons already analysed it is of course the case that it might well be on a winding up that those assets would not achieve anything like the book value attributed to them in the balance sheet However to regard them as having no value when they appear on the accounts at 27 8m would be unrealistic It follows that even in the doomsday scenario of a winding up on the basis of the current accounts Imagine would have a sum well in excess of 10 million by way of surplus to meet any costs that might be awarded against it Even if one were to factor in further possible losses between the end of December 2011 and a likely time of trial perhaps early 2014 together with Imagine s own costs of the trial it still seems highly likely that there would be more than enough funds available to meet an award of costs even of the order of 4 5 million 6 10 On the basis of that analysis I am satisfied that the trial judge was correct to conclude that it had not been established that there is reason to believe that Imagine will be unable to pay costs if it loses its case 6 11 The content of Note 1 is undoubtedly a factor which has to be taken into account and to which significant weight would necessarily have to be attached However the sequence of events leading to an understanding by Imagine of the true value of the broadband spectrum also needs to be noted 6 12 In a presentation to the Imagine Group in May 2012 which preceded but only by a short period the signing off of the 2011 Accounts AIB put an indicative value of between 55m and 108m on 120MHz of spectrum which Imagine then held Imagine now holds additional spectrum licences This valuation was reinforced by the October 2012 valuation provided by Dr Jeremy of between 50m and 120m The report of Dr Jeremy also notes indicative minimum auction prices for further bandwidth which was to be sold by the Commission for Communications Regulation These estimates 2m per MHz under 1 GHz and 1m per MHz for 1800MHz were said to support the valuation estimate provided by Dr Jeremy The results of this spectrum auction were referred to in

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