17 (2), April 2012 by The Bar Review

Journal of the Bar of Ireland • Volume 17 • Issue 2 • April 2012

Juries and the Internet Fraudulent Personal Injury Claims

Editorial Correspondence to: Eilis Brennan BL The Editor Bar Review Law Library Four Courts Dublin 7 DX 813154 Telephone: 353-1-817 5505 Fax: 353-1-872 0455 E: eilisebrennan@eircom.net Cover Illustration: Brian Gallagher T: 01 4973389 E: bdgallagher@eircom.net W: www.bdgart.com Typeset by Gough Typesetting Services, Dublin shane@goughtypesetting.ie T: 01 8727305

Volume 17, Issue 2, April 2012, ISSN 1339-3426

Contents

Editor: Eilis Brennan BL Editorial Board: Gerry Durcan SC Mary O’Toole SC Conor Dignam SC Patrick Dillon Malone BL Brian Kennedy BL Vincent Browne BL Mark O’Connell BL Paul A. McDermott BL Tom O’Malley BL Patrick Leonard BL Paul McCarthy BL Des Mulhere Jeanne McDonagh Jerry Carroll

Fraudulent and Exaggerated Personal Injury Claims – A Word of Warning Anthony Barr SC

Consultant Editors: Dermot Gleeson SC Patrick MacEntee SC Eoghan Fitzsimons SC Pat Hanratty SC James O’Reilly SC

An internet enabled jury of one’s peers Karen Murray BL

The Bar Review is published by Round Hall in association with The Bar Council of Ireland.

A Man Of Real Property Henry Murphy SC

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Legal Update

Access to Justice in Malawi – Irish Rule of Law Project Ruth Dowling BL

Unconstitutional Omissions Yvonne Mullen BL

Help, I Need Somebody! Causation, Foreseeability and the Law of Rescue Zeldine Niamh O’Brien BL

For all subscription queries contact: Round Hall Thomson Reuters (Professional) Ireland Limited 43 Fitzwilliam Place, Dublin 2 Telephone: + 353 1 662 5301 Fax: + 353 1 662 5302 E: info@roundhall.ie web: www.roundhall.ie Subscriptions: January 2012 to December 2012—6 issues Annual Subscription: €297.00 + VAT For all advertising queries contact: Sean Duffy, Direct line: + 44 20 7393 7602 E: sean.duffy@thomsonreuters.com Directories Unit. Sweet & Maxwell Telephone: + 44 20 7393 7000 Contributions published in this journal are not intended to, and do not represent, legal advice on the subject matter contained herein. This publication should not be used as a substitute for or as a supplement to, legal advice. The views expressed in the articles herein are the views of the contributing authors and do not represent the views or opinions of the Bar Review or the Bar Council. The Bar Review April 2012

Fraudulent and Exaggerated Personal Injury Claims – A Word of Warning Anthony Barr SC Introduction

Early Cases

Section 26 of the Civil Liability & Courts Act, 2004 (hereinafter referred to as the “2004 Act”) provides for a somewhat draconian remedy to be applied where a Plaintiff has been found to have given false or misleading evidence. In short, his claim will be dismissed. This article looks at some of the leading cases, which have dealt with this topic with a view to identifying the areas where Plaintiffs have got into trouble. It also sets out the principles, which emerge from a review of the relevant case law.

In Mulkern v Flesk, liability was not in issue between the parties. However the Defendants applied to have the Plaintiff ’s action dismissed pursuant to S.26 of the 2004 Act, because the Plaintiff had stated to a prospective employer that she did not suffer from any back injury. The Plaintiff admitted in evidence that that had been a lie, which she had told to her prospective employer, because she wanted to obtain the job on offer. Kelly J. refused the Defendant’s application and stated:

Section 26 of the Civil Liability & Courts Act, 2004

“I do not accept that the Plaintiff gave false or misleading evidence. It is not to her credit that she told untruths to her perspective employer. I am satisfied that she very much wanted and indeed needed to obtain employment with Boston Scientific. That may explain why she was untruthful in her dealings with that employer, although it does not excuse such behaviour. But I do not accept that she gave false or misleading evidence to the Court.’’

Section 26 of the 2004 Act comes under the heading of “Fraudulent Actions” and provides as follows: 26. (1) If, after the commencement of this section, a Plaintiff in a personal injuries action gives or adduces, or dishonestly causes to be given or adduced evidence that – (a) is false or misleading in any material respect, and (b) he or she knows to be false or misleading, the Court shall dismiss the Plaintiff ’s action unless, for reasons that the Court shall state in its decision, the dismissal of the action would result in injustice being done. (2) The Court in a personal injuries action shall, if satisfied that a person has sworn an Affidavit under Section 14 that – (a) is false or misleading in any material respect and (b) that he or she knew to be false or misleading when swearing the Affidavit, dismiss the Plaintiff ’s action unless, for reasons that the Court shall state in its decision, the dismissal of the action would result in injustice being done. (3) For the purposes of this section an act is done dishonestly by a person if he or she does the act with the intention of misleading the court (4) This section applies to personal injuries actions – (a) brought on or after the commencement of this section, and (b) p e n d i n g o n t h e d a t e o f s u c h commencement.

One of the first cases to hold that S.26 did apply was Carmello v Casey . In this case, liability had been conceded. The Plaintiff was a passenger in the car driven by the first named Defendant. The Plaintiff alleged that he had suffered a number of injuries in the road traffic accident, including facial numbness caused by a blow to the side of his face. It transpired that he had not disclosed to his doctors that he had been involved in a subsequent accident, when he had been struck in the face by the branch of a tree. In crossexamination, the Plaintiff stated that he simply did not recall any such incident. The Defendants had learned of it from documentation obtained in a different case. Peart J. held that on quantum, the Plaintiff would have been entitled to damages in the sum of €50,000.00 for his injuries. However, the Judge dismissed the Plaintiff ’s action under S.26 of the 2004 Act. He held that the question for the Court under S.26 was whether on the balance of probability, the Court could be satisfied that in relation to his evidence and/or his verifying affidavit, the Plaintiff had knowingly given false and/or misleading evidence in a material respect. He held that the section was mandatory in its terms once the Court was satisfied on the balance of probability, unless to dismiss the action would result in injustice. The Court first had to look to the Plaintiff ’s evidence and then at all the surrounding circumstances, including what was contained in the pleadings, (2005) IEHC 48, Unreported Kelly J. 15/2/2005. (2008) 3 I.R. 524

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the Replies to the Notice for Particulars and the medical reports and arrive at a conclusion as to the truthfulness of the Plaintiff on the balance of probability. The Judge held that on the balance of probability, the Plaintiff had been deliberately untruthful in his pleadings, in his evidence and in his affidavit of verification in an effort to obtain an award of damages to which he was not entitled from the Defendants. He held that the Plaintiff knowingly gave false and misleading evidence contrary to S.26 (1) of the 2004 Act in relation to questions about his injuries, which was a material respect within the meaning of S.26. The Judge also held that he swore a verifying affidavit in respect of facts contained in the Statement of Claim and the Replies to a Notice for Particulars, knowing that some of what was contained therein in relation to his injuries was false and misleading contrary to S.26 (2) of the 2004 Act. The Judge pointed out that to knowingly give false evidence under oath was a serious criminal offence. Proof of such offence was beyond a reasonable doubt, but under S.26, the Court made its finding on the balance of probability. Plaintiffs need to take care when they have a history of previous accidents. They need to take care when giving their pre-accident history to both treating and reporting doctors. In Singleton v Doyle, the Plaintiff sued in respect of injuries suffered in a road traffic accident in 1999. She had been involved in a previous accident in 1990. Peart J. found that the Plaintiff was a poor historian in relation to her pre-accident medical history. However, he accepted that she was a bona fide witness and held that her credibility should not be cast in doubt as a result of discrepancies in her evidence. Cross-examination had revealed that she failed to inform some of her medical professionals of what precise sequelae she suffered as a result of her previous accident in 1990. While some of the medical witnesses stated that it would have been helpful if they had been informed of these matters, none stated that this information would have affected the nature of the treatment, which they offered or recommended to the Plaintiff in relation to the injuries sustained in the 1999 accident. In the circumstances, Peart J. held that it was not a case in which the Court should regard the Plaintiff as having deliberately and materially concealed relevant information from her medical advisors in an effort to either exaggerate her claim, mislead the Court or mislead the medical professionals or to induce or enable them to give evidence which she knew to be false or misleading. In the circumstances, he did not apply the provisions of S.26 to the Plaintiff ’s case. Donovan v Farrell was also a case where the Plaintiff had failed to disclose part of her previous medical history. Peart J. declined to hold that the Plaintiff had been exaggerating her claim when she failed to mention to her doctor that she had suffered back pain during a pregnancy many years earlier. The Trial Judge was satisfied that the back pain which the Plaintiff had experienced during her pregnancy and for which she had received treatment at the time many years previously, was not relevant to the progress of the injury which she sustained to her back in the accident, the subject matter of the proceedings. In addition, the Judge held that there was no doubt that

when examined by the Defendant’s doctor, the Plaintiff had told him that she was unable to do any gardening. Four days after that examination, the Plaintiff had been filmed by a private investigator cutting the front lawn of her home, carrying the mower back into the house, and sweeping up the cut grass and other garden debris. All of these activities involved bending and lifting. However the Judge noted that it was accepted that the mower was an electric motor and was not heavy. He also noted that the Plaintiff was not totally unrestricted in her movements and she appeared to take care in relation to how she bent down. In the circumstances, Peart J. was not inclined to penalise the Plaintiff in relation to stating her inability to do gardening so categorically, even though she ought to have given a more comprehensive answer to the doctor’s questions in that regard. Gammell v Doyle was a very unusual case. The Plaintiff had attended at the licensed premises of the first named Defendant. The Plaintiff was bought a drink by the second named Defendant, who was there with his wife and another couple, attending a wake for a young man who had lived locally. The Plaintiff and the second named Defendant got into conversation. The second named Defendant maintained that the Plaintiff made numerous provocative statements concerning the second named Defendant’s wife. After some time, the second named Defendant struck the Plaintiff forcefully in the face, causing him to suffer a nasal fracture and depression of the left zygoma; for which the Plaintiff required operative treatment under general aesthetic. The Plaintiff sued the first named Defendant in negligence and the second named Defendant for assault and battery. Prior to the action coming on for hearing, two things happened. Firstly, the second named Defendant pleaded guilty in the District Court to a charge of assault causing actual bodily harm; for which he received a suspended sentence of two years imprisonment. Secondly, the Plaintiff settled his action against the first named Defendant. At the hearing, there was a total divergence of evidence between the Plaintiff and the second named Defendant as to the events leading up to the assault. The Plaintiff maintained that he was assaulted completely out of the blue for no reason whatsoever. The second named Defendant and his witnesses stated that the Plaintiff was drunk and provoked the second named Defendant by issuing threats and lurid remarks concerning the second named Defendant’s wife. Hanna J. held that the Plaintiff had said “venomous, rude and provocative things” and had engaged in “a tirade of appalling abuse and lewd sexual references” as well as poking the second named Defendant with his finger while speaking to him. The Judge held that in the circumstances there would have to be a finding of 50% for contributory negligence against the second named Defendant. He held that the injuries would have warranted an award of general damages of €40,000.00. However, the Judge went on to accede to the Defendant’s application to dismiss the Plaintiff ’s action pursuant to S.26 of the 2004 Act. He held that the Plaintiff ’s account of what had occurred was “both fanciful and self serving and deliberately so”. He applied the following test when considering the application under S.26:

(2009) IEHC 382, Unreported, Peart J. 13/7/2009 (2009) IEHC 617, Unreported Peart J. 4/12/2009

(2009) IEHC 416, Unreported, Hanna J. 28/7/2009

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“I now turn to S.26 of the Civil Liability & Courts Act 2004. Again, this is set out above. A question I must ask myself is did the Plaintiff give false or misleading evidence to this Court knowing same to be false and misleading and was it material?… In the circumstances, in my view, the Plaintiff comes within the intended scope of S.26 of the Civil Liability & Courts Act, 2004. Since the law has imposed the appropriate penalty on the Defendant, Mr White, for his action, and since I am satisfied the Plaintiff has given false or misleading evidence knowing same to be the case with a view to affecting materially the outcome of the case, I dismiss the action.’’ As has been pointed out by both Professor Binchy and by Judge McMahon . S.26 applies only to personal injury actions. “Personal injury action” is defined by S.2 (1) of the 2004 Act as not including “an action where the damages claimed include damages for … trespass to the person”. Thus, it would appear that actions seeking damages for assault and battery do not come within this section. This aspect does not appear to have been canvassed before the trial judge. Abandoning Parts of the Plaintiff’s Claim Plaintiffs should be wary of making large or exaggerated claims, which are not properly grounded. The Courts will not allow Plaintiffs to simply jettison parts of their claim, which they feel they cannot maintain in evidence at the trial of the action. In Farrell v Dublin Bus, liability was not in issue. Less than a week before the action was due to come on for hearing in July 2008, the Plaintiff furnished a report from an actuary showing a loss of earnings to the date of trial of €71,000.00 and a claim for future loss of earnings of between €161,452.00 and €343,000.00. The Defendants sought an adjournment of the matter to investigate this new head of claim. When the action came on for hearing in 2010, the Plaintiff formally discontinued her claim for future loss of earnings. The case was opened on the basis that the Plaintiff would confine her claim for past loss of earnings to the period from the date of the accident up to October 2007, when she commenced driving a taxi. In the course of a detailed Judgement, Quirke J. made a number of observations about S.26. Firstly, he noted that it was mandatory in its terms. If the Courts were satisfied that a Plaintiff had given or adduced evidence that was false or misleading in any material respect, then it must dismiss the Plaintiff ’s claim unless this would result in an injustice being done. He noted that the purpose of this section was to discourage false and exaggerated claims and to express the community’s disapproval of dishonest behaviour. He also made a number of observations in relation to the standard of proof in order to bring a case within Section 26, which are dealt with below. In relation to the abandonment of the claim for future loss of earnings, Quirke J. did not accept that this head of claim could simply be discontinued without “Damages in Tort Litigation: new Judicial approaches”, Paper delivered at Trinity College Dublin, 5th December 2009. “Damages in Tort Litigation: new issues”, Paper delivered at Trinity College Dublin, 26th November 2011. (2010) IEHC 327, Unreported, Quirke J. 30/7/2010

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some evidence as to why the claim had been made in the first place: “Where, as in this case, a claim for particular losses “in this case a sum up to € 343,000.00”, is simply abandoned when challenged, it is inappropriate for a Plaintiff to simply proceed with his/her claim as if nothing unusual has occurred. Something unusual has occurred and must be satisfactorily explained to the Court. There is an obligation in such circumstances for the Plaintiff, preferably at the commencement of the hearing, to provide the Court with an adequate explanation why a claim was advanced in the first place and why it was abandoned. Failure to provide such an explanation will often give rise to an inference that the claim was not bona fide.’’ Quirke J. found that there were significant discrepancies between the Plaintiff ’s accounts of her physical capacity given to various Doctors and the extent of her movements as recorded by a private investigator retained by the Defendants. Also, the Judge did not accept that the Plaintiff had had only minimal earnings from driving a taxi in the years from 2008 to the date of trial. He reached this finding due to the fact that her lifestyle during this period included numerous holidays to the USA and the purchase of a number of new vehicles. Furthermore, no credible explanation had been offered for her failure to produce any documentary, or other evidence to support her claim for loss of earnings. In the circumstances, where there was no credible explanation as to why she had abandoned the future loss of earning claim, no credible explanation as to the failure to produce documentary evidence to support the loss of earnings claim that she did maintain and no evidence which would explain her comfortable lifestyle between 2004 and 2008 at a time when she had claimed to have been incapable of earnings and was dependant upon Social Welfare benefits and no explanation as to the divergent accounts given to the medical experts, Quirke J. held that this claim would have to be dismissed. A similar result was reached in McKenna v Dormer . The Plaintiff alleged that after his accident he had not worked for 9 ½ years due to injury to his knee, when he fell from a ladder at a building site in September 2001. He sued his employer. The Court heard that the Plaintiff had been working for the Defendant for the entire period and that he had insisted on being paid in cash since shortly after the accident. It was also put to the Plaintiff in cross-examination that he had approached the Defendant in the foyer outside the Court and told him to say “you have not seen me for the last 9 ½ years”. The trial judge, Quirke J. refused to allow the Plaintiff to abandon his loss of earning claim and dismiss the action on account of the false evidence given by the Plaintiff. The Judge also directed that the transcripts of the hearing should be forwarded to the DPP. Higgins v Caldark Ltd10 was a case where the Plaintiff also “Plumber allegedly gave false evidence”, Irish Times 2/3/11 and 16/3/11 10 “Site worker who gave false information refused damages”, Irish Times 19/11/2010

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had his claim dismissed under S.26. The Plaintiff sued in respect of serious injuries to his thumb when his coat sleeve became entangled in the shaft of a tractor, which the Plaintiff was seeking to buy on behalf of the Defendant company, which company was owned by his brother. The Plaintiff sued Caldark Ltd claiming that another brother, who was also employed by the company, had negligently started the tractor when it was unsafe to do so. On the liability issue, Quirke J. held that the Defendant was liable for 75% of the injuries, with the Plaintiff being liable for 25% by way of contributory negligence, as he had suffered a previous similar injury some years earlier and had not kept a proper lookout on this occasion. However, Quirke J. noted that the Defendants had applied to have the action dismissed on grounds that the Plaintiff had sworn an affidavit that was false and misleading contrary to S.26 (2) of the 2004 Act. The Judge noted that the Plaintiff had sworn an affidavit in December 2008 stating that the information supplied by him in relation to the loss of earnings was true and accurate. However, during the hearing, it emerged that the Plaintiff had failed to state that he had been paid more than €50,000.00 along with expenses and the provision of a vehicle by his brother’s company between 2002 and 2004. On five occasions, between October 2005 and February 2006, the Plaintiff was recorded on video carrying out work on behalf of his brother’s company on building sites in Dublin and Longford. The Judge noted that the Plaintiff had told a Vocational Assessor in 2005 that he was “virtually confined to the house” as a result of his injuries. In the circumstances, having regard to the false evidence tendered concerning the loss of earnings aspect and his evidence in relation to his capacity for work; the Judge dismissed the claim in its entirety.

Defendant would call evidence to establish that the jump occurred in July 2006, the Plaintiff conceded that it had occurred at that time. Irvine J. was satisfied that:

Beware of Facebook Postings

In the circumstances, the Judge held that the Plaintiff had deliberately overstated his injuries in the course of his evidence. Irvine J. finished her judgement with reference to S. 26 in the following terms.

Plaintiffs should be wary of the material they post about themselves on their Facebook pages. In Danagher v Glantine Inns,11 the Plaintiff sued the Defendant in respect of injuries allegedly sustained while he was being ejected from the Defendant’s nightclub premises on 27th December 2005. Irvine J. was satisfied on the evidence that the Plaintiff had been involved in a fight on the premises. She held that in the circumstances the Defendant was entitled to remove the Plaintiff from the nightclub and had not used excessive force to do so. Accordingly, the Plaintiff failed to establish liability against the Defendant. In the course of his evidence, the Plaintiff had stated that as a result of the injuries suffered by him in the alleged assault, he had been greatly affected in his studies and in the pursuit of his recreational and sporting activities. He stated that the neck and back pain, which he suffered, had been so bad, that he had had to drop out of college for a year after the accident. It was put to him in cross-examination that he had participated in a charity parachute jump in July 2006. The Plaintiff denied this, stating that the jump had been the previous year and was only reported in the newspapers in 2006 because that was when the proceeds were handed over to the charity. However, when it was intimated that the 11 2010 IEHC 214, Unreported, Irvine J. 26/3/2010

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“When he told the Court definitively that the parachute jump had taken place the year before the nightclub incident… he did so deliberately, hoping to mislead the Court on this most material issue knowing full well, that if he admitted his involvement in that jump, just six months after his alleged assault… it would completely undermine the extent of the injuries which he was contending for.’’ Neither did Irvine J. accept that the Plaintiff had attended his physiotherapist on more than seventy occasions and his G.P. on fifty occasions. The Judge noted that the Plaintiff had been unable to produce any receipts, or statement of account to back up this head of claim. The Judge also noted that the medical reports were silent on the number of treatments administered or the number of visits undertaken. Finally, in relation to the Plaintiff ’s claim that he had been greatly restricted in the sports, recreational and social aspects of his life, Irvine J. had regard to the evidence led concerning material posted by the Plaintiff on his Facebook page. She noted that a number of self-authored entries recorded the Plaintiff ’s participation in hurling, rugby and other sports. There were also entries concerning his social life including the following: “Favourite music: anything that will get me dancing and hitting the roof ” and “ya I tink we mite be going out alrite, ul probably come across me drunk on a dance floor somewhere during d night anyways”.

“Suffice to say that I am satisfied that the Plaintiff ’s denial of the parachute jump in which he participated in, in July 2006 was a deliberate effort to mislead the Court and was an act of dishonesty done for the purposes of advancing his claim. If it were not for the fact that the Court was dismissing the claim on liability grounds, the Court would, in any event, have been obliged to dismiss the Plaintiff ’s claim by reason of this statutory provision given the Defendant’s application in this regard and having regard to the falsity of the Plaintiff ’s evidence in this issue.’’ The Onus and Standard of Proof A number of the cases cited above establish that it is the Defendant who bears the burden of proving that the Plaintiff, by virtue of the evidence that he has given or the affidavits that he has sworn, has brought himself within the ambit of S.26 by giving false and misleading evidence. Farrell v Dublin Bus12 dealt with the standard of proof, which is required to 12 (2010) IEHC 327, Unreported, Quirke J. 30/7/2010

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have a case dismissed under the provisions of this Section. Having referred to the Judgement of Hamilton C. J. in Georgopoulos v Beaumont Hospital Board13 and to the Judgement of Henchy J. in Banco Ambrosiano SPA & Others v Ansbacher & Co. Ltd & Others,14 Quirke J. stated as follows in relation to the applicable standard of proof: “Applying that standard to the facts of the instant case, I take the view that an adverse finding under S.26 of the Act has such grave implications and consequences for a Plaintiff that the Court should not make a finding unless it is satisfied that it is highly probable that the evidence which has been given or adduced by the Plaintiff has been false or misleading in a material respect. The Defendant must, therefore, discharge the onus of proving, as a high probability that the evidence, which has been given or adduced by the Plaintiff, has been false or misleading in a material respect. If that onus is discharged, the Court must dismiss the Plaintiff ’s claim unless otherwise satisfied, as required under the provisions of the section.’’ However, in the recent Supreme Court decision of Ahern v Bus Eireann,15 the Supreme Court set out the onus of proof in the following terms: “It is for a Plaintiff in a civil action to prove their claim. Thus the Respondent had the onus of proving her claim on the assessment of damages before the High Court. Such an onus is on the balance of probabilities. However, in this case, the Appellant raised S. 26 of the Act of 2004. In such a circumstance the Appellant carries the onus of proof, which is also on the balance of probabilities.’’ At the commencement of the Plaintiff ’s case, the Plaintiff had withdrawn a claim for carer costs in the sum of €177,000.00. The reports of a nursing expert and of an actuary, which had been exchanged prior to the hearing, were not put in evidence. The Defendant argued that the action should be struck out under Section 26 of the 2004 Act on account of the Plaintiff having given false or misleading evidence and also due to the fact that the affidavit of verification in relation to the carer costs and the expert reports thereon, was also false and misleading. In relation to S.26 (1) of the 2004 Act, the Supreme Court made the following observations: “A claim under S.26 (1) of the Act of 2004 requires that several elements be proved, including that if a Plaintiff gives or adduces, or dishonestly causes to be given or adduced, evidence that is false or misleading in a material way and she knows it to be false or misleading, the Court shall dismiss the Plaintiff ’s action unless for stated reasons, the dismissal of the action would result in injustice being done. In this case there are no grounds for an appeal to succeed in relation to the Appellant’s personal evidence, the learned trial Judge having held her to be an honest witness”. 13 (1998) 3IR 132 14 (1987) ILRM 669 15 (2011) IESC 44, Unreported, Supreme Court 2/12/2011

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The Supreme Court noted that there was another element in S.26 (1), which related to a situation where a Plaintiff dishonestly causes someone else to give or adduce evidence that is false or misleading, and he or she knows it to be false or misleading. The Supreme Court noted that this did not occur in relation to the actuary or the nursing expert, as their reports had not been put in evidence and they did not give evidence at the trial of the action. The Supreme Court also looked at S.26 (2) in relation to the affidavit of verification, which had been sworn in respect of the Actuary’s report and the nursing expert’s report. The High Court Judge had stated that the Plaintiff ’s view that she had required a carer and would not have done so but for the accident was not a false or misleading statement, but rather a genuine statement of the Plaintiff ’s subjective belief. On that basis, the High Court had determined that the provisions of the section did not apply. The Supreme Court agreed with the approach, which had been adopted by Feeney J. and stated as follows: “I am satisfied that the learned trial Judge approached this case correctly. He considered the overall evidence and found that the Appellant was an honest woman and did not knowingly mislead the Court. “Knowingly” is a matter to which the test is subjective. On the evidence before the learned High Court Judge he was entitled to hold, as he did, that the Respondent did not knowingly mislead the Court to swear an affidavit that is false or misleading in any material respect.’’ A similar result was reached in Corbett v Quinn Hotels Ltd16 where Finnegan P. held that the Plaintiff ’s evidence in relation to her various injuries had been misleading. However, he declined to dismiss the case pursuant to S.26 as he was satisfied that the Plaintiff gave her evidence honestly believing it to be true and she had not intended to mislead the Court in any respect. In Kerr v Molloy & Sherry (Lough Eglish) Ltd,17 even though the Court found that the Plaintiff had seriously exaggerated his injuries and that his evidence with regard to his inability to work due to his alleged injuries was false in a material respect, Herbert J. found that due to the content of the medical reports which had been admitted in evidence, that the Court was not at any stage misled by the Plaintiff ’s evidence. In the circumstances, Herbert J. held that it would have been “altogether disproportionate and therefore unjust” to dismiss the Plaintiff ’s action. However, the Judge commented that he would have done so had a claim for loss of earning, or a claim for loss of ability to compete in the labour market, been advanced by the Plaintiff. Behan v AIB plc18 concerned a case where a Plaintiff had suffered injury when she fell from a chair and injured her right knee. In reply to a Notice for Particulars seeking information as to whether she had any illness or medical complaint prior to or subsequent to the accident, she had replied “none relevant to the proceedings”. However, in her evidence and in cross-examination she stated that she had hurt her left leg 16 (2006) IEHC 222, Unreported, Finnegan P. 25/7/2006 17 (2006) IEHC 364, Unreported, Herbert J. 16/11/2006 18 (2009) IEHC 654. Unreported, Murphy J. 18/12/2009

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a month after the accident, when she hit it against a filing cabinet and that she had pre-existing arthritis. The Defendant submitted that in the circumstances, in giving the reply that she did to the question raised in the Notice for Particulars and by swearing an Affidavit of Verification in the usual form in respect of those Replies, that she had breached S.26 (2) of the 2004 Act. The trial Judge refused to dismiss the Plaintiff ’s case on account of this Reply and dealt with the question of the Verifying affidavit in the following way: “Sub section two of that section refers to false or misleading Affidavits. While the Court does find the Reply to the [Notice for Particulars] to be incomplete, and to that extent to be misleading, the Court is not satisfied that Mrs Behan knew that her Reply was false or misleading when swearing the affidavit. The subsection does not provide that she ought to have known. As with all Affidavits, an Affidavit of Verification under S.14 must be full and frank. It is significant that S.26 requires proof on the balance of probability rather than it being beyond a reasonable doubt. The Court may, however, have regard to non-disclosure of relevant illnesses and treatments as affecting the Plaintiff ’s credibility.’’ In Dunleavy v Swan Park Ltd t/a Hair Republic,19 the Plaintiff sued in respect of injuries, which he suffered while having hair treatment at the Defendant’s salon. She claimed that the damage to her hair had had an adverse effect on the social and employment aspects of her life for a period of 18 months. The Defendant’s maintained that in the preparation of her case, the Plaintiff had concealed vital information in relation to her social activities, the computation of her income, her prior psychiatric history and in relation to a road traffic accident in which she had suffered neck and back injuries. O’Neill J. did not accept this submission. He was satisfied that the Plaintiff was an honest person, who gave truthful evidence and endeavoured to give an accurate portrayal of how the damage to her hair effected her and the impact it had had on her life in general. In the course of his judgement he made the following observations in relation to S.26: “Finally, I wish to observe that S.26 of the Civil Liability & Courts Act 2004 is there to deter and disallow fraudulent claims. It is not and should not be seen as an opportunity to seize upon anomalies, inconsistencies and unexplained circumstances to avoid a just liability. Great care should be taken to ensure, in a discriminating way, that clear evidence of fraudulent conduct in a case exists before a form of defence is launched which would unjustly do grave damage to the good name and reputation of a worthy Plaintiff.’’ The Judge awarded the Plaintiff €30,000.00 for general damages, together with a further €15,000.00 for loss of income from her work as an artist.

19 (2011) IEHC 232, Unreported, O’Neill J. 27/5/2011

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Conclusions While each of the decisions outlined above, tend to turn on their own specific facts, it is possible to set out the following principles or guidelines as emerging from the case law. (1) The Defendant bears the onus of proving that the Plaintiff ’s case comes within the provisions of S.26 of the 2004 Act either by giving false or misleading evidence contrary to S.26 (1) or by swearing an affidavit of Verification of matters that were of themselves false or misleading contrary to S.26 (2). (2) As in all civil cases, the Defendant must establish that the matter comes within S.26 on the balance of probabilities. (3) Plaintiffs should take great care when formulating their claim for loss of earnings both past and into the future. They should be wary of pleading large losses under this heading, as they will not be allowed to simply abandon some or all of this claim prior to or at the hearing, without providing some explanation as to why it was put up in the first place. If a Plaintiff exaggerates this aspect, they run the risk of having their entire action dismissed. (4) Care should be taken when drafting the affidavit of verification. If it is necessary to put in a caveat in relation to some of the matters pleaded, it would be a good idea to state this caveat clearly in the affidavit. (5) Plaintiffs should be warned that they should take great care of the aspects of their claim, which they plead as part of their action. They should be warned that the consequences of a finding under S.26 mean that the trial judge must dismiss the action unless satisfied that an injustice would be done. Section 26 has been used to deny a Plaintiff a remedy even in cases where liability has been conceded, or where liability was actually established against the Defendant. In other words, by overstating either the effects of their injuries, or the extent of the financial losses, the Plaintiff runs the risk of having the entire case thrown out. (6) The term “injustice” in S.26 is not defined in the Act. The proviso could be used when the Court is satisfied that while the Plaintiff exaggerated his injuries, he did so from an honest belief as to the extent of his injuries rather than in an effort to mislead the Court. The Court has refused to apply Section 26 where it would be totally disproportionate to do so. (7) Younger Plaintiffs should be careful of what they post on their Facebook pages, as the Defendant’s insurers will probably do a check of this medium in advance of the hearing. If they post something on their Facebook page that is inconsistent with the extent of the injury claimed in the action, this will be put forcefully in cross-examination and may be used to ground an application to have the action dismissed pursuant to S. 26 of the 2004 Act. ■ Page 31

An internet enabled jury of one’s peers1 Karen Murray BL2 Introduction The jury is an ancient institution, one whose roots may be traced back beyond the Assize of Clarendon of 1166 to 8th Century Normandy. It is an institution that has survived many challenges such as starvation and imprisonment in 1670; the creation of the Irish Free State in 1922; and the introduction of women in 1976. However, as an institution, the jury faces new challenges, not least the increasing complexity of modern society. Many sectors of society, such as financial services, are now so complex that they can be properly understood only by experts , if at all. It is possible that serious criminal charges will ultimately be brought in relation to the conduct of banks and other regulated financial service providers. If so, a jury made up of lay people may have to consider issues relating to the operation of this sector. It is unlikely that any member of the jury will have much, if any, prior knowledge of the financial services sector. Indeed it is quite likely that should someone with such knowledge be called to serve on such a jury, then their inclusion on the jury will be challenged by either prosecution or defence. Prior to appointing him as Sole Member of the Commission of Investigation into the Banking Sector in Ireland, the Government was required to satisfy itself that ‘…having regard to the subject matter of the investigation…’ Peter Nyberg had ‘…the appropriate experience, qualifications, training or expertise…’. Yet should the State bring serious criminal charges on foot of the events that led to the collapse of that same sector, those charges will be heard by 12 adults who are expected to have no more than an ability to read and to be free from enduring impairments. One person who has expressed The phrase a jury of one’s peers may be traced back to Clause 39 of the Magna Carta of 1215, see Law Reform Commission, Consultation Paper on Jury Service, LRC CP 61-2010, footnote 32, p32 Karen Murray BL is the co-author of Information Technology Law in Ireland (2nd Ed. Tottel, 2007) and lecturer in law at the National College of Ireland. Law Reform Commission, Consultation Paper on Jury Service, LRC CP 61-2010, p2 Bushell’s Case, 24 Eng. Rep. 1006 (1670) Juries Act 1976. Women were not entirely excluded by the Juries Act 1927, but they had to own property and then apply for inclusion on a jury panel. This had the effect of largely excluding women and this exclusion was held to be unconstitutional by the Supreme Court in de Burca and Anderson v Attorney General, [1976] IR 38. ‘The supervision teams…lacked some of the specialised expertise needed…There were difficulties recruiting and retaining persons with the required expertise…’ Honohan P., The Irish Banking Crisis Regulatory and Financial Stability Policy 2003-2008, 31 May 2010, para 5.5, page 63. ‘…[A] preference for generalists, as opposed to individuals with greater technical expertise in specific problem areas, may have played a role’ - Nyberg, Misjudging Risk: Causes of the systemic banking crisis in Ireland, para 4.9.5, page 87. See Juries Act 1976, sections 20 and 21. Commissions of Investigation Act 2004, section 7(4). Neither requirement is absolute, but a potential juror’s abilities and

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concern about the possible outcome of such a trial is James Hamilton, the retired Director of Public Prosecutions, who has wondered whether bankers and financial institutions could escape prosecution on complex criminal charges unless they are tried in front of specially-trained jurors rather than a jury of ordinary citizens. 10 A lack of specialised knowledge is one challenge facing the jury; a contrary challenge is offered by the possibility that jurors might access too much knowledge through smartphones and other internet enabled devices. The Juries Act 1976 requires that all jurors be citizens11; and citizens of Ireland are increasingly using internet enabled phones. In June 2011, there were some 583,755 subscriptions to mobile broadband services in Ireland, an increase of almost 15% on the previous year12. About four-fifths of all Irish smartphone users are thought to use their phones to access Facebook; about a quarter of them use Twitter.13 One prediction has suggested that a majority of Irish adults will be smartphone users by the end of this year;14 so of the proverbial twelve men (and now women) good and true15, one can expect that at least six will have access to the mobile internet.16 In de Burca and Anderson v Attorney General,17 the Supreme Court held that a criminal trial must involve a jury that is representative of a cross-section of the community.18 ‘There is no doubt that the primary aim of s. 5 of Article 38 in mandating trial by jury … is to ensure that every person charged with such an offence will be assured of a trial in due course of law by a group of laymen who, chosen at

10 11

12 13 14 15 16 17 18

disabilities should not be such as to make it impractical for them ‘…to perform the duties of a juror…’, Juries Act 1976, Schedule 1, as amended by Section 64 of the Civil Law (Miscellaneous Provisions) Act 2008. Indeed the National Adult Literacy Agency has found that ‘Financial literacy difficulties are a major issue in Ireland…Many middle class adults appear to have difficulties understanding financial terms and words’. See http://www.nala. ie/content/literacy-and-financial-sector Burke, Banker trials would require specialist juries, says DPP, Sunday Business Post, 23rd October 2011 Section 11 of the Juries Act 1976 requires that jury lists be randomly selected from lists of Dail electors, all of whom must be citizens. See Law Reform Commission, Consultation Paper on Jury Service, LRC CP 61-2010, para 2.01, page 31. Comreg, Quarterly Key Data Report, September 2011, Doc. No. 11/66, p33, http://www.comreg.ie/_fileupload/publications/ ComReg1166.pdf Amarach Consulting, The Smart Future, May 2011, http://www. amarach.com/assets/files/The%20Smart%20Future.pdf Amarach Consulting, 16th May 2011, http://www.amarach.com/ blog/2011/05/the-smart-road-to-recovery.html Cockburn and Green, Twelve Good Men and True: The English Criminal Trial Jury 1200-1800, Princeton 1988. Amarach Consulting, 16th May 2011, http://www.amarach.com/ blog/2011/05/the-smart-road-to-recovery.html [1976] IR 38 Law Reform Commission, Consultation Paper on Jury Service, LRC CP 61-2010, p3

Bar Review April 2012

random from a reasonably diverse panel of jurors drawn from the community, will produce a verdict of guilty or not guilty, free from the risks inherent in a trial conducted by a judge or judges only, and which will therefore carry with it the assurance of both correctness and public acceptability that may be expected from the group verdict of such a representative cross-section of the community’.19 The Constitution does not expect that the State will exclude from the jury room those who can access the internet from their mobile phones; on the contrary it requires that they be included. The inclusion of internet-enabled-jurors create a variety of issues for the courts, three of which have been considered in recent judgments: jurors using the internet to contact defendants; jurors using the internet to carry out their own, independent, research; and the nature of the warning to be given to jurors by trial judges. Jurors contacting defendants: HM Attorney General v Fraill The danger posed by jurors having internet access was dramatically illustrated by the English Court of Appeal decision in HM Attorney General v Fraill. 20 This decision followed on from a substantial trial in the Crown Court at Manchester of a number of defendants. Fraill was a juror at this trial. The Judge began the trial by giving the jury the following warning about using the internet: ‘…you will make your decision about this case based solely upon the evidence which you hear during this trial, in this courtroom and upon nothing else. Most of us these days have access to the internet, it contains lots of fascinating information…If you do have access to the ‘net, members of the jury, please do not go on the ‘net during this trial to explore any issues which may arise. That would be wrong…’21 This Direction was repeated on a number of occasions during the trial and the Court of Appeal was satisfied that: ‘No juror could have been in any doubt precisely what the direction was and precisely what it meant…’ At the conclusion of the trial, the jury retired to consider its verdict and following a couple of days, delivered its verdict on a number of the defendants; acquitting one and finding others guilty on some of the charges. Whilst the jury was considering its final charges, it became apparent to the Trial Judge that an unknown juror had been in Facebook contact with one of the defendants, Sewart, commenting that she was pleased that the defendant had been acquitted because she was ‘with her the whole of the way’. 22 At that point, the Trial Judge did not know which juror had contacted the defendant in question. He adjourned jury deliberations and commenced to ask individual jurors: ‘Have you at any stage during the period from the retirement of the jury until today contacted or attempted to contact any other person… by way of Facebook or email, about either your views of the evidence, your views of the jury verdict so far delivered and any reactions to such verdicts…’23 Friall admitted that she had. The jury was then dismissed and an investigation into the contact between Sewart and Fraill then 19 20 21 22 23

Per Henchy J. [2011] EWCA Crim 1570 Para 6. Para 6. Para 13.

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commenced. It transpired that Fraill had initiated contact with Sewart, sending a message to her Facebook account which read ‘you should know me, I cried with you enough’.24 Sewart responded with a Friend request, knowing that she was corresponding with a juror. Sewart followed up by asking ‘what’s happenin with the other charge’,25 to which Fraill responded ‘cant get anywaone to go either no one budging pleeeeeese don’t say anything cause jamie they could call mmisstrial and I will get 4cked toO’.26 Sewart replied with ‘I know I have deleted all the messages’,27 displaying a total ignorance of data retention law in the UK.28 The communications between the two ended with Sewart texting ‘I will be doin ha ha and trying for compo’ and later ‘keep in touch Ill get you a nice pressie if I get anything out of um…’.29 Afterwards, Sewart became concerned about what she had done. The Judges of the Court of Appeal rather drily noted that they were ‘…inclined to think that her anxieties were inspired less by her concern about the integrity of the judicial processes than by the risk she had run by becoming involved in the conversation’.30 The Judges considered that Fraill was ‘…guilty of contempt of court because as a juror she communicated with Sewart via the internet and conducted an online discussion about the case with her when the jury deliberations had not been completed and verdicts had not been returned’. 31 The Court came to a similar conclusion about Sewart, the defendant whom Fraill had contacted. Fraill was sentenced to an eight month term of imprisonment; Sewart to two months, suspended. Jurors conducting their own researches on-line: Byrne v DPP In addition to finding that Fraill was guilty of contempt of Court because she had contacted a defendant, the English Court of Appeal also concluded that she was ‘… guilty of contempt of court for conducting research on the internet into the defendants in the criminal trial in which she was sitting as a juror for the purpose of obtaining further information of possible relevance to the issues at trial’. .32 The possibility that jurors might use the internet to conduct their own research was considered by the Irish High Court in Byrne v DPP. 33 This judicial review concerned a particularly notorious crime, one whose circumstances were described as ‘horrible’ 34 by Charleton J. in the High Court. The facts were that a gang of vicious criminals kidnapped 24 25 26 27 28

29 30 31 32 33 34

Para 15. Para 15. Para 16. Para 16. The Data Retention Directive (Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC) was implemented in England and Wales by The Data Retention (EC Directive) Regulations 2009. Para 16. Para 17. Para 35 Para 35 Byrne v DPP [2010] IEHC 382 [2010] IEHC 382, para 2

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the family of a Securicor employee. Three members of the gang were arrested, charged, convicted and sentenced to twenty-five year terms of imprisonment. The defendant was another employee of Securicor, who was charged with various offences of kidnapping and robbery arising from the same crime. Given the nature of this crime, ‘…there was considerable newspaper and other media publicity…various specialist journalists engaged in speculation or guess work as to the nature of the criminal gang and their origins… It was…said that some of the gang members may have been involved in murder in the past. A view that the criminals were particularly vicious and well-trained was also widely aired…’35 The defendant was concerned that ‘…the adverse nature of pre-trial publicity can never be dissolved, whereby adverse publicity retreats from public view with the passage of time, because much of this material is stored on the internet’.36 Therefore he applied to Court seeking to have ’… the internet wiped clean of any publicity or comment about the charges which he faces or the conduct of a previous trial where the jury failed to agree a verdict against him or in his favour’.37 The defendant sought that ‘…the Director of Public Prosecutions should write to the relevant internet service providers and demand that any offending material should be taken down. In the event of non-compliance, an application should be made to court in that regard’.38 The Defendant argued that this was necessary because of the danger that ‘…jury members will conduct their own researches during the course of the applicant’s forthcoming trial, find some of the material complained of and reach conclusions prejudicial to the case he may be asserting at the trial’.39 Charleton J. acknowledged that this was a real possibility, commenting that ‘Those who are under 35 who are called for jury service can be expected to be particularly adept at internet searches. Many will carry portable devices whereby they can access the internet away from home, or even in the courtroom…. Surfing the web has become a pastime for many people. It can be expected…, that of the jury panel that may be called in Dublin to try the applicant and his co-accused on a re-trial, that many will be adept at internet searches and that a few of them may pursue this activity as a habitual pastime’.40 In addition to the possibility that jurors might search the internet themselves, Counsel for the applicant also argued that ‘…members of the jury may be receiving messages on their mobile phones from persons who have looked at the internet and decided to randomly explore the case, or they may engage in social networking during the course of the trial, to the prejudice of a just disposal of the case and the appearance of justice’.41 In deciding whether or not to grant the orders sought by the applicant, Charleton J. began by explaining that there was no new test to be applied to a case of this type, rather he would apply the test set out in Rattigan v. DPP42: ‘where

there is a real and substantial risk of an unfair trial due to either delay in prosecution or adverse publicity, which could not be made fair by appropriate rulings and directions of the trial judge and by other circumstances, the trial should be prohibited…’.43 Charleton J. held that the adverse publicity complained of by the applicant did not meet this test in this case, stating that he did ‘… not accept that the Director of Public Prosecutions must undertake the duty of sweeping the internet through extensive searches, and then engaging in correspondence with local and foreign internet service providers with a view to cleansing cyberspace of any potential reference to an accused person whose trial is pending’.44 Charleton J. was of the view that the ‘world of the media is not the responsibility of the Director of Public Prosecutions’.45 The application was refused. The correctness of Charleton J.’s decision would appear to have been resolved by subsequent events. Byrne the applicant was put on trial again, and again the subsequent jury failed to reach a verdict, precisely the same verdict as was reached in the first trial, before all the adverse publicity of which Byrne had complained in his judicial review. 46

35 36 37 38 39 40 41 42

43 44 45 46

Para 4. Para 6. [2010] IEHC 382, para 1 Para 1. Para 1. Para 9. Para 10. Rattigan v DPP [2008] 4 IR 639

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Warnings: DPP v Timmons In Byrne v DPP, Charlton J. declined to issue a ‘… model warning to a jury panel …’47 stating that it was not his function to do so. Instead he confined himself to recording the following observation: ‘Recently, many judges have also added a warning that they should not surf the internet in relation to any participant in the case, be they a witness, the judge, counsel or an accused. It could be added that to do so is a contempt of court allowing the imposition of an appropriate, but potentially unlimited, fine or period of imprisonment. Some of the studies cited during the hearing of this case indicate that juries will be more inclined to heed such a direction if they are told of the reason behind it. That makes sense’.48 The content of a jury warning was one of the grounds raised recently in the Court of Criminal Appeal in DPP v Timmons49 in which it was alleged that there had been a ‘… alleged failure of the trial judge to warn the jury not to carry out internet searches on the applicant…’. The defence alleged that ‘…on a quick internet search…’ it had ‘…discovered a large amount of material concerning the case, which was highly prejudicial to the applicant’. On foot of this discovery, the trial judge was requested to issue a warning to the jury not to carry out internet searches. He duly warned the jury ‘That the evidence in the case is what they heard at trial and that other evidence that they may or may not know of should not be attached to the case and that they should not speak or make any attempt to find out any more about any other evidence in the case’. On appeal it was argued that this warning was inadequate and that the jury should Para 12. Para 31. Para 32. Man who avoided trial jailed for contempt, The Irish Times, 3rd December 2011. 47 Para 33. 48 Para 36. 49 [2011] IECCA 13

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have been warned ‘…not to carry out internet searches …’. The Court of Criminal Appeal held that this argument was of ‘…little or no merit…’ The Court accepted that ‘The learned trial judge gave a warning, correctly, but did not in that warning, emphasise the possibility of what might arise should an internet search be made’. However, the Court also accepted the reason why the trial judge did not go further and specifically warn jurors not to search on line for material relating to the trial before them. Having reviewed the trial transcript, the Court found it to be clear that ‘…the learned trial judge was very alert to the fact that such a warning might well be disadvantageous to the applicant, as accused, by drawing attention to matters of which the jury was then unaware’. The Court held that ‘…the warning actually given by the learned trial judge was both measured and appropriate’. The Court held that to succeed on this ground the defence would have to show that there was ‘…a real and serious risk of there having been an unfair trial by virtue of the jury being contaminated in some way by knowledge, or the likelihood of knowledge, of material on the internet, and the jury thereby possibly becoming prejudiced or influenced against the applicant’. The Court of Criminal Appeal held that no such risk had been established in DPP v Timmons. The future The Irish judiciary appear to be concerned that jurors are using the internet inappropriately. These concerns culminated in an announcement in July 2011 that the Courts were establishing a new committee ‘…to address the dangers of jurors using the internet and social media during trials’. The Committee is chaired by a former Chief Justice, Mr Justice John Murray, and is reported to include Judge Carney and Judge Edwards of the High Court and Judge Hunt of the Circuit Court. 50 The judgement of the English Court of Appeal in HM Attorney General v Fraill certainly suggests that serious problems do exist for the jury in the modern world. But that judgment also suggests that this problem may not be the internet, as is made clear by the following passage. “Judges… are aware that reference to the internet is inculcated as a matter of habit into many members of the community, and no doubt that habit will 50 Wood K., Jurors in dock over internet use, Sunday Business Post, 31st July 2011.

Bar Review December 2011

grow. We must however be entirely unequivocal. We emphasise … that if jurors make their own inquiries into aspects of the trials with which they are concerned, the jury system as we know it, so precious to the administration of criminal justice in this country, will be seriously undermined, and what is more, the public confidence on which it depends will be shaken. The jury’s deliberations, and ultimately their verdict, must be based – and exclusively based – on the evidence given in court, a principle which applies as much to communication with the internet as it does to discussions by members of the jury with individuals in and around, and sometimes outside the precincts of the court. The revolution in methods of communication cannot change these essential principles. The problem therefore is not the internet: the potential problems arise from the activities of jurors who disregard the long established principles which underpin the right of every citizen to a fair trial’’.51 This is illustrated by the facts of HM Attorney General v Fraill itself. Friall and Sewart were in communication separate from their Facebook communications, Fraill having texted Sewart that ‘awe fuck nos hw a didnt get caught wiv my nods and blinks hand signals…’ 52 The significance of HM Attorney General v Fraill may be that it illustrates how electronic evidence can be used to gather the evidence of communications. Nobody seems to have noticed the nods, blinks and hand signals that would have appeared to have passed between Sewart and Fraill. Even if they had, such momentary communications would not have been preserved and so would have been hard to prove. In contrast, once Sewart and Fraill started communicating electronically, their communications were indelibly preserved. If there is a challenge to the use of juries, the Internet is probably not it. The internet is simply one component of a rapidly changing and increasingly complex society. That rapid change and increasing complexity many not be, in itself, a challenge the Jury. In de Burca and Anderson v Attorney General the Supreme Court held that criminal trials must involve juries that are representative of a cross-section of the community including those who use internet enabled mobile technology. ■ 51 Para 29. 52 Para 16.

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A Man Of Real Property Henry Murphy SC Hilary Term, Saturday 25th February 1950, Lansdowne Road, Four o’clock Ireland leading Scotland by two George Norton penalties to nil Ireland attacking the Havelock Square end. A young barrister, winning his first cap in the number 13 jersey, receives the ball from his out half, the renowned Jack Kyle, in front of a capacity crowd that includes President Sean T O’Kelly and his colleague at the Bar, Taoiseach John A Costello. “A brilliant handling movement puts Ireland into a commanding lead. The man who brings it off is Blayney number 13. Dashing past Burrell, he scores the try of the match safely converted by that great goal kicker George Norton,” according to the distinctive voice of Pathe News. [google John Blayney v Scotland 1950] “From a scrum close to the touch line on our left, about ten yards outside the Scottish twenty-five, the scrum half sent the ball out to Jack Kyle who immediately passed it to me. I saw that my opposite number was not up in time to get me, and went through outside him. Mick Lane was up with me on my right but there were two of the Scottish backs between me and him preventing me passing to him. So I kept going and made the line. I still do not understand how the full back did not get me. He must have thought I was going to pass. Delighted and surprised I grounded the ball,” according to the young barrister and try-scorer John Blayney, over half a century later.

The number 13’s “sparkling run” yielded a “classic” try “which had the effect of turning the whole game”. “He ran superbly in that run and impressed our visitors more than any of our other backs”. His try “had an inspiring effect on the whole team”. So said the newspapers the following morning. “SMASHING 21-0 WIN FOR IRELAND”, screamed a headline, at that time, our biggest ever win over Scotland. Our only victory of the season, the previous two seasons having delivered one Grand Slam and two Triple Crowns. The following Monday morning, as John headed into Court 6, a colleague “with a soft Northern accent,” offered his congratulations, “I never saw such a look of surprise on anyone’s face as was on yours after you scored that try.” The Library at its most supportive. In 1950, life in rugby was more modest. No team holiday in the Algarve, no coach to tell you how to play, not even a coach to bring you to the match, no sleepover in the Shelbourne, no bench full of impact substitutes, no pay packet and the try was worth three points. John Blayney retired from rugby two years later. I first encountered him in Earlsfort Terrace in the late sixties, mainly in the Archbishop Walsh room, where he unravelled - for others - the exquisite mysteries of the Law of Real Property. Had I known then what I know now, namely, his pivotal role in our win over Scotland on the 25th February 1950, I might have paid more attention. Sixty one years on, of an idle moment, I wonder if this is the outstanding sporting achievement of Bar and Bench. ■

The Irish Rugby XV which defeated Scotland at Lansdowne Road on Saturday [February 25, 1950] by 21 points to nil. Back row—R.J.H. Uprichard, A. Curtis, D.E. McKibbin, J. Molony, J.W. McKay, M. Lane, L. Crowe; Middle—J. Blayney, D.J. O’Brien, Mr. W. Fallon, Pres. I.R.F.U., K. Mullen (capt.), J.E. Nelson, G. Norton; Front—R. Carroll, T. Clifford, J.W. Kyle Page 36

Bar Review April 2012

Legal

Journal of the Bar of Ireland. Volume 17, Issue 2, April 2012

Update

A directory of legislation, articles and acquisitions received in the Law Library from the 1st February 2012 up to 31st March 2012 Judgment Information Supplied by The Incorporated Council of Law Reporting Edited by Deirdre Lambe and Renate Ní Uigín, Law Library, Four Courts.

ADMINISTRATIVE LAW Statutory Instruments Appointment of special adviser (minister for arts, heritage and the Gaeltacht) order 2012 SI 72/2012 Oireachtas (allowances) (amendment) regulations 2012 SI 37/2012 Oireachtas (allowances) (certain ministers of state) order 2012 SI 28/2012

Dowling-Hussey, Arran Recourse to arbitration: back to first principles - the necessity for a dispute to exist 2012 (19) 1 CLP 14 Library Acquisition Brown, Henry J ADR principles and practice 3rd ed London : Sweet & Maxwell, 2011 N398

ASSOCIATIONS

BRUSSELS 1 Library Acquisition Ulrich, Magnus Brussels I regulation 2nd revised ed Munich : Sellier European Law Publishers GmbH, 2012 Mankowski, Peter W73

BUILDING CONTRACTS Library Acquisition

AGRICULTURE

Library Acquisition

Statutory Instrument

Stewart, Nicholas The law of unincorporated associations Oxford : Oxford University Press, 2011 N169.4

Ramsey, Vivian Keating on construction contracts 9th ed London : Sweet & Maxwell, 2012 Keating, Donald N83.8

AVIATION

COMPANY LAW

Carriage by air

Book debts

Livestock marts act 1967 (identification of seller) regulations 2012 SI 52/2012

ANIMALS Library Acquisitions North, Peter Civil liability for animals Oxford : Oxford University Press, 2012 N196.8 MacKenzie, Julie Horse law 3rd ed London : J. A. Allen & Co Ltd, 2012 N186.8 Statutory Instruments Diseases of animals act, 1966 (registration of horse premises) order 2012 SI 8/2012 Thoroughbred foal levy regulations 2011 SI 735/2011

ARBITRATION Articles Delaney, Sharon Galway County Council v. Samuel Kingston Construction Limited - error of law on the face and the arbitration act 2010 2012 LG Rev 27

Legal Update April 2012

Limitation of liability – Whether carrier’s liability limited to aircraft – Whether exclusive code for actions against air carrier – Sidhu v British Airways [1997] AC 430, Smyth and Co. Ltd v Aer Turas Teo (Unrep, SC, 3/2/1997), Galvin v Aer Rianta and Aer Charter [1995] 3 IR 486 and Farley v Ireland (Unrep, SC, 1/5/1997) followed - Montreal Convention for the Unification of Certain Rules for International Carriage by Air, article 17.1 – Claim struck out (2008/872P – Hedigan J – 24/3/2011) [2011] IEHC 89 McAuley v Aer Lingus Ltd

BANKING Article O’Donnell, John Hear hear 2012 (Jan/Feb) GLSI 28 Statutory Instrument Central Bank reform act 2012 (procedures governing the conduct of investigations) regulations 2012 SI 56/2012

Bank overdraft – Registration – Solicitor’s undertaking regarding future payments – Solicitor’s undertaking not registered as charge by bank – Banker client relationship – Equity of redemption – Whether monies owed to defendant book debts – Whether solicitor’s undertaking created security interest in book debts – Whether requiring registration – Farrell v Equity Bank Ltd [1990] 2 IR 549 considered; Byrne v Allied Irish Banks Ltd. [1978] IR 446 distinguished; In re Kent and Sussex Sawmills [1947] Ch 177 considered; Re Marwalt Ltd [1992] BCC 32 and Siebe Gorman & Co. Ltd v Barclays Bank Ltd [1979] 2 Lloyd’s Rep 142 distinguished - Companies Act 1963 (No 33), s 99 – Relief granted (2009/429S – Hogan J – 6/9/2011) [2011] IEHC 345 Response Engineering Ltd v Caherconlish Treatment Plant Ltd Debenture Fixed charges – Floating charges – Construction – Crystallisation of floating charge – Purported conversion of floating charge into first fixed charge – Whether restriction from dealing in or disposing of charged assets – Company able to collect and use proceeds in ordinary course of trading – Whether charge fixed or floating charge - Agnew v Commissioner of Inland Revenue [2001] UKPC 28, [2001] 2 AC 710, In

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re Keenan Bros. Ltd. [1985] IR 401, In re Spectrum Plus Ltd [2005] UKHL 41, [2005] 2 AC 680 and In re Cosslett (Contractors) Ltd. [1998] 1 Ch 495 applied – Priority determined (2009/719, 720 & 721Cos – Finlay Geoghegan J – 11/7/2011) [201] IEHC 283 In re JD Brian Ltd (in liquidation)

and In re Wogan’s (Drogheda) Ltd. [1993] 1 IR 157 followed - Companies Act 1963 (No 33), ss 2, 220, 285(1) & 285(7) – Interpretation Act 2005 (No 23), s 5 – Priority determined (2009/719, 720 & 721Cos – Finlay Geoghegan J – 25/3/20110 {2011] IEHC 113 In re JD Brian Ltd (in liquidation)

Article

Directors

Receivership

Library Acquisition

Powers – Member’s rights – Annual general meeting – Resolution – Whether member entitled to table resolution on declaration of dividend contrary to recommendation of board of directors – Division of powers between members and board of directors – Clark v Workman [1920] 1 IR 107, Automatic Self-Cleansing Filter Syndicate Co v Cuninghame [1906] 2 Ch 34 and Scott v Scott [1940] 1 Ch 794 considered - Companies Act 1963 (No 33), s 133B - Relief refused (2011/252SP – McGovern J – 5/4/20110 [2011] IEHC 170 Ryanair Ltd v Aer Lingus Group plc

Companies –Properties owned by companies – Lis pendens registered by plaintiffs against receiver – Purpose of lis pendens – Notice of pending proceedings – Proceedings related to ownership of interest in land – Role of receiver – Interest of receiver in properties – Whether interest of receiver justified registration of lis pendens – Whether lis pendens improperly registered – Whether lis pendens should be vacated - Lis pendens vacated (2003/9018P – Clarke J – 5/2/2010) [2010] IEHC 35 Moorview Developments Ltd v First Active plc

COMPETITION

Examinership Discretion of court – Survival – Reasonable prospect - No net profit made by company since commencement of trading – Propriety of behaviour by company in question - Difficulties with revenue commissioners – Large company loans – Reasonable prospect of survival shown by independent accountant – Threshold of proof met - Whether examiner should be appointed – Whether discretion of court exercised - Companies (Amendment) Act 1990 (No 27) ss 2, 297, 297A - In Re Traffic Group Ltd [2007] IEHC 445 [2008] 3 IR 253 and In Re Gallium Ltd [2009] IESC 8 (Unrep, Supreme Court, 3/2/2009) applied – Petition refused (2010/2COS – Kelly J – 20/1/2010) [2010] IEHC 11 In Re Missford Ltd Examinership Duties of examiner – Immunity clause – Scheme of arrangement – Residual debt fund – Whether implied authority for immunity clause – Whether jurisdiction to include immunity clause – Whether monies recovered under “residual debt fund” – Whether unfair prejudice on potential entitlements suffered by Revenue Commissioners – Companies (Amendment) Act 1990 (No 27), ss 18 and 22 – Taxes Consolidation Act 1997 (No 39), s 438 – Revised scheme directed (2010/522Cos – Clarke J – 28/1/2011) [2011] IEHC 28 Re Michael McLoughlin Pharmacy Ltd Floating charges Crystallisation – Fixed charges – Priority of preferential debtors – Automatic crystallisation – Effect of crystallisation – Debentures – Winding up – Whether “automatic crystallisation” of floating charge valid in this jurisdiction – Whether preferential debts continue to have priority if floating charge already crystallised at commencement of winding up – In re Griffin Hotel Co Ltd [1941] 1 Ch 129 not followed; In re Permanent Houses (Holdings) Ltd [1988] BCLC 563, Stein v Saywell (1969) 121 CLR 529, In re Brightlife Ltd [1987] Ch 200, In re Keenan Bros Ltd. [1981] 1 IR 401

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Register Restoration – Voluntary winding up Application by Revenue seeking to restore company to register – Alleged liability for tax – Pending criminal proceedings - No assessment raised – Creditor – Test to be applied - Whether application frivolous or vexatious – Whether petitioner acting bona fide - Whether petitioner responsible for costs arising in respect of application - In re Nelson Car Hire Ltd (1973) 107 ILTR 97 and Re Deauville Communications Worldwide Ltd. [2002] 2 IR 32 considered - Companies Act 1963 (No 33) s 311(8) - Company restored to register (2011/266Cos – Laffoy J – 22/6/2011) [2011] IEHC 251 Re Nalto Construction Ltd Stockbrokers Dissolution – Distribution of assets – Conversion – Method of valuation of shares – Date of wrongful sale – Whether shares should be valued at highest level – Whether shares should be valued according to mean, median or mode – Stock Exchange Act 1995 (No 9), s 30 – Share value determined (2001/168Cos – Murphy J – 21/3/2011) [2011] IEHC 163 Re W and R Morrough: Grace v Sheehan Winding up Costs – Petition to wind up company for failure to pay debts – Debt discharged by company before petition advertised – Petition not advertised – Petition withdrawn – Petitioner applied for costs of petition – Whether petitioner entitled to costs of petition where withdrawn before advertised – Re Shusella Ltd [1983] BCLC 505 distinguished; Re Nowmost Co Ltd [1996] 2 BCLC 492 considered - Companies Act 1963 (No 33), ss 214 and 216 – Rules of the Superior Courts 1986 (SI 15/1986), Os 74 and 99 – Costs awarded (2011/354Cos – Laffoy J – 25/7/2011) [2011] IEHC 319 Re MCR Personnel Ltd

Lynch, Olivia Share-based remuneration - developing trends and tax implications O’Brien, Paul 2012 (1) ITR 81 Greene, David Shareholder claims Bristol : Jordan Publishing Limited, 2012 N263

Undertaking Definition – Economic activity – Public authority carrying on economic activity – Characterisation of respondent’s activity – Private ambulance service – Provision of ambulance services for transfer of patients – Whether Health Service Executive constituted “undertaking” – Whether respondent “engaged for gain” – MOTOE v Dimosio (Case C-49/07) [2008] ECR I-4863 and Firma Ambulanz Glöckner v Landkreis Südwestpfalz (Case C-475/99) [2001] ECR I-8089 considered - Competition Act 2002 (No 14), ss. 3 and 5 – Health Act 2004 (No 42), s. 3 – Treaty on the Functioning of the European Union, Articles s 101, 102 and 106 – Preliminary issue decided for applicant (2010/200JR – Cooke J – 8/3/2011) [2011] IEHC 76 Medicall Ambulance Ltd v HSE

CONSTITUTIONAL LAW Courts Administration of justice – Legal aid – Fair trial – Trial in due course of law – Personal rights – Criminal law – Free legal aid scheme – Right to legal aid in preparation and conduct of defence in criminal proceedings – District Court – Application for legal aid – Refusal – Matters for consideration in assessing eligibility for legal aid – Gravity of offence – Risk of custodial sentence upon conviction – Whether correct to determine gravity of offence and hence eligibility for legal aid solely by considering likelihood of imposition of custodial sentence upon conviction – The State (Healy) v Donoghue [1976] IR 325 and Carmody v Minister for Justice, Equality and Law Reform [2009] IESC 71, [2010] 1 IR 635 followed; Director of Public Prosecutions v Gary Doyle [1994] 2 IR 286 considered - Criminal Justice (Legal Aid) Act 1962 (No 12), s 2 – Criminal Justice (Miscellaneous Provisions) Act 1997 (No 4), s 5(6) – Criminal Justice (Theft and Fraud Offences) Act 2001 (No 50), ss 4 and 53 – Constitution of Ireland 1937, Articles 38 and 40.3 – Applicant’s appeal allowed (171/2007 – SC – 29/7/2011) [2011] IESC 36 Joyce v District Judge Brady Delegated legislation Statute – Statutory Instrument – Validity – Oireachtas – Exclusive function – Principles and policies test – Labour Court – Joint labour

Legal Update April 2012

committees – Statute delegating power of fixing minimum rates of remuneration and conditions of employment – Employment regulation order – Discretion – Whether sufficient principles and policies prescribed to govern exercise of law making power –Whether impermissible exercise of legislative function – Whether power exercised reasonably – Cityview Press v An Chomhairle Oiliúna [1980] IR 381, Maher v Minister for Agriculture [2001] 2 IR 139 and Brennan v Attorney General [1984] ILRM 355 considered - Industrial Relations Act 1946 (No 26), ss 42, 43 and 45 – Industrial Relations Act 1990 (No 19), s 48 – Employment Regulation Order Joint Labour Committee (for Areas Other Than the Areas Known, Until 1st January, 1994, As the County Borough of Dublin and the Borough of Dun Laoghaire) 2008 (SI 142/2008) – Constitution of Ireland, 1937, Articles 15.2.1° and 40.3 – Declarations granted (2008/10663P – Feeney J – 7/7/2011) [2011] IEHC 277 John Grave Fried Chicken Ltd v Catering Joint Labour Committee Freedom of religion Rights of child – Rights of parents – Parental failure – Parental refusal on religious grounds to consent to blood transfusion for baby – Test for State intervention to protect welfare of child – Whether State can override rights of parents to protect children – North Western Health Board v HW [2001] 3 IR 622 applied - Constitution of Ireland, 1937, Articles 34.1, 40.3.2°and 6.i, 41.1, 42.1 and 5, 44.2.1° - Relief granted (2011/33P – Hogan J – 12/1/2011) [2011] IEHC 1 Re Baby AB: Children’s University Hospital v D(C) Personal rights Arrest – Legality – Plurality of motives for arrest – Principal reason for arrest – Failed asylum seeker – Deportation order – Suspected marriage of convenience – Proposed marriage to European Union national – Potential derivative right of residence – Whether arrest lawful where principal object to prevent exercise of right which, once exercised, would prima facie negate reason for arrest – People (DPP) v Howley [1989] ILRM 629 and State (Trimbole) v Governor of Mountjoy Prison [1985] IR 550 considered; East Donegal Co-operative Livestock Mart Ltd v Attorney General [1970] IR 317 applied - Immigration Act 1999 (No 22), s 5(1) – Constitution of Ireland 1937, Article 40.4.2º - Release directed (2011/51JR – Hogan J – 31/1/2011) [2011] IEHC 32 Ismailovic v Commissioner of An Garda Siochána Personal rights Immigration – Deportation – Judicial review – Constitutional rights – Whether test for judicial review ensured constitutional rights protected – Whether test for judicial review provided effective remedy under European Convention on Human Rights – Additional evidence – Whether court entitled to consider additional evidence – Whether inability of court to consider additional evidence constitutional – Whether inability of court to consider additional evidence compatible

Legal Update April 2012

with European Convention on Human Rights – Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701 applied; ISOF v Minister for Justice (No 2) [2010] IEHC 457, (Unrep, Cooke J, 17/12/2010) and B v Minister for Justice [2010] IEHC 296, (Unrep, Cooke J, 14/7/2010) followed; Kay v United Kingdom (App. No. 37341/06) [2010] ECHR 1322, [2011] HLR 13, considered - Immigration Act 1999 (No 22), s 3(11) – European Convention on Human Rights Act 2003 (No 20), s 5 – European Convention on Human Rights 1950, articles 8 and 13 – Constitution of Ireland 1937, Articles 40.3 and 41 – Relief refused (2009/329, 528, 531, 511 & 763JR – Hogan J – 7/6/2011) [2011] IEHC 214 Efe v Minister for Justice Separation of Powers Justiciability – By-election – Delay in moving writ – Whether constitutional obligation to hold by-election within reasonable time of vacancy occurring – Whether government failed to move writ in reasonable time - Ahern v Minister for Industry and Commerce (No 2) [1991] 1 IR 462, MacPharthalain v Commissioners of Public Works [1992] 1 IR 111 and Murphy v Minister for the Environment [2007] IEHC 185, [2008] 3 IR 438 considered; East Donegal Co-operative Ltd v Attorney General [1970] IR 317 applied; Minister for Social Community and Family Affairs v Scanlon [2001] 1 IR 64 and Hanafin v Minister for the Environment [1996] 2 IR 321 followed Electoral Act 1992 (No 23), s 39(2) – European Convention on Human Rights Act 2003 (No 20), s 2 – European Convention of Human Rights, protocol 1, article 3 – Constitution of Ireland 1937, Article 16 – Relief granted (2010/959JR – Kearns P - 3/11/2010) [2010] IEHC 369 Doherty v Government of Ireland Separation of powers Justiciability - Oireachtas Committee – Disciplinary proceedings – Seanad Éireann – Senator – Complaint regarding claim for expenses – Investigation – Whether misrepresentation of normal place of residence – Report – Justiciability – Separation of powers – Exclusive jurisdiction of Oireachtas – Internal affairs – Right to vindicate good name – Right of access to courts – Natural justice – Fair procedures – Subject matter of inquiry – Definition of “normal place of residence” – Whether “specified act” committed – Ultra vires – Whether irrelevant matters considered – Statements – Bias – Objective bias – Cane v Dublin Corp [1927] IR 582, In re Haughey [1971] IR 217, Maguire v Ardagh [2002] 1 IR 385 and Kenny v Trinity College Dublin [2007] IESC 42, [2008] 2 IR 40 considered; Wireless Dealers Association v Minister for Industry and Commerce (Unrep, SC, 14/3/1956) and O’Malley v An Ceann Comhairle [1997] 1 IR 427 distinguished - Oireachtas (Allowances To Members) Act 1938 (No 34) – Ethics in Public Office Act 1995 (No 22) – Standards in Public Office Act 2001 (No 31) – Oireachtas (Allowances To Members) (Travelling Facilities and Overnight Allowance) Regulations 1998 (SI 101/1998) – Constitution of Ireland 1937, Articles 15,

34 and 40 – Certiorari granted (2010/1207JR – O’Neill J – 14/1/2011) [2011] IEHC 2 Calelly v Moylan Statute Constitutionality of legislation – Personal rights – Equality – Discrimination – Legislative measure objectively justified – Legitimate interest – Whether provision constitutional – Whether defendants had legitimate interest – Whether legislative measure objectively justified – Circuit Court – Preliminary issue – Application to determine whether sufficient case to put accused on trial – Appeal against order deeming sufficient case – Appeal on decision not available to accused but available to prosecution –Mutuality of procedures – Whether affording right to appeal to prosecution and not to accused unconstitutional – Whether right to mutuality of procedures – Fitzgerald v DPProsecutions [2003] 3 IR 247 applied; DPP v Judge Kelliher (Unrep, SC, 24/6/2000), Killeen v DPP [1997] 3 IR 218 and Dillane v Ireland [1980] ILRM 167 considered; State (Hunt) v Donovan [1975] IR 39, Todd v Murphy [1999] 2 IR 1 and SF v Murphy [2009] IEHC 497 (Unrep, Hedigan J,18/11/ 2009) applied - Criminal Procedure Act 1967 (No 12) s 4E (7) – Constitution of Ireland 1937, Articles 38.1, 40.1 and 40.1 – Claim dismissed (2009/1343P – Kearns P – 4/3/2011) [2011] IEHC 74 Brohoon v Ireland Statute Validity – Criminal offence – Non–national – Failure to produce passport or proof of identity – “satisfactory explanation” – Vagueness – Arbitrariness – Whether section of statute sufficiently precise to legitimately create criminal offence – Whether section of statute offended right against self–incrimination – Proportionality – Whether section of statute proportionate – Whether section of statute permitted abuse of process – King v Attorney General [1981] IR 233 considered - Vagrancy Act 1824 (5 Geo 4, c 83), s 4 – Refugee Act 1996 (No 17), s 9 – Immigration Act 2004 (No 1), ss 11, 12 & 13 – Constitution of Ireland 1937, Articles 38.1, 40.1, 40.3.1°, 40.3.2° & 40.4.1° – European Convention for the Protection of Human Rights and Fundamental Freedoms, articles 5, 6, 7 & 14 – Declaration & injunction granted (2008/792JR – Kearns P – 25/3/2011) [2011] IEHC 110 Dokie v Director of Public Prosecutions Library Acquisition Leyland, Peter The constitution of the United Kingdom: a contextual analysis 2nd ed Oxford : Hart Publishing, 2012 M31

CONTRACT Terms Settlement – Ad idem – Whether binding - Estoppel – Full and final settlement of all claims subject to exception – Interpretation

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of wording of exception – Whether entitled to consider what was said during negotiation of agreement to interpret exception – Whether action before court came within exception – Chambers v Kelly [1873] 7 IR CL 231 approved – Plaintiff precluded from prosecuting action (2003/858P – Herbert J – 30/3/2011) [2011] IEHC 130 Caruana v Fruit of the Loom International Ltd

COURTS High Court Inherent jurisdiction – Vulnerable adult – Person of unsound mind not so found – Detention of adult in psychiatric institution overseas – Application for detention in Central Mental Hospital – Medical condition falling outside provision of Mental Health Act 2001 – Absence of statutory provision to make orders sought – Best interests and welfare requirements of adult – Whether High Court had inherent jurisdiction to order detention of vunerable adult in psychiatric institution – DG v Eastern Health Board [1997] 3 IR 511 applied; Re SA (Vunerable Adult with Capacity Marriage) [2006] EWHC 2942 (Fam), [2006] FLR 867 considered; In re F (Adult: Court’s jurisdiction) [2000] 2 FLR 512 distinguished; Hutchinson Reid v UK (2003) 37 EHRR 9 and Winterwerp v Netherlands (1979) 2 EHRR 387 considered - Constitution of Ireland 1937, Articles 40.3.1º, 40.3.2º and 40.4.1º – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, article 5(1) – Orders made (2011/1208P – Birmingham J – 3/3/2011) [2011] IEHC 73 Re O’B(J): HSE v O’B(J) Precedent Stare decisis – Court of equal jurisdiction – Fully argued case – Statutory interpretation – Purposive approach – Contrary view Preliminary isse (2009/191MCA – Edwards J – 3/3/2011) [2011] IEHC 67 Environmental Protection Agency v Nephin Trading Ltd Judiciary

basis for admission of hearsay evidence from anonymous source – Whether strictly necessary – Revocation of bail – Whether District Judge personally satisfied as to adequacy of objections – Whether District Judge failed to exercise independent judgment – Whether order for revocation of bail may only be made by Judge who made the order admitting the person to bail – People (DPP) v McLoughlin [2009] IESC 65, [2010] 1 IR 590, McKeon v DPP (Unrep, SC, 12/10/1995) and Vickers v DPP [2009] IESC 58, [2010] 1 IR 548 applied; Adams v DPP [2000] IEHC 45, [2001] 2 ILRM 401 and People (Attorney General) v O’Callaghan [1966] IR 501 followed - Bail Act 1997 (No 16), s 6 – Constitution of Ireland 1937, Article 40.4.2° - Release refused (2011/868SS – Hogan J – 12/5/2011) [2011] IEHC 199 Clarke v Governor of Cloverhill Prison Competition Corporate crime – Contingent offence – Prevention, restriction or distortion of competition – Price fixing – Finding that offence committed – Conviction – Double punishment – Jus tertii – Right to good name – Whether undertaking committed offence – Whether director or manager could be convicted in absence of conviction of undertaking – Whether prosecution of undertaking necessary – Whether accused entitled to rely on position of company – Whether finding that undertaking committed offence violated constitutional rights – R v Donald [1986] 83 Cr App R 49, People (DPP) v Roseberry Construction Ltd [2003] 4 IR 338, R v Dickson [1991] BCC 719, R v Cogan [1976] QB 217, A v Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88 and Cahill v Sutton [1980] IR 269 considered - Competition (Amendment) Act 2006 (No 4) – Competition Act 2002 (No 14) – Competition (Amendment) Act 1996 (No 19), ss 2(2 ) and 3(4)(a) – Competition Act 1991 (No 24), s 4(1) – Restrictive Trade Practices (Confirmation of Orders) Act 1972 (No 8) – Restrictive Trade Practices Act 1953 (No 14) – Courts of Justice Act 1947 (No 20), s 16 – Case stated answered in favour of prosecution (350/2008 – SC – 28/7/2011) [2011] IESC 32 People (DPP) v Hegarty

Fair procedures – Bias – Objective bias – Test to be applied – Whether comment made by court in other proceedings gave rise to reasonable apprehension of bias – Delay – Rights of opposing party – Interests of justice – Objectives of Commercial Court O’Callaghan v Mahon [2007] IESC 17, [2008] 2 IR 514, Locabail (UK) Ltd v Bayfield Properties Ltd [2000] Q.B. 451 and Drury v British Broadcasting Corporation [2007] EWCA 605, (Unrep, CA, 14/5/2007) approved – Relief refused but matter transferred to another judge (2010/208S – Kelly J – 30/6/2011) [2011] IEHC 244 Ryanair Ltd v Terravision London Finance Ltd

Evidence

CRIMINAL LAW

Insanity

Bail Evidence – Hearsay evidence – Informer’s privilege – Whether recognised evidential

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Admissibility - Background evidence – Evidence of misconduct other than that charged – Test to be applied - Relevance of evidence – Necessity – Direction to jury – Credibility – Framing of indictment - R v Pettman (Unrep, CA, 2/5/1985), Reg v M (T) [2000] 1 WLR 421 and R v W [2003] EWCA Crim 3024, (Unrep, CA, 15/10/2003) considered; People (Attorney-General) v Kirwan [1943] IR 279 applied - Criminal Justice (Evidence) Act 1924 (No 37), s 1(f) – Appeal dismissed (375/2008 – SC – 8/4/2011) [2011] IESC 95 People (Director of Public Prosecutions) v McNeill Fitness to be tried – Criminal trial – Prohibition – Accused found unfit to be tried – Litigious advantage – Whether issue of fitness to be tried could be re-entered – Whether finding that accused unfit to be tried was litigious

advantage – Nolle prosequi – Whether nolle prosequi could discharge previous finding that accused unfit to be tried – Whether accused deprived of benefit of previous determination – Whether significantly unfair – Eviston v Director of Public Prosecutions [2002] 3 IR 260 and The State (O’Callaghan) v Ó hUadhaigh [1977] IR 42 approved - Criminal Law (Insanity) Act 2006 (No 11), s 4 – Applicant’s appeal allowed (382/2009 – SC – 22/7/2011) [2011] IESC 30 O’Callaghan v Director of Public Prosecutions Jurisdiction Guilty plea – Donation to charity – “Poor box” – Strike out – Whether District Court Judge has jurisdiction to strike out charge where accused pleads guilty and makes donation to charity – Whether judicial review appropriate remedy to challenge decision of trial judge – People (DPP) v Nally [2006] IECCA 128, [2007] 4 IR 145 and DPP v Kelliher (Unrep, SC, 24/6/2000) applied; Balaz v Kennedy [2009] IEHC 110, (Unrep, Hedigan J, 5/3/2009), Roche v Martin [1993] ILRM 651 and Truloc Ltd v McMenamin [1994] 1 ILRM 151 followed; People (DPP) v Maughan (Unrep, Ó Caoimh J, 3/11/2003) distinguished - District Court Rules 1997 (SI 93/1997), O 23, rr 1 and 3 and O 38, r 1(4) – Summary Jurisdiction (Ireland) Act 1850 (13 & 14 Vict, c 102), s 50 – Probation of Offenders Act 1907 (7 Edw, c 17), s 1(1) and (3) – Relief refused (2010/1560JR – Kearns P – 19/7/2011) [2011] IEHC 280 Director of Public Prosecutions v District Judge Ryan Possession “Has with” – Knowledge – Mens rea – Whether “has with” required element of knowledge – Judges’ Rules – Discretion – Whether trial judge entitled to admit statement in evidence – Minister for Posts and Telegraphs v Campbell [1966] IR 69 and People (Director of Public Prosecutions) v Byrne [1988] 2 IR 417 followed; CC v Ireland [2005] IESC 48, [2006] 4 IR 1 distinguished; R v Cugullere [1961] 1 WLR 858 approved; People (Director of Public Prosecutions) v Farrell [1978] IR 13 followed - Firearms and Offensive Weapons Act 1990 (No 12), s 9 – Criminal Procedure Act 1993 (No 40), s 3 – One conviction affirmed, appeal on 2 convictions allowed (8/2009 – CCA- 3/3/2011) [2011] IEHC 5 People (Director of Public Prosecutions) v Ebbs Practice Abuse of process – District Court – Reissue of summons – Two sets of summonses returnable to different locations and dates – One set of summonses not served – Application to reissue set of summonses not served after other set struck out – Whether application abuse of process – Whether District Court had jurisdiction to hear complaint - Director of Public Prosecutions v. O’Donnell [1995] 2 I.R. 294 considered – Case stated answered (2010/2136SS – Sheehan J - 9/6/2011) [2011] IEHC 254 Director of Public Prosecutions (Garda Rafter) v Furlong

Legal Update April 2012

Rearrest Detention – Charge – Requirement to charge forthwith following rearrest – Constitution – Right to liberty – Right to trial in due course of law – Whether charged forthwith – Judicial review – Certiorari – District Court – Jurisdiction – Preceding process – Whether District Court had jurisdiction to enter charge – Criminal trial – Evidence – Unfair trial – Video evidence – Duty of An Garda Síochána to seek out and preserve all evidence bearing on issue of guilt or innocence – Whether duty existed to preserve evidence having no bearing on guilt or innocence – Whether failure to preserve evidence could ground certiorari – O’Brien v Special Criminal Court [2007] IESC 45, [2008] 4 IR 514 distinguished; State (AG) v Judge Fawsitt [1955] IR 39, DPP v Michael Delaney [1997] 3 IR 453, Killeen v DPP [1997] 3 IR 218, State (Trimbole) v Governor of Mountjoy Prison [1985] IR 550 and DPP(McTiernan) v Bradley [2000] 1 IR 420 approved; Dunne v DPP [2002] 2 IR 305 considered - Criminal Justice Act 1984 (No 22), s 10(2) – Applicant’s appeal dismissed (51/2008 – SC 21/12/2010) [2010] IESC 63 Whelton v O’Leary Search warrant Validity – Misdescription – Typographical error – Error in address of premises to be searched – Error not misleading – Whether warrant invalid – Whether error of fundamental nature - People (DPP) v Edgeworth [2001] 2 IR 131 applied; People (DPP) v Balfe [1998] 4 IR 50, People (DPP) v Massoud [2009] IECCA 94, (Unrep, CCA, 24/7/2009) and People (DPP) v McCarthy [2010] IECCA 89, [2011] 1 ILRM 430 and People (AG) v O’Brien [1965] IR 142 followed; Kuruma v The Queen [1955] AC 197 and Mapp v Ohio (1961) 367 US 643 considered; Byrne v Grey [1988] IR 31, Director of Public Prosecutions v Dunne [1994] 2 IR 537, People (DPP) v Kenny [1990] 2 IR 110, Simple Imports Ltd v Revenue Commissioners [2000] 2 IR 243, People (DPP) v McGoldrick [2005] IECCA 84, [2005] 3 IR 123 and People (DPP) v McCarthy [2010] IECCA 89, [2011] 1 ILRM 430 distinguished – Prosecutor’s appeal allowed (9PX/2010 – CCA – 3/3/2011) [2011] IECCA 29 People (DPP) v Mallon Sentence Right to remission – Death sentence – Commuted by President of Ireland – Distinction between commutation and sentence – Whether power of commutation executive or judicial in nature – Deaton v AG [1963] IR 170, Lynham v Butler (No 2) [1933] IR 74, The State (O) v O’Brien [1973] IR 50, Brennan v Minister for Justice [1995] 1 IR 612, Brennan v Minister for Justice [1995] 1 IR 612, Ryan v Governor of Limerick Prison [1988] IR 198 and Dowling v Minister for Justice [2003] 2 IR 535 considered - Criminal Justice Act 1951 (No 2), s 23 – Criminal Law Act 1997 (No 14), s 11(5) – Criminal Justice Act 1990 (No 16), s 5 – Claim dismissed (2007/7061P – Hanna J – 15/4/2011|) [2011] IEHC 190 Callan v Ireland Strict liability offence Refusal to provide breath sample –No

Legal Update April 2012

requirement made to provide sample of blood or urine – Finding of special and substantial reason for applicant’s failure to provide breath sample – Absence of offer of alternative sample – Applicant unaware of statutory defence to failure to provide breath sample of offering blood or urine sample – Applicant not informed – No offer made by applicant – Evidence applicant suffered from mild asthma and panic attacks –Whether onus existed on Garda Siochána to inform applicant of obligation – Whether absence of knowledge of applicant of defence open under the Act negated mens rea – Whether gardaí on notice at material time of special and substantial reason – Whether Act in breach of Constitution and State’s obligations pursuant to European Convention of Human Rights – Whether fair procedures required making requirement to provide alternative where breath sample refused – State (Healy) v Donoghue [1976] IR 325, Heaney v Ireland [1994] 3 IR 593, DPP v Cabot [2004] IEHC 79 (Unrep, Ó Caoimh J, 20/4/2004), DPP v Behan (Unrep, Ó Caoimh J, 3/3/2003) and DPP v Finnegan [2008] IEHC 347 [2009] 1 IR 48 applied – Sherras v De Rutzen [1895] 1 QB 918 followed – CC v Ireland [2006] IESC 33 [2006] 2 ILRM 161 considered – DPP v McGarrigle [1996] 1 ILRM 271 distinguished – Constitution of Ireland 1937, articles 38.1 and 40.3 – European Convention on Human Rights and Fundamental Freedoms – Road Traffic Act 1994 (No 7), s 13 and 23(1) – European Convention on Human Rights Act 2003 (No 20), s 5 – Relief refused (2009/1067JR – Hanna J – 18/2/2011) [2011] IEHC 118 O’Connor v Judge O’Neill Trial Publicity – Fair trial – Internet publicity – Jury – Access to internet – Whether right to demand sweeping and cleansing of internet of prejudicial material prior to re-trial – Test in relation to adverse pre-trial publicity - Nature of publicity – Whether real risk of unfair trial – Access to internet by juries – Responsibility of Director of Public Prosecutions – Warnings and directions to juries - Rattigan v. Director of Public Prosecutions [2008] IESC 34, [2008] 4 IR 639 considered – Relief refused (2009/1283JR – Charleton J – 11/11/2010) [2010] IEHC 382 Byrne v DPP

Library Acquisition Butler, Maura Criminal litigation 3rd ed Oxford : Oxford University Press, 2012 M500.C5

DAMAGES Accommodation Compensation – Minor – Assessment of damages for accommodation needs of minor plaintiff with disability during expected lifetime – Principles to be applied – Whether value of property at which plaintiff resided to be taken into account in assessing damages and if so, to what extent – Whether enhancement value of new property adapted to meet needs of plaintiff to be taken into account in assessing damages and if so, to what extent - Medical negligence – Doherty v Bowaters Irish Wallboard Mills Ltd. [1968] IR 277 applied; Roberts v Johnstone [1989] QB 878 distinguished; Willett v North Bedfordshire Health Authority [1993] PIQR Q166 approved - Damages assessed (2007/8367P – O’Neill J – 27/5/2011) [2011] IEHC 225 Barry (an infant) v National Maternity Hospital Assessment Agriculture – Seizure of cattle - Breach of agreement to return cattle to plaintiff – Quantum – Proper method of calculating loss – Compensation for capital value of animals and for losses incurred - Value of animals not returned – Loss of profits – Cost of purchasing new cattle - Loss of grant – Loss of winter milk bonus – Interest – Stress and inconvenience – Hadley v Baxendale (1854) 9 Ex 341; Lennon v Talbot Ireland Ltd (Unrep, Keane J, 20/12/1985); Lee v Rowan (Unrep, Costello J, 17/11/1981); Grafton Court Limited v Wadson Sales Limited (Unrep, Finlay P, 17/2/1975) and Hanrahan v Merck Sharpe and Dohme (Ireland) Ltd [1988] ILRM 629 considered – Damages awarded (2006/1811P – McMahon J – 26/11/2010) [2010] IEHC 442 Hanrahan v Minister for Agriculture

DEFAMATION

Articles

Identification

McCarthy, Shane Take a restorative 2012 (Jan/Feb) GLSI 36

Evidence – Newspaper article – Reputation evidence ruled inadmissible on question of identification – Appeal – Whether article published of and concerning plaintiffs – Whether jury entitled to have regard to reputation evidence when considering identification issue – Whether substantial wrong or miscarriage of justice – Whether subsequent article referring to first article and naming plaintiffs admissible – Whether evidence of witness that other people identified plaintiffs from article admissible – Hayward v Thompson [1982] 1 QB 47, Misir v Toronto Star Newspapers Ltd. (1997) 105 OAC 270 and White v Sayward (1851) 33 Me 322 followed; Grappelli v Derek Block Ltd [1981] 1 WLR 822 and Simons Proprietary Ltd v Riddle [1941]

Leahy, Susan The defendant’s right or a bridge too far? Regulating defence access to complainants’ counselling records in trials for sexual offences - part 1 2012 ICLJ 13 Glynn, Brendan The effect of previous convictions on sentencing 2012 (5) ILTR 66 - part 2

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NZLR 913 distinguished; Fullam v Associated Newspapers Ltd [1953-54] Ir Jur Rep 70, Jozwiak v Sadek and others [1954] 1 WLR 275, Du Bost v Beresford (1810) 2 Camp 511 and Cook v Ward (1830) 2 CPD 255 followed - Rules of the Superior Courts 1986 (SI 15), O 36, r 36 and O 58, r 7(2) – Plaintiffs’ appeal allowed, retrial ordered (275 & 277/2006 – SC – 1/6/2011) [2011] IESC 17 Bradley v Independent Star Newspapers Ltd

DEFENCE FORCES Statutory Instrument Military judge (temporary designation) (transfer of department administration and ministerial functions) order 2012 SI 82/2012

EDUCATION Statutory Instrument Student grant (amendment) scheme 2011 SI 740/2011

ELECTRONIC COMMERCE Library Acquisition Mason, Stephen Electronic signatures in law 3rd ed Cambridge: Cambridge University Press, 2012 N285.4

Bruton, Claire 2012 (1) IELJ 4 Library Acquisitions Rubenstein, Michael Discrimination : a guide to the relevant case law 25th ed London : Michael Rubenstein Publishing Ltd, 2012 N191.2 Allen, Robin Family rights at work:a guide to employment law Bristol : Jordan Publishing Limited, 2012 Crasnow, Rachel N192

Library Acquisition

ENERGY

ESTOPPEL

Statutory Instrument

Library Acquisition

Energy (Biofuel obligation and miscellaneous provisions) act 2010 (section 3) (commencement) order 2012 SI 32/2012

Wilken, Sean The law of waiver, variation, and estoppel 3rd ed Oxford : Oxford University Press, 2012 N384.4

ENVIRONMENTAL LAW Statutory Instruments Air pollution act 1987 (marketing, sale and distribution of fuels) (amendment) (No. 2) regulations 2011 SI 714/2011

EMPLOYMENT LAW

Air pollution (fixed payment notice) regulations 2011 SI 713/2011

Part time workers

Library Acquisition

Comparator – Employer – Pay – Contract of employment – Whether chosen comparator appropriate – Whether Labour Court erred in law – Education – Teachers – Whether privately paid teacher could choose State paid teacher as comparator – Whether school or Department of Education was employer of comparators – Defence of objective justification – National University of Ireland Cork v Ahern [2005] IESC 50, [2005] 2 IR 577 applied; Sullivan v Department of Education [1998] 9 ELR 217 approved; O’Keeffe v Hickey [2008] IESC 72, [2009] 2 IR 302 distinguished - Protection of Employees (Part-Time Work) Act 2001, (No 45) – Council Directive 97/81/EC – Appeal allowed; matter remitted to Labour Court (2009/92, 93 & 96MCA – Dunne J – 20/7/2010) [2010] IEHC 496 Catholic University School v Dooley

Tromans, Stephen Environmental impact assessment 2nd ed Haywards Heath : Bloomsbury Professional, 2012 N94

Articles Kimber, Cliona Surveillance and employment law Smyth, Shaun 2012 (1) IELJ 14 Bolger, Marguerite Actionable and psychiatric injuries and employment law

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interest unconscionable rested with plaintiff – Fry v Lane (1888) 40 Ch D 312 followed; Rae v Joyce (1892) 29 LR Ir 500, Kevans v Joyce [1896] 1 IR 442 and Samuel v Newbold [1906] AC 461 distinguished - Consumer Credit Act 1995 (Section 2) Regulations 1996 (SI 127/1996) – Registration of Title Act 1964 (No 16), s 62 – Consumer Credit Act 1995 (No 24), s 2 – Plaintiff granted relief (2009/742SP – Laffoy J – 21/3/2011) [2011] IEHC 189 Secured Property Loans Ltd v Floyd

EQUALITY Article Waterstone, Michael de Paor, Aisling Forever in blue genes 2012 (Jan/Feb) GLSI 20

EQUITY & TRUSTS Unconscionable bargain Mortgage – Interest rate – Evidential burden – Whether consideration adequate – Whether court may relieve consequences of unconscionable transaction –Whether order for possession should issue – Whether procedural impropriety existed – Whether independent legal advice obtained – Whether interest rate exorbitant – Whether court may modify rate of interest – Whether onus of proving rate of

Thomas, Geraint Thomas on powers 2nd ed Oxford : Oxford University Press, 2012 N54.6

EUROPEAN UNION Free movement of persons Right of family members to move and reside freely – Prevention of abuse of rights – Implementation of Council Directive 2004/38/ EC – Marriage of convenience – Jurisdiction to review motives for marriage – Jurisdiction to prevent marriage – Safeguards in respect of review of motives for marriage – Whether review to occur pre or post solemnisation of marriage – Official empowered to conduct review – Whether Garda Síochána empowered to conduct review or prevent solemnisation of marriage – Blaise Baheten Metock v Minister for Justice (Case C-127/08) [2008] ECR I-6241 followed; Albatros Feeds Ltd v Minister for Agriculture and Food [2006] IESC 52, [2007] 1 IR 221 considered; In re Mbebe [2008] NIQB 108 approved - European Communities (Free Movement of Persons) (No 2) Regulations 2006 (SI 656/2006), arts 2, 4, 5, 6, 21 and 24 – Civil Registration Act 2004 (No 3), ss 2, 58 – Constitution of Ireland 1937, Articles 40.3.1º and 41.3.1º – Council Directive 2004/38/EC, Articles 3, 30, 31, 35 – Treaty of Rome 1957 – Relief granted (2011/51JR – Hogan J – 31/1/2011) [2011] IEHC 32 Ismailovic v Commissioner of An Garda Siochána Library Acquisitions Foster, Nigel Blackstone’s EU treaties and legislation 20112012 22nd ed Oxford : Oxford University Press, 2011 W1 Fabio, Massimo Customs law of the European Union 3rd ed

Legal Update April 2012

The Netherlands : Kluwer Law International, 2011 W109.2 Biondi, Andrea EU law after Lisbon Oxford : Oxford University Press, 2012 W86 Kingston, Suzanne Greening EU competition law and policy Cambridge : Cambridge University Press, 2012 W110

– Council Framework Decision of 13 June 2002, article 23(4) – Charter of Fundamental Rights of the European Union, article 24 – European Convention on Human Rights, article 8 – UN Convention on the Rights of the Child, article 3.1- Postponement refused (2008/357Ext –Edwards J – 22/6/2011) [2011] IEHC 248 Minister for Justice, Equality and Law Reform v L(D)

FAMILY LAW Child abduction

EVIDENCE Library Acquisition Keane, Adrian The modern law of evidence 9th ed Oxford : Oxford University Press, 2012 McKeown, Paul M600

EXTRADITION LAW European Arrest Warrant Detention – Surrender for prosecution – Refusal of leave to appeal - Fundamental defect - Alleged lack of representation in original hearing – Failure to ensure provision of interpretation services - Absence of agreement to withdrawal of point of objection – Inability to properly understand legal position – Absence of obligation to conduct inquiry – Absence of basis for re-hearing application – Abuse of process – Whether process lacking in fundamental fairness – Nature of representation – McDonagh v Governor of Cloverhill Prison [2005] IESC 4, [2005] 1 IR 394 and People (Director of Public Prosecution) v McDonagh [2001] 3 IR 411 considered – Application dismissed (2010/2297SS – Peart J – 16/12/2010) [2010] IEHC 493 Jarzebak v Governor of Cloverhill Prison European arrest warrant Postponement of surrender – Humanitarian grounds – Gravity of humanitarian grounds – Prejudice to third party – Public interest in extradition – Best interests of child – Whether harm to child of respondent sufficient ground for postponement of surrender – Whether gravity threshold of serious humanitarian considerations met – Whether Charter of Fundamental Rights applicable in European arrest warrant proceedings – Minister for Justice v Adam (No. 2) [2011] IEHC 87, (Unrep, Edwards J, 10/3/2011), Norris v USA (No 2) [2010] UKSC 9, [2010] 2 AC 487, B v District Courts in Trutnov and Liberic (Czech Judicial Authorities) [2011] EWHC 963 (Admin), (Unrep, High Court, Silber J, 15/4/2011), R (HH) v Deputy Prosecutor of the Italian Republic [2011] EWHC 1145 (Admin), (Unrep, High Court, Laws LJ, 11/5/2011) and Minister for Justice v Adam (No 1) [2011] IEHC 68, (Unrep, Edwards J, 3/3/2011) approved - European Arrest Warrant Act 2003 (No 45), ss 16, 18(1), 18(2), 18(3), 37 and 45

Legal Update April 2012

Return of child – Welfare inquiry – Foreign court’s refusal to order return of child to Ireland – Pending custody proceedings – Jurisdiction of court to make orders – Factors court could take into account in determining whether or not to make return order – Whether order for return, could only be final decision in custody proceedings – Povse v Alpago (Case C-211/10) [2010] 2 FLR 1343 applied; Deticek v Sgueglia (Case C-403/09) [2010] 3 WLR 1098; Re A: HA v MB (Brussels II Revised: Article 11(7) Application) [2007] EWHC 2016 (Fam.), [2008] 1 FLR 289 and M v T (Abduction: Brussels II Revised, Article 11(7)) [2010] EWHC 1479 (Fam.), [2010] 2 FLR 1685 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 133, r 11 – Hague Convention on the Civil Aspects of International Child Abduction 1980, article 13 – Council Regulation (EC) 2201/2003, articles 8, 10, 11, 40(1)(b) and 42 and recital 17 – Issues determined (2010/25HLC – Finlay Geoghegan J – 28/1/2011) [2011] IEHC 82 K(AO) v K(M) Children Child care – Health board - Child care order –Factors to be considered in assessing whether child requires care or protection – Whether first respondent obliged to look beyond child’s current situation when assessing whether child at risk - Child Care Act 1991 (No 17), s 16 – Relief including mandamus granted (2010/584JR – McMahon J – 5/11/2010) [2010] IEHC 467 T(Cl) v HSE and T(Ch) Children Child care - Inquiry – Report – Publication - Parental abuse of children - Inquiry into discharge of functions – Whether report should be published – Inherent jurisdiction of court – Views of children – Balance of rights – Right to freedom of expression – Constitutional rights of children – Welfare of children – Public accountability – Permissive order for publication granted – (2010/9488P – MacMenamin J – 27/10/2010) [2010] IEHC 360 Health Service Executive v A Children Custody - Habitual residence – Divorce proceedings in non-European jurisdiction – Dispute over custody arrangements – Divorce proceedings continuing in nonEuropean jurisdiction in relation to financial

and ancillary matters – Irish court jurisdiction continuing in relation to custody and care of children – Settlement in non-European jurisdiction conditional on resolution of custody issues –Psychiatrist report – Custody recommendations by expert – Issues of parties with recommendations – Expert oral evidence – Whether one identified home or 50/50 split recommended – Best interest of children – Guardianship of Infants Act 1964 (No 7), s 25 and 47 – Custody for alternate weeks ordered (2010/22M – Abbott J – 1/3/2011) [2011] IEHC 120 D(W) v D(S) Marriage Recognition - Foreign marriage – Polygamous marriage – Recognition –Public policy – Whether polygamous marriage could be recognised for purpose of family reunification – Whether polygamous marriage capable of recognition in Ireland – TF v Ireland [1995] 1 IR 321 and DT v CT (Divorce: Ample resources) [2002] 3 IR 334 applied; Mayo-Perrott v Mayo-Perrott [1958] IR 336 and Baindail (otherwise Lawson) v Baindail [1946] 1 All ER 348 distinguished - Family Law Act 1995 (No 26), s 29 – Constitution of Ireland 1937, Article 41 – Declaration of non-recognition granted (2005/53M – Dunne J – 4/11/2010) [2010] IEHC 497 AH(S) v AH(H) Marriage Right to marry – Power to object to marriage – Interpretation of ‘impediment’ to marriage – Suspected marriage of convenience – Jurisdiction of Registrar to refuse to solemnise marriage – Validity of marriage contracted for purpose of circumventing immigration laws – Relevance of mental reservations of parties to marriage – Constitution – Protection of institution of marriage – Whether proposed marriage of applicants valid – Whether any impediment to proposed marriage of applicants – Whether Registrar had jurisdiction to refuse to solemnise marriage where objection lodged but no impediment indicated – Vervaeke v Smith [1983] AC 145 followed; HS v JS (Unrep, SC, 3/4/1992) applied; Orlandi v Castelli (1961) SC 113 considered; Cirpaci v Minister for Justice [2005] IESC 42, [2005] 4 IR 109 distinguished; Provincial Bank v McKeever [1941] IR 471 approved; DK v Crowley [2002] 2 IR 744, CK v JK (Foreign divorce: estoppel) [2004] IESC 21, [2004] 1 IR 224, and Minister for Industry and Commerce v Hales [1967] IR 50 considered Civil Registration Act 2004 (No 3), ss 2 and 58 – Constitution of Ireland 1937, Articles 40.3.1º and 41.3.1º – Relief granted (2011/51JR – Hogan J – 31/1/2011) [2011] IEHC 32 Ismailovic v Commissioner of An Garda Siochána Articles Rogerson, Carol Child and spousal support in Canada: the guidelines approach 2012 (1) IJFL 18 - part 2 Wallace, Rebecca M M E (children) (FC): the UK Supreme Court sets the record straight

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Janeczko, Fraser A W 2012 (1) IJFL 11 McCaughren, Simone Ireland and the global landscape of adoption: the adoption act 2010 - a missed opportunity? Parkes, Aisling 2012 (1) IJFL 3 Lindsay-Poulsen, Caroline Surrogacy: the quest for legal recognition 2012 (2) ILTR 38 - part 111 Library Acquisition Hodson, David The international family law practice 2nd ed Bristol : Jordan Publishing Limited, 2012 N170

FINANCIAL SERVICES Article Donnelly, Mary The revised consumer protection code: expanding the scope of financial services regulation 2012 (19) 1 CLP 3 Statutory Instrument Remuneration of the Comptroller and Auditor General order 2012 SI 49/2012

FREEDOM OF INFORMATION Access to records Reasons - Whether Minister required to give reasons for decision – Freedom of Information Act 1997 (No 13), s 18 – Irish Nationality and Citizenship Act 1956 (No 26) ss 14, 15 and 16 -Relief refused (2006/245JR - Clark J – 1/7/2010) [2010] IEHC 366 Abuissa v Minister for Justice

HEALTH Statutory Instruments Health (provision of general practitioner services) act 2012 (commencement) order 2012 SI 69/2012 Nurses and midwives act 2011 (commencement) order 2011 SI 715/2011

HUMAN RIGHTS Articles O’Higgins, Lisa A new era for business and human rights? 2012 (Jan/Feb) GLSI 14

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Murphy, Maria Helen Investigative use of GPS tracking devices and the European Court of Human Rights 2012 ICLJ 8

IMMIGRATION Asylum Credibility – State protection – Nature of appeal – Role of Tribunal Member – Characterisation of fear by Tribunal Member – Whether Tribunal Member mischaracterised applicant’s fear – Whether Tribunal Member finding of incredibility and rejection of documentation irrational – Whether Tribunal Member failed to consider state protection – Fornah v Home Secretary [2006] UKHL 46, (Unrep, HL, 18/10/2006) considered – Refugee Act 1996 (No 17), s 13 – Judicial review refused (2008/522JR – Cooke J – 29/3/2011) [2011] IEHC 123 B(AJ) v Refugee Appeals Tribunal Asylum Credibility – Error of fact – Approach of High Court in assessing whether or not to interfere with decision based on credibility – Task of Tribunal Member in conducting oral appeal hearing – Appeal of applicant and applicant’s spouse heard together – Whether error of fact enough by itself to vitiate evaluation of credibility – Whether Tribunal Member disproportionately influenced by lack of credibility in spouse’s claim – Whether Tribunal Member acted within jurisdiction in rejecting medical evidence – K(K) v Refugee Appeals Tribunal [2010] IEHC 312, (Unrep, Clark J, 15/6/2010) considered – Refugee Act 1996 (No 17), ss 11 and 13 – Judicial review refused (2007/1677JR – Cooke J – 25/3/2011) [2011] IEHC 125 K(K) v Refugee Appeals Tribunal Asylum Credibility – Prospective Risk – Rejection of past facts and events – Prospective persecution – Obligations of administrative decision maker – Whether decision maker must assess prospective risk of persecution where application for refugee status has been rejected for lacking credibility – Whether decision must be remitted for full rehearing - Karanakaran v Home Secretary [2000] 3 All ER 449, Da Silveira v Refugee Appeals Tribunal [2004] IEHC 436, (Unrep, Peart J, 9/7/2004) and USI v Minister for Justice [2011] IEHC 144, (Unrep, Cooke J, 7/4/2011) followed - Decision quashed, remitted for reconsideration (2008/648JR – Cooke J – 8/4/2011) [2011] IEHC 147 A(MAM) v Refugee Appeals Tribunal Asylum Judicial review - Leave – Oral hearing - Fair procedures – Alleged failure to assess claim – Claim of persecution in Zimbabwe – False information given in interview – Information that applicants in United Kingdom during period of alleged persecution in Zimbabwe – Account of persecution and flight established

fabrication - Finding that claim manifestly unfounded – Adequacy of paper-based appeal – Constitutionality of paper-based appeal - Duty to cooperate with asylum system and present account truthfully – Failure to apply for asylum in United Kingdom – Whether commissioner acted lawfully and reasonably – VZ v Refugee Appeals Tribunal [2002] 2 IR 135 – Refugee Act 1996 (No 17), ss 11 and 20 - Relief refused (2008/701JR & 2008/702JR – Clarke J – 15/7/2010) [2010] IEHC 490 C (R) v Minister for Justice, Equality and Law Reform Asylum Refugee status application – Refusal – Minister – Whether Minister obliged to have regard to applicant submissions challenging validity of Tribunal decision – HID v Refugee Applications Commissioner [2010] IEHC 172, (Unrep, Cooke J, 19/1/2010) and FN v Minister for Justice, Equality and Law Reform [2008] IEHC 107, [2009] 1 IR 88 followed; X v Minister for Justice, Equality and Law Reform [2010] IEHC 446, (Unrep, Hogan J, 12/12/2010) distinguished - Refugee Act 1996 (No 17), s 17(1)(b) – Leave to seek judicial review refused ( 2010/995JR – Hogan J – 7/4/2011) [2011] IEHC 291 S(O) v Minister for Justice, Equality and Law Reform Costs Residency - Mandamus – Ministerial decision within reasonable time – Residency granted prior to hearing – Whether proceedings reasonable at time of commencement – Delay in processing of application - Requests for priority due to illness of wife – Whether prejudice existed – Offer of employment conditional on legal entitlement to work – Absence of evidence of arbitrary behaviour in consideration of application – Whether prospective job offer constituted special or pressing circumstance – Explanation for delay – System of consideration in chronological order - Mobin v Minister for Justice (Unrep, Edwards J, 17/7/2007); Nawaz v Minister for Justice (Unrep, Clark J, 26/6/2009); Garibov v Minister for Justice [2006] IEHC 371, (Unrep, Herbert J, 16/11/2006) and Nearing v Minister for Justice [2009] IEHC 478, [2010] 4 IR 211 considered – Immigration Act 1999 (No 22), s 3 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - No order as to costs (2009/796JR – Clark J – 21/7/2010) [2010] IEHC 488 Matta v Minister for Justice, Equality and Law Reform Deportation Reasonableness - Country of origin information - Selective reliance – Threat specific to applicant – Principles applicable to Minister when making decision to deport – Duty to disclose rationale behind decision – Test to be applied in deciding application for leave – Role of High Court – Whether substantial grounds – Kouaype v Minister for Justice, Equality and Law Reform [2005] IEHC 380, (Unrep, Clarke J, 9/11/2005); RN v Secretary of State for the Home Department [2008] UKAIT 00083; RT (Zimbabwe) & Others v. SSHD [2010] EWCA

Legal Update April 2012

Civ 1285, [2011] Imm AR 2 approved; Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701 applied – Refugee Act 1996 (No 17), ss 5 and 17 – Immigration Act 1999 (No 22), s 3 – Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 – Leave to apply for judicial review granted (2010/780JR – Irvine J – 22/3/2011) [2011] IEHC 133 M(J) v Minister for Justice, Equality and Law Reform Family reunification Marriage – Foreign marriage – Polygamous marriage – Recognition –Public policy – Whether polygamous marriage could be recognised for purpose of family reunification – Whether polygamous marriage capable of recognition in Ireland – TF v Ireland [1995] 1 IR 321 and DT v CT (Divorce: Ample resources) [2002] 3 IR 334 applied; Mayo-Perrott v Mayo-Perrott [1958] IR 336 and Baindail (otherwise Lawson) v Baindail [1946] 1 All ER 348 distinguished - Family Law Act 1995 (No 26), s 29 – Constitution of Ireland 1937, Article 41 – Declaration of non-recognition granted (2005/53M – Dunne J – 4/11/2010) [2010] IEHC 497 AH(S) v AH(H) Family reunification

under s 18(4) arising only if definition satisfied – Uncertainty as to basis for refusal – Refugee Act 1996 (No 17) as amended, s 18(4) – Certiorari granted (2010/988JR – Cooke J - 25/3/2011) [2011] IEHC 115 Ali v Minister for Justice Judicial review Leave for appeal from High Court – Deportation order – Leave to appeal to Supreme Court –Point of law of exceptional public importance - Public interest – Deportation of third country national illegally present in State – Third country national parent of minor Irish and Union citizen resident in the State – Whether Charter of Fundamental Rights of the European Union substantial ground for purposes of s 5(2)(b) of Illegal Immigrants (Trafficking) Act 2000 – Whether court had jurisdiction and obligation to examine merits of decision –Whether court entitled to require applicant to identify error, omission or flaw in respondent’s reasons or assessment of case which claimed to render the decision irrational, unreasonable or disproportionate – Obligation on the State under TFEU, article 267 - Meadows v Minister for Justice [2010] IESC 3 [2010] 2 IR 701 – Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5(3)(a) – Amended certificate for leave to appeal granted (2009/946JR – Cooke J – 25/3/2011) [2011] IEHC 116 Lofinmakin (an infant) v Minister for Justice

Member of family – Spouse – Marriage – Valid and subsisting marriage – Marriage validly contracted in home country of applicants – Recognition of marriage– Marriage by proxy –Validity of marriage – Lex loci celebrationis – Pre–marital domicile – Declaration as to marital status – Role and responsibility of respondent in family reunification applications– Delegation of statutory responsibilities of respondent – Potentially polygamous marriage –Statutory requirement of valid and subsisting marriage – Whether statutory requirement satisfied – Whether applicants married for purposes of Act – Whether respondent entitled to require that subsisting validity of applicants’ marriage be confirmed by another body – Conlon v Mohamed [1987] ILRM 172 distinguished; Berthiaume v Dastous [1930] AC 79 and Sottomayor v De Barros 3 PD 1 followed - Refugee Act 1996 (No 17), s 18 – Family Law Act 1995 (No 26) – Council Directive 2003/86/EC – Relief granted (2009/794JR – Cooke J – 25/11/2010) [2010] IEHC 427 Hamza v Minister for Justice

Refusal – Reasons – Civil or criminal “proceedings” – “Good character” – Absolute discretion of Minister to grant certificate of naturalisation – Whether Minister’s decision amenable to judicial review – Constitutional justice – Fair procedures – Obligation on Minister to put matters to applicant before making adverse determination on “good character” – Ryan v O’Callaghan (Unrep, Barr J, July, 1987), Dillon v Minister for Posts and Telegraphs (Unrep, SC, 3/6/1981), Jiad v Minister for Justice (Unrep, Cooke J, 19/5/2010), Maguire v Ardagh [2002] 1 IR 385, State (Lynch) v Cooney [1982] IR 337 and LGH v Minister for Justice [2009] IEHC 78 (Unrep, Edwards J, 30/1/2009) considered - Irish Nationality and Citizenship Act 1956 (No 26), s 15 – Certiorari granted, matter remitted (2010/2JR – Hogan J – 13/4/2011) [2011] IEHC 171 Hussain v Minister for Justice

Family reunification

Naturalisation

Refugee – Dependents - Scope of relationships - Five children – Applicant’s adult sister caring for three children of applicant’s deceased brother – Meaning of dependent – Application granted to applicant’s children – Application for adult sister and three children of deceased brother refused – Whether applicant had to show financially capable of supporting all people in application – Whether respondent erred in law – All part of applicant’s household in country of origin – Applicant serious medical condition – Humanitarian consideration – Dependents capable supporting household in State – Whether sister and three children within statutory definition of dependent family member – Respondent’s discretion

Refusal of application – Absolute discretion of respondent – Constitutional justice – Duty to state reasons –Geneva Convention – Whether applicant could rely on article 34 of Geneva Convention in domestic court proceedings – Pok Sun Shum v Ireland [1986] ILRM 593 followed; Savage v DPP [1982] ILRM 385, The State (McCormack) v Curran [1987] ILRM 225, Breathnach v Minister for Justice [2004] 3 IR 336 and Kinahan v Minister for Justice [2001] 4 IR 454 considered; Mishra v Minister for Justice [1996] 1 IR 189, AB v Minister for Justice [2009] IEHC 449, (Unrep, Cooke J, 18/6/2009), LGH v Minister for Justice [2009] IEHC 78, (Unrep, Edwards J, 30/1/2009) and Reg v Home Secretary, Ex p Fayed [1998] 1 WLR 763 distinguished; Boland v

Legal Update April 2012

Naturalisation

An Taoiseach [1974] IR 338, McGimpsey v Ireland [1988] IR 567 and Crotty v An Taoiseach [1987] IR 713 applied; CCSU v Minister for Civil Service [1985] AC 374 considered; Siritanu v DPP [2006] IEHC 26, (Unrep, Dunne J, 2/2/2006) and NS v Anderson [2004] IEHC 440, [2008] 3 IR 417 considered - United Nations Convention relating to the Status of Refugees 1951 and Protocol of 1967, article 34 - Irish Nationality and Citizenship Act 1956 (No. 26) ss. 14, 15 and 16 – Relief refused (2006/245JR - Clark J – 1/7/2010) [2010] IEHC 366 Abuissa v Minister for Justice Practice and procedure Limitation of actions – European Union – Directives – Principle of equivalence – Principle of effectiveness – Whether domestic time limit for relying on rights derived from EU directive can be relied on where directive not properly transposed into domestic law – Whether domestic time limit complies with principle of equivalence – Whether domestic time limit complies with principle of effectiveness – Emmott v Minister for Social Welfare (C-208/90) [1991] ECR I-4269 doubted; Levez v Jennings (C-326/96) [1998] ECR I-7835 applied; Commission v Ireland (C-456/08) [2010] 2 CMLR 42 and Bulicke v Deutsche Büro Service GmbH (C246/09) [2011] 1 CMLR 9 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 21, O 84A, r 4 – Environmental Protection Agency Act 1992 (No 7), s 87(10) – Refugee Act 1996 (No 17), s 17 – Irish Takeover Panel Act 1997 (No 5), s 13(3)(a) – Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 – Planning and Development Act 2000 (No 30), s 50(2) and (8) – Planning and Development (Strategic Infrastructure) Act 2006 (No 27), s 13 – Procedures Directive 2005/85/EC, arts 23, 39 – Equality Directive 1979/7/EEC - Leave to apply for judicial review granted (2010/405JR – Hogan J – 25/1/2011) [2011] IEHC 37 D(T) v Minister for Justice, Equality and Law Reform Subsidiary protection Judicial review – Declaratory relief – Irish regulations unlawful and ultra vires – Conflict with directive – Failure to allow for application for subsidiary application without prior application for asylum – Purpose of regulations – Eligibility for subsidiary protection – Supplementary status of subsidiary protection – Mode of implementing directive within terms and consistent with meaning – Elgafaji v Staatssecretarias Van Justitie [2009] ECR I-921 and Izevbekhai v Minister for Justice (Unrep, SC, 9/7/2010) considered – Relief refused (2009/1019JR – Ryan J – 15/12/2010) [2010] IEHC 489 N (H) v Minister for Justice, Equality and Law Reform Article Arnold, Samantha K. The culture of credibility in the United Kingdom and Ireland and the sexual minority refugee 2012 (4) ILT 55

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Library Acquisition

Statutory Instruments

Tsirlina, Elena A practical guide to immigration law relating to students Haywards Heath : Boomsbury Professional, 2011 M176

Industrial designs (amendment) regulations 2012 SI 31/2012

INQUEST Costs Fatal injuries claim - Whether costs of legal representation at inquest recoverable – Purpose of inquest – Role of legal representation – Whether phrase “other expenses actually incurred” could include cost of legal representation at inquest – Grant v Roche Products (Ireland) Ltd [2008] IESC 35, [2008] 4 IR 679, Condon v CIE (Unrep, Barrington J, 16/11/1984) and Magee v Farrell [2009] IESC 60, [2009] 4 IR 703 considered - Civil Liability Act 1961 (No 41), ss 48 and 49 – Cost awarded (2008/1225P – O’Neill J – 27/5/2011) [2011] IEHC 226 Courtney v Our Lady’s Hospital Ltd

INTELLECTUAL PROPERTY Patents European patent – Multiplicity of litigation – Development of stents – Wire stents – Stents made of metal tubes – Evolving design and usage issues with stents – Patent specification addressed to person skilled in art – Skilled person capable of being team – Weight to be accorded to decisions in foreign jurisdictions on disputes between same parties on similar issues – Whether patent infringed – Whether patent should be revoked – Role of protocol in Convention on interpretation of art 69 – Weight to be accorded to English decision on same issues between parties which under appeal by plaintiff – Perspective of person skilled in the art to whom patent addressed – Purposive construction applied – Inventive concept – Stents alleged to be infringing pattern held to contain distinguishable pattern – Conclusion reflecting outcomes of litigation in other jurisdictions which signatories to Convention – Ranbaxy Laboratories Ltd v Warner Lambert Company [2009] 4 IR 584 applied; Kirin Amgen v Hoechst [2005] RPC 9, Virgin Atlantic v Premium Aircraft [2009] EWCA (Civ) 1062 (Unrep, Court of Appeal 22/10/2009), Catnic Components Ltd v Hill and Smith Ltd [1982] RPC 183, General Tyre and Rubber Co v Firestone Tyre and Rubber Co Ltd [1972] RPC 457 and Synthon v SmithKline Beecham [2006] 1 All ER 685 followed – Patents Act 1992 (No 1) – European Patent Convention, art 69 – Relief refused (2008/10436P – McGovern J – 10/3/2011) [2011] IEHC 128 Medinol Ltd v Abbott Ireland Article Nagle, Eva Breaking bread 2012 (Jan/Feb) GILS 32

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Patents, trade marks and designs (fees) (amendment) rules 2012 SI 30/2012

INTERNATIONAL LAW Library Acquisition Dubinsky, Laura Foreign national prisoners: law and practice London : Legal Action Group, 2012 C209

JUDICIAL REVIEW Certiorari Redress scheme - Compensation - Unnecessary hysterectomies – Eligibility – Planned hysterectomy – Obligation to provide report concluding procedure medically unnecessary – Alleged breach of fair procedures – Failure to apprise applicant of reports commissioned by Board – Audi alterem partem – Delay – Consideration of delay at substantive hearing – Time limit – Discretion of court - Date of knowledge – Onus on applicant to give reasons for delay - Absence of reasonable explanation for delay – Goldberg v Kelly (1970) 397 US 254; Kiely v Minister for Social Welfare [1977] 1 IR 267; O’Ceallaigh v An Bord Altranais [2000] 4 IR 54; Criminal Assets Bureau v Hunt [2003] 2 IR 168; O’Flynn v Mid-Western Health Board [1991] 2 IR 223; Slatterys Ltd v Commissioner of Valuation [2001] 4 IR 91; Finnerty v Western Health Board (Unrep, Carroll J, 5/10/1998); Solan v Director of Public Prosecutions [1989] ILRM 491; De Roiste v Minister for Defence [2001] 1 IR 190 and O’Donnell v Dun Laoghaire Corporation [1991] 1 ILRM 301 considered – Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 21 – Relief refused (2009/559JR – Kearns P – 10/12/2010) [2010] IEHC 444 Weldon v Minister for Health and Children Discovery Exceptional grounds – Relevance – Issues in dispute - Correctness of decision not in issue – Decision making process not impugned – Single electricity market - Licensing and bidding code of practice – Opportunity cost – Cost of regulatory compliance part of opportunity cost – Duty on applicant to reflect entire cost of carbon produced by generation activities – Whether decision ultra vires –– Carlow Kilkenny Radio Ltd v Broadcasting Commission of Ireland [2003] IR 528 and Shortt v Dublin County Council [2003] 2 IR 69 applied – R v Secretary of State for Health ex parte Hackney London Borough (Unrep, English Court of Appeal, 24/7/1994) followed – Electricity Regulation Act 1999 (No 23), s 40(D) – Relief refused (2010/1484JR – McGovern J – 8/3/2011) [2011] IEHC 127 Viridian Power Ltd v Commission for Energy Regulation

LAND LAW Easements Public rights of way – Dedication – Ingredients necessary to establish public right of way – Whether public right of way – Inferred historical dedication – Whether dedication presumed – Whether evidence of dedication by landowner – User – Evidence as to user by members of public – Whether user as of right – Applicable legal principles – Presumption or inference of dedication – Permission – Acquiescence – Obstructions – Acts of interruption – Admissions – Whether acquiescence of predecessors bound owner in fee – Capacity to dedicate land – Whether there could be dedication when the estate is held in fee tail – Nature and extent of right of way - Farquhar v Newbury Rural District Council [1909] 1 Ch 12, Folkestone Corporation v Brockman [1914] AC 338 and Williams-Ellis v Cobb [1935] 1 KB 310 considered - R (Godmanchester TC) v Environment Secretary [2007] UKHL 28, [2008] 1 AC 221 approved – Plaintiff ’s claim dismissed (2009/262P – McMahon J – 20/12/2010) [2010] IEHC 437 Walsh v Sligo County Council Article Flanagan, Dermot Compulsory acquisition of land: practice and procedure (part 1) 2012 LG Rev 4 - part 1 Library Acquisitions Conway, Heather Co-ownership of land: partition actions and remedies 2nd ed Haywards Heath : Bloomsbury Professional, 2012 N54.5.C5 Hession, Rachael Law Society of Ireland Complex conveyancing 2nd ed Haywards Heath : Bloomsbury Professional, 2011 N74.C5

LANDLORD AND TENANT Commercial lease Terms of lease – Non-payment of rent – Equity – Interlocutory injunction – Whether plaintiff entitled to mandatory injunction – Test to be applied – Whether injunction possible in proceedings commenced by way of summary summons – Attorney General v Lee [2000] IESC 80, [2000] 4 IR 68 approved; Campus Oil Ltd v Minister for Industry (No 2) [1983] IR 88 distinguished; IS v Minister for Justice [2011] IEHC 31, (Unrep, Hogan J, 21/1/2011), Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701 and The State (Vozza) v DJ Ó Floinn [1957] IR 227 approved - Rules of the Superior Courts 1986 (SI 15/1986), O 15, r 2 – Supreme Court of Judicature (Ireland) Act 1877 (40 & 41 Vict, c 57), s 27(7) – Constitution

Legal Update April 2012

of Ireland 1937, Article 40.3.2° – European Convention on Human Rights 1950, article 13 – (2009/2798S – Hogan J – 16/3/2011) [2011] IEHC 107 Albion Properties Ltd v Moonblast Ltd Lease Damages – Purpose of damages – Duty to mitigate loss – Assessment of consequential damages – Factors to be taken into account including economic downturn – Breach of keep open covenant in both lease and sublease – Whether re-opening of supermarket of different quality relevant to assessment of damages – Greenband v Bruton [2011] IEHC 109, (Unrep, Clarke J, 9/3/2011); Mount Kennett Investment Company v O’Meara [2011] IEHC 210, (Unrep, Clarke J, 9/3/2011) approved – Damages assessed (2009/4644P – Clarke J – 25/3/2011) [2011] IEHC 119 Parol Ltd v Friends First Pension Funds Ltd: Superquinn, Third Party Lease S u b - l e a s e – Pe r s o n a l o b l i g a t i o n s – Interpretation of “subject to contract – contract denied” – Effect of termination on obligations– Interpretation of termination clauses – Extraordinary termination – Whether correspondence stating “subject to contract – contract denied” legally binding – Whether dealership terminated – Whether bad faith and misrepresentation – Whether defendants liable for rents due under sub-lease – Whether required to execute new sub-lease – Whether plaintiff liable for rents due under lease – Relief granted (2009/1834S – McMahon J – 5/4/2011) [2011] IEHC 126 Gowan Distributors Ltd v Murphy

Library Acquisitions Warwick, Mark Break clauses London : Sweet & Maxwell, 2011 N92 Freedman, Philip Service charges: law and practice 5th ed Bristol : Jordan Publishing Limited, 2012 N90

LEGAL PROFESSION Solicitor

Library Acquisitions Reeder, John Brice on maritime law of salvage 5th ed London : Sweet & Maxwell, 2011 Brice, Geoffrey N334 Treitel, Guenter Heinz Carver on bills of lading 3rd ed London : Sweet & Maxwell, 2011 N337.3

Agency – Apparent authority – Costs – Whether solicitor bringing an action warrants his client’s existence – Whether solicitor liable for breach of warranty to defendant where action brought on behalf of non-existent plaintiff - Fernée v Gorlitz [1915] 1 Ch 177, Kennedy v Killeen Corrugated Products Ltd [2006] IEHC 385, [2007] 2 IR 561, Nelson v Nelson [1997] 1 WLR 233 and Yonge v Toynbee [1910] 1 KB 215 considered; Simmons v Liberal Opinion Ltd [1911] 1 KB 966 followed - Rules of the Superior Courts 1986 (SI 15/1986), O 99, r 7 – Costs awarded against solicitor personally (2010/259MCA – Laffoy J – 18/2/2011) [2011] IEHC 111 Jabaar Ltd v Townlink Construction Ltd

Lorenzon, Filippo Sassoon: CIF and FOB contracts: British shipping laws 5th ed London : Sweet & Maxwell, 2012 N337.2

Article

Library Acquisition

Glynn, Brendan Public procurement of legal services 2012 (1) ILTR 9

LICENSING

New tenancy

Statutory Instrument

Right to new tenancy – Prima facie entitlement of predecessor in title – Assignment of interest in property to applicant – Locus standi – Preliminary issue – Whether applicant entitled to new tenancy – Whether respondent estopped from raising issue where order substituting parties not appealed – Definition of predecessor in title – Definition of tenant – Entitlement of predecessor in title to new tenancy – Entitlement of tenant to remain in possession pending determination of application – Graft old new tenancy upon old tenancy – Entitlement to assign right to compensation – Whether applicant successor in title within meaning of legislation – Whether right to new tenancy could be assigned – Personal right – Appeal from Circuit Court – Dublin Corporation v Smithwick [1976] ILRM 280; Crofter Properties Ltd v Genport [2008] IEHC 80, (Unrep, Finlay Geoghegan J, 22/3/2007); Harrisrange v Duncan [2003] 4 IR 1 and Rosney v Humphries (1952) 88 ILTR 44 considered – Landlord and Tenant (Amendment) Act 1980 (No 10), ss. 27 and 28 – Rules of the Superior Courts 1986 (SI 15/1986), O 22 - Appeal allowed (2009/106CA – Dunne J – 28/7/2010) [2010] IEHC 494 Wintertide Limited v Coras Iompair Eireann

Intoxicating liquor act 2003 (section 21) (Royal Dublin Society) regulations 2012 SI 47/2012

Legal Update April 2012

MARITIME LAW

LOCAL GOVERNMENT Article MacNamara, Cormac Reforming rates - a process long overdue 2012 LG Rev 17

Rainey, Simon The law of tug and tow and offshore contracts 3rd ed London : Informa Publishing, 2011 N333.2

MEDICAL LAW Madden, Deirdre Medical law in Ireland The Netherlands : Kluwer Law International, 2011 N185.C5

MISREPRESENTATION Library Acquisition Cartwright, John Misrepresentation, mistake and nondisclosure 3rd ed London : Sweet & Maxwell, 2012 M547

NEGLIGENCE

Library Acquisition

Duty of care

Butler, Patrick A Rating law in Ireland Dublin : Bloomsbury Professional, 2012 M337.65.C5

Estoppel by representation – Principles to be applied – Claim in respect of incident – Representation by insurers that they would be dealing with action on behalf of defendant – Defendant not liable in tort – Application to dismiss action – Whether defendant estopped by representation from denying liability – Donegan v Minister for Education [2007] IEHC 119, (Unrep, O’Neill, 16/3/2007); Oakland Metal Co Ld v D Benaim & Co Ld, [1953] 2 QB 261; Finnegan v Richards [2007] IEHC 134, (Unrep, McKechnie J, 20/4/2007); Murphy v Grealish [2006] IEHC 22, (Unrep, MacMenamin J, 11/1/2006) approved – Ryan v Connolly [2001] 1 IR 627; Doran v Thompson Ltd [1978] IR 223 applied – Health Act 1970 (No 1), ss 34 and 37

Statutory Instruments Local government (household charge) regulations 2012 SI 1/2012 Local Government (tenure of office of managers) regulations, 2012 SI 50/2012

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– Action dismissed (2004/2102P – Hedigan J – 29/3/2011) [2011] IEHC 124 Cunningham v HSE

PERSONAL INJURIES

Liability

Marshall, David Litigating psychiatric injury claims Haywards Heath : Bloomsbury Professional, 2012 N38.Z9

Duty of care – Contributory negligence – Damages – Duty to mitigate loss – Status of Book of Quantum – Approach to calculating future loss of earnings – Whether first to third defendants negligent in manner in which rally organised, conducted and supervised – Whether plaintiff guilty of contributory negligence – Reddy v Bates [1983] IR 141 applied – Relief granted with finding of contributory negligence (2007/445P – McGovern J – 6/4/2011) [2011] IEHC 135 Murphy v County Galway Motor Club Ltd Licensed premises Duty of care – Suppliers of alcohol to customer – Liability of proprietor of licensed premises to persons who might be caused harm by customer – Customer served intoxicating liquor by third parties prior to driving motor vehicle – Whether duty of care on third parties as suppliers of alcohol to protect customer from risk resulting from self-induced intoxication – Whether foreseeable that if breached, customer might cause harm to others when driving motor vehicle - Hall v Kennedy (Unrep, Morris J, 20/12/1993), Joy v Newell (t/a Copper Room) [2000] NI 91, Jebson v Ministry of Defence [2000] 1 WLR 2055, Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 207 ALR 52, CAL (No 14) Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board (2009) 260 ALR 606 approved; Stewart v Pettie [1995] 1 SCR 131 distinguished; O’Keeffe v Hickey [2008] IESC [2009] 2 IR 302 applied - – Intoxicating Liquor Act 2003 (No 31), part 2, ss 2, 4, 9 – Road Traffic Act 2010 (No 25) - Claim dismissed (2006/4199P – Feeney J – 4/3/2011) [2011] IEHC 105 Flanagan v Houlihan

OFFICIAL LANGUAGES Article Ní Dhrisceoil, Verona Irish language rights in the era of austerity 2012 (5) ILTR 72

PENSIONS Statutory Instruments Occupational pension schemes (disclosure of information) (amendment) regulations, 2012 SI 5/2012 Occupational pension schemes (revaluation) regulations 2012 SI 48/2012 The pensions act (register and database of certified policies or contracts of assurance) regulations, 2012 SI 6/2012

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Library Acquisitions

Exall, Gordon Munkman on damages for personal injuries and death 12th ed London : LexisNexis, 2011 N38.1

PERSONAL INJURIES ASSESSMENT BOARD Authorisation Personal injury - Medical treatment exclusion – Nursing care – Health service - Whether claim excluded from procedure – Gunning v National Maternity Hospital [2008] IEHC 352, [2009] 2 IR 117 followed - Personal Injuries Assessment Board Act 2003 (No 46), s 3(d) – Action struck out (2008/3084P – Hedigan J – 8/6/2011) [2011] IEHC 231 Carroll v Mater Misericordiae

PLANNING & ENVIRONMENTAL LAW Planning permission Retention per mission – Refusal – Use application – Works application – Substantial grounds - Proceeding on false presumption – Reliance on previous determination – Breach of fair procedures – Regard to city development plan – Adequate reasons – Level of reasons required – Irrationality – Relevant matters – Taking irrelevant matters into account – Certiorari – Preliminary matter – Appropriateness of deponent of verifying affidavit of statement of opposition - Whether deponent of verifying affidavit appropriate – Whether substantial grounds for judicial review – Whether respondent proceeded on false presumption – Whether reliance wrongly placed by respondent on previous determination – Whether breach of fair procedures – Whether failure to have regard to city development plan – Whether adequate reasons given – Whether respondent obliged to indicate what would be required for a successful future application – Planning and Development Act 2000 (No. 30) ss 5, 34, 50A, 247 - McNamara v An Bord Pleanála [1995] 2 ILRM 25, In re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360, Mulholland v An Bord Pleanála (No 2)[2005] IEHC 306 [2006] IR 453, The Village Residents Association Ltd v An Bord Pleanála [2001] IR 441, Fitzgerald v An Bord Pleanála [2005] IEHC 372 (Unrep, Murphy J, 11/11/2005), State(Haverty) v An Bord Pleanála [1987] IR 485, Evans v An Bord Pleanála (Unrep, Kearns J,7/11/2003), Quinlan v An Bord Pleanála [2009] IEHC 228 (Unrep, Dunne J, 13/5/2009) and Kenny v An Bord Pleanála (No 1)

[2001] IR 565 applied – Probets v Glackin [1993] 3 IR 134, Gavin v Criminal Injuries Compensation Tribunal [1997] 3 IR 132, McGoldrick v An Bord Pleanála [1997] 1 IR 497 distinguished – Carrigaline Community Television Broadcasting Co Ltd v Minister for Transport [1997] 1 ILRM 241, O’Callaghan v Mahon [2007] IESC 17 [2008] 2 IR 514, Radio One Limerick Ltd v IRTC [1997] 2 IR 291, Stack v An Bord Pleanála (Unrep, Ó Caoimh J, 7/3/2003), Deerland Construction Ltd v Aquaculture Licences Appeal Board [2008] IEHC 289 [2009] 1 IR 673, South Bucks District Council v Porter [2004] UKHL 33 [2004] 4 All ER 775 and Sweetman v An Bord Pleanála [2007] IEHC 153 [2008] IR 277, Dunne v An Bord Pleanála [2006] IEHC 400 (Unrep, McGovern J, 14/12/2006), Grealish v An Bord Pleanála [2006] IEHC 310 [2007] 2 IR 536, O’Donoghue v An Bord Pleanála [1991] ILRM 750, State (Sweeney) v Minister for Environment [1979] ILRM 35, O’Keeffe v An Bord Pleanála [1993] 1 IR 39 considered – Leave and relief refused (2008/1234JR – Hedigan J – 26/1/2010) [2010] IEHC 16 West Wood Club Ltd v An Bord Pleanála Waste Management Environmental pollution – “Polluter pays” principle – Waste Management Directive – Waste Framework Directive – Stare decisis – Conditions necessary to depart from decision of equal jurisdiction – Statutory Interpretation – European Union legislation – Teleological approach – Implementation of European Union legislation – Interpretation contra legem – European Union Recommendation – Whether national court could have regard to recommendation in interpreting European Union legislation – Legal effect of “polluter pays” principle – Enforcement mechanism – Whether s. 57 gave effect to requirement of effective enforcement mechanism – Company law – Separate legal personality – Corporate veil – Conditions necessary to lift corporate veil – Whether “fall back” order could be made against directors and/or shareholders of corporate entities – Whether court could lift corporate veil to grant orders against directors and/or shareholders of corporate entities – Whether Waste Management Directive adequately transposed – Irish Trust Bank Ltd v Central Bank of Ireland [1976-1977] ILRM 50, Marleasing SA v La Comercial Internacional de Alimentación (Case C-106/89) [1990] ECR I4135; Pfeiffer v Deutches Rotes Kreuz, Kreisverband Waldshut eV (Joined Cases C-397-403/01) [2004] ECR I-8835; Murphy v Bord Telecom Éireann [1989] ILRM 53; Albatros Feeds Ltd v Minister for Agriculture [2006] IESC 51, [2007] 1 IR 221, Harding v Cork County Council [2008] IESC 27, [2008] 4 IR 318, Monaghan v Legal Aid Board [2008] IEHC 300, [2009] 3 IR 458, Grimaldi v Fonts des maladies professionnelles (Case C-322/88) [1989] ECR 4407 and Wicklow County Council v Fenton (No 2) [2002] 4 IR 44 considered - Waste Management Act 1996 (No 10), s 57 – Council Recommendation 75/436/Euratom, ECSC, EEC – Council Directive 75/442/EEC – Council Directive 91/156/EEC – Council Directive 2008/98/EC – Preliminary isse (2009/191MCA – Edwards J – 3/3/2011) [2011] IEHC 67 Environmental Protection Agency v Nephin Trading Ltd

Legal Update April 2012

Article Whittaker, Alice Flood, sweat and tears Murphy, Heather 2012 (Jan/Feb) GLSI 18 Statutory Instrument Derelict sites (urban areas) regulations, 2011 SI 688/2011

PRACTICE AND PROCEDURE Affidavits Translation – Non English speaking deponent – Admissibility – Officer administering oath – Jurat – Certification – Whether affidavit “read over and perfectly understood” by deponent – Judicial review – Certiorari –Long term residency – Delay in processing application – Legitimate expectation – Whether decision would be different in absence of delay – European Union law – National court – Parent of Irish born child – Whether court called upon to implement directly applicable European Union law – Whether court obliged to consider ground raised at hearing of proceedings – Whether court obliged to consider ground outside grant of leave – In re Letters Patent granted to Sarazin [1947] 64 RPC 51 approved - Rules of the Superior Courts 1986 (SI 15/1986), O 40, r 14 – Treaty on the Functioning of the European Union, Article 20 – Relief refused (2010/774JR – Cooke J – 2/6/2011) [2011] IEHC 223 Saleem v Minister for Justice, Equality and Law Reform Costs Non–existent plaintiff – Dissolved company –Whether solicitor personally liable for costs of defence– Whether award of costs under inherent jurisdiction of court – Whether award of costs improperly or without reasonable cause incurred – Whether discretion of the court should be exercised in favour of solicitor for the plaintiff where solicitor not aware company was dissolved ab initio – Fernée v Gorlitz [1915] 1 Ch 177, Kennedy v Killeen Corrugated Products Ltd [2006] IEHC 385, [2007] 2 IR 561, Nelson v Nelson [1997] 1 WLR 233 and Yonge v Toynbee [1910] 1 KB 215 considered; Simmons v Liberal Opinion Ltd [1911] 1 KB 966 followed - Rules of the Superior Courts 1986 (SI 15/1986), O 99, r 7 – Costs awarded against solicitor personally (2010/259MCA – Laffoy J – 18/2/2011) [2011] IEHC 111 Jabaar Ltd v Townlink Construction Ltd Costs Non-party funder – Liability of non-party – Order for costs against unsuccessful plaintiff companies – Recoverability of costs orders – Non-party owner and controller of plaintiff companies – Role in litigation – Whether jurisdiction to make non-party liable for costs of unsuccessful party – Relevant factors to exercise of jurisdiction – Whether reasonable to think unsuccessful party could meet costs

Legal Update April 2012

if it failed – Degree of possible benefit of proceedings to non-party – Whether proceedings pursued reasonably and in reasonable fashion – Byrne v John S O’Connor & Co [2006] IESC 30, [2006] 3 IR 379 applied; Aiden Shipping Ltd v Interbulk Ltd [1986] AC 965, Carborundum Abrasives Ltd v Bank of New Zealand (No.2) [1992] 3 NZLR 757, Forest Pty Ltd (Recs and Mgrs apptd) v Keen Bay Pty Ltd & Ors [1991] 4 ACSR 107 and Knight & Anor v FP Special Assets Ltd & Ors [1992] 107 ALR 585 followed - Rules of the Superior Courts, 1986 (SI 15/1986), O 15 r 13 – Supreme Court of Judicature (Ireland) Act 1877 (40 & 41 Vict, c 57), s 53 – Bank granted relief (2003/9018P & 2005/272S - Clarke J – 16/3/2011) [2011] IEHC 117 Moorview Development Ltd v First Active plc Discovery Documents – Relevance - Conversion, trespass or detinue – Evidence for criminal investigation - Note of counsel regarding agreement – Seizure and retention of items by gardaí - Alleged retention of items without lawful excuse – Allegation that proceedings premature as oral agreement reached in relation to return of items –Statutory power to seize and retain items – Appeal of order of Master granting discovery - Rogers v Director of Public Prosecution [1992] ILRM 695 - Criminal Law Act 1976 (No 32), s 9 - Order of Master set aside insofar as discovery of documents recording seizure and submission for analysis granted – (2008/6497P – Herbert J – 7/12/2010) [2010] IEHC 441 McGuinness v Commissioner of An Garda Síochána Discovery Relevance – Necessity for disposing fairly of matter or saving costs – Distinct and separate tests - Loan facilities to defendant and related companies – Statutory duty - Terms of loan – Partner in development – Documents relevant to alleged illegality and whether loan non-recourse – Whether guarantee signed or related to relevant facility – Discovery ordered of documents relevant to performance of facility related to operational stage of development and involvement of plaintiff as partner – Documents postdating loan agreement date – Marginal relevance – Scope of categories relating to other developments – Amended categories discoverable – Ryanair Plc v Aer Rianta CPT [2003] 4 IR 264, Hannon v Commissioners of Public Works (Unrep, McCracken J, 4/4/2001) and PJ Carroll & Co Ltd v Minister for Health and Children [2006] 3 IR 431 applied – Compagnie Financiere et Commercile du Pacifique v Peruvian Guano Company [1882] 11 QBD 55 followed – Rules of the Superior Courts 1986 (SI 15/1986), O 31, 12 – Discovery ordered in amended form (2010/2049S – Finlay Geoghegan J - 8/3/2011) [2010] IEHC 114 Anglo Irish Bank v Flanagan Dismissal of action Want of prosecution – Inordinate and inexcusable delay – Whether obligations under European Convention of Human Rights require recalibration of emphasis in test to be applied. – Whether unilateral decision not to

progress proceedings pending outcome of parallel proceedings provides excuse for delay – Balance of justice – Whether defendant partly responsible for delay – Availability of witnesses – Whether prejudice to defence – Re Ó Laighléis [1960] IR 93 and Byrne v An Taoiseach [2010] IEHC 3, (Unrep, Laffoy J, 9/9/2010) followed, Stephens v Paul Flynn Ltd [2008] IESC 4, [2008] 4 IR 3, Gilroy v Flynn [2004] IESC 98, [2005] 1 ILRM 290, Price and Lowe v United Kingdom [2003] ECHR 409 and Moorview Developments Ltd. v First Active plc. [2008] IEHC 274, [2009] 2 IR 788 considered; Stephens v. Paul Flynn Ltd [2005] IEHC 148, (Unrep, Clarke J, 28/4/2005) followed - European Convention on Human Rights Act 2003 (No 20) – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, article 6 – Claim dismissed (2000/713S – Clarke J – 10/12/2010) [2010] IEHC 465 Rodenhuis and Verloop BV v HDS Energy Ltd Execution Judgment mortgage – Joint tenant – Registered land – Charge or burden – Registration of judgment against interest of joint tenant – Debtor dying before enforcement – Whether judgment continued to affect lands in hands of surviving joint tenant – Re Pollard’s Estate [1863] 32 LJ Ch. 657 and York v Stone [1709] 1 Salk 158 approved; M’Ilroy v. Edgar (1881) 7 LR Ir. 521 and Re Scanlon [1897] 1 IR 462 considered; Lord Abergavenny’s Case (1604) Pasch 5 Jacobi approved - Land and Conveyancing Law Reform Act 2009 (No 27), ss 30, 31 and 117 - Plaintiff ’s appeal dismissed (16/2009 – SC – 25/11/2010) [2010] IESC 58 Judge Mahon v Lawlor Garnishee Judgment creditor – Discretion – Whether unfair to grant order of garnishee – Martin v Nadel (Dresdner Bank, Garnishees) [1906] 2 KB 26 distinguished – Conditional order made absolute (2009/429S – Hogan J – 6/9/2011) [2011] IEHC 345 Response Engineering Ltd v Caherconlish Treatment Plant Ltd Hearing Otherwise than in public – Order prohibiting identification of party – Medical confidentiality – Statutory interpretation – Whether court can make order prohibiting identification of party with medical condition where identification would not cause undue stress due to lack of awareness – Bank of Ireland v Purcell [1989] IR 327 applied - Courts (Supplemental Provisions) Act 1961 (No 39), s 45 – Interpretation Act 2005 (No 23), s 5 – Civil Law (Miscellaneous Provisions) Act 2008 (No 14), s 27 – Action heard in camera (2011/33P – Hogan J – 12/1/2011) [2011] IEHC 1 Re Baby AB: Children’s University Hospital v D(C) Jurisdiction Conflict of laws – Exclusive jurisdiction – Third party proceedings – Challenge to jurisdiction – Test to be applied – Contract – Legitimate expectation – Abuse of discretion

Page xxv

– Challenge to reasonableness of decision – Whether challenge to validity of decision of organ of company – Whether previous decision of European Court of Justice in same proceedings determinative of issue – Whether change in circumstances having occurred – Grupo Torras SA v Al-Sabah [1995] 1 Lloyd’s Rep 374 and Hassett v South Eastern Health Board (Case C-372/07) [2008] ECR I-7403 approved; Dansommer AS v Gotz (Case C-8/98) [2000] ECR I-393, Land Oberösterreich v ČEZ AS (Case C-343/04) [2006] 2 All ER (Comm) 665 and Sanders v van der Putte (Case 73/77) [1977] ECR 2383 considered; JP Morgan Chase Bank NA v Berliner Verkehrsbetriebe (BVG) [2009] EWHC 1627 (Comm), [2010] 1 QB 276 approved - Council Regulation (EC) No. 44/2001, articles 2, 5, 6, 22 and 25 – Application refused (200/8756P & 2002/16269P – McKechnie J – 20/5/2010) [2010] IEHC 283 Doherty (an infant) v North Western Health Board Limitation of actions Mistake – Fraud – Estoppel – Joint tenancy – Severance – Keelan v Garvey [1925] 1 IR 1 and In re Michael Daily [1944] NI 1 applied Statute of Limitations 1957 (No 6), ss 21, 24, 55, 71, 72 and 74 – Civil Liability Act 1961 (No 41), s 21(1) – Registration of Title Act 1964 (No 16), ss 31, 55 and 120 – Succession Act 1965 (No 27), s 126 (2007/8143P – Murphy J – 10/12/2010) [2010] IEHC 462 Moore v Moore Particulars Alternative pleas – Purpose of pleadings – Extent to which inconsistent pleas may be made – Particulars that must be provided if alternative pleas propounded – Whether possible to ascertain precise case being made – Whether appropriate to put forward alternative inconsistent pleas – McGee v O’Reilly [1996] 2 IR 229, Mahon v Celbridge Spinning Co. Ltd. [1967] IR 1, Philipps v Philipps (1878) 4 QBD 127, Phonographic Performance (Ireland) Ltd v Cody [1998] 4 IR 504 and Church v Adler (1953) 350 Ill App 471 approved - Rules of the Superior Courts 1986 (SI 15/1986), O 19, r 27 – Leave to deliver amended statement of claim granted (2010/11862P – Kelly J – 6/7/2011) [2011] IEHC 253 IBB Internet Services Ltd v Motorola Ltd Parties Incorrect plaintiff – Application to substitute plaintiff – Criteria to be applied – Whether bona fide error – Whether distinct from application to substitute parties under O 15, r 13 – Date of commencement of action – Whether claim statute barred - O’Reilly v Granville [1971] 1 IR 90 applied; Southern Mineral Oil Ltd (In Liquidation) v Cooney (No 2) [1999] 1 IR 237, Kennemerland v Montgomery [2000] ILRM 370, Kinlon v CIÉ [2005] IEHC 95, [2005] 4 IR 480, Wicklow County Council v O’Reilly [2006] IEHC 265 and Hynes v. Western Health Board [2006] IEHC 55 (Unrep, Clarke J, 8/3/2006) considered - Rules of the Superior Courts 1986 (SI 15/1986), O 15, rr 2 and 15 and O 63, r 1(15) – Application allowed (1998/6995P – Kearns P – 10/12/2010) [2010] IEHC 443 Sandy Lane Ltd v Times Newspapers Ltd

Page xxvi

Pleadings Amendment – Proceedings – Functus officio Whether amendment of pleadings permitted post judgment - Whether amendment permitted where new cause of action introduced by amendment - Wildgust v Bank of Ireland [2001] 1 ILRM 24 and Stewart v Engel [2000] 1 WLR 2268 distinguished; Cox v Electricity Supply Board (No.2) [1943] IR 231 applied - Rules of the Superior Courts 1986 (SI 15/1986), O 28, r 1 – Amendment refused (2009/881JR – Hogan J 9/2/2011) [2011] IEHC 95 AU(M) v Minister for Justice

capable of registration against company in receivership - AS v GS [1994] 1 IR 407 applied and Bellamy v Sabine (1857) De G & J 566 followed – Lis pendens vacated (2003/9018P – Clarke J – 5/2/2010) [2010] IEHC 35 Moorview Developments Ltd v First Active plc Security for costs

Declaratory relief – Judicial review – Certiorari – Limitation period – Whether reliefs sought by plenary action within scope of judicial review – Whether time limit applied by analogy to reliefs sought by plenary action – Whether good reason for extending time limit – Consent and compulsory purchase orders – Collateral challenge – Constitutionality of legislation – Whether pleas constituted collateral challenge to making of impugned orders – Locus standi – Whether time limit imposed by rule of court could curtail jurisdiction regarding challenge to constitutionality of legislation – O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301 distinguished; Wandsworth LBC v Winder [1985] 1 AC 461 followed; Blanchfield v Hartnett [2002] 3 IR 207 considered; De Róiste v Minister for Defence [2001] 1 IR 190 applied; Cahill v Sutton [1980] IR 269 considered; AHP Manufacturing BV v Director of Public Prosecutions [2008] IEHC 144, [2008] 2 ILRM 344 distinguished - Rules of the Superior Courts 1986 (SI 15/1986), O 84 – Chancery (Ireland) Act 1867 (30 & 31 Vict, c 44), s 155 – Supreme Court of Judicature (Ireland) Act 1877 (40 & 41 Vict, c 57), s 28 – Gas Act 1976 (No 30), ss 32 and 40 – Gas (Interim) (Regulation) Act 2002 (No 10), s 23 – Constitution of Ireland 1937, Articles 34.3.2°, 40.3 and 43.2 – Held issue not time barred (2005/840P - Laffoy J – 4/3/2010) [2010] IEHC 363 Shell E & P Ireland Ltd v McGrath

Corporate plaintiff and individual plaintiff – Criteria for order against corporate plaintiff – Criteria for order against individual plaintiff – Order against corporate plaintiff structured in two stages – Whether orders for security for costs to be made – Whether special circumstances existed to prevent order against corporate plaintiff – Whether existence of individual plaintiff material to question of order for security for costs against corporate plaintiff – Inter Finance Group Ltd v KPMG Peat Marwick [1998] IEHC 217, (Unrep, Morris J, 29/6/1998), Bula Ltd v Tara Mines Ltd (No 3) [1987] IR 494 and Lismore Homes Ltd (in receivership) v Bank of Ireland Finance Ltd [1992] 2 IR 57 followed; Jack O’Toole Ltd v MacEoin Kelly Associates [1986] IR 277 applied; Comhlucht Páipéar Ríomhaireachta Teo v Udarás na Gaeltachta [1990] 1 IR 320, Pearson v Naydler [1977] 1 WLR 899 and Moore v AG (No2) [1929] IR 544 considered; Pitt v Bolger [1996] 1 IR 108, Maher v Phelan [1996] 1 IR 95, Proetta v Neil [1996] 1 IR 100, European Fashion Products Ltd v Eenkhoorn [2001] IEHC 181, (Unrep, Barr J, 21/12/2001) and Collins v Doyle [1982] ILRM 495 followed; Malone v Brown Thomas & Co Ltd [1995] 1 ILRM 369 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 29 – Companies Act 1963 (No 33), s 390 – Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1968 (Brussels Convention) – Council Regulation (EC) No. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Brussels I) – Structured order made against corporate plaintiff, no order against individual (2008/8540P – Clarke J – 5/2/2010) [2010] IEHC 31 Salthill Properties Ltd v Royal Bank of Scotland plc

Judgment

Summary summons

Plenary action

Execution of judgment – Cross-examination in aid of execution – Debtor’s means – Oral examination – Scope of inquiry – Absence of express provision in Rules of Superior Courts – No provision requiring debtor to make information available prior to crossexamination –Whether power to order prior disclosure of relevant information – Whether power to order discovery of relevant information – Rules of the Superior Courts, 1986 (SI 15/1986) O 42, r 36 - Bank granted relief (2003/9018P & 2005/272S - Clarke J – 16/3/2011) [2011] IEHC 117 Moorview Development Ltd v First Active plc Lis pendens Ownership and interest in land – Receiver – Land subject of proceedings – Proceedings related to ownership of interest in land – Multiple defendants – Plaintiff pursuing bona fide issue against particular defendant – Owner of land proper defendant – Whether lis pendens

Claim for legal fees – Liability for costs of successful appeal to Supreme Court – Refusal of order for costs – Absence of defence – Absence of evidence that amount charged excessive – Absence of evidence that settlement reached – Whether failure to advise that costs order might not be made provided defence – Whether reasonable not to give advice – Whether advice would have been acted upon – Whether proceedings premature – Appeal of decision of Master - Geoghegan v Harris [2000]3 IR 536 considered - Judgment granted (200814927S – Kearns P – 10/12/2010) [2010] IEHC 484 Shaw v McCarthy Summary summons Illegible version of guarantee – Rectification on appeal – Whether contest entered - Absence of defence – Appeal of decision of Master – Judgment granted (2009/4479S – Kearns P – 10/12/2010) [2010] IEHC 480 Allied Irish Banks plc v McCarthy

Legal Update April 2012

Time limits

Library Acquisitions

Appeal – Extension of time - Cross-appeal – Appeal on quantum - Cross-appeal on causation – Respondent informing applicant by letter of intention to appeal – Appeal lodged outside time limit – Whether applicant prejudiced – Whether respondent could put causation in issue in applicant’s appeal against quantum – Respondent not party before tribunal – Statutory scheme – Whether Act limited cross-appeal to issue raised by claimant in appeal – Whether respondent entitled to raise by cross-appeal issue restricted from doing by way of appeal – Statutory provision obscure and ambiguous – Intention of Oireachtas – Long title to Act – Court jurisdiction to extend time to cross-appeal – Eire Continental Trading Company Limited v Clonmel Foods Limited [1955] IR 170, Bank of Ireland v Breen (Unrep, McCarthy J, 17/6/1987) and DB v Minister for Health [2003] 3 IR 12 applied – Brewer v Commissioners of Public Works in Ireland [2003] 3 IR 539 and Hughes v O’Rourke [1986] ILRM 538 considered – Hepatitis C Compensation Tribunal Act 1997 (No 34) (as amended), s 5(15) – Rules of the Superior Courts 1986 (SI 15/1986), O 122 – Rules of the Superior Courts (No 7) (Appeals from the Hepatitis C Compensation Tribunal) 1998 (SI No 392 of 1998), O 105A – Extension of time to appeal refused (2009/5CT – Irvine J, 18/2/2011) [2011] IEHC 132 M(C) v Minister for Health

Jackson, The Right Honourable Lord Justice Civil Procedure 2012 2012 ed London : Sweet & Maxwell, 2012 N361

Time limits Appeal – Extension of time – Good and sufficient reason - Intention to appeal formed within time limit –Error on face of decision – No evidence of mistake –Whether tolerant approach to extensions of time warranted – Error in reasoning of respondent’s decision – Error in description of critical term of insurance policy – Appellant aware of 21 day time limit – Delay blamed on financial difficulties and communications – Whether injustice to insurance company if appeal allowed – Function of respondent – Extension granted in unusual circumstances – Court granting order extending time to appeal unless respondent agreeing to remittal for reconsideration in view of error in reasoning – Eire Continental Trading Company Limited v Clonmel Foods Limited [1955] IR 170, Brewer v Commissioners of Public Works in Ireland [2003] 3 IR 539 and Square Capital Limited v Financial Services Ombudsman [2009] IEHC 407, [2010] 2 IR 514 applied – Central Bank Act 1942 (No 22) (as amended), s 57CL(3) – Rules of the Superior Courts 1986 (SI 15/1986), O 84C, r 1(5) – Relief granted (2010/267MCA – McMahon J – 11/3/2011) [2011] IEHC 137 Little v Financial Services Ombudsman Article Collins, Sam Applications for leave to issue execution on foot of stale judgments and orders 2012 (19) 2 CLP 36

Legal Update April 2012

Delany, Hilary Civil procedure in the superior courts 3rd ed Dublin : Thomson Round Hall, 2012 N350.C5

PRIVACY Article Lehnhardt, Eva Privacy law and the German experience 2012 (2) ILTR 34

PROBATE Administration of estates

Matthews, Paul Disclosure 4th ed London : Sweet & Maxwell, 2012 Malek, Hodge M N386

Succession – Widow – Personal representatives – Extent of duty – Keelan v Garvey [1925] 1 IR 1 and In re Michael Daily [1944] NI 1 applied - Succession Act 1965 (No 27), s 126 (2007/8143P – Murphy J – 10/12/2010) [2010] IEHC 462 Moore v Moore

Statutory Instruments

Will

District Court districts and areas (amendment) and variation of days and hours (Limerick and Kilmallock) order 2012 SI 55/2012

Validity – Testamentary capacity – Whether deceased had testamentary capacity at time of execution of will – Onus of proof – Medical evidence – Complexity of will – Intention of testator – Banks v Goodfellow [1870] LR 5 QB 549 applied; In re Key, dcd [2010] 1 WLR 2020 considered - Succession Act 1965 (No 27), ss 77, 78 and 111- Will proved in solemn form (2009/3286P – Laffoy J – 21/12/2010) [2010] IEHC 475 Scally v Rhatigan

District Court Districts and areas (amendment) (Ennis) order, 2012 SI 20/2012 District Court (districts) order 2012 SI 60/2012 District Court (fines) rules 2012 SI 39/2012 Rules of the Superior Courts (service) 2012 SI 15/2012

PRISONS Assault Duty of care – Foreseeability - Fear of co-accused – Protective custody – Fear of attack – Transfer – Authorities aware of concerns – Assault by fellow inmate in exercise yard on second day – Reception procedures – Plaintiff did not raise concerns on arrival – No protective custody facilities – Whether onus on prison authorities because of circumstances of transfer to make enquiries about possible associates of co-accused in new prison – Security system – System searching prisoners – Whether negligence established – Reasonable steps required to be taken to ensure prisoners not exposed to risk of damage – Balance security and rights of prisoners – No obligation to transfer plaintiff to safest prison – Difference case pleaded and made in oral evidence – Creighton v Ireland [2010] IESC 50 (Unrep, SC, 27/10/2010) and Casey v Governor of Midlands Prison [2009] IEHC 466 (Unrep, Irvine J, 27/10/2009) considered – O’Neill v Dunnes Stores [2010] IESC 53 (Unrep, SC, 16/11/2010) distinguished – Action dismissed (2004/16311P – Irvine J – 1/3/2011) [2011] IEHC 84 Sage v Minister for Justice

PRODUCT LIABILITY Article Carew, Sarah Keeping abreast 2012 (Jan/Feb) GLSI 24

PROPERTY Lawful possession Injurious falsehood - Injunction – Declaratory relief – Sale of soil from defendant’s land to plaintiff by third party – Declaration sought that soil in lawful possession of plaintiff – Injunction restraining defendants from communicating allegations of wrongdoing – Whether plaintiff in lawful possession – Ownership of material – Lawful possession of material – Bona fide purchaser for value without notice – Material severed from land – Chattel - Common law - Sale of goods – Definition of goods – Nemo dat quod non habet – Communications alleging wrongdoing – Whether repetition of allegations created liability in tort – Ingredients of injurious falsehood – AIB v Finnegan [1996] 1 ILRM 401; Gannon v Young [2009] IEHC 511 (Unrep, Laffoy J, 23/10/2009); Kingsworth Finance Trust Co Ltd v Tizard [1986] 1 WLR 783; Sligo Corporation v Gilbride [1929] IR 351 and Scully v Corboy [1950] IR 141 considered – Sale of Goods Act 1893 (, ss 21, 25 and 62 - Declarations and injunctive relief granted (2008/7269P – Laffoy J – 14/12/2010) [2010] IEHC 491 Roche Ireland Limited v O’Mahony

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REAL PROPERTY Adverse possession Spouses – Registration of title – Joint tenancy –Constructive desertion – Severance – Statute of Limitations 1957 (No 6), ss 21, 24, 55, 71, 72 and 74 – Civil Liability Act 1961 (No 41), s 21(1) – Registration of Title Act 1964 (No 16), ss 31, 55 and 120 – Succession Act 1965 (No 27), s 126 (2007/8143P – Murphy J – 10/12/2010) [2010] IEHC 462 Moore v Moore

for Health [2003] 3 IR 12 applied – Finance Act 1988 (No 12) – Finance Act 1989 (No 10) – Hepatitis C Compensation Tribunal Act 1997 (No 34), s 5 – Taxes Consolidation Act 1997 (No 39), ss 811, 811A, 895, 922, 933, 924, 941, 950, 951, 955, 956, 957, Parts 33 and 41 – Finance Act 2008 (No 3), s 140 – Appeal dismissed (2010/1020R – Laffoy J – 31/3/2011) [2011] IEHC 142 Revenue Commissioners v Droog

ROAD TRAFFIC

Judgment mortgage

Statutory Instruments

Registered land - Joint tenancy – Enforcement – Creditor seeking order for sale in lieu of partition – Judgment mortgage against one joint tenant – Whether jurisdiction to make such an order – Act for Joint Tenants 1542 (33 Hen VIII, c 10) – Partition Act 1868 (32 & 33 Vict, c 40), ss 3 & 4 – Local Registration of Title (Ireland) Act 1891 (54 & 55 Vict, c 66), s 21 – Registration of Title Act 1964 (No 16), s 71 – Plaintiff ’s appeal dismissed (110/2006 – SC – 15/5/2011) [2011] IESC 15 Irwin v Deasy

Road traffic (courses of instruction) (learner permit holders) (amendment) regulations 2012 SI 4/2012

Registered land Joint tenancy – Severance – Judgment mortgage – Registration against interest of joint tenant – Debtor dying before execution – Whether registration gave rise to severance of joint tenancy - Whether surviving joint tenant took free of registered judgments – Re Pollard’s Estate [1863] 32 LJ Ch. 657 and York v Stone [1709] 1 Salk 158 approved; M’Ilroy v. Edgar (1881) 7 LR Ir. 521 and Re Scanlon [1897] 1 IR 462 considered; Lord Abergavenny’s Case (1604) Pasch 5 Jacobi approved - Judgment Mortgage (Ireland) Act 1850 (13 & 14 Vict, c 29), s 7 – Conveyancing and Law of Property Act 1881 (44 & 45 Vict, c 41 ), s 2(vi) – Local Registration of Title (Ireland) Act 1891 (54 & 55 Vict, c 66 ), ss 21 and 45 – Registration of Title Act 1964 (No 16), ss 62, 69, 71 and 72 – Succession Act 1965 (No 27) s 4(c) – Land and Conveyancing Law Reform Act 2009 (No 27) – Plaintiff ’s appeal dismissed (16/2009 – SC – 25/11/2010) [2010] IESC 58 Judge Mahon v Lawlor

REVENUE Income tax Time limit - Notice of tax avoidance – Approach to interpretation – Applicability of amendment to statute after the fact to interpretation of statute – Notice stating, inter alia, opinion tax avoidance transaction had occurred – Notice issued to respondent nearly nine years after income tax return relating to transaction filed – Whether Appeal Commissioner correct in law in holding four year time limit applied – Cape Brandy Syndicate v Inland Revenue Commissioners [1921] 1 KB 64 approved – Cronin (Inspector of Taxes) v Cork and County Property Co Ltd [1986] IR 559; Keogh v Criminal Assets Bureau [2004] IESC 32, [2004] 2 IR 159; Harris v Quigley [2005] IEHC 81, [2005] IESC 79, [2006] 1 IR 165; DB v Minister

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Road traffic (licensing of learner drivers) (certificates of competency) (amendment) regulations 2012 SI 3/2012 Road traffic (ordinary speed limit - buses, heavy good vehicles, etc.) (amendment) regulations 2012 SI 75/2012 Road traffic (traffic and parking) (amendment) regulations 2012 SI 74/2012

SALE OF GOODS Article White, Fidelma Report on the legislation governing the sale of goods and supply of services: something old; something new 2012 (19) 2 CLP 23

SOCIAL WELFARE Statutory Instruments Social welfare and pensions act 2010 (section 12 and 13) (commencement) order 2012 SI 42/2012 Social welfare and pensions act 2010 (section 32) (transfer day) order 2011 SI 717/2011 Social welfare and pensions act 2010 (section 33) (appointment day) order 2011 SI 718/2011

SOLICITORS Lien Return of client monies – Costs due Entitlement to exercise lien over client account until costs due discharged - Rules of the Superior Courts 1986 (SI 15/1986), O 53, r 17 – Application refused; order directing payment out to defendants granted (2010/367SP– Kearns P – 10/12/2010) [2010] IEHC 481 McCarthy v Shaw

STATUTORY INTERPRETATION International instrument Purposive construction – Whether provision should be construed in accordance with intention of member states - Council Directive 2003/86/EC – United Nations High Commissioner for Refugees Guidelines on Reunification of Refugee Families 1983 – United Nations High Commissioner for Refugees Resettlement Handbook (Geneva, November, 2004) – United Nations High Commissioner for Refugees Executive Committee on Family Reunification Conclusions 21st October, 1981 – Relief granted (2009/794JR – Cooke J – 25/11/2010) [2010] IEHC 427 Hamza v Minister for Justice Retrospective effect Construction – Statute incorporating European Convention on Human Rights – Application to repealed legislation of requirement that statutory provisions be applied by courts in manner compatible with Convention Whether exercise of power of commutation of sentence subject to constitutional justice – Fair procedures – Dublin City Council v Fennell [2005] 1 IR 604 applied, Condon v Minister for Labour [1981] IR 62 and Sloan v Culligan [1992] 1 IR 223 considered - European Convention on Human Rights Act 2003 (No 20), s 2 - Criminal Justice Act 1990 (No 16), s 5 – Constitution of Ireland 1937, s. 40.1 – Claim dismissed (2007/7061P – Hanna J – 15/4/2011) [2011] IEHC 190 Callan v Ireland Article Hunt, Emer Impact of the Supreme Court in O’Flynn Construction on statutory interpretation Galvin, Turlough 2012 (1) ITR 60

Social welfare and pensions act 2010 (section 38) (appointment day) (No.2) order 2011 SI 716/2011

SUCCESSION

Social welfare (consolidated claims, payments and control) (amendment) (No.1) (overlapping benefits) regulations 2012 SI 38/2012

Contract – Quantum meruit – Unjust enrichment – Provision of voluntary care – Provision of professional services – Intention to create legal relations – Whether claim in quantum meruit or in unjust enrichment arises from provision of voluntary care - McCarron v McCarron (Unrep, SC, 13/2/1997), Henehan v Courtney and Hanley (1967) 101 ILTR 25 and Chaieb v Carter (Unrep, SC, 3/6/1987) applied; Rogers v Smith (Unrep,

Social welfare (consolidated claims, payments and control) (amendment) (no. 2) (partial capacity benefit) regulations 2012 SI 43/2012

Voluntary carer

Legal Update April 2012

SC, 16/7/1970) considered – Defendant’s appeal allowed (2010/12CA – Hedigan J – 3/5/2011) [2011] IEHC 179 Coleman v Mullen

Double taxation relief (taxes on income and on capital) (Federal Republic of Germany) Order 2012 SI 22/2012

Article

Double taxation relief (taxes on income and on capital) (Republic of Armenia) order 2012 SI 21/2012

Keating, Albert Ademption of testamentary gifts 2012 (5) ILTR 69

TAXATION Articles Gallagher, Lorna Challenging the plastic bag levy: Dunnes Stores v the Revenue Commissioners, the Minister for the Environment and the Attorney General 2012 (1) ITR 117 Penman, Tom Current UK tax enquiry regime 2012 (1) ITR 102 Hunt, Emer Impact of the Supreme Court in O’Flynn Construction on statutory interpretation Galvin, Turlough 2012 (1) ITR 60 Maguire, Tom Proposed UK general anti-avoidance rule: to “811” or not to “811”, that is the UK’s question 2012 (1) ITR 75 Connellan, Sarah Ta x a t i o n o f d i r e c t o r s ’ f e e s : r e c e n t developments 2012 (1) ITR 91 Fennell, David The Irish mandatory disclosure regime - one year on 2012 (1) ITR 65 Ramsay, Ciaran The Revenue Commissioners v O’Flynn Constr uction Company Limited, John O’Flynn and Michael O’Flynn: Supreme Court decision 2012 (1) ITR 55 O’Brien, Cora Update on tax collection issues 2012 (1) ITR 94 Cowley, Richard Vat on medical services 2012 (1) ITR 110 Gilhawley, Tony What is an exempt unit trust? 2012 (1) ITR 114 O’Shaughnessy, Daragh Who’s the boss? Recent developments in the PRSI classification of directors 2012 (1) ITR 105

Double taxation relief (taxes on income) (Kingdom of Saudi Arabia) order 2012 SI 26/2012 Exchange of information relating to tax matters (Grenada) order 2012 SI 23/2012 Exchange of information relating to tax matters (Republic of Vanatu) order 2012 SI 24/2012 Library Acquisition O’Connor, Michael VAT on property - made simple 2nd ed Dublin : Bloomsbury Professional, 2012 M337.45.C5

TORT Fatal injuries Damages – Remoteness – Other expenses – Whether costs of legal representation at inquest recoverable – Whether phrase “other expenses actually incurred” could include cost of legal representation at inquest – Grant v Roche Products (Ireland) Ltd [2008] IESC 35, [2008] 4 IR 679, Condon v CIE (Unrep, Barrington J, 16/11/1984) and Magee v Farrell [2009] IESC 60, [2009] 4 IR 703 considered - Civil Liability Act 1961 (No 41), ss 48 and 49 – Damages including costs awarded (2008/1225P – O’Neill J – 27/5/2011) [2011] IEHC 226 Courtney v Our Lady’s Hospital Ltd

TRANSPORT Statutory Instruments Roads act 1993 (classification of national roads) order 2012 SI 53/2012 Roads act 1993 (classification of regional roads) order 2012 SI 54/2012 Light railway (regulation of travel and use) Bye-laws 2012 SI 44/2012 Travel Agents (licensing) (amendment) regulations 2012 SI 61/2012

TRIBUNAL OF INQUIRY

Statutory Instruments

Fair procedures

Double taxation relief (taxes on income and capital gains) (Republic of Panama) order 2012 SI 25/2012

Evidence – Bias – Cross-examination Entitlement to cross-examine on matters concerning allegations of bias – Entitlement to

Legal Update April 2012

curtail time for cross-examination – Principles of judicial review – Whether decision to prohibit cross-examination reasonable and fair – Whether decision to curtail time for crossexamination reasonable and fair – Whether delay in bringing application – Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701, Bailey v Flood (Unrep, Morris P, 6/3/ 2000; SC, 14/4/2000), Flood v Lawlor (Unrep, SC, 24/11/2000), State (Keegan) v Stardust Compensation Tribunal [1986] IR 642, In re Haughey [1971] IR 217, Maguire v Ardagh [2002] 1 IR 385 and O’Callaghan v Mahon [2005] IESC 9, [2005] IEHC 265, [2006] 2 IR 32 applied Constitution of Ireland 1937 – Relief refused (2010/1420JR – Hedigan J – 1/2/2011) [2011] IEHC 30 O’Brien v Moriarty Tribunal

TRUSTS Variation Amendment of settlement – Life assurance policy – Proposed scheme of arrangement – Intended effect – Whether proposed scheme of arrangement would have intended effect – Jurisdiction of court to approve or refuse scheme of arrangement – Jurisdiction of court to approve amended scheme of arrangement – Whether court could approve scheme of arrangement subject to amendment or modification – Practice and procedure – Special summons – Relevant person – Whether special summons should specify relevant person – Benefit to settlor – Detriment to other relevant persons – Identity of residual beneficiaries – Whether personal representative of settlor would distribute estate in accordance with will or on intestacy – Mental capacity of settlor – Whether court had jurisdiction to approve scheme of arrangement where adult incapable assenting by reason of absence of mental capacity – Revenue Commissioners – Notice – Obligation on Revenue Commissioners to apprise court of attitude to scheme of arrangement – In re CL [1969] 1 Ch 587 and In re Tinker’s Settlement [1960] 1 WLR 1011 considered - Land and Conveyancing Law Reform Act 2009 (No 27), Part 5 – Scheme not approved; liberty to amend granted (2010/376SP – Laffoy J – 30/7/2010) [2010] IEHC 505 W v M (apum) and D

WARDS OF COURT Funds Investment of funds in court – Function of investment committee – Consideration of views of committee of ward of court – In re A Ward of Court (withholding medical treatment No 2) [1996] 2 IR 79 considered - Courts (Supplemental Provisions) Act 1961 (No 39), ss 9 and 55- Relief refused (Kearns P – 4/4/2011) [2011] IEHC 129 Re H(M) a ward of court

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WORDS AND PHRASES “Member of family” – Refugee Act 1996 (No 17), s 18 (2009/794JR – Cooke J – 25/11/2010) [2010] IEHC 427 Hamza v Minister for Justice, Equality and Law Reform

At A Glance European Directives implemented into Irish Law up to 31/03/2012 European Communities (authorization, placing on the market, use and control of plant protection products) (amendment) regulations 2012 DIR/2010-54, DIR/2010-55, DIR/2010-56, DIR/2010-57, DIR/2011-14 SI 45/2012 European Communities (conservation of wild birds (Drumcliff Bay special protection area 004013)) regulations 2012 DIR/2009-147, DIR/92-43 [DIR/1992-43] SI 40/2012 European Communities (conservation of wild birds (Middle Shannon Callows special protection area 004096)) regulations 2012 DIR/2009-147, DIR/92-43, [DIR/1992-43]) SI 41/2012 European Communities (control of foot and mouth disease) regulations 2012 DIR/2003-85 SI 51/2012 European Communities (marketing of seeds) (amendment) regulations 2011 DIR/2010-60 SI 739/2011 European Communities mercury (export ban and safe storage) regulations 2012 REG/2202-2008 SI 27/2012 European Communities (minimum conditions for examining agriculture plant species) (amendment) regulations 2011 DIR/2011-68 SI 738/2011 European Communities (minimum conditions for examining vegetable species) (amendment) regulations 2011 DIR/2011-68 SI 736/2011 European Communities (Newcastle disease) regulations 2012 DIR/92-66 SI 57/2012 European Communities (official controls on the import of food of non-animal origin for pesticide residues) (amendment) regulations 2012 REG/1277-2011 SI 46/2012

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European Communities (pet passport) regulations 2012 REG/998-2003, DEC/2004-650, REG/19942004, REG/2054-2004, REG/425-2005, REG/1193-2005, REG/590-2006, REG/14672006, REG/245-2007, REG/454-2008, REG/1144-2008, REG/219-2009, REG/8982009, REG/438-2010) SI 7/2012

4/2012

Health (Provision of General Practitioner Services) Act 2012 Signed 28/02/2012 (Only available electronically)

5/2012

Bretton Woods Agreements (Amendment) Act 2012 Signed 05/03/2012

European Communities (road transport) (organisation of working time of persons performing mobile road transport activities) regulations 2012 DIR-2002/15 SI 36/2012

6/2012

E u r o A r e a L o a n Fa c i l i t y (Amendment) Act 2012 Signed 09/03/2012(Only available electronically)

7/2012

Jurisdiction of Courts and Enforcement of Judgments (Amendment) Act 2012 Signed 10/03/2012 (Only available electronically)

8/2012

Clotting Factor Concentrates and Other Biological Products Act 2012 Signed 27/03/2012 (Only available electronically)

9/2012

Finance Act 2012 Signed 31/03/2012 (Only available electronically)

10/2012

Motor Vehicle (Duties and Licences) Act 2012 Signed 02/04/2012 (Only available electronically)

European Communities (vehicle testing) (amendment) regulations 2012 DIR-2009/40 SI 58/2012 European Union (award of contracts relating to defence and security) regulations 2012 DIR/2009-8 SI 62/2012 European Union (Biofuel Sustainability criteria) regulations 2012 DIR/2009-28 SI 33/2012 European Union (copyright and related rights) regulations 2012 DIR/2001-29 SI 59/2012 European Union (Iran) (financial sanctions) regulations 2012 REG/961-2012 SI 34/2012 Financial transfers (Iran) (prohibition) order 2012 REG/961-2010 SI 35/2012 Statistics (retail sales) order 2011 REG/1165-98, REG/450-2003 SI 737/2011

ACTS OF THE OIREACHTAS as at 13th April 2012 (31st Dáil & 24th Seanad) Information compiled by Clare O’Dwyer, Law Library, Four Courts. 1/2012

Patents (Amendment) Act 2012 Signed 01/02/2012

2/2012

Water Services (Amendment) Act 2012 Signed 02/02/2012

3/2012

Energy (Miscellaneous Provisions) Act 2012 Signed 25/02/2012 (Only available electronically)

Bills of the Oireachtas as at 13th April 2012 (31st Dáil & 24th Seanad) Information compiled by Clare O’Dwyer, Law Library, Four Courts. [pmb]: Description: Private Members’ Bills are proposals for legislation in Ireland initiated by members of the Dáil or Seanad. Other Bills are initiated by the Government. Advance Healthcare Decisions Bill 2012 Bill 2/2012 2nd Stage – Dáil [pmb] Deputy Liam Twomey Advertising, Labelling and Presentation of Fast Food at Fast Food Outlets Bill 2011 Bill 70/2011 2nd Stage – Dáil [pmb] Deputy Billy Kelleher Burial and Cremation Regulation Bill 2011 Bill 81/2011 2 nd Stage – Dáil [pmb] Deputy Thomas P. Broughan Central Bank and Credit Institutions (Resolution) Bill 2011 Bill 11/2011 2nd Stage – Seanad (Initiated in Seanad) Central Bank and Financial Services Authority of Ireland (Amendment) Bill 2011 Bill 67/2011

Legal Update April 2012

2 nd Stage – Dáil [pmb] Deputy Michael McGrath Central Bank (Supervision and Enforcement) Bill 2011 Bill 43/2011 Committee Stage – Dáil Civil Registration (Amendment) Bill 2011 Bill 65/2011 Committee Stage – Seanad [pmb] Senator Ivana Bacik Competition (Amendment) Bill 2011 Bill 55/2011 Committee Stage – Seanad (Initiated in Dáil Éireann) Construction Contracts Bill 2010 Bill 21/2010 2nd Stage – Dáil [pmb] Senator Fergal Quinn (Initiated in Seanad)

Employment Equality (Amendment) (No. 2) Bill 2012 Bill 14/2012 Committee Stage – Seanad [pmb] Senator Mary M. White Entrepreneur Visa Bill 2012 Bill 13/2012 1st Stage - Dáil European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Bill 2011 Bill 45/2011 Order for 2nd Stage – Dáil Family Home Bill 2011 Bill 38/2011 Order for 2nd Stage – Seanad [pmb] Senators Thomas Byrne and, Marc MacSharry

Coroners Bill 2007 Bill 33/2007 Committee Stage – Seanad (Initiated in Seanad)

Family Home Protection (Miscellaneous Provisions) Bill 2011 Bill 66/2011 2 nd Stage – Dáil [pmb] Deputy Stephen Donnelly

Corporate Manslaughter Bill 2011 Bill 83/2011 2nd Stage – Seanad [pmb] Senator Mark Daly

Finance Bill 2012 Bill 5/2012 Committee Stage – Seanad (Initiated in Dáil)

Credit Guarantee Bill 2012 Bill 27/2012 1st Stage - Dáil

Financial Emergency Measures in the Public Interest (Reviews of Commercial Rents) Bill 2012 Bill 22/2012 1st Stage – Dáil [pmb] Deputy Peadar Tóbín

C r i m i n a l Ju s t i c e ( A g g r ava t e d Fa l s e Imprisonment) Bill 2012 Bill 3/20122 1st Stage - Dáil Debt Settlement and Mortgage Resolution Office Bill 2011 Bill 59/2011 Committee Stage - Dail Dormant Accounts (Amendment) Bill 2011 Bill 46/2011 2nd Stage - Dáil (Initiated in Seanad) Education (Amendment) Bill 2012 Bill 1/2012 Committee Stage – Dáil (Initiated in Seanad) Electoral (Amendment) (Political Donations) Bill 2011 Bill 13/2011 Report Stage – Dáil [pmb] Deputies Dara Calleary, Niall Collins, Barry Cowen, Timmy Dooley, Sean Fleming, Billy Kelleher, Seamus Kirk, Michael P. Kitt, Brian Lenihan, Micheál Martin, Charlie McConalogue, Michael McGrath, John McGuinness, Michael Moynihan, Willie O’Dea, Éamon Ó Cuív, Seán Ó Fearghaíl, Brendan Smith, Robert Troy and John Browne.

Fiscal Responsibility (Statement) Bill 2011 Bill 77/2011 2nd Stage - Seanad Freedom of Information (Amendment) Bill 2012 Bill 15/2012 2nd Stage – Dáil [pmb] Deputy Pearse Doherty Health (Professional Home Care) Bill 2012 Bill 6/2012 2nd Stage - Dáil Human Rights Commission (Amendment) Bill 2011 Bill 52/2011 2nd Stage – Dáil [pmb] Immigration, Residence and Protection Bill 2010 Bill 38/2010 Committee Stage - Dáil Industrial Relations (Amendment) Bill 2011 Bill 39/2011 Committee Stage – Dáil [pmb] Deputy Willie O’Dea

Electoral (Amendment) (Political Funding) Bill 2011 Bill 79/2011 2nd Stage – Dáil (Initiated in Seanad)

Industrial Relations (Amendment) (No. 3) Bill 2011 Bill 84/2011 Committee Stage - Dáil

Employment Equality (Amendment) Bill 2012 Bill 11/2012 2nd Stage – Seanad

Landlord and Tenant (Business Leases Rent Review) Bill 2012 Bill 20/2012 1st Stage - Dáil

Legal Update April 2012

Legal Services Regulation Bill 2011 Bill 58/2011 Committee Stage – Dáil Local Authority Public Administration Bill 2011 Bill 69/2011 2nd Stage – Dáil [pmb] Deputy Niall Collins Local Government (Household Charge) (Amendment) Bill 2012 Bill 21/2012 1st Stage – Dáil [pmb] Deputy Niall Collins Local Government (Household Charge) (Repeal) Bill 2012 Bill 18/2012 Order for 2nd Stage – Dáil [pmb] Deputy Brian Stanley Local Gover nment (Superannuation) (Consolidation) Scheme 1998 (Amendment) Bill 2012 Bill 16/2012 Committee Stage – Dáil [pmb] Deputy Mary Lou McDonald Medical Treatment (Termination of Pregnancy in Case of Risk to Life of Pregnant Woman) Bill 2012 Bill 10/2012 2nd Stage – Dáil Mental Health (Amendment) Bill 2008 Bill 36/2008 2nd Stage – Dáil [pmb] Senators Déirdre de Búrca, David Norris and Dan Boyle (Initiated in Seanad) Mobile Phone Radiation Warning Bill 2011 Bill 24/2011 Order for 2nd Stage – Seanad [pmb] Senator Mark Daly (Initiated in Seanad) NAMA and Irish Bank Resolution Corporation Transparency Bill 2011 Bill 82/2011 2nd Stage – Seanad [pmb] Senator Mark Daly National Archives (Amendment) Bill 2012 Bill 8/2012 2nd Stage – Dáil National Tourism Development Authority (Amendment) Bill 2011 Bill 37/2011 Committee Stage – Seanad (Initiated in Dáil) Ombudsman (Amendment) Bill 2008 Bill 40/2008 2nd Stage – Seanad (Passed by Dáil Éireann) Privacy Bill 2006 Bill 44/2006 Order for 2 nd Stage – Seanad (Initiated in Seanad) Privacy Bill 2012 Bill 19/2012 2nd Stage – Seanad [pmb] Senators Sean D. Barrett, David Norris and Feargal Quinn Protection of Employees (Temporary Agency Work) Bill 2011 Bill 80/2011 Report Stage – Seanad (Initiated in Dáil)

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Public Service Pensions (Single Scheme) and Remuneration Bill 2011 Bill 56/2011 Committee Stage – Dáil Qualifications and Quality Assurance (Education and Training) Bill 2011 Bill 41/2011 Committee Stage – Seanad (Initiated in Seanad) Reduction in Pay and Allowances of Government and Oireachtas Members Bill 2011 Bill 27/2011 2nd Stage – Dáil [pmb] Deputy Pearse Doherty Registration of Wills Bill 2011 Bill 22/2011 Committee Stage – Seanad [pmb] Senator Terry Leyden (Initiated in Seanad) Regulation of Debt Management Advisors Bill 2011 Bill 53/2011 2 nd Stage – Dáil [pmb] Deputy Michael McGrath Reporting of Lobbying in Criminal Legal Cases Bill 2011 Bill 50/2011 Order for 2nd Stage – Seanad [pmb] Senator John Crown Road Safety Authority (Commercial Vehicle Roadworthiness) Bill 2012 Bill 25/2012 2nd Stage – Seanad Road Transport Bill 2011 Bill 68/2011 Committee Stage – Seanad (Initiated in Dáil) Scrap and Precious Metal Dealers Bill 2011 Bill 64/2011 2nd Stage – Dáil [pmb] Deputy Mattie McGrath Smarter Transport Bill 2011 Bill 62/2011 2nd Stage – Dáil [pmb] Deputy Eoghan Murphy

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Social Welfare and Pensions Bill 2012 Bill 26/2012 2nd Stage - Dáil Spent Convictions Bill 2011 Bill 15/2011 Committee Stage – Dáil [pmb] Deputy Dara Calleary Statistics (Heritage Amendment) Bill 2011 Bill 30/2011 Order for 2nd Stage – Seanad [pmb] Senator Labhrás Ó Murchú Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011 Bill 47/2011 Committee Stage – Seanad (Initiated in Dáil) Thirtieth Amendment of the Constitution (Treaty on Stability, Co-ordination and Governance in the Economic and monetary Union) Bill 2012 Bill 23/2012 1st Stage - Dáil Thirty-First Amendment of the Constitution (The President) Bill 2011 Bill 71/2011 2nd Stage - Dáil Tribunals of Inquiry Bill 2005 Bill 33/2005 Report Stage – Dáil Twenty-Ninth Amendment of the Constitution (Judges’ Remuneration) Bill 2011 Bill 44/2011 Committee Stage – Seanad (Initiated in Dáil) Twenty-Ninth Amendment of the Constitution (No. 2) Bill 2011 Bill 14/2011 2nd Stage – Dáil [pmb] Deputy Micheál Martin Veterinary Practice (Amendment) Bill 2011 Bill 42/2011 Committee Stage – Seanad (Initiated in Dáil)

Whistleblowers Protection Bill 2011 Bill 26/2011 Order for 2nd Stage – Dáil [pmb] Deputies Joan Collins, Stephen Donnelly, Luke ‘Ming’ Flanagan, Tom Fleming, John Halligan, Finian McGrath, Mattie McGrath, Catherine Murphy, Maureen O’Sullivan, Thomas Pringle, Shane Ross, Mick Wallace Wind Turbines Bill 2012 Bill 9/2012 Committee Stage – Seanad [pmb] Senator John Kelly

Abbreviations A & ADR R = Arbitration & ADR Review BR = Bar Review CIILP = Contemporary Issues in Irish Politics CLP = Commercial Law Practitioner DULJ = Dublin University Law Journal ELR = Employment Law Review ELRI = Employment Law Review Ireland GLSI = Gazette Law Society of Ireland IBLQ = Irish Business Law Quarterly ICLJ = Irish Criminal Law Journal ICPLJ = Irish Conveyancing & Property Law Journal IELJ = Irish Employment Law Journal IIPLQ = Irish Intellectual Property Law Quarterly IJEL = Irish Journal of European Law IJFL = Irish Journal of Family Law ILR = Independent Law Review ILTR = Irish Law Times Reports IPELJ = Irish Planning & Environmental Law Journal ISLR = Irish Student Law Review ITR = Irish Tax Review KISLR = King’s Inns Student Law Review JCP & P = Journal of Civil Practice and Procedure JSIJ = Judicial Studies Institute Journal LG Rev = Local Government Review MLJI = Medico Legal Journal of Ireland QRTL = Quarterly Review of Tort Law

Legal Update April 2012

Access to Justice in Malawi – Irish Rule of Law Project Ruth Dowling BL Irish Rule of Law International (formerly Pamodzi) is a nonprofit charity established by the Law Society and Bar Council. It has set up projects in Ethiopia, Kenya, Kosovo, South Africa, Zambia and Malawi. The Malawi project is seeking to use the experience and knowledge of Irish lawyers to assist the criminal justice sector in Malawi with alleviating inhumane conditions in prisons by reducing the numbers held in pretrial detention. The project intends to tackle overcrowding in the prisons through capacity building, training of police officers and magistrates, running bail clinics, becoming involved in the prosecution led diversion projects and representing defendants for minor cases in the Magistrates Court. This project is part funded by Irish Aid. The overall goal for the Irish Rule of Law Malawi project is to increase access to justice for those within the criminal justice system in Malawi. As this is the first year of a pilot project we are piloting the programme out of Lilongwe, which is in the administrative central region. Two programme lawyers, Ruth Dowling BL and Sonya Donnelly BL have been based in the Department of Legal Aid offices since August 2011 with ongoing outreach clinic work within the local prisons. Lilongwe has two prisons in its immediate vicinity, Maula, an adult prison and Kachere, a juvenile facility. A third lawyer Carolann Minnock, Solicitor is based in the Director of Public Prosecution’s office, with an ongoing placement in Lilongwe Police Station. The project seeks to implement a restorative justice programme, assist with the progression of cases and act as a prosecution liaison with juvenile justice cases. The practices of excessive detention and the holding of prisoners on remand are very common in many African countries. In Malawi defendants face physical, financial and language barriers to legal representation. Most live in remote rural areas on an income of approximately €1 per day, and do not speak English – the language of the court. With no representation, defendants are often held in custody for years, often far longer than the maximum sentence allowed for the offences they are alleged to have committed, until a trial court acquits or sentences them. Warrants are regularly misplaced with prisoners becoming lost in the system. 90% of all detainees in Malawi will never have access to any legal representation, advice or assistance. The vast majority of those are persons who have allegedly committed minor offences. At present Malawi spends €125,000 on legal aid for both civil and criminal matters annually. This is about €0.01 per capita on legal aid. This is compared to €315,500 on the DPP’s office alone. The police prosecutors also have a separate budget for the prosecution of minor files. The DPP offices have prosecution lawyers to prosecute “heavy-weight” Bar Review April 2012

offences, ie murder, rape but it is the police prosecutors that prosecute 90% of cases. The total number of employees in the Legal Aid Department as of November 2011 was 176 posts of which only 24 are for lawyers. At that time there were only 16 legal aid advocates. In a country with a population of 14 million people that is one legal aid lawyer for every 800,000 people. The Legal Aid Department offices are only situated in the three main cities - in Lilongwe, Blantyre and Mzuzu. The Legal Aid Department does not have representation in the remaining districts. The Mzuzu office usually operates with only one lawyer. Most people are living in rural areas and so transport to the cities to see a lawyer proves too costly. There have been some progressive changes in the Malawian Legal System. The Malawian Constitution and recent case law provides a solid legal framework for regulating pre-trial detention, in particular the fair trial rights of accused people and the recent enactment of pre-trial detention time limits further strengthens these provisions. However officials, lower level Magistrates (lay judiciary) and police prosecutors must receive the necessary training in order for the new laws to have any positive effect. The lower Magistrates Courts (District Courts) operate often without any legally qualified person present. The vast majority of Magistrates do not have a law degree. Most prosecutors are police officers who have done a three or six month training course. Most often the accused is unrepresented. As a result, the criminal justice process and the strict custody time limits are routinely infringed with no consequence except to the accused person who remains in custody. The overwhelming picture in terms of detention is that conditions of detention in police cells are poor, with little or no access to food and frequently custody time limits are exceeded. The project has come across detainees who had been kept in police custody for a number of months. The ageing state of many Malawian police stations and the insufficient capacity and nature of cell accommodation are the main cause of many of the major concerns and sufficient funds will remain a challenge for the foreseeable future. While conditions in the prisons are also seriously overcrowded, there had been a brief hope that conditions would improve after the High Court in 2009 found for a detainee, that he had been subjected to torture and cruel, inhuman and degrading treatment, an infringement of his non-derogable rights under Section 44 of the Malawian Constitution. The court noted that overcrowding had contributed to the death of 259 inmates in a space of about 18 months. In its final paragraphs, the Court gave the State 18 months to improve conditions. Unfortunately at the time

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of writing the judgment has not been complied with, as it was to have been by May 2011. It is quite common to find homicide remandees who have been held in prison for upwards of four years having never been to Court and no indication of when their case will be heard. It appears that for homicide matters, it is the cases with stronger evidence (i.e. for which it would be easier to obtain a conviction) which are selected for trial. This effectively means that the weaker the case against the accused, the longer his/her pre-trail detention period will be. In light of this, the programme lawyers are working on a project where they interview the longest remandees to get an understanding of their case. They are trying to get access to files through the criminal registry and are implementing a system of highlighting these cases to the DPP’s office to have them listed for trial, or dismissed if the files are missing or incomplete. Or, they will work with legal aid lawyers and make a bail application. The permanent project in Malawi has been up and running now since August 2011. Much work has been done to tackle the overcrowding and to improve the effectiveness of the system. However matters go at a slow pace. In December 2011 we brought six successful bail applications. These included; • •

•

a female remandee who has been in pre-trial detention since 4th July 2011, who gave birth by caesarean section in prison three months ago a 62 year old man who had been in custody for seven years awaiting trial, he thinks bail had been granted to him years ago but he could not contact his family and therefore could not meet the surety condition and so has remained in custody a 28 year old man who was taken into custody at age 21 years and had remained in custody for seven years without having been to court and without having met a lawyer

Her Worship, Justice Chombo of the High Court in her judgment said “This Court decries the lack of seriousness with which the DPP handles these matters”. She granted unconditional bail which is quite unusual in homicide matters, and declared that should the State fail to bring any proceedings within six months the High Court will consider them discharged of all charges. Also in December 2011, IRLM secured the release of

a Ugandan boy aged 16 from Kachere Juvenile Prison. He was brought before court in July 2011 for theft of a mobile phone. On hearing the case the court ruled that he should be unconditionally discharged. Unfortunately, the social welfare report incorrectly identified the boy as a refugee and the court ordered that he be returned to the nearby refugee camp. Instead, due to lack of transport, the boy was returned to Kachere Juvenile Prison. IRLM assisted with the release of the boy together with the support of the police. Another young boy was being held in Kachere Juvenile prison until there was a “change in his behaviour”. He has spent 2 years there. It was decided his behaviour had improved and so he should be released. However, as he was not a convicted person, it was not clear who had the authority to release him and so he remained in prison. This was highlighted by IRLM to the Prison Board of visitors and he was soon after released. We also helped a juvenile who was arrested for murder in December 2009. Despite the prosecution stating in April 2010 that the case would be discontinued due to lack of evidence, the boy remained in prison until January 2012. IRLM worked with the prosecution and the prison services to secure the boys release. Another project we are looking to become involved with is representing prisoners at the civil society led “camp courts”. Sometimes the prisons in Malawi lack the transport or petrol to bring the prisoners to courts - or the courts lack the space to hold the prisoners in court cells. Accordingly, paralegals invite the Magistrates to establish ‘camp courts’ inside the prison. The paralegals draw up lists of those on remand that have overstayed, that are held unlawfully or that have been granted bail but cannot afford the terms set by the court. Magistrates attend court with the court clerk, police prosecutor and work through the list. They grant bail to some, reduce the bail set by an earlier court, set a date for trial and sometimes dismiss cases where the accused has overstayed. The main benefit of this is that prisoners see the law in action and Magistrates see conditions in the prisons and are able to do something practical to alleviate the situation. As a consequence, tensions in prison are reduced and the lower judiciary are more aware of utilising alternatives to prison in appropriate cases. The Irish Rule of Law Project has secured some funding from some members of the Law Library. This funding will go towards mini-projects which will be set up in Lilongwe together with our partners on the ground to offer training to Police Prosecutors and Magistrates, to run Legal Advice clinics in the prisons and to increases the number of CampCourts being held.

Camp Court Page 38

Bar Review April 2012

The project has received mention in the national Malawi paper ‘The Nation’ as well as an online Malawi paper ‘The Maravi Post’. The Irish Ambassador Ms. Liz Higgins has given us her full support along with the Malawian Ministry of Justice. If you would like more information about this project, including a direct link to our fundraising page, you can access our website at www.irishruleoflawmalawi.com, as well as the IRLI website at www.irishruleoflaw.ie. ■ Prisoners sleeping in over-crowded cells

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Bar Review April 2012

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Unconstitutional Omissions Yvonne Mullen BL Introduction Traditionally, when faced with the question of whether or not an Act of the Oireachtas is unconstitutional, a lawyer will tend to look for an active breach – an enactment that positively offends the Constitution. But what about that far more subtle breach, the omission? What part may the courts play when the legislature or the executive, either by accident or design, brings into force legislation that allows an unconstitutional lacuna to open up? What remedy may be offered in such circumstances? After all, it must be remembered that in State (Trimbole) v Governor of Mountjoy Prison, the Supreme Court decreed in no uncertain terms that “the Courts not only have an inherent jurisdiction but a positive duty: (i) to protect persons against the invasion of their constitutional rights, (ii) if that invasion has occurred, to restore as far as possible the person so damaged to the position in which he would be had his rights not been invaded, and (iii) to ensure as far as possible that the persons acting on behalf of the executive who consciously and deliberately violate the rights of citizens do not themselves or their superiors obtain the planned results of that invasion”. How then may an applicant who is the victim of an unconstitutional lacuna obtain redress? After all, equity teaches us “where there is a right, there must be a remedy” (ubi jus, ibi remedium). A Declaration of Unconstitutionality The courts may strike down any Act of the Oireachtas, which they feel is not in compliance with the Constitution by making a declaration of unconstitutionality pursuant to Article 34.3.2. The effect is to banish immediately the offending legislation, and theoretically at least, it is as if it never existed . This is the conventional approach to a declaration being made. It was succinctly expressed by Keane J in his judgement in Somjee v Minister for Justice & Attorney General , when he said:“The jurisdiction of this Court in a case where the validity of an Act of the Oireachtas is questioned because of an alleged invalidity having regard to the provisions of the Constitution is limited to declaring the Act in question to be invalid, if that indeed be the case. The Court has no jurisdiction to substitute for the impugned enactment a form of enactment that it considers desirable or to indicate to the Oireachtas the appropriate form of enactment which should be substituted for the impugned enactment”. [1985] IR 550; [1985] ILRM 465 This is a simplistic assessment of the law – see A v Governor of Arbour Hill Prison [2006] 4IR 88, which dealt with the retrospective effect of a declaration of unconstitutionality. This topic is beyond the scope of this article. [1981] ILRM 324

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The case opened a rather appalling vista for those applicants who may be labouring under an unconstitutional omission. The learned judge found that, even if the plaintiff ’s case was well founded (which he had found it was not), that the only redress he could offer would be to strike down the legislation. Since that redress would not vindicate the plaintiff ’s constitutional rights by improving his position, a declaration of repugnancy would be simply an “academic exercise”. This was a “fatal obstacle” to success. The adoption of such a rationale would lead to far more difficulties for those claiming an unconstitutional omission, as quite often they will be seeking a benefit or protection conferred on others but refused to them. If a successful argument could be made that by removing the benefit or protection from everyone they are in no better a position than when they began, then no redress would be available to an otherwise meritorious applicant. However, the approach taken by Keane J has not always been followed, and indeed as will be seen below, has recently been called directly into question. Unconstitutional Omissions in the Common Law In McKinley v Minister for Defence the plaintiff issued proceedings claiming that by reason of the negligence and breach of duty of the defendant, her husband had suffered serious personal injury, which rendered him sterile and impotent and by virtue of which she had suffered a loss and impairment of consortium and servitium. Traditionally the common law had only recognised the right of a husband to sue for loss of consortium and servitium of his wife, but not vice versa. This was based on the rather medieval concepts of a wife being a chattel of her husband. Both parties agreed that the common law rules were unconstitutional vis a vis Article 40.1 of the Constitution, which provides: “All citizens shall, as human persons, be held equal before the law.” The State submitted that as the common law rule was clearly discriminatory it should be struck down, while the plaintiff argued that the courts had the power to extend the common law and that a constitutional construction should be placed on the doctrine. In this way the law would be subject to an evolution. The majority of the Supreme Court agreed that the common law could be extended to allow a wife to take a loss of consortium claim regarding her husband’s injuries. It found that, in principle, where a common law right offends [1992] 2 IR 333

Bar Review April 2012

against the principal of equality, the court could redress the inequality by a positive declaration that the right vests in the party discriminated against and was not limited to simply striking the offending principal down. Of course, the omission in McKinley was a lacuna in the common law and easily susceptible to judicial modification. Therefore the question of what remedy is available where a legislative omission becomes apparent still remains. Divergent Approaches Unfortunately, there is no clear precedent indicating in what manner a court should remedy unconstitutional lacunae. Attempts to resolve difficulties caused by gaps in legislation have ranged from “having a word in the ear” of the legislature to the prohibition of trials. While, of course, every case must turn on its facts, it is respectfully submitted that a clearer approach should be adopted in order to allow some certainty to prevail. The divergent approaches taken by the Superior Courts in these types of cases are demonstrated by the three cases outlined below. In McMenamin v Ireland, the Minister for Justice and The Attorney General, the applicant, who was a District Judge, challenged the constitutionality of section 2 of the Courts of Justice and Court Officers (Superannuation) Act 1961. That Act had reduced the pension of judges by one quarter, but had granted a retirement gratuity of equal value in lieu. Therefore at the time of the passing of the Act no overall reduction of judges’ pay would have been affected. Any such reduction, of course, would have breached Article 35.5 of the Constitution, as it then stood. Over the course of time, the judges of the District Court had suffered a real reduction in the value of their pension by reason of this scheme. By the time the applicant had come to retire, the value of the lump sum had been eroded by three percent. Mr Hogan BL (as he then was), for the applicant, described it as a “creeping unconstitutionality”. Geoghegan J in the High Court found that the original enactment itself was not unconstitutional, but granted declaratory relief that “the State in permitting a gross inequality to arise between the reduction in pension of District Court judges and the cost of a lump sum gratuities intended to be met with such a reduction is in breach of its constitutional duty to secure pension rights for District Judges which were not irrational or wholly inequitable”. The main grounds of appeal put forward by the State included that the learned judge had erred in law and fact in granting such a declaratory order, “when the effect of so doing was to indicate to the Oireachtas the appropriate form of legislation to be passed to rectify the anomaly”. It was argued that such a declaration was a breach of the doctrine of the separation of powers. The Supreme Court unanimously upheld the State’s appeal and refused to grant declaratory relief. However, each member of the Court expressed dissatisfaction with the situation relating to the pension arrangements of District Court Judges; finding them unjust in all the circumstances. Hamilton CJ bluntly asserted that “this situation requires to be remedied by the Oireachtas”, but declined to direct [1996] 3 IR 100

Bar Review April 2012

the manner in which it should be remedied. O’Flaherty J concurred with the Chief Justice in this respect, describing the solution as one which “ideally balances an identification of the injustice that this case has illuminated with a preservation of the essential harmony that is required for the operation of the separation of powers”. In essence, the Supreme Court in this case announced to the Oireachtas that a lacuna had opened up and that it expected that it shoulder its constitutional responsibilities and remedy the situation. They duly complied and the Oireachtas (Allowances to Members), and Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Act 1998 was passed. The relevant provisions were deemed to have come into force on the day the Supreme Court issued its admonishment. In contrast, we can examine the attitude taken in the case of S.M. v Ireland, the Attorney General and the Director of Public Prosecutions . The applicant, S.M. had issued a plenary summons challenging the constitutionality of s. 62 of the Offences Against the Person Act 1861, which provided for the sentencing of the common law offence of sexual assault as against a male person. The corresponding offence as against a female person carried a lesser maximum sentence than sexual assault of a male. Unsurprisingly, the Act was challenged on the basis that it created an unjustifiable inequality before the law, contrary to Article 40.1 of the Constitution. Laffoy J struck down the section on this basis, holding in her judgement that “all the court can do is to declare that the statutory maximum penalty provided for in s.62 on conviction of the common law offence is inoperative”. However, a reporter’s note at the bottom of the judgment reveals that after hearing further submissions the learned judge was persuaded to make a declaration in the following terms: “A declaration that if the plaintiff were to be convicted and sentenced for the common law offence of indecent assault in respect of a male person, for the sentencing judge to apply the maximum sentence of more then the equivalent sentence that would have been available at the time of the offence for the indecent assault upon a female would be in breach of the plaintiff ’s constitutional right to equality”. The actual declaration made seems to fly in the face of the judgment itself and is in contrast with the judge’s comments that she would not rewrite the law. It effectively seeks to place a cap on the jurisdiction of the trial judge – a cap which goes beyond the traditional remedies of prohibition, mandamus etc. However, the case itself is a pointer to how the law might develop in the future; that a declaration might be used to try and fill a legislative gap. Finally, we should examine the recent decision in Carmody v Minister for Justice & Ors to see a recent example of how the Supreme Court has dealt with a “creeping unconstitutionality”. The applicant, Mr Carmody, was to be tried in the District Court with 42 offences, which in the main related to breaches of various regulations intended [2007] 4 IR 369 [2010] 1 IR 635

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to protect cattle from disease and prevent the spread of brucellosis. Section 2 of the Criminal Justice (Legal Aid) Act 1962 provided only for the assignment of a solicitor in the District Court, with no provision having been made for the appointment of counsel. In accordance with the Act, the applicant was only granted a solicitor to represent him at the hearing of his action. He contended that this was a breach of his right to a trial in due course of law, as it excluded even the possibility that the District Judge might consider granting a certificate for counsel. Murray C.J. in his judgment looked closely at the history of the District Court, and in particular at the increase of its workload over the years, both in absolute terms and in the new and complex regulatory offences it now deals with. He concluded that it had “grown enormously” since its creation. There was no doubt but that the applicant had a right to legal aid but the question arose as to whether, over the course of time, a gap had emerged in the legislation. Legal aid for counsel should have been provided for in tandem with the increase in the range and complexity of offences that the District Court could provide for. Murray CJ held that: “In order to vindicate the constitutional rights of an indigent defendant in the District Court to a fair trial, he or she must be entitled to legal aid with representation by counsel as well as a solicitor where it is established that because of the particular gravity and complexity of a case or other exceptional circumstances, such representation is essential in the interests of justice. It follows that any such defendant must have the right to apply for legal aid and have the application determined on the merits.” Effectively, the court determined that the scheme to allow legal aid in respect of counsel was a constitutional imperative. However, a query was raised over what good would come from striking down the relevant legislative provision. If the court were to follow the logic in Somjee, this would mean that no remedy could be offered to the applicant. The court identified the issue as this: “the mischief complained of by the plaintiff stems not from the effect of its provisions but from a failure of the State to make provision at any time for such legal aid”. The failure to provide for legal aid was described as a “constitutional deficiency” rather than a positive act of repugnancy. The court went on to suggest that there was nothing stopping the Oireachtas from passing such a scheme, whether by amending the Act or otherwise. This, of course, resonates with the course plotted by the Supreme Court in McMenamin. However, as well as having the “word in the ear” of the Oireachtas, the court emphasised that the plaintiff was entitled to have his constitutional rights vindicated. It granted a declaration that the plaintiff had a constitutional right to apply for legal aid, and prohibited his trial until this right State (Healy) v Donoghue [1976] IR 325

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could be afforded to him. Such a scheme was implemented very shortly thereafter. In the author’s opinion, this option has to be by far the most sensible and therefore attractive approach. It is cognisant of the fact that an individual has applied for his rights to be vindicated and grants relief in respect of that individual. While the court does point out to its constitutional neighbours that a deficiency exists (and suggests a remedy), it does not rely on comity to ensure that justice is done. It is respectfully suggested that goodwill should not be a substitute for a decisive legal outcome. B.G. v District Judge Murphy, Director of Public Prosecutions and the Judges of the Circuit Court (no. 2) The issue has again been illuminated by a decision of Hogan J. The facts of B.G. v District Judge Murphy & Others have highlighted what can only be considered as a most disturbing oversight in the Criminal Law (Insanity) Act 2006. The applicant in question was charged with a sexual assault contrary to section 2 of the Criminal Law (Rape) Amendment Act 1990. It appears from the judgment that evidence was presented that placed the applicant’s mental health in some considerable doubt. When the case had appeared in the District Court, the DPP had directed summary disposal of this indictable offence on a plea of guilty only, pursuant to section 13 of the Criminal Procedure Act 1967. However, a question arose as to the applicant’s fitness to plead. In those circumstances, section 4(3)(a) of the Criminal Law (Insanity) Act 2006 was examined. That section provides: “Where an accused person is before the District Court (in this section referred to as “the Court”) charged with a summary offence or with an indictable offence which is being or is to be tried summarily, any question of whether the accused is fit to be tried shall be determined by the Court.” As the applicant did not fit into either of the two categories provided by the section, Hogan J found that it followed that section 4(4)(a) of the same Act must therefore apply. That section provides: “Where an accused is before the Court charged with an offence to which paragraph (a) of subsection (3) applies, any question about whether that person is fit to be tried shall be determined by the court of trial to which the person would have been sent forward if he or she was fit to be tried and the Court shall send that person forward to that Court for the purpose of determining the issue”. The problem immediately becomes obvious. The learned Judge had previously decided that the effect of the 2006 Act is that the applicant had to be sent forward for trial to the Circuit Court in order to determine if he was fit to plead. If the applicant was later found to be fit to plead, he would be [2011] IEHC 445

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deprived of the sentencing constraints of the District Court, and instead faced the full jurisdiction of the Circuit Court, in this case a maximum of 14 years. Furthermore, if the matter was to be disposed of in the District Court and the applicant wished to appeal, bail would be almost a certainty and a full de novo sentencing hearing granted. This stands in stark contrast with an appeal from the Circuit Court, where bail is only granted in the rarest of circumstances and a sentence interfered with only if an error in principle can be established. The learned judge set out the applicant’s argument as follows: “The applicant’s case is accordingly that the construction of the 2006 Act gives rise to an unconstitutional lacuna in that he has no real means of availing of the opportunity – should this prove advantageous to do so after the determination of the fitness to plead issue – of pleading guilty before the District Court and thereby securing the benefit of the lower range of maximum sentences which might be imposed upon him.” They contended that this unconstitutional lacuna was a form of discrimination that was a breach of Article 40.1 of the Constitution. The learned judge found that it was clear that the Oireachtas had failed to have regard to the rights of the mentally ill in this piece of legislation and that the discrimination that arose therefrom could not be objectively justified. It is clear from his decision that the omission was deemed to be an “accidental oversight” and that “the legislation had unintentionally yielded an anomaly”. The judge then turned his mind to the issue of the remedy that should be granted. In line with Somjee, he pointed out that striking down the legislation simplicter, would confer no benefit to the applicant. However, he expressly disagreed with the finding in that case that a court cannot do more then find an Act of the Oireachtas repugnant to the Constitution. He found that the superior courts may declare that a law fails to meet constitutional norms by reason of an unconstitutional omission. In this respect he relied on Carmody. The judge also dealt with the issue of the separation of powers. He quite rightly accepted that he could not indicate to the Oireachtas how or in what manner a piece of legislation should be amended. However, he felt that in cases such as Carmody and the present case that “the process of judicial review of legislation may, however, contribute to effective law making in that – just as in the present case – it may throw up examples of anomalies or other instances of unconstitutional differentiation”. In this respect, the judge has put his seal of approval on the practice of using the medium of the judgment to send a signal to the Oireachtas. While Hogan J did adopt a Carmody-style declaration, unfortunately he did not follow its example to the end. Rather than providing the applicant with an order of prohibition of his trial, he elected instead to follow the precedent set in S.M. He declared that if the applicant was to be found fit to plead, and afterwards pleaded guilty that the sentencing judge could

Bar Review April 2012

not apply a sentence longer than the District Court, as to do so would be a breach of the plaintiff ’s right to equality. In this instance therefore, the High Court has sought to bind the Circuit Court’s sentencing jurisdiction beyond what is provided for in legislation. The judge characterised it in dental terms, being the legislative equivalent of a temporary filling. While S.M. does provide a precedent for this, it is respectfully submitted that to have done so is to move directly into the realms of the creation of legislation. While it is clear that the court was striving to obtain justice, such an approach still allows for discrimination to occur – particularly in regard to any appeal. The solution reached in Carmody – prohibition of the trial pending the resolution of the anomaly – would appear to have provided a more comprehensive protection for the accused. Furthermore, it would remain within the more traditional remedies offered by the superior courts. Conclusion This is a question that is bound to crop up again in the future as further lacunae are identified. Unfortunately we have no clear decision on how to approach the issue, although B.G. does provide great assistance in defining the problem. At the time of writing, the case had not been appealed so the range of possible remedies available to a court are numerous. While this does allow flexibility to suit the needs of the case, a clarification from the Supreme Court must surely be welcome. ■

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Help, I Need Somebody! Causation, Foreseeability and the Law of Rescue Zeldine Niamh O’Brien BL* “Danger invites rescue. The cry of distress is the summons to relief... The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.” - Justice Cardozo

of negligence… the rescuer cases and those cases in which it is contended that an alleged tortfeasor is responsible for injury caused by the wrongful acts of a third party”. It is the first time the Irish Supreme Court has imposed liability on the basis of the rescue principle.

Introduction

The Law of Rescue

The words of Cardozo J have oft found their voice in the case law most recently in the decision of the Irish Supreme Court in O’Neill v Dunnes Stores. There is no duty in Irish law to offer succour as Linden observed, “[t]he early courts were hesitant to undertake the job of requiring people to help their neighbors for their hands were full enough trying to prevent them from attacking one another.” It was the view of the Law Reform Commission that it was unlikely that any such duty would promote volunteering or active citizenship. It will therefore remain the prerogative of the common law to regulate the claims of rescuers. The case of O’Neill concerned the recovery by such a volunteer rescuer or “amateur Good Samaritan” for injuries inflicted by a third party in the course of rendering aid to a security guard in the employ of the Defendant. This article considers the position of such volunteer rescuers with regard to foreseeability as it arises at “a difficult intersection between two areas of the law

The principle of rescue has been formulated as follows:

* LL.B.(Dubl), B.L., M.A. (Dubl), Ph.D. (Dubl). This article is based on a paper presented at the Torts Section of the Society of Legal Scholars Conference at Cambridge in September 2011. Wagner v International Railroad Co. (1921) 232 NYS 176, 33 NE 437. See generally “Right of Rescuer to Recover from Tortfeasor for Injuries Sustained,” (1923) 9 Vir. L.Rev. 376. See for example, Haynes v Harwood [1934] 2 KB 240, at 242; Chadwick v British Railways Board [1967] 1 WLR 912, at 921; Baker and Anor v T.E. Hopkins and Sons Ltd. [1959] 1 WLR 966, at 972; Greatorex v Greatorex [2000]1 WLR 1970, 1975; Alcock v Chief Constable of South Yorkshire Police [1991] 3 WLR 1057, at 1110 and 1122, McLoughlin v O’Brian and Ors [1983] 1 AC 410, at 424 and Tolley v Carr [2010] EWHC 2191 (QB); [2011] R.T.R. 7 (QBD (Chester)). [2010] IESC 53, [2011] 1 I.L.R.M. 461. See generally, O’Neill, “Rescuing the Law of Tort? The Decision of the Supreme Court in O’Neill v Dunnes Stores,” (2010) 45(1) Irish Jurist 240. Linden, Allen, “Rescuers and Good Samaritans,” (1972) 10 Alta. L. Rev. 89 at 90. LRC, Report on the Civil Liability of Good Samaritans and Volunteers LRC 93-2009. See Malm, “Bad Samaritan Laws: Harm, Help or Hype?” (2000) 19 L & Phil 707. Fulbrook, Julian, Comment [2011] Journal of Personal Injury Law C19, C20. For professional rescuers see for example Ogwo v Taylow [1987] 2 WLR 988, Alcock v Chief Constable of South Yorkshire Police [1991] 3 WLR 1057, Frost v South Yorkshire Constable [1998] QB 254, White v Chief Constable of South Yorkshire [1999] 2 A.C. 455 (HL), Kent v Griffiths (No.3) [2001] Q.B. 36 (CA (Civ Div)), Jones, “Compensating Professional Rescuers,” (1988) 104 LQR 195, Todd, Stephen “Psychiatric Injury and Rescuers,” (1999) 115 LQR 345 and Gillespie, A., “Reconsidering the Good Samaritan: A Duty to Rescue?” (2008) 39 Cambrian L. Rev. 26.

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“if a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger. He owes a duty to such a person above all others. The rescuer may act instinctively out of humanity or deliberately out of courage. But whichever it is, so long as it is not wanton interference, if the rescuer is killed or injured in the attempt, he can recover damages from the one whose fault has been the cause of it.’’ Typically cases concern a situation of peril created or otherwise giving rise to a rescue as occasioned directly by the Defendant’s negligence rather than by the deliberate conduct of a third party as seen in O’Neill. The position of the rescue principle in Irish law had been previously considered by the Supreme Court in Phillips v Durgan. In that case, the plaintiffs who were married sought recovery in damages arising from injuries sustained in the course of an accidental fire on the premises of the Defendant. The wife had been engaged in cleaning a kitchen at the request of her brother, the Defendant. She slipped against a defective gas cooker and the cloth she held caught fire. Due to the greasy state of the kitchen, the fire spread rapidly. Her husband was injured in removing her from the kitchen. On appeal from the High Court, the Defendant submitted inter alia that the principle of rescue did not apply in Irish law. The Court rejected this submission. It found the principle of rescue as being focused on foreseeability and adopted the formulation in Ogwo v Taylor:10 “only of a situation in which the court will rule as a foreseeable consequence of the negligent commencement of a fire that persons seeking to put out that fire, either by reason of their duty as officers of a fire brigade or by reason of their desire to prevent damage, whether to persons or property, may be injured by the existence of the fire. It is essentially, Ibid., per O’Donnell J. Videan v. British Transport Commission [1963] 2 Q.B. 650 per Denning MR at p. 669, quoted and approved by Griffin J in Phillips v Durgan [1991] 1 IR 89 at p.96. [1991] 1 IR 89; [1991] ILRM 321. 10 [1988] AC 437.

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therefore, a doctrine of foreseeability and cannot… come into operation without an initial negligence causing the fire.’’11 But the Court imposed liability on the basis of a breach in the primary duty of care owed to the Plaintiff and to her husband as the occupier of the premises rather than the rescue principle. O’Neill therefore represents not the first consideration of the rescue principle, but the first time liability has been imposed thereunder. Facts of O’Neill v Dunnes Stores In O’Neill, the Plaintiff ’s claim lay in respect of injuries sustained in the course of rendering aid voluntarily to a security guard in the employ of the Defendant supermarket, in dealing with two suspected shoplifters in the course of his employment. On the day in question, the Plaintiff was leaving the shopping centre when he witnessed a security guard, a Mr Keith Byrne, struggling with another man. Mr Byrne was the only security guard on duty. Mr Byrne had given chase to two individuals, Ciaran McCormack and Alexander Colville, who had been seen taking bottles of alcohol from the Defendant’s off-licence. Mr McCormack fled out into the car park while Mr Colville was caught just outside the premises and attempted to bottle the security guard. In the course of the struggle, Mr Byrne asked a cleaner in the shopping centre to go and get help from the managers of the Defendant. The Plaintiff responded. He saw the thief, Alexander Colville attempting to get a bottle to strike Mr Byrne. There was a difference in the evidence presented before the High Court with the Plaintiff testifying that Mr Byrne asked him for help and Mr Byrne denying it. The trial judge accepted the Plaintiff ’s evidence and on appeal, the Appellant accepted that this was the factual basis upon which the Court was to proceed. The Plaintiff went to Mr Byrne’s assistance and Mr Byrne “did not turn it down”.12 He assisted him in restraining Mr Colville. At this point, Mr McCormack returned and commenced pulling and kicking at both Mr Byrne and Mr O’Neill, telling them to leave his friend alone. Mr Byrne phoned the gardaí on his mobile phone and they arrived shortly after. The Plaintiff continued to restrain Alexander Colville while Mr McCormack returned to the shopping centre. He became aggressive and was asked to leave, which he did. However, he then returned with a motor cycle chain and swung it, striking the Plaintiff across the face, fracturing his nose, injuring his face and driving the Plaintiff back against a pebble dashed wall injuring his back. Ciaran McCormack continued to do so until subdued by the gardaí. Before the High Court, liability was imposed on the basis of the primary liability of a wrongdoer to a rescuer who responds to the peril created by the wrongdoer and the vicarious liability of an employer for the negligent acts of his or her employee. He awarded damages to the Plaintiff. The appeal against the finding of liability was on four grounds: first, that the refusal of the Defendant’s non-suit application was wrong; it was submitted the Plaintiff had no prima facie case; second, that there was no expert evidence 11 [1991] 1 IR 89, per Finlay CJ at 94. 12 [2010] IESC 380.

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to support the Plaintiff; thirdly and fourthly, the Defendant submitted that if there had been inaction on its part it had not led to the creation of the situation of peril nor did it give rise to the necessity of rescue rather the injuries had been caused by the wrongful acts of a third party. On the first ground, the Court adopted the approach seen in Payne v Harrison13 and examined the entirety of the evidence to determine whether the trial judge had been correct in finding the Defendant liable. On the second ground, the Court stated that there was no absolute requirement that expert evidence be given and it was entitled to form its own opinion on matters not requiring special expertise.14 There was no evidence put before the Court as to the normality of the number of security on guards on duty for late night shopping in a store with the size and throughput of Dunnes Stores in Thurles. Evidence of a protocol emerged on cross-examination but the protocol itself had not been put in evidence directly. There were significant difficulties in treating this as evidence of general practice as the protocol was evidence only of the practice of the Defendant and as the evidence of the protocol entitled security to refrain only where he felt it was outside his capacities, it was therefore subjective. O’Donnell J for the majority concluded: “I would be very slow to impose through the law of negligence some inflexible rule that there must always be a minimum of two security guards in any store, at least on the limited evidence proffered in this case. I would be even more reluctant to stigmatise as negligent, the acts of the security guard who confronted, chased and detained a shoplifter – especially one who appeared unruly, intoxicated and given to violence. It is one thing for prudence to suggest caution rather than courage in certain circumstances; it is quite another that the law should demand caution and penalise courage.’’ It was this dearth of evidence that resulted in the dissent from Fennelly J. Nonetheless, the majority found that the Defendant had been negligent on a narrower basis. If there had been a system in place, O’Donnell J found it had failed and while the Court did not hold that two security guards should have been on duty, it did require that someone be available to assist the guard. The failure to equip the guard with a two-way radio which was more efficient for communication than the mobile phone with which he was furnished was a failure capable of being found by the trial judge as the necessary proof of fault or omission. The Court considered grounds three and four together. Wrongful Acts of Third Parties and Foreseeability This was the first occasion the Supreme Court had cause to consider the position of liability where the peril giving rise to the need for rescue was not caused by a Defendant, but rather by the wrongful act of a third party. The issue had been considered by the Circuit Court in Millington v Taylor (t/a The Big Tree Public House), 15 where the plaintiff sued her employer for injuries sustained when she attempted to prevent a thief 13 [1961] 2 QB 403. 14 See AG (Ruddy) v Kenny (1960) 94 ILTR 185, per Davitt, P at 186. 15 Unreported, Dublin Circuit Court, McMahon J., July 17, 2002.

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from removing the defendant’s bar stock and appropriating her car. The thief had gained entry by the back door to the pub which could not be locked from the outside and was unlocked on the day of the theft. The Plaintiff sustained injuries when she was thrown from the bonnet of her own car while the thief was in command of the vehicle, having obtained her car keys while in the bar and loaded the stock into it. Liability was imposed on the defendant in these circumstances. The Supreme Court in O’Neill accepted that: There is no reason in principle why, if on the established law a party can be liable for injury caused by the wrongful act of a third party, the first party’s liability should not extend to any rescuer who is injured in an attempt to rescue an individual. As seen in Phillips, the focus is centred on the forseesability of the rescue attempt. Indeed, remoteness is one means by which rescuer claims may be limited as occurred in Crossley v Rawlinson16 where recovery for injury sustained by a rescuer who had successfully put out a fire from tripping in a pothole on the verge of the A12 was precluded on just such a basis.17 Novus Actus Interveniens In O’Neill, the Defendant submitted that the criminal conduct constituted a novus actus interviens. Clerk and Lindsell identify four issues in this regard: “Was the intervening conduct of the third party such as to render the original wrongdoing merely a part of the history of events? Was the third party’s conduct either deliberate or wholly unreasonable? Was the intervention foreseeable? Is the conduct of the third party wholly independent of the defendant, i.e. does the defendant owe the claimant any responsibility for the conduct of that intervening third party? In practice, in most cases of novus actus more than one of the above issues will have to be considered together.18’’ The rationale of the rule is grounded in fairness.19 The criminal behaviour of third parties as a novus actus was considered in the context of negligence by the Court of Appeal in Chubb Fire Ltd v the Vicar of Spalding.20 In that case, the interior of a medieval church had been damages by the contents of fire extinguishers discharged by vandals who gained access to the premises being unlocked and unmonitored. The insurer brought an action in subrogation against, inter alios, the supplier of the extinguishers. The trial judge found that the malicious discharge of the extinguisher was foreseeable. On appeal, the Court found this approach 16 [1982] 1 W.L.R. 369; [1981] 3 All E.R. 674. 17 See Jones, Michael “Remoteness and Rescuers” [1982] Modern Law Review 342. 18 Clerk and Lindsell on Torts, 19th edn (2006) quoted with approval by Buxton LJ in Roberts v Bettany [2001] EWCA Civ 109 at [17] – [20] with Laws LJ concurring. 19 Corr v IBC Vehicles Ltd. [2008] 1 AC 884 per Bingham LJ at para. 15. 20 [2010] 2 CLC 277, [2010] NPC 92, [2010] EWCA Civ 981, [2010] All E.R. (D) 96.

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too simplistic.21 It was not sufficient to merely ask whether the acts of vandalism were foreseeable.22 An action could be foreseeable but be no more than a “mere possibility”.23 The Court applied the doctrine of “new intervening acts” as set out in Simmons v British Steel plc24 and in light of it, and the four issues identified by Clerk and Lindsell, concluded that the Defendant supplier was not liable for the damage done by the malicious discharge of the extinguishers. In O’Neill, the Court distinguished between the two strands of authority concerning rescuers and the line of authority concerning third party wrongdoing: “The classic case where an initial act of negligence made a party responsible for the loss caused by the wrongful act of the third party is the well known case of Home Office v Dorset Yacht Company [1970] AC 1004, considered recently in this Court, in Breslin v MIBI [2003] 2 IR 203. The principle in the Dorset Yacht case was expressed succinctly, by McWilliam J in a Circuit Court case of Dockery v O’Brien (1975) 109 ILTR 127: With regard to a novus actus interveniens, Lord Reid, in the Dorset Yacht Company case, said that, if what was relied on as a novus actus interveniens is the very thing which is likely to happen if the want of care which is alleged takes place, the principle involved in the maxim is no defence, and he added that, unfortunately, tortious or criminal action by a third party may be the very kind of thing which is likely to happen as a result of the wrongful or careless act of the defendant … This was the very kind of thing which a reasonable person should have foreseen.’’ Causation The Court applied the test in Dockery and concluded that the actions of Mr. McCormack were “the very thing” that was likely to happen if the Defendant was negligent. It further held that there was “a strong connection” between the wrongdoing of the Defendant and what subsequently occurred. O’Donnell J stated obiter that even if no help had been forthcoming and the Plaintiff was injured in the same circumstances, liability would have been imposed on this basis. The Court continued to apply the usual Hughes proviso25 to the requirement of foreseeability: “It was therefore entirely foreseeable that if a security guard was put in a situation requiring assistance and was obliged to seek assistance from a member of the public, and if that member of the public responded, then he may well have be injured in offering assistance. In this regard I think it is irrelevant that the precise nature of the savage attack on Mr O’Neill may not have been foreseen: it is enough that the type of 21 Ibid., para. 66. 22 Ibid. See also Smith v Littlewoods Organisation Limited [1987 1 AC 241 at 260-261. 23 [2010] 2 CLC 277, [2010] NPC 92, [2010] EWCA Civ 981, [2010] All E.R. (D) 96, para66. 24 [2004] ICR 585 at para. 67. 25 Hughes v. Lord Advocate [1963] A.C. 837.

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damage – here physical injury caused by an attempt to restrain a wrongdoer – was readily foreseeable.’’ In such circumstances, the Court held that it was “necessary to consider whether the Defendant was a cause, rather than necessarily the proximate cause if any, of the Plaintiff ’s injuries, as long as the wrongdoing itself was the very thing which was to be anticipated as a result of the Defendant’s negligence”. On the evidence, the Court accepted that while it might have been said that the situation was caused at least in part by the wrongful shoplifting and attempt to escape of Mr Colville, there was “little doubt that the need for rescue by a member of the public was caused by the negligence of Dunnes Stores”. As noted by O’Neill, this explicit abandonment of the ‘but for’ test was required to achieve the reconciliation of the two strands of law at the intersection.26 Contributory Negligence A deliberate act of rescue will virtually never constitute a novus actus27 nor will the defence of volenti non fit injuria avail28 but the possibility of contributory negligence has been accepted.29 In Baker v Hopkins,30 Morris LJ observed: “If a rescuer acts with a wanton disregard of his own safety it might be that in some circumstances it might be held that an injury to him was not the result of the negligence that caused the situation of danger.’’31 The burden of so proving rests with the Defendant in such circumstances32 and it has shown to be a particularly difficult burden to overcome, although not impossible.33 Indeed, the greater the risk to others that the rescuer is trying to avert, the greater the imperilment to his or her safety the law will accept as reasonable.34 O’Neill observes that this approach “can defended on the moral ground that altruistic acts should not be discouraged because they are good in themselves” and “on a more utilitarian extension of that analysis, which sees rescuers as socially useful”.35 Contributory negligence 26 (2010) 45(1) Irish Jurist 240. 27 Clerk and Lindsall on Torts , 20th edn (London: Sweet & Maxwell, 2010), at 2-114. 28 See Haynes v Harwood [1935] 1 KB 146, at 156-7, Horsley v MacLaren (1971) 22 DLR 3d 545, Binchy, “The Good Samaritan at the Crossroads: A Canadian Signpost” (1974) 25 NILQ 147, at 156-7 and Alexander,E.R. “One Rescuer’s Obligation to Another: The ‘Ogopogo’ Lands in the Supreme Court of Canada” (1972) 22 Univ. Tor. L. Rev. 98. 29 For early American cases, see Shelton, Thos., “Compensation to Rescuers: A Question of Contributory Negligence,” (1904)10 Va L Reg 671. 30 [1959] 1WLR 966. See V.T.H.D., “The Duty of Care to a Rescuer” (1959) XXV Ir Jur 7. 31 Ibid., at 977. See also Corbin v. Philadelphia (1900), 195 Pa. 461, 45 Atl. 1070,.49 L. R. A. 715, 78 Am. St. Rep. 825; Peyton v Texas & P. Railway Co , 6 So. 690, at 691, 41 La.Ann. 861 (1889) and Haynes v Harwood [1935] 1 K.B. 146. See generally “Right of Rescuer to Recover from Tortfeasor for Injuries Sustained,” (1923) 9 Vir. L.Rev. 376. 32 Ibid, per Wilmer LJ at 984. 33 See Cutler v United Dairies [1933] 2 K.B. 297 and Harrison v BRB [1981] 3 All E.R. 679 34 [2011] RTR 7, [2010] EWHC 2191 (QB), para.22. 35 (2010) 45(1) Irish Jurist 240. See also Malm, supra and Note, “Torts.

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was raised as a defence in Phillips though not in O’Neill. The defence was also raised in the recent decision of the English High Court in Tolley v Carr36 where the restrictive view of the defence was again evidenced: “The common law acknowledges the actions of [rescuers], which often involve bravery as well as bare humanity, in two ways. First, it imposes upon those who create such a danger a duty of care owed to those who go to the aid of people put at risk thereby, whether those who act are members of the professional emergency services or members of the public. Second, although of course relatedly, the law is slow and cautious in finding negligence in those who imperil themselves to save persons from risks caused by the negligence of others.”37 In Tolley, the Plaintiff sustained severe personal injuries when struck while moving the car of the Defendant from its location. The Defendant’s vehicle had spun in slippery conditions. The Plaintiff had assisted the Defendant from the vehicle but the vehicle had come to a stop broadside on the road. In the course of moving the Defendant’s vehicle, it was subject to a double impact, first by another car and then by a transit van resulting in him being thrown some thirty-five feet and sustaining multiple spinal fractures. The sole issue of dispute before the Court was the Plaintiff ’s negligence. Hinkinbottom J stated: “[I]t is the fact that a person imperils himself to avert the actual or perceived risk to others that is central to the assessment of the reasonableness of the act of that person. Therefore, although perhaps a plea of contributory negligence is particularly unattractive when the person imperilled is the very person whose negligence created that risk, who may have created the risk is less important than the position of the person put at risk… Similarly, in assessing whether the acts of a rescuer were in all the circumstances reasonable, it may not matter a great deal whether those acts were instinctive, or followed deliberation: either is regarded properly by the law as meritorious.’’38 He concluded that the Defendants had singularly failed to discharge their burden taking into account the carnage that was contemplated as resulting from a failure to remove the Defendant’s vehicle. He accepted that the Plaintiff had checked for vehicles in the outside lane before moving the car but even if he had missed an oncoming vehicle, the law would be “slow to criticise those who, under the pressure they find themselves in, seek to reduce the risk of harm to others, by placing themselves at risk, in circumstances in which time is or is perceived to be of the essence and the risks to those in Negligence. Person Endangered by Own Negligence Liable to Rescuer for Injuries Sustained in Rescue” (1947) 14 Univ. Chic. L. Rev. 509. 36 [2011] RTR 7, [2010] EWHC 2191 (QB), para.22. See generally Fulbrook, Julian, Comment [2011] Journal of Personal Injury Law C19. 37 Ibid., per Hinkinbottom J at para.21 [Emphasis added] 38 Ibid., at paras.24-25.

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endangered are or are perceived to be great”.39 He added that “exceptional bravery is not the same as foolhardiness”.40 In Phillips, the Court rejected the defence of contributory negligence on the part of the husband in summary fashion: “What he did after the fire had started was the natural and obvious thing to do, and could not be an act of contributory negligence, namely, an attempt to put out the fire and to save his wife.’’41 Fulbrook notes that the defence “is perhaps in modern circumstances reserved for “near-suicidal” action”.42 In O’Neill, while contributory negligence was not pleaded, O’Donnell stated: “I consider that the appeal in this case should be dismissed. This is a result which I think accords with both legal principle and common sense. It would indeed be regrettable if the message delivered by the law of tort to a member of the public faced with a cry for help, is that if they intervene they do so at their own risk and that in all the circumstances it would be wiser to pass by on the other side. Lord Atkin observed that the example of the Good Samaritan in the parable may not answer all the questions of the law of negligence, but neither the law nor morality has ever sought to encourage imitation of the Levite.’’43 This general statement of the attitude underpinning the Court’s approach suggests that the Irish Courts may be strongly inclined to the approach of Tolley with respect to contributory negligence. Conclusion On the position of the rescuer, Fleming wrote “[o]nce the Cinderella of the law, he has since become its darling”.44 It is clear following the decision of the Supreme Court in O’Neill v Dunnes Stores that this is also the case in the Irish law of negligence. Non-professional rescuers who volunteer in situations of peril, although bound to prove foreseeability of that rescue and the damage so occasioned have an advantage over other plaintiffs in negligence, viz, a more generous approach to causation. While contributory negligence was not raised as a defence, there is no reason to think that the Irish Courts would be disinclined to follow the approach in Tolley given the indulgence to altruistic conduct underpinning the reasoning in both O’Neill and Tolley. ■

Ibid., para.45. See for example Cutler v United Dairies [1933] 2 K.B. 297 [1991] 1 IR 89 at 95. [2011] J.P.I. Law C19, C22. See for example ICI v Shatwell [1965] A.C. 656; [1964] 3 W.L.R. 329; [1964] 2 All E.R. 999 and Morris v Murray[1991] 2 Q.B. 6; [1991] 2 W.L.R. 195; [1990] 3 All E.R. 801. 43 [2010] IESC 53. 44 The Law of Torts 5th edn, (Sweet and Maxwell, London), p.172 quoted by O’Donnell J in O’Neill v Dunnes Stores [2010] IESC 53.

39 40 41 42

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