The power of mythical thinking has to be experienced to be believed. Currently, in Ireland, nobody is more subject to its power than the judges of the Superior courts. (With the possible exception of the Irish catholic bishops).

Of course the legal profession is subject to the same myths as the judiciary, but that would not long outlast (I hope) the escape of the judiciary from their myths.

The myth of immediate interest is the fairytale that the Dail (Ireland’s lower parliamentary chamber) has any influence in the making or passing of legislation. It does not; legislation is originated by the Cabinet and driven through onto the statute books.

We know who is responsible, therefore, for the requirement that personal injury litigants must swear an Affidavit of Verification asserting the truth of the factual assertions set out in pleadings commenced on their behalf.

Willie O’Dea is in the Cabinet. He says, of his factually incorrect Affidavit, that when he realized his error in his Affidavit, he “put his hands up” and admitted the error. The Cabinet has endorsed this as the correct response. Consequently, no judge can, or should, ask for more of personal injury litigants.

Willie O’Dea’s understanding is not new or peculiar. His Affidavit will have contained the averment:

“I make this affidavit from facts within my own knowledge save where otherwise appears, and where so otherwise appearing I believe the same to be true.”

This statement is about appearances and beliefs. Willie was right to emphasise that his beliefs are the important thing and, of course, we know that appearances can be deceptive, especially to deponents in Affidavits.

That, clearly is what the Cabinet meant and means by the legislation imposing the obligation on personal injury litigants.

Judges take note.

Oddly, nobody has adverted to the role of the Attorney General in the Willie O’Dea kerfuffle. The Attorney General is the lawyer to the Cabinet. He clearly endorsed the view of the Cabinet, did he not? Maybe not. Whether he did or did not is not important. We are not entitled to know and nobody is asking.

But we should see him as he is, warts and all. We should not have to endure the consequence of more mythical thinking by the judiciary (and the Law Library). The Attorney General is down in the arena with everybody else. He fights for his clients. He represents their interests. He should not be accorded the deference he gets from the judiciary and the Law Library. (According to the Bar of Ireland, the Attorney General is the Leader of the Bar).

The mark of a good court judgment is its intellectual quality. Some, unquestioned on delivery, are revealed as dubious with the passage of time.

There is nothing compelling about the decision of the Supreme Court in Attorney General v Hamilton [1993] 2 IR 250.

In that case, the Supreme Court decided that the collective responsibility of the Cabinet (the Government) under Article 28.4.1 implied a constitutional bar on the disclosure of dissenting views in Cabinet.

The one does not follow the other of necessity. It may be the norm that dissent is not disclosed; it may be better that disclosure not take place, generally; but it may sometimes be a good thing to make disclosure of dissent. The Supreme Court closed that off. It did so with no significant history of disclosure by Cabinet members (other than selective “leaking” by, usually, the Government itself).

The Taoiseach has adequate powers of discipline to control the members of the Cabinet. If he (or she) cannot use those powers effectively, that is evidence of a political crisis and indicates there ought to be an election. For good reason, the Courts should steer clear of situations like that.

The decision has had bad effects. It endorses a damaging idea of Government; one where the freedom of the Executive to act without challenge and with impunity is put at a higher value than the principle that the interests of the electorate are paramount.

It is a deeply anti-democratic view.

In the public service strike, the courts stopped work on Tuesday the 6th of November 2009. This is of less interest than the stoppage of the previous Friday. The judges of the superior courts went to school that day and, of necessity, ceased working. Why was this interesting fact not reported by the media? More importantly, why do we not know the subject of the lessons of the day?

We owe great debts to Montesquieu but he over-egged the pudding when he asserted the primacy of the constitutional principle of the separation of powers. The Executive power will not countenance, and never has, full judicial independence.

Consequently, it is naïve to think a court is not an agent for the application of Government policy, as expressed in law (and sometimes not so expressed).

This may not be the context for the judges’ lessons, but we can hardly think they need refreshers on whether Ms. Donohoe should have won in Donohue v Stevenson [1932] AC 562.

Perhaps they needed a good talking to about the imperative to front-load legal costs on uppity Plaintiffs seeking injunctions?

Or why proposals to re-introduce the death penalty into Ireland ought to be seriously addressed, to distract from current political difficulties?

Or why the current chaos in the Irish legal system, that is the provision of discovery of documents, should persist?

Of course, the lessons may not address these things at all. They may be perfectly standard “continuous professional development” stuff, consisting of a review of recent case law on some theme, say, Tort law.

Either way, it behooves the media to at least ask what is taught at Judge school. It might tell us something about Ireland we need to know, and God knows, we know very little.

1. McGarr Solicitors act for Jonathan O’Donnell. Jonathan O’Donnell was, apparently, arrested on the morning of 25th June 2009 in Broadhaven Bay, County Mayo by Gardai from Mayo Division.

2. He was taken to Ballina Garda Station and detained there.

3. Following application to the High Court later that day, the Court directed an inquiry into his detention under Article 40.4 of the Constitution of Ireland.

4. Formally, the Applicant is Jonathan O’Donnell; the Respondent is the Member in Charge of Ballina Garda Station.

5. The inquiry is returnable for Crt. 13 in the High Court, Four Courts, Dublin 7 at 10:45 a.m. on 26th June 2009.

The Courts Service has issued information on what it means to go to court as a witness.

Good luck to them.

It’s a pity they don’t seem to have done the same for parties to litigation.

Given that they are close to the persons who make up the Rules Committee of the Superior Courts, they will be unlikely, currently or in the future, to direct any criticism or complaint at the work of the Committee.

The Rules determine what the experience of going to court will be like.

The Committee, in effect, makes the Rules of the Superior Courts; the Minister for Justice, Equality and Law Reform has a nominal role but he, I venture, is busy elsewhere when the Rules get changed. (I could be wrong; perhaps it is a State secret, and the Committee does the bidding of the Minister).

In any event, the Courts Service will not be looking askance at any practice or procedure under the Rules.

The Committee is one example of bodies that, in effect, make and promulgate law. The Rules are published in the form of Statutory Instruments. Statutory Instruments are generally seen as “secondary legislation”. “Primary legislation” is to be found in the Acts of the Oireachtas. The Acts often make provision for detailed regulations to be made, “fleshing out” the bones of the particular Act. To be lawful the “regulations” must not go beyond the terms of the Act; they must express the “policies and purposes” of the Act.

The reason for this lies in the Constitution. Only the Oireachtas has the power to make law. Nevertheless, there are on occasion instances where “secondary legislation” is in fact “primary legislation”. Regulations made under the European Communities Act 1972 (as amended) have this status.

Most “secondary legislation” takes the form of a statutory instrument.

The European Communities Act 1972 aside, “ordinary” statutory instruments become law after, notionally, having been laid before the Houses of the Oireachtas.

This is an antiquated procedure to give the validity or endorsement of the Oireachtas to the instrument. Given the fact that the Executive dominates the Oireachtas with regard to primary legislation, the idea that the Oireachtas might even notice the statutory instrument being “laid” is a delusion.

Consequently, a vast body of law is promulgated every year and is open to challenge, in effect, only by Judicial Review proceedings in court.

FLAC has just issued a condemnation of the fact that, in Ireland, access to justice is denied many due to lack of resources. Free legal aid is available only to a limited number of people and for a limited number of issues.

Challenging the State in Judicial Review (particularly the Rules Committee of the Superior Courts) is definitely, practically, off that list of issues.

Under Section 154 of the Planning and Development Act 2000 a planning authority may issue an enforcement notice on an owner or occupier of land in relation to any development.

The matters to be specified in the notice are set out in Section 154. Suffice to say that, pursuant to Section 154 (8), failure to comply with the notice is a criminal offence.

This is very strange.

Firstly, the Planning and Development Act 2000 places no express obligation on the prosecution to prove that the “development” is unauthorised. Development, whether of use or of works, is not unauthorised unless it post-dates 1st October 1964.

Secondly, the Planning and Development Act 2000 makes no express provision for some obvious defences to any requirement that might be made in a notice, such as;

that the “development” is authorised;

that the “development” is not unauthorised;

that the “development” is exempted development:

In short, the offence seems not to be related to planning (sustainable or otherwise), just a failure to follow what may be a caprice of a planning authority official.

If that is true, it raises constitutional issues in any prosecution under Section 154 (8).

“Seems”, in this context is important. It is not inevitable that the offence actually constitute a failure to comply with a notice simpliciter.

The District Court (the offence is triable summarily) is at liberty to interpret the the Section and the evidential burden on the prosecution to avoid working a breach of the constitution. Under the European Convention on Human Rights Act 2003, there is an obligation on Irish courts to interpret legislation to avoid breaches of the European Convention on Human Rights (in this particular instance Article 6 thereof). It is regularly asserted that the Irish constitution already embodies standards equal to if not greater than the European Convention on Human Rights. A prosecution under Section 154 (8) is the ideal occasion to show that this is true.

THE HIGH COURT
Record No: 840P/2005

BETWEEN:

SHELL E & P IRELAND LIMITED

Plaintiff

And

PHILIP MCGRATH, JAMES PHILBIN, WILLIE CORDUFF,
MONICA MULLER, BRID MCGARRY, PETER SWEETMAN

Defendants

And

THE MINISTER FOR COMMUNICATIONS MARINE AND NATURAL RESOURCES, IRELAND AND THE ATTORNEY GENERAL

Defendants to the counterclaim of second and fifth defendants

Update (20th November 2008)

1. On 18th and 19th November 2008, Judge Laffoy heard the application, on motion, of the State to determine as a preliminary issue whether the 2nd and 5th Defendants are precluded from raising “public law issues”.

2. McGarr Solicitors act for Brendan Philbin and Brid McGarry, the 2nd and 5th Defendants. Their counsel are Lord Dan Brennan QC and Mark Dunne BL. The Chief State Solicitor acts for the Minister, Ireland and the AG. Their Counsel are James Connolly SC and Charles Meenan SC. Eugene F Collins act for SEPIL. Its counsel are Patrick Hanratty SC and Declan McGrath BL.

3. The proceedings commenced in April 2005, when Shell E & P Ireland Ltd. (”SEPIL”), issued plenary summons proceedings against the defendants. Mr. Philbin was committed to prison for 3 months, effectively, on the application of SEPIL on the grounds that he had breached an injunction restraining him from preventing SEPIL from entering his land.

4. In the events that have happened, SEPIL applied for and received the leave of the court to discontinue its claims against the defendants. This happened after SEPIL had received the defences of the defendants and the 2nd and 5th Defendants had counterclaimed against SEPIL and successfully joined the Minister and Ireland and the AG as further defendants to the counterclaim. SEPIL’s discontinuance did not end the counterclaim. The counterclaim is substantial. As against the Minister, Ireland and the AG it claims that certain Compulsory Acquisition Orders made by the Minister regarding the land of the defendants are invalid. It also claims that a consent allegedly made by the Minister in favour of SEPIL, to construct a pipeline over the defendants’ land is invalid.

5. The Minister, Ireland and the AG assert that these are “public law issues”. They assert that issues like these can be challenged only under the procedure set out in Order 84 of the Rules of the Superior Courts. They assert that, that being so, those claims of the defendants are late. They assert that the claims, to be admissible, should have been made within the time limits of 3 or 6 months (at most) after the making of the CAOs and the consent.

6. The defendants deny they are confined by the provisions of Order 84 and/or its “time limits”. They say that Order 84 is not an exclusive procedure; that it cannot be used to shut out the hearing of claims against the State where the State has wronged citizens, particularly with regard to the private property of the citizen. They say, consequently, that the counterclaim should proceed to a full hearing on its merits.

7. Judgment has been reserved.

Cerebral Palsy is not a disease; it is a condition.

It is relevant to lawyers when it is a consequence of negligence.

That negligence may have been an oversight in a maternity unit lasting, say, 30 minutes.

It is the new-born infant that is or will be injured by the oversight. Under the Statute of Limitations, time does not begin to run against the injured infant until the infant reaches its majority (18 years of age).

Thereafter, under current law, the infant has two years within which to issue proceedings in court. Thereafter, the delay in issuing proceedings is, in normal circumstances, a full defence to any claim.

In the event that such proceedings are issued and served, a defendant will typically apply to court to strike out the proceedings.

The defendant will not necessarily succeed.

Time only runs against a plaintiff who knows he/she has been injured (or could reasonably ascertain he/she has been injured) AND knows who or what has injured him/her (or could reasonably ascertain who or what has injured him/her).

A plaintiff whose hospital records show no evidence of error, effectively does not know who or what has injured him/her.

In Gough v Neary & Anor IESC [2003], Geoghegan J stated:

The plaintiff did not know that contrary to the false information given to her the hysterectomy was unnecessary until late 1998 or, indeed, some time after that when as a consequence of media coverage in relation to Dr. Neary and hysterectomies which he had carried out on a number of patients in connection with birth deliveries, she acquired the knowledge that the operation was unnecessary. That being so and in the absence of authorities, I would be of opinion that the plea of statute bar must fail.”

It is, therefore, critical that the hospital records be accurate and truthful. If they are not, and the plaintiff can show this, (the burden of proof will lie on the plaintiff), time will not begin to run until the plaintiff discovers the truth.

When the “Evening Herald” published a report in December 2004 about a certain criminal case it would have been hard to foresee the actual consequence of the publication.

The Director of Public Prosecutions took exception to the contents of the report and made application to the High Court to attach the property of the publisher and commit to prison the editor of the Evening Herald.

The High Court declined to grant the orders sought.

The DPP appealed the decision to the Supreme Court. The respondents made rejoinder citing, inter alia, Section 11 of the Criminal Procedure Act, 1993 which reads:

(1) The right of appeal to the Supreme Court, other than an appeal under s.34 of the Criminal Procedure Act, 1967, from a decision of the Central Criminal Court is hereby abolished.”

A preliminary issue was tried by the Supreme Court on the point as to whether an appeal lay from the High Court to the Supreme Court, given the terms of Section 11 of the 1993 Act.

The term “Central Criminal Court” had its meaning determined by the Courts (Supplemental Provisions) Act 1961. It meant the High Court exercising its criminal jurisdiction.

The High Court exercising the Criminal jurisdiction with which it is invested shall be known as An Phríomh-Chúirt Choiriúil (The Central Criminal Court) and is in this Act referred to as the Central Criminal Court.”

In the proceedings in the High Court, the Court accepted the proceedings were criminal. The Court proceeded to apply the standard of proof appropriate to a criminal charge (beyond a reasonable doubt) to the case against the Evening Herald.

The judgments of the Supreme Court accepted that the trial in the High Court had been a trial of a criminal matter.

However, only one judgment found that Section 11 of Criminal Procedure Act, 1993 had the effect of abolishing the right of appeal in the case to the Supreme Court.

Geoghegan J, part of the majority, addressing the central point, and on the interpretation of S. 11 of the Courts (Supplemental Provisions) Act 1961, stated;

These additional subsections, in my opinion, clearly indicate that what section 11 is dealing with is indictable crime tried by juries in the ordinary way. There is nothing in the section which indicates that there was any intention to change the long established summary procedures (which were intended to deal with urgent situations) in relation to criminal contempt.”

He went on to say;

Where I disagree that contempt proceedings are not sui generis is in relation to the historical procedures which have applied from time immemorial and up to the present in relation to contempt proceedings. In my opinion, that is a respect in which they are quite obviously sui generis. I think that if anything the quotation from Palles C.B. in AG v. Kissane 32 LR Ir 220 referred to in AG v. O’Kelly [1928] I.R. 308 and fully set out in the judgment of Hardiman J. bears out the separate aspects of the contempt jurisdiction even though in so far as it involves fining and imprisoning that jurisdiction as pointed out by the Chief Baron is “essentially criminal”. As Hardiman J. points out, that would mean, for instance, that the criminal standard of proof must apply.”

And;

The fact that accusations (to use a non-legal term) of criminal contempt however serious have been tried summarily by judges over the centuries makes them sui generis in a procedural sense. Indeed there is one aspect of their uniqueness which I have not up to now mentioned. Quite apart from cases of contempt in the face of the court, criminal contempts are offences against the administration of justice itself and are, therefore, offences not exclusively external to the court itself even if the party applying for the attachment or committal is himself offended.”

This extract is a reference to “the elephant in the room”. Because of the net point before the court, the inherent subversion of the jurisdiction of the High Court in contempt matters, by the stance of the Evening Herald, was veiled but real.

The most significant question in the whole matter and one left unanswered was whether the “contempt jurisdiction of the High Court” could or should continue to be exercised as it has in the past.

There is some difficulty in defining the difference between civil contempt and criminal contempt. Nevertheless, that distinction is clearly recognized in Irish law (The State (Commins) v McRann [1977] IR 78). Speaking generally, criminal contempt is an offence of a public nature, civil contempt is one of a private nature, depriving a party to an action of the benefit for which the order was made.

Contempt of court, in court, is a crime (Petty Sessions (Ir). Act 1851 Section 9). There exist two forms of procedure for dealing with contempt; the ordinary criminal procedure of summons or indictment and the summary jurisdiction of the High Court. Referring to the latter, contempt of court, in all its forms, is, according to O’Higgins CJ, simply outside the mainstream of the substantive criminal law (So characterized by the Law Reform Commission Consultation Paper on “Contempt of Court” at p. 208). This view of O’Higgins CJ was obiter (The State (DPP) v Walsh [1981] IR 412) and is to be contrasted with the view of the majority in that case. The summary jurisdiction referred to is one where, of its own motion or otherwise, the High Court may dispose summarily of an offence of contempt of court. In The State (DPP) v Walsh, the Supreme Court, not accepting, on the facts, the respondents’ claim of entitlement to a trial by jury, accepted that the respondents had, prima facie, a right to a trial by jury. If this view is correct Article 30.3 of the Irish Constitution, which provides that all major criminal prosecutions must be prosecuted in the name of the people and at the suit of the Attorney General or some other authorised person (the Director of Public Prosecutions), indicates the correct procedure to adopt in all cases, with the possible exception of contempt in the face of the court.

By contrast, if the view of O’Higgins CJ is correct, the High Court has a formidable power of investigation, adjudication and punishment based, apparently, on the Constitution, without reference to any other institution or element of the State. (This is a proposition impliedly accepted, it appears, by the judgment of Geoghegan J.)

Given the lack of definition on the issue that jurisdiction can be invoked with drastic effect, in civil proceedings.

In the UK the courts have responded to this situation.

In Dean v Dean, ([1987] 1 FLR 517) Dillon LJ stated;

I have no doubt… that the procedure in contempt is of a criminal nature and that the case against the alleged contemnor must be proved to the criminal standard of proof. That was not a matter for decision in Khawaja… the matter rests on long established practice, probably well before the Bramblevale case… and certainly repeated many times since in this court…”

O’Connor J said in P A Thomas & Co. v Mould (P A Thomas & Co. v Mould [1968] 2 QB 913, [1968] 1 AER 963)

where parties seek the power of the court to commit people to prison and deprive them of their liberty there has got to be quite clear certainty about it.”

In Guildford Borough Council v Smith (1993) Times 18th May, Sedley J commented

I am unable to accept that committal on the motion of an antagonist in civil proceedings is today in any admissible sense the private law right of which older dicta suggest it was. To all intents and purposes it is a form of private prosecution”.

Any irregularity in the proceedings on which an attachment is founded will entitle the prisoner to a discharge (In re Holt, 11 Ch. D. 168; Dan. Ch. Pr. 5 ed. 436). A “contemnor” is entitled to apply to court and be heard on applications to discharge the contempt order for irregularity (Contempt of Court etc.: Oswald 2nd Ed. [1895] p. 197.) A “contemnor” is entitled to apply to court and be heard (Hadkinson v Hadkinson [1952] ; X Ltd. v Morgan-Grampian Ltd. [1991] 1AC 1 at 21; [1990] AER 616 at 627) on applications where he is submitting that he is not or should not be treated as being in contempt. (See Gordon v Gordon [1904] P.163 CA)

No person will be held guilty of contempt for breaking an injunction unless the terms of the injunction are themselves clear and unambiguous (Iberian Trust Ltd. v Founders Trust and Investment Co. Ltd. [1932] 2 KB 87 at 95; P A Thomas & Co. v Mould [1968] 2 QB 913, [1968] 1 AER 963).

All contempts are…cleared after an order of the Court discharging the offender from punishment; e.g. if upon the application of the offender for release from custody that release is ordered, he cannot again be punished for the same contempt (Contempt of Court etc.: Oswald 2nd Ed. [1895] p.193).

Pursuant to the European Convention on Human Rights Act 2003 a person accused of contempt is entitled to have Irish law applied in a manner compatible with the State’s obligations under the provisions of the European Convention on Human Rights. In Harman v United Kingdom, (App. No. 10038/82; 38 D.R. 53) the European Commission on Human rights declared admissible a complaint that the applicant’s conviction for contempt was in breach of Article 7 of the European Convention on Human Rights. Under Article 6 (1) it is provided that

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Harman v United Kingdom, is authority for the proposition that contempt of court is a criminal offence within the meaning of Article 6 of the European Convention on Human Rights. The European Court of Human rights will inquire whether the tribunal offered guarantees sufficient to exclude such a doubt, (Piersack v Belgium (1982) 5 E.H.R.R. 169 [para, 30]: Incal v Turkey (1998) 29 E.H.R.R. 449 [para. 65]) or whether there are “ascertainable facts” that may raise doubts as to a tribunal’s impartiality.( Hauschildt v Denmark (1989) 12 E.H.R.R. 266 [para, 48]:) In making an assessment of a tribunal’s impartiality, “even appearances may be important”. (Piersack v Belgium (1982) 5 E.H.R.R. 169 [para, 30]: Sramek v Austria (1984) 7 E.H.R.R. 351 [para, 42])

In Ireland, speaking generally, legal proceedings take the form of a contest. The contest is conducted according to rules, but a contest it is.

Contests do not guarantee proper, fair outcomes but they are superior to the alternative, no hearing to one (or more) party.

The phrase to describe such hearings without a party on notice is “ex parte”.

It refers to a court application brought by one person in the absence of and without representation by, or notification to, other parties.

In principle, such an application is a breach of fair procedures (as secured by the Irish Constitution) (and the European Convention on Human Rights).

Article 6.1 of the Convention reads:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Nevertheless, such applications take place and courts make orders pursuant to them. The saving feature is that they are, to be proper, of a strictly temporary nature. The order will (or aught to) be limited in its effect to a time for the hearing of an application (“interlocutory”) (the other party having been notified of the intended application) to continue or renew the order made ex parte.

The applicant party will have notified the respondent party of the making of the order ex parte (and the order will bind the respondent forthwith) as well as giving notification of the date and time for the making of the “interlocutory” application.

Ex parte applications will, generally, be based on evidence presented in, say, affidavit form. It can happen that, subsequently, the evidence so presented is shown to be false or mistaken or generally unreliable.

For this reason a court has to be very careful in making orders ex parte. The absolute necessity for the making of the order without notification to the respondent must be shown. Considerable damage may be inflicted on the respondent, unfairly, by an order restraining the respondent from acting in some matter or fashion.

In addition, the publication of a record of the ex parte proceedings in court may libel the respondent. Under Section 18 (1) of the Defamation Act 1961, newspaper (and radio) publication of transactions in court are privileged, subject to the report being fair and accurate.

Arguably, to report the contents of the grounding affidavit or other allegation and/or the terms of the order, and to fail to report that an application was made ex parte (with an explanation of the meaning of that phrase) is not fair.

If that argument is accepted the report will lose its privilege and the publisher will be liable for the libel.