THE HIGH COURT
2006 No. 3785P
Between
DIGITAL RIGHTS IRELAND LIMITED
Plaintiff
And
THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER FOR THE GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL
Defendants
UPDATE (21/4/2010)
1. Digital Rights Ireland Ltd. has taken a case against the Irish Government as seen HERE.
2. McGarr Solicitors act for Digital Rights Ireland Ltd.
3. DRI brought an application to the High Court to seek a ruling from the ECJ on an EU law issue. The State responded with its motion challenging DRI’s right to bring the proceedings. The Irish Human Rights Commission applied for leave to make submissions in the proceedings. These Motions were heard in the High Court in July 2008.
4. Judge McKechnie reserved judgment on those issues before the Court.
5. The Plaintiff has asked the Court to refer the issue of the validity of Directive 2006/24/EC to the ECJ. The State had brought this question to the ECJ. (The hearing began in the ECJ the very morning the Motions opened before Judge McKechnie). The Plaintiff endorsed the State case but went further; it says the Directive is not valid, not simply on procedural grounds, but on substantive grounds of breach of human rights and the fundamental law of the EU. This was a very important difference between the State and the Plaintiff on the Directive point.
6. The State asked the Court to deny locus standi to the Plaintiff and, in default of success on that request, asked that the Court order the Plaintiff to furnish security for costs to the State. Judgement on these points had also been reserved.
7. The case was mentioned before Judge McKechnie on 25th March 2010 on which occasion he indicated he would deliver his reserved judgment on 21st April 2010.
8. On 21st April 2010 Judge McKechnie informed Counsel for the Applicant and the State that he intended to deliver his judgment on 30th April 2010.

Judge McMahon travelled to Lissadell to see the subject of the dispute between the owners and Sligo County Council about “public rights of way” on the estate.

From an evidential point of view this is equivalent to looking at the murder weapon in a criminal trial, or looking at a large machine which cannot be brought to court with convenience.

It is normal for the parties to the dispute to be given the opportunity to accompany the judge (or the jury, as the case may be) with legal advisors in the “viewing” by the finder of fact.

The reason for this is to ensure the adoption of fair procedures and to preclude the possibility of some novel (and irrelevant) element, unseen and unknown by, and to, the parties colouring the judge’s perception and opinion.

There has been general astonishment at the findings of the High Court inspector into the “Fyffes” and “DCC” insider dealing transactions.

The inspector found that, Mr. Jim Flavin, having received legal advice, broke the law as to insider dealing, but, in the light of the advice, did so inadvertently.

Oddly, the judge who appointed the inspector to conduct the investigation said, in making the appointment:

The earlier proceedings were concerned only with the civil law and did not have to address culpability or responsibility of persons who may have advised or planned the transactions.”

How did that interesting idea fall by the wayside, as it appears to have done?

The King’s Inns is the only Inn of Court in Ireland. The UK has four; Middle Temple, Inner Temple, Lincoln’s Inn, and Gray’s Inn.

In the King’s Inns the students and Benchers of the Inns eat dinner in the Great Hall of the Inns during term time. Each student diner is supplied with beer and half a bottle of wine (or port). Each Bencher diner is also supplied with those drinks, and brandy or whiskey. In Ireland, every judge of the superior courts is a Bencher of the King’s Inns. In the King’s Inns the last Thursday of each term is “Grand Night”.

The drinks allocation is doubled on “Grand Night”.

The ostensible purpose of the dinners is to follow the tradition by which education was imparted to new barristers; they learned what was what by eating, and conversing, with the practising barristers.

Nowadays, they probably confine themselves to conversation about how bad the Government is, or how fortunate Ireland is to avoid the US experience with the use of the death penalty, as reported HERE by the Guardian.

Of course, by the end of a Grand Night, they may be discussing how good the Cabinet is, (especially the Minister for Finance who is qualified as a barrister) and how the Guardian is not a quality newspaper.

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.

Sometimes a phrase or a slogan lodges its unwanted self in the brain – “Esso Blue for Happy Motoring”, or, as authors manqué of the Supreme Court could, no doubt, attest – “Plumtree’s Potted Meat”.

But it would be hard to beat the title of the book – “Represent Yourself in Court and Win!”, for an unhelpful and irritating phrase.

How would “Yourself” fare in People (DPP) v Cleary [2005] IECCA 51 where the Court of Criminal Appeal remarked;

There were a number of unusual features of the trial.”

The essence of the case against Mr. Cleary turned on two factors; first, the failure of the prosecution to prove certain elements of secondary legislation. Secondary legislation usually takes of the form of a Statutory Instrument. Unlike primary legislation, (Acts of the Oireachtas), judicial notice is not taken of Statutory Instruments. They must be proved, either by being produced to the court in the form as published in Iris Oifigiuil or by production of a copy as published by the Stationery Office.

The second factor was the taking of Mr. Cleary’s fingerprints by the Garda Siochana.

Apparently, the Gardai found a bag with what appeared to be an illegal drug in it. They waited nearby and arrested Mr. Cleary when he appeared. It was alleged that his fingerprint was found inside the lid of the box, holding the drug, which itself was in the bag.

On arrest, the Gardai took his fingerprints with his consent. (He was not obliged to consent. If he did not, only a Garda of the rank of Superintendent or above could oblige him to furnish the fingerprints.)

The Court of Criminal Appeal quashed the 2nd charge in the Indictment because of the failure to prove the secondary legislation. The 2nd charge (possession with intent to supply) was the more serious of the two charges.

The Court affirmed the conviction on the 1st charge, brushing aside the objection of defence counsel that Mr. Cleary’s consent to having his fingerprints taken was not an “informed consent”; (he was not told that the evidence could be used against him, thus, possibly, provoking a refusal to allow the taking of the fingerprints).

What amenable person from rural Ireland could possibly know how to prove secondary legislation in a trial?

Is there merit in book-burning after all?

The High Court has approved a €4 million settlement in the case of a 13 year old girl.

She suffers from cerebral palsy after the alleged mismanagement of her birth.

The proceedings were taken by Emma Duddy of Letterkenny, County Donegal, represented by McGarr Solicitors, against the North Western Health Board, the former owners of Letterkenny General Hospital and Mr. Davidson, the obstetrician. Her mother Adrienne acted as her “next friend”.

Her mother went into hospital in Letterkenny in 1995 for the birth of Emma. The court heard allegations that the labour and birth were mismanaged.

The defendant was sued for negligence and breach of duty, including statutory duty, which the Plaintiff said, through her parents Adrienne and John, led to her severe disability.

No admission of liability was made by the hospital or Mr. Davidson and the action against Mr. Davidson was struck out as part of the settlement.

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.

This blog has previously bemoaned the lack of interest in Ireland in ideas. Strictly, what was being regretted was the failure to articulate the controlling idea; the people of Ireland, sometimes all of them, and often many of them, are not heedless of ideas – they act on them rather than voice them or consider them.

One of the most influential ideas in Ireland is the belief that the State is superior to the citizen. This idea does not have universal acceptance, but it has a very strong grip on the persons controlling public administration. It is all the stronger for being an assumed truth and never referred to, let alone justified.

The fact that the Irish Constitution contains, and is professed to contain, provisions intended to safeguard the citizen from abuses by the State or its agents, does nothing, it would appear, to attenuate the Statist belief.

Historically, the Statist view is most strongly associated with Germany. Arguably its traditional or original German proponents hold the view as a considered philosophical position. They readily express and defend their ideas of the precedence of the State over the citizen.

It is a matter of surprise that such an idea would find root in Ireland, but its home in public administration suggests its attraction; it appeals to politicians in office and public administrators generally. The exercise of power is rarely if ever a pure act. The administrator invests his/her personality into the decision or act (and judges the fortune of his/her career thereby). Any opposition is resented. Any abstract idea that belittles or diminishes the status of the citizen is welcomed. It vindicates the continued deployment of power even in the face of substantial opposition. In the balancing of citizen and State rights, the balance is not affected by opposition measured by numbers; after all, numbers cannot make what is wrong, right.

Ireland inherited from the UK a perception that the traditional marginal role of the police in the UK (and Ireland) was superior to the Napoleonic system, seen in modern times in mainland European countries in the vestige requiring strangers to report in to the local police station.

In Italy its most ironic manifestation is the absence of internet hotspots or wifi zones on the terms found in Ireland, the UK and the US – free. In Italy it is necessary to produce a passport to use an internet shop; to join a wifi network or, effectively, to use a hotspot.

Benito Mussolini’s villa in Rome was Villa Torlonia on Via Nomentana. Reputedly its garden is a good reception point for the principal wifi network of the city. But reception is available only on terms Mussolini would have understood; by the grace of the Italian State.

While that is not the situation in Ireland, we still limit the ability of the citizen to challenge the State. The principal mechanism of limitation is Order 84 of the Rules of the Superior Courts.

Mussolini would have understood and approved that.