We learn from the Sunday Business Post that NAMA may pay less than it previously indicated for the Irish Banks’ loans to be handed over to it (starting this very month, reputedly). We do not know anything further about this. We do not know if the report is accurate. We do not know if the report is a malicious falsehood leaked to the SBP to mislead critics of NAMA.

NAMA is a scandal. It is a scheme to transfer taxpayers’ money to private institutions without a rational justification. The irrational justification (“long-term economic value”) was mooted by the EU Commission, but it hedged it about with many conditions. We have no idea if the Irish Government and the Irish Banks have complied with those conditions. The EU did not mandate secrecy like this.

That the SBP can publish its, presumably, bona fide report and miss the real story; that its sources are unreliable and clearly manipulative of public opinion; that NAMA clearly thinks it is acceptable in this polity to behave in such a fashion and is to be condemned for it (rather than facilitated) and that covert administration is Wednesbury irrationality and a basis for Judicial Review of NAMA is a howler of a journalistic error.

The Construction Industry Federation says it is not getting ready to challenge NAMA (more particularly the legislation setting up NAMA).

We have only to go back to 2005 to find out why it is not gearing up.

In Construction Industry Federation v Dublin City Council [2005], the Supreme Court denied locus standi to the CIF because its members were easily able, individually, to take the litigation pursued by the CIF against Dublin City Council.

The Court said;

In the present case, the Appellant claims to have a sufficient interest on the basis that the proposed scheme affects all or almost all of its members in the functional area of the Respondent, and therefore the Appellant has a common interest with its members. However, it appears to me that to allow the Appellant to argue this point without relating it to any particular application and without showing any damage to the Appellant itself, means that the Court is being asked to deal with a hypothetical situation, which is always undesirable.”

So, too, now, CIF membes are easily able to take action for themselves.

The challenge, (there will be a challenge) will come from the members or some of them.

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.

Taxis are good things. As they carry speakers to public debates, for instance, they provide, because of the lack of distraction by traffic, the possibility of reviewing what is to be publicly said.

OK, that’s too sweeping a statement and applies to a limited number of occasions; say, debates on whether God exists or not.

It will not apply to debates on the legitimacy of tight time limits on applications for Judicial Review under Order 84 of the Rules of the Superior Courts, because there are no such debates.

The reliable Law Reform Commission published a paper examining the procedures relating to “ordinary’ Judicial Review and “statutory” Judicial Review, which can be seen HERE.

An examination of procedures, usually, assumes legitimacy.

Of course, there probably are some debates somewhere, but they are not public. My guess is that they take place in Dublin 4 or, possibly, at the top of Henrietta St., in Dublin 7.

The truth is, Judicial Review is a contraption. It’s cobbled together, dictated by circumstances and dubiously cast in the form of a general law.

See HERE for a previous reference by this writer to Irish Judicial Review.

Now, the legal jungle drums tell me that the State itself is aggrieved by the tight time limits in Order 84.

Judgment is awaited in a case where the State itself is seeking Judicial Review of a decision, time having run under Order 84.

A la W. B. Yeats, “And what rough beast, its hour come round at last, slouches towards Bethlehem to be born?”

(The title here is contrived; I am simply seizing on a chance to use the plural of “taxi” and show that there is such a word and such a spelling. Too often people believe, and act accordingly, that the plural of taxi is taxi’s.)

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.

Our Financial Regulator is confident, and has asserted so in public, that he is not at fault in failing to properly regulate the Irish Banks in circumstances where they ultimately needed rescuing by the taxpayers.

For his pains he has been told by (some) elected representatives he ought to resign.

In fact, it is difficult to criticise him. That is not to say he is not open to criticism, just that it is difficult to do so, as was seen in Ryanair Holdings plc v Irish Financial Services Regulatory Authority IEHC.

Ryanair is the largest shareholder in Aer Lingus. The Government is the second largest shareholder. Ryanair discovered Aer Lingus told the Government that it was intent on changing its Heathrow “slots” from Shannon to Belfast. It did not communicate this to Ryanair. In the view of Ryanair this was a case of “market abuse” and a breach of Market Abuse (Directive 2003/6/EC) Regulations 2005 and the Market Abuse Rules and it complained to the Financial Regulator requesting action by it.

The Regulator declined to inform Ryanair what, if anything, it was doing on foot of the complaint.

The court upheld this view of the Regulator.

The court also found the Regulator is not required to make its findings public or give any reasons for its decision.

There would appear to be two consequences to this; there will not be many complaints lodged with the financial Regulator, and, it is difficult to make judgments as to his competence.

Ryanair is not popular. For this writer, it’s enough to remember traveling to Venice and being dropped in Treviso. It was the “arrangement�? for the return flight that left everything to be desired.

Nevertheless, the Bar Council of Ireland should strike a memorial medal to the airline for its services to the legal profession.

Look at its latest litigation outing HERE.

It issued proceedings in the form of a Special Summons and got slapped down because it hadn’t proceeded by way of Judicial Review.

Is it possible that Michael O’Leary has a jaundiced view of Order 84 of the Rules of the Superior Courts as referred to HERE and HERE?

When and where and why did that happen?

Never take your eye off the ball.

The State (the Government) decided to do something. It introduced an Act, the Non-Fatal Offences against the Person Act 1997, in and through the Oireachtas, which was enacted on 19th May 1997.

Section 28 (1) of the Act provided that;

The following common law offences are hereby abolished -
(a) assault and battery,
(b) assault occasioning actual bodily harm,
(c) kidnapping,
(d) false imprisonment.�?

Something happened in Westport on 4th May 1997; consequently a Mr. Grealis was charged with assault contrary to common law.

Something happened in Mulranny on 11th May 1997; consequently Mr. Grealis was charged with assault contrary to common law.

Something happened in Cork on 3rd February 1997; consequently a Mr. Corbett was charged with assault contrary to common law and contrary to Section 42 of the Offences Against the Person Act, 1861 as amended by Section 10 Criminal Justice (Public Order) Act, 1994 (“assault occasioning actual bodily harm�?).

Section 28 (1) of Non-Fatal Offences against the Person Act 1997 came into force on the 19th August 1997. In both Grealis and Corbett, accordingly, it was not in force on the dates on which the alleged offences were committed. It was not in force at the date the summons was issued in Corbett, but was in force on the dates when the three summonses in Grealis were issued.

Mr. Grealis and Mr. Corbett were given leave by the High Court to apply by way of judicial review for an order of Prohibition of the prosecution of the offences alleged against them on the grounds that the Non-Fatal Offences against the Person Act 1997 had abolished the offences with which they were charged.

The High Court agreed and made an order of Prohibition and the Supreme Court affirmed on appeal.

During the proceedings the State cited in its support Section 1 of the Interpretation (Amendment) Act 1997, which reads:

1. – (1) Where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common law, then unless the contrary intention appears, such abolition, abrogation or repeal shall not -

(a) affect the previous operation of the law in relation to the offence so
abolished, abrogated or repealed or any other offence or anything
duly done or suffered thereunder,
(b) affect any penalty, forfeiture or punishment incurred in respect of any
such offence so abolished, abrogated or repealed or any other offence
which was committed before such abolition, abrogation or repeal, or
(c) prejudice or affect any proceedings pending at the time of such abolition, abrogation or repeal in respect of any such offence or any other offence.

(2) Where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common law, then unless the contrary intention appears, any proceedings in respect of any such offence or any other offence committed before such abolition, abrogation or repeal of any such offence at common law may be instituted, continued or enforced and any penalty, forfeiture or punishment in respect of any such offence at common law or any other offence may be imposed and carried out as if such offence at common law had not been abolished, abrogated or otherwise repealed.

(3) This section applies to an offence which is an offence at common law abolished, abrogated or otherwise repealed before or after the passing of this Act.

(4) If, because of any or all of its provisions, this section would, but for the provisions of this subsection, conflict with the constitutional rights of any person, the provisions of this section shall be subject to such limitations as are necessary to secure that they do not so conflict, but shall otherwise be of full force and effect.�?

The Supreme Court held that this could only be read prospectively (into the future) and did not avail the State in its arguments. (The Supreme Court also found that the Act, as so read, was constitutional. It also found that the offence “assault occasioning actual bodily harm” was a common law offence.)

In Wicklow County Council v. Fenton & Ors [2002] IEHC 102 (31 July 2002) the High Court likened the owner of an illegal dump to a receiver of stolen property. Without a receiver there can be no profit in theft; without an illegal dump there can be no illegal dumping. The court accepted the principle advanced by the applicant Council that it did not have to prove negligence; that the state of mind of the Respondents was not required to be proved. The court endorsed the principle of “the polluter pays�?, a principle found in Council Recommendation 75/436Euratom and specifically incorporated in Section 5 of the Waste Management Act 1996.

“the polluter pays principle” means the principle set out in Council Recommendation 75/436/Euratom, ECSC, EEC of 3 March, 1975 1 regarding cost allocation and action by public authorities on environmental matters;

Under Section 26 of the Waste Management Act 1996 the Environmental Protection Agency is obliged to incorporate the “polluter pays�? principle into its national hazardous waste management plan.

The court found that the Respondents had been negligent on the facts and made orders for the remediation of the lands on which the illegal dump was found.

Consequently, liability under the Waste Management Act 1996 can be established simply by showing that there has been dumping on lands and that there is no authority for such dumping. The liability attaches to the occupier of the land; there is no need to show that the dumping took place during the period of occupation by that occupier.

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 (6th June 2008)

1. The High Court, on the application of the Defendants to the Counterclaim, has ordered the trial of a preliminary issue.
2. The issue will be tried on 29th July 2008.
3. The issue is: “Are the 2nd and 5th Defendants out of time to raise public law issues?”