Supreme Court

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 (12^th November 2012)

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 Genevieve Burke 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 court has decided (judgment delivered on 4th March 2010) that the 2nd and 5th defendants are NOT precluded from raising “public law issues”.
4. 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.
5. 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.
6. The Minister, Ireland and the AG asserted that these are “public law issues”. They asserted that issues like these can be challenged only under the procedure set out in Order 84 of the Rules of the Superior Courts. They asserted that, that being so, those claims of the defendants are late. They asserted 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.
7. SEPIL supported the State parties in their submissions and position.
8. The defendants denied they are confined by the provisions of Order 84 and/or its “time limits”. They said 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 said, consequently, that the counterclaim should proceed to a full hearing on its merits.
9. The State parties appealed the judgment of Laffoy J. to the Supreme Court. The appeal came on for hearing before the Supreme Court on 24^th October 2012 and finished that day. Judgment has been reserved.

1. It was (arguably) beyond the remit of the High Court inspector to make exhaustive comment on the giving of legal advice to Mr. Jim Flavin (“Flavin”) on the legality of the sale by Flavin of Fyffes’ shares.

2. However, the advice was wrong, the inspector says. (He could hardly say anything else, given that the Supreme Court effectively said the same thing).

3. Consequently, the question as to whether the solicitor who gave that advice was negligent could arise. Hopefully, the solicitor knew this and qualified the advice with the use of some formulation like “…on the one hand this… on the other hand that…”.

4. But then Flavin would have been in a quandary. He would not have been able to sleep with worry about the possibility that he was about to commit a crime.

5. But what of the solicitor? Is his sleep of no consequence? If he says, positively, that the sale of shares is legal; is not a crime, and is nonetheless wrong, is he not liable to the client? How can he sleep with the worry that his advice will prove to be wrong?

6. Even if he has nerves of steel and a will of iron, what can he say to the client who returns to him after the trauma of even a successful defence of the client’s actions? Did he not advise the client of the possibility, indeed the likelihood of litigation? If he did, surely the client had grounds to doubt the legality of what was proposed and if he did not surely the client, learning of the decision in C. W. Dixey and Sons Ltd. v Parsons [1964]192 E G where the court said;

“In the present circumstances the solicitor owed a duty of care to his client to take reasonable care, not only to protect his client against committing a breach of the law but to protect him against the risk of being involved in litigation… It would not do for him to say that in his view it was all right. There was an obvious danger that a different view might be taken. In the present circumstances the ordinary careful solicitor would have gone to see his clients and advised them not to sign.”

would be rightly aggrieved at the advice the solicitor had given.

7. Of course, there is another way of seeing the situation. There are some things upon which a solicitor should not venture an opinion or advice and clients should not seek such opinion or advice.

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 in Ireland is an improvement over previous “arrangements” for the delivery of justice.

Inevitably, it being an infant body, it has and will make mistakes. A relatively small but irritating mistake is the installation of “security” in the Four Courts.

Currently,* access by the public to the Four Courts is through a kind of modular building, at what used to be the Morgan Place entrance on the quays. There, one has to pass through a metal detector and put one’s luggage through a scanner. Harmless enough, but expensive, and ineffective to prevent terrorist Muslim attacks.

What Muslim attacks?

There have been none in Ireland.

Of course, they might be launched. Nobody can say they would not be launched.

However, the history of Ireland is replete with times and periods when very real domestic threats of terrorism existed. Frequently, the Four Courts was the scene of forensic points of conflict between the State and an irregular armed power.

There was, effectively, no permanent “security” in the Four Courts during those times.

In the judgment of this writer, the decision to install the current security arose out of a bomb scare in the building which saw the Supreme Court, as a collective, with every other user of the building, walking about on the pavement outside the building and drinking take-away coffee from the back of an entrepreneurial van parked in a loading bay in Chancery Place.

But the solution, the current “security” is not effective. It does not eliminate bomb threats. It is not a proper source of confidence that any bomb threat is a hoax. (It is too easy to circumvent the “security”).

There is an alternative, chilling, explanation; we are aping the US Supreme court. It, too, has closed the front door of the court and is breaking the architectural integrity of its building.

What if terrorist Muslims really are a threat to the Four Courts?

We should spend our money supporting the programme, of Lord Weidenfeld’s Institure for Strategic Dialogue, for a European Muslim Professionals’ Network. That way, at least, Muslim barristers will find a support group to hand when they encounter the dress code of our Rules Committee of the Superior Courts.

Whatever about dress codes, many people would be glad to see the departure of the “security”, including members of the judiciary and at least one senior barrister who, I understand, refuses to produce his electronic pass to gain access to the courts. (Too much; don’t go there).

*(Note; never “presently”, when you mean “at present”. “Presently” means in a “little while” or “shortly” or “in due course”).

I seem to have picked up the impression that the Irish Supreme Court thinks it is overworked or is burdened by cases without merit.

In the US Supreme Court, they are not obliged to take any and every appeal.

Nevertheless they allowed THIS CASE in the door.

Rubbish accumulates everywhere, it seems.

In considering the requirements of a driver accused of drink driving offences the Supreme Court has decided that the words:

require the person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, 2 specimens of his breath and may indicate the manner in which he is to comply with the requirement”

mean that a person need only, on request by a Garda officer, provide two specimens of his/her breath and need not supply a third.

Furthermore, if he/she does provide three specimens, the third specimen is not available to ground a prosecution for “driving under the influence”.

Essentially, the Breathalyzer machine for measuring the breath of motorists is not the source of the obligation; the statute (s.13 of the Road Traffic Act, 1994) is.

Compliance with the statute discharges the obligation; meeting the needs of the machine (or its limitations) is not the obligation.

The Supreme court was mindful that the issue involved the interpretation of a penal statute. The Interpretation Act 2005 makes provision for the “purposive” interpretation of legislation, but excludes penal statutes. The law leans against the creation of penal provisions where the statute is not clear.

Section 25 of the Non-Fatal Offences Against the Person Act 1997 provides

25.—(1) In any proceedings for an offence alleging the causing of harm or serious harm to a person, the production of a certificate purporting to be signed by a registered medical practitioner and relating to an examination of that person, shall unless the contrary is proved, be evidence of any fact thereby certified without proof of any signature thereon or that any such signature is that of such practitioner.”

The need for precision in a statute is obvious. Sub-section (2) of Section 25 goes on to provide:

(2) In this section “registered medical practitioner” means a person registered in the General Register of Medical Practitioners established under section 26 of the Medical Practitioners Act, 1978.”

The average medical practitioner rarely thinks of himself or herself as “a registered medical practitioner”. Nevertheless, it is submitted, that is exactly the description which the practitioner must append to any certificate produced for the purposes of Section 25.

The issue is not:

a) That the person certifying is a doctor (Dr. Ian Paisley and Dr. Martin Mansergh spring to mind as invalid examples);

b) That the person certifying is a medical practitioner (US surgeons from Texas spring to mind as invalid candidates);

The issue is:

a) Is the person certifying, a medical practitioner?

AND

b) Is that person registered “…in the General Register of Medical Practitioners…”

AND

c) Does the Certificate purport to express each of these elements?

If it does not, it is submitted, the certificate is inadmissible as “evidence of any fact thereby certified”.

The subject of this posting is the small and somewhat obscure collection of what appears to be self portraits immediately outside the Supreme Court in the Four Courts, Inns Quay, Dublin 7. (It is not intended, by this precision, to imply there is another, or other, Four Courts in another postal district). It is, hopefully, concise; (see Eoin O’Dell HERE for a description of what an extended posting can look like).

The portraits are of former Chief Justices of Ireland of what, in Ireland, would be modern times. The portraits of the Chief Justices of Ireland of pre-modern times are to be found in the Kings Inns, Henrietta St. Dublin 7.

Those portraits are very large oil paintings of the then conventional type and probably (I have not investigated the issue) include a portrait of Tom Lefroy, the man Jane Austen would probably have married if she had been asked.

He undoubtedly features in some of her novels and in turning away from social obscurity (in the person of Ms. Austen) found social eminence on the walls of the dining hall of the Kings Inns with, in the long run, concomitant obscurity.

The modern portraits are modest affairs by his standard. They are not of oils; it would be surprising to find a capacity to paint in oils, particularly a self portrait, in a Chief Justice.

They suffer from poor hanging; the location is not favourable to the viewings of the works, being dark and at a junction in the corridors carrying relatively heavy pedestrian traffic.

Even Chief Justices should remember the experience of The Little Red Hen; you have to do it yourself, and therefore you have to do it ALL yourself.