Denham J

MJELR v. Koncis – SC – European arrest warrant, procedure

By Mark Tottenham BL in Denham J No Comments Tags: ,

MJELR v. Koncis [2011] IESC 37 (29 July 2011)

Supreme Court (Denham J, nem diss) dismisses appeal from decision of High Court (Peart J) to grant order of surrender of applicant under European arrest warrant, notwithstanding earlier extant order of surrender relating to same offence. (Full text.)

European arrest warrant – appeal from order of surrender – extant order of surrender in relation to the same offence – fair procedures – habeus corpus application in relation to earlier order – whether any reason why a second warrant should not be issued in relation to same offence – whether Article 40 / habeus corpus order was bar to subsequent warrant – admissibility of letter from prosecutor – discretion of High Court to admit letter into evidence.

Minister for Justice, Equality and Law Reform v. Ó Fallúin/Fallon [2010] I.E.S.C. 37

Canty v. Ireland – SC, constitutionality of statute, Residential Tenancies Act 2004

By Mark Tottenham BL in Denham J No Comments Tags: ,

Canty v. Ireland [2011] IESC 27 (19 July 2011)

Supreme Court (Denham J, judgment of court) dismisses appeal from decision of High Court (McKechnie J) refusing leave to seek judicial review of the constitutionality of s 123(4) of the Residential Tenancies Act 2004. (Full text.)

Judicial review – application for leave – constitutionality of statute – s 123(4), Residential Tenancies Act 2004 – decision of High Court on appeal “final and conclusive” – appellate jurisdiction of Supreme Court – exceptions prescribed by law – specialist tribunals – fair procedures – findings of fact.

The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360

Rotunda Hospital v. Information Commissioner – SC – Freedom of information

By Mark Tottenham BL in Denham J, Fennelly J, Macken J No Comments Tags:

Rotunda Hospital v. Information Commissioner [2011] IESC 26 (19 July 2011)

Supreme Court (Fennelly J, Macken J; Denham J diss) allows appeal from decision of the High Court (McCarthy J, 2 July 2009), and determines that the appellant hospital was entitled to refuse to release information given in confidence by a woman who gave birth in 1922.

Macken J (Full text.): Freedom of information – obligation to provide information – information concerning age of woman who gave birth to child in 1922 – information given in confidence – whether information was “personal information” within meaning of s 2(1), Freedom of Information Act 1997 – whether overriding public interest in persons having fullest possible information on their origins – “private or secret matters” – statutory interpretation – “exempt records” – whether hospital wrong in law to refuse disclosure of information – whether 1997 Act applied to records created prior to its commencement.

Fennelly J (Full text.): Innocuous or trivial piece of information – obligation to apply freedom of information legislation – whether 1997 Act applied to old records – whether document contained “personal information” within the meaning of section 28 – whether document contained information imparted in confidence – danger of abuse by infringement of confidentiality – whether information was in the public domain – relevance of availability of information from other public source.

Denham J (Full text.): Whether 1997 Act applied to records created in 1922 – whether information exempt from disclosure – s 6(5)(b), 1997 Act – “personal information about the person” seeking access to the records – regulations concerning a deceased individual – confidentiality – section 26(3) – provision for discretion where public interest served by granting request – information requested by son of deceased person.

B v. Brisbane North Regional Health Authority [1994] 1 QAR 279
Sheedy v Information Commissioner [2005] I.R., 272
I. O’T v. B [1998] 2 I.R. 321
H.S.E. v. The Information Commissioner [2009] ILRM 44
Saltman Engineering Co. Ltd., v Campbell [1948] 65 RPC 203
Coco v. A. N. Clark (Engineering) Ltd [1968] FSR 415
House of Spring Gardens Ltd. v. Point Blank Ltd. [1984] I.R. 611
Howard v. The Commissioner of Public Works & Others [1994] 1 I.R. 101
Australian Broadcasting Authority v. Lenah Game Meats [2001] HCA 63
C.C. v Ireland and others [2005] IESC 48
Odievre v. France [2004] 38 E.H.R.R. 43

In Re Bovale Developments: Director of Corporate Enforcement v. Bailey – Disqualification of director, material on affidavit, tribunal report

By Mark Tottenham BL in Denham J, Fennelly J, Hardiman J 1 Comment Tags: , ,

In Re Bovale Developments: Director of Corporate Enforcement v. Bailey [2011] IESC 24 (14 July 2011)

Supreme Court (Denham J, Fennelly J, Hardiman J, nem diss), on appeal from High Court (Irvine J) in disqualification proceedings: a) dismisses appeal from decision to strike out paragraphs from grounding affidavit; and b) dismisses cross-appeal from decision to refuse to admit as evidence material from tribunal report.

Denham J (text): Disqualification of director of company – s 160 Companies Act 1990 – application to strike out paragraphs from affidavit – appeal from order of High Court to remove paragraphs – cross-appeal – report of tribunal of enquiry – whether Director of Corporate Enforcement impermissibly delegated investigative function to private firm – whether finding of a tribunal had any relevance to subsequent court proceedings – whether paragraphs from tribunal reports might be received in evidence – whether hearsay evidence might be admissible in disqualification proceedings – relevance of UK authorities grounded on different statutory framework.

Fennelly J (text): Procedures used in disqualification proceedings – extensive use of interlocutory procedures involving several hearings, including plenary hearings – nature of jurisdiction to strike out parts of affidavits.

Hardiman J (text): Enormous costs of tribunals of enquiry – attempt to use tribunal findings to ground application to disqualify directors – powers of tribunal – parallel procedures for investigation of alleged criminal conduct – findings devoid of legal consequence – finding of fact in vacuo – basis upon which respondents interacted with tribunal – reliance on hearsay – deprivation of right to cross-examine.

Goodman International v. Mr. Justice Hamilton [1992] 2 I.R. 542
McDonald v. Bord na gCon [1965] I.R. 217
Murphy & Ors v. Mr. Justice Flood & Ors [2010] IESC 21
In Re Williams Leisure Plc [1994] Ch 1
Secretary of State v. Ashcroft [1998] Ch 71
In Re Barings plc & Ors (in administration) (No.2), [1998] 1 CLC 590
Secretary of State v. Aaron, Court of Appeal [2008] EWCA 1146
O’Callaghan v. Mahon [2008] 2 IR 514
Maguire v. Ardagh [2002] 1 IR 385
Victoria v. Australian Building Construction Employees Federation (1982) 152 CLR 25
Cox v. Ireland [1992] 2 IR 503
Re Haughey [1971] IR 217

MD v. ND – Variation of family law order, new evidence in Supreme Court

By Mark Tottenham BL in Denham J No Comments Tags: ,

MD v. ND [2011] IESC 18 (Denham J, nem diss, 7 June 2011)

Supreme Court allows appeal from order of High Court in family law proceedings, and varies property provisions on the basis of a fall in property values. (Full text.)

Family law – judicial separation – appeal from High Court – devaluation of assets subsequent to order of High Court – date of valuation of assets – new evidence – whether subsequent events permitted court to depart from High Court order – principle of 50:50 division of assets – “proper provision” – Order 58, rule 8 – discretionary power of Supreme Court to receive further evidence – fall in value of agricultural land – inherent power of Supreme Court to regulate exercise of its own jurisdiction.

Hay v. O’Grady [1992] 1 I.R. 210
Hughes v. O’Rourke[1986] I.L.R.M. 538

Stanley v Kieran – Resulting trusts, evidence at trial

By Mark Tottenham BL in Denham J No Comments Tags: ,

Stanley v Kieran [2011] IESC 19 (Denham J, nem diss, 7 June 2011)

Supreme Court allows appeal from determination of High Court that plaintiff was not entitled to beneficial ownership of property. (Full text.)

Resulting trust – appeal from High Court – claim of beneficial ownership of house and lands – claim that shares in company held on trust – connected actions – property purchased by plaintiff and conveyed to limited company owned by first defendant – whether a resulting trust – whether beneficial interest transferred to first defendant in consideration of her living with plaintiff as common law wife and personal assistant – failure of plaintiff to show interest in company – failure of defendant to attend whole of trial of action – whether presumption of resulting trust adequately rebutted – finding by trial judge that presumption not rebutted – inferences drawn by trial judge from evidence of plaintiff – whether sworn evidence from plaintiff should have been discounted.

Stack v. Dowden[2007] 2 A.C. 432
Twinsectra Ltd v. Yardley [2002] 2 A.C. 164
Antoni & Anor v. Antoni & Ors [2007] UKPC 10 (26 February, 2007)

Dellway Investments & ors v NAMA; Right to notice of acquisition of loan, and right to make representations.

By Mark Tottenham BL in Denham J, Fennelly J, Finnegan J, Hardiman J, Macken J, Murray CJ 1 Comment Tags: ,

Dellway Investments & ors v NAMA & ors [2011] IESC 14 (Supreme Court, 12 April 2011)

Supreme Court allows partial appeal from High Court, and makes declaration that appellants are entitled to be duly informed by NAMA of any intention to acquire eligible bank assets related to their credit facilities, in order that they may make appropriate representations.

Murray CJ: Section 84 of National Asset Management Agency Act 2009 – right to make representations – whether borrowers entitled to be informed of NAMA’s intention to consider acquiring eligible bank assets – principles of constitutional justice – powers of NAMA above those of ordinary banks. (Full text.)

Denham J: Fair procedures – interference with constitutionally protected right – mootness – right to be heard – exceptions to general principles as to rights – urgency – whether hearing by NAMA would be unworkable – necessity. (Full text.)

Hardiman J: Entitlement to notice that loans being compulsorily taken by NAMA – fair procedures – consequences of acquisition – significance of NAMA’s own business plan – estimated life of NAMA at 7-10 years – significance of “impairment” of loans – reputational damage of loans being acquired by NAMA – right to a hearing – interest in outcome of administrative decision – right to fair hearing by unbiased body – exclusion of rights. (Full text.)

Fennelly J: Effect on value of property of NAMA decision to acquire – effect on borrower – effect on other contractual relationships – effect on reputation. (Full text.)

Macken J: Right to be heard as general principle of law – whether right can be set aside – addressees of decisions which significantly affect their interests. (Full text.)

Finnegan J: NAMA’s statutory exemptions and powers in relation to mortgages – consequences for mortgagor of transfer of mortgage to NAMA – mortgagee’s duty of care to mortgagor – rights of mortgagee on transfer of mortgage. (Full text.)

East Donegal Co-operative Limited v. Attorney General [1970] I.R. 317

Glover v. BLN Limited [1973] I.R. 388

McCormack v. Garda Siochana Complaints Board [1997] 2 I.R. 489

Irwin v. Deasy [2010] IESC 35 (unreported, Supreme Court, 14th May, 2010)

The State (Furey) v. Minister for Defence [1988] I.L.R.M. 89

Ryan v. Attorney General [1965] I.R. 294

The State (Irish Pharmaceutical Union) v. Employment Appeals Tribunal [1987] I.L.R.M. 36

McDonald v. Bord Na gCon [1965] I.R. 217

Flanagan v. U.C.D. [1988] I.R. 724

O’Callaghan v. Commissioners of Public Works [1985] I.L.R.M. 364

O’Byrne v. Minister for Finance [1959] I.R. 1;

Flynn v. Allen (Unreported, High Court, Lynch J, 2nd May, 1988)

Khan v. Health Service Executive [2008] IEHC 234

Carna Foods Limited v. Eagle Star [1995] 1 IR 526

Clarke v. Judge Hogan [1995] 1 IR 310

The State (Philpott) v. Registrar of Titles [1986] ILRM 499

McCormack v. The Garda Síochána Complaints Board [1997] 2 I.R. 489

Cox v. Ireland [1992] 2 IR 503

Chestvale Properties Limited v. Glackin [1993] 2 IR 35

Haughey v. Moriarty [1999] 3 IR 1

O’Ceallaigh v. An Bord Altranais [2000] 4 I.R. 54

D.K. v. Crowley [2002] IR 744

MacPharthaláin v. Commissioners of Public Works [1992] 1 I.R. 111; [1994] 3 I.R. 353

Re: Wells [1933] Ch. 29

Howard v Harris [1683] 1 Vern. 190,

Spurgeon v Collier [1785] 1 Eden. 55

Samuel v Jarrow Timber and Wood Paving Corp. Limited [1904] A.C. 323.

Kennedy v DeTrafford [1896] 1 Ch. 762

Holohan v Friends Provident and Century Life [1966] I.R. 1,

Farrar v Farrars Limited [1889] 40 Ch. D. 395

Gale v First National Building Society [1985] I.R. 609

National Bank of Australasia v United Hand-in-Hand and Band of Hope Company [1879] 4 A.C. 391

Turner v Smith [1901] 1 Ch. 213,

Simmons v Montague [1909] 1 I.R. 87,

Re Tahiti Cotton Company Ex p. Sargent [1874] L.R. 17 Eq. 273

Ashenhurst v James [1745] Atk. 270

Earl of Macclesfield v Fitton [1683] 1 Vern. 168

DPP v McNeill; Criminal appeal, evidence of bad character of accused.

By Mark Tottenham BL in Denham J, Fennelly J No Comments Tags: ,

DPP v McNeill [2011] IESC 11 (Denham J, O’Donnell J, Fennelly J, nem diss, 8 April 2011)

Supreme Court dismisses appeal from Court of Criminal Appeal concerning criminal conviction where background evidence was admitted which tended to show the bad character of the accused.

Fennelly J (Full text.): Criminal trial – Central Criminal Court – Indecent assault – sexual assault – rape – alleged offences between 1989 and 1997 – complainant aged 9 at date of earliest allegation – evidence of previous misconduct – Court of Criminal Appeal – section 29 of the Courts of Justice Act, 1929 (as amended) – question of law of exceptional public importance – whether “evidence of connected background history” admissible – whether “part of the transaction the subject of the indictment” – “background evidence” – whether evidence helpful to the jury.

O’Donnell J (Full text.): Effect of overwhelmingly lengthy indictment – effect of inadmissibility of bad character evidence – “forbidden type of inference” – acts so closely and inextricably mixed up as to form part of once chain of relevant circumstances.

Denham J (Full text.): Protection of fair trial – repeated incidents constituting virtually one offence – “grooming” of victim – “web of abuse” – whether evidence so closely entwined and involved with the evidence directly relating to the facts in issue that it would amount to a distortion to attempt to edit it out – direction to jury – test to be applied.

Director of Public Prosecutions v E.F. (Supreme Court unreported 24th February 1994.)

R v Bond [1906] 2 K.B. 389,

People (Attorney General) v Kirwan [1943] I.R. 279

Director of Public Prosecutions v L.G. [2003] 2 I.R. 517

People (Attorney General) v Joyce and Walsh [1929] I.R. 526

R v M and others [2000] 1 W.L.R. 421

People (Director of Public Prosecutions) v BK [2000] 2 I.R. 199

King v Attorney General [1981] I.R. 233

People (AG) v O’Callaghan [1966] I.R. 501

Makin v Attorney General for New South Wales [1894] A.C. 57

R v. Ball [1911] AC 47

R. v Pettman, unreported, English Court of Appeal (Criminal Division), 2nd May 1985

Director of Public Prosecutions v E.F., (unreported, Supreme Court, Egan J (nem diss), 24th February 1994)

S.H. v D.P.P. [2006] 3 IR 575

B. v D.P.P. [1997] 3 IR 140

R. v Boardman [1975] AC 421

D.P.P. v P.J. [2003] 3 IR 550

D.P.P. v C.C. [2006] 4 IR 287

D.P.P. v Jerome Baily [2010] IE CCA 25

Harris v D.P.P. [1952] AC 694

R. v Bond [1906] 2 KB 389

R. v Wylie (1804) 1 B and P (NR) 92

Attorney General v Martin Joyce and Annie Walsh [1929] IR 526

R. v West [2003] EWCA 3024

R. v. Rearden (1864) 176 E.R. 473

R. v. M. [2000] 1 All E.R. 148

R. v. Butler [1999] Crim. L.R. 835

Charalambous v Nagle; Appeal from consent order.

By Mark Tottenham BL in Denham J No Comments Tags:

Charalambous v Nagle [2011] IESC 11 (Denham J, nem diss, 31 March 2011)

Supreme Court dismisses appeal from order of High Court refusing to set aside consent order made in Circuit Court, and considers whether to impose Isaac Wunder order. (Full text.)

Claim to set aside consent order made in Circuit Court – consent order for possession made subject to stay – whether final order open to relitigation – irrelevant matters in respect of dispute between solicitors of the same firm –  whether solicitor had instructions to agree consent order – Isaac Wunder order.

Belville Holdings v. Revenue Commissioners [1994] 1 I.L.R.M. 29

 

CAB v H., Proceeds of crime, identification of parties

By Mark Tottenham BL in Denham J No Comments Tags:

CAB v H. [2011] IESC 10 (Denham J, nem diss, 25 March 2011)

Supreme Court affirms order of High Court (Feeney J) refusing to vary or discharge order to sell property, but orders that parties to action not be identified. (Click here for full text.)

Proceeds of Crime Act 1996 – property to be sold – proceeds to Central Fund – application to discharge or vary order – identification of parties.

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