Hayes v. McDonnell [2011] IEHC 530
(High Court, Hanna J, 15 December 2011)

High Court refuses to dismiss claim arising from alleged institutional abuse between 1949 and 1962.

Application to dismiss claim – alleged inordinate and inexcusable delay – complaints dating to period between 1949 and 1962 – claim arising from alleged physical and psychological abuse – convent school – industrial school – alleged sexual abuse – letter of claim and plenary summons in 1999 – application to statutory redress board withdrawn – notice of intention to proceed 2008 – no consent sought to late delivery of statement of claim – death of relevant witnesses – inherent jurisdiction to dismiss in the interests of justice – Rules of the Superior Courts (Order 27 (Amendment) Rules), 2004 S.I. No. 63 of 2004 – pre-commencement and post-commencement delay – post-traumatic stress disorder – prejudice suffered by defendants – availability of documents – public interest.

“I find sufficient material, gleaned from the plaintiff’s evidence, including the plaintiff’s medical reports, to excuse the inordinate delay in relation to the period of time pre-commencement and post-commencement of the proceedings. Given the particular nature of the claim in this case, and the plaintiff’s disillusionment with the Board and subsequent withdrawal of his application from the Board, I find that the delay has been explained and is excused. It is unfortunate that the plaintiff became disillusioned with the Board, but I have no reason to believe, given the exercise in which I am presently engaged, that this disillusionment is anything other than genuine.

If I am wrong on my finding that the delay is excusable, in any event I find later that the balance of justice favours the trial of the action proceeding based on an evaluation of any prejudices faced by both parties on the balance of justice test.”

Rainsford v. Limerick Corporation [1995] 2 ILRM 561
Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459
Gilroy v. Flynn [2005] 1 I.L.R.M. 290
Donnellan v. Westport Textiles Limited (In Voluntary Liquidation) & Ors [2011] IEHC 11 (Unreported, High Court, Hogan J., 18th January, 2011)
O’Domhnaill v Merrick [1984] IR 151,
Toal v Duignan (No. 1) [1991] ILRM 135
Toal v Duignan (No. 2) [1991] ILRM 140
McBrearty v North Western Health Board [2010] IESC 27
Quinn -v- Faulkner t/a Faulkner’s Garage & Anor [2011] IEHC 103 (Unreported, High Court, Hogan J., 14th March, 2011)
Hogan v Jones [1994] 1 ILRM 512
Calvart v. Stollznow [1982] N.S.W.L.R. 749
K. v Deignan [2008] IEHC 407, (Unreported, High Court, Dunne J., 2nd December, 2008)
Stephens v Paul Flynn Ltd. [2008] 4 IR 31
Desmond v MGN Limited [2009] 1 IR 737
Birkett v James [1977] 2 All E.R. 801
Byrne v Minister for Defence [2005] 1 I.R. 577 (Peart J.)

Solovastru v. Minister for Social Protection [2011] IEHC 532
(High Court, Dunne J, 9 June 2011)

High Court refuses judicial review of decisions to refuse social welfare payments, on grounds that self-employed Romanian national was no longer entitled to reside in the state.

Judicial review – refusals of jobseekers allowance, supplementary welfare allowance, rent supplement and child benefit – delay in seeking judicial review – incorrect date given in relation to one decision – whether application made promptly – whether extension of time to be given – applications for certiorari and declarations – Romanian citizen without work permit for twelve consecutive months – Section 246 of the Social Welfare Consolidation Act 2005 – s. 15 of the Social Welfare and Pensions (No. 2) Act 2009 – Council Directive 75/34 EEC – distinction between persons in employment and self-employed people – restrictions on right to reside in other EU state – applicant not entitled to reside in Ireland.

De Roiste v. Minister for Defence [2001] 1 I.R. 190
Dekra Éireann v. Minister for the Environment [2003] 2 I.L.R.M. 2010
R. (Tilianu) v. Secretary of State for Work and Pensions [2010] E.W.C.A. Civ. 1397
Allonby v. Accrington and Rossendale College [2004] I.C.R. 1328 (ECJ)
I B. v. Minister for Justice, Equality and Law Reform, Ireland and the Attorney General (Unreported, High Court, 15th October, 2009, Cooke J.)

Sivsivadze v. Minister for Justice [2012] IEHC 137
(High Court, Hogan J, 26 April 2012)

High Court grants leave to seek judicial review of refusal to revoke deportation order, on grounds that a potentially life-long exclusion of a husband and father from the state raised issues as to the right to family life.

Judicial review – application for leave – refusal to revoke deportation order – whether s 3 of Immigration Act 1999 was unconstitutional – imposition of lifelong ban on deportee – Article 41, right to family life – Article 8, ECHR – history of applying for asylum under false names – failure to make submissions following notice of intention to deport – marriage to another Georgian national – children not Irish citizens – one applicant deported in 2011 – application pursued by wife of deportee (first named applicant) – inability of wife to return to Georgia – indefinite nature of deportation order – mitigating effects of s 3(11) of 199 Act – whether any circumstances under which Minister might be obliged to revoke deportation order – potentially life-long deportation order raising significant ECHR issues – proportionality.

“A full treatment of the Article 8 ECHR issues – even solely in the context of the duration of deportation orders, immigration law and the family – would require a lengthy monograph. Perhaps the task of preparing such a detailed exposition of the recent case-law – I have merely attempted a quite inadequate survey of recent developments – will fall to the judge hearing the full action. But for all the reasons just advanced, I believe that the applicants have made out substantial grounds insofar as they say that the application of a deportation order of (at least) potentially indefinite duration would infringe Article 8 ECHR, especially, perhaps, having regard to the circumstances of the present case.”

Toidze (otherwise Arabuli) v. Governor of Cloverhill Prison [2011] IEHC 395
U. v. Minister for Justice, Equality and Law Reform (No.1) [2010] IEHC 492
JB v. Minister for Justice, Equality and Law Reform [2010] IEHC 296
Emre v. Switzerland (No.1)(2008)
Omoregie v. Norway [2008] ECHR 761
North Western Health Board v. HW [2001] 3 I.R. 622
AO v. Minister for Justice and Equality (No.2) [2012] IEHC 79
TC v. Minister for Justice [2005] IESC 42, [2005] 4 I.R. 109
Lobe and Osayande v. Minister for Justice, Equality and Law Reform [2003] 2 I.R. 1
S. v. Minister for Justice, Equality and Law Reform [2011] IEHC 92
XA v. Minister for Justice, Equality and Law Reform [2011] IEHC 397
Pok Sun Shum v. Ireland [1986] I.L.R.M. 593
Osheku v. Ireland [1986] I.R. 733
Laurentiu v. Minister for Justice [1999] 4 I.R. 42
Re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. 260
Pok Sun Shum ([1986] I.L.R.M. 593
Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3
Collooney Pharmacy Ltd. v. North Western Health Board [2005] IESC 44, [2005] 4 I.R. 124
The State (Quinn) v. Ryan [1965] I.R. 70
John Grace Fried Chicken Ltd. v. Joint Labour Committee [2011] IEHC 277
Emre v. Switzerland (No.2) (2011)
Radovanovic v. Austria [2004] ECHR 169, (2005) 41 EHRR 6
Antwi v. Norway [2012] ECHR 259
Omoregie v. Norway [2008] IEHC 761
Nunez v. Norway [2011] ECHR 1047
Heaney v. Ireland [1994] 3 I.R. 593

In Re Irish Life and Permanent Ltd; Dowling v. Minister for Finance 2012 [IEHC] 89
(High Court, Feeney J, 2 March 2012)

High Court refuses preliminary application made by respondent in relation to locus standi of applicants to set aside directions order, and holds that beneficial owners of shares were entitled to make the relevant application.

Preliminary application – locus standi – application by respondent to dismiss application – s. 9 of the Credit Institutions (Stabilisation) Act 2010 – ex parte order for directions – order to facilitate investment by Minister for Finance in public limited company – application to set aside directions order – s 11, 2010 Act – standing of certain applicants to bring application under s 11 – whether applicants were members of relevant institutions on relevant dates – holding of shares in electronic form – applicants not on register of members – holding through nominee shareholder – definition of “member”, s 11, 2010 Act – different definition in Companies Act 1963 – statutory interpretation – ambiguous interpretation – s 5, Interpretation Act 2005 – effect of s 9 order on beneficial owners of shares – rights of shareholder pending registration.

“This Court is satisfied that the definition of a “member” as contained in s. 31 of the Companies Act 1963 does not dictate or identify the meaning or definition to be used for the word “member” in s. 11(I) of the Act of 2010. Adopting a purposive approach to the 2010 Act and ascertaining the intention of the Oireachtas from the whole Act leads to a requirement for a broad construction of “member” being one which recognises the entitlement of holders of beneficial interest in shares to exercise rights under s. 11.”

Crilly v. T & J Farrington Ltd. [2001] 3 I.R. 251
Howard v. Commissioners of Public Works [1994] 1 I.R. 101
The State (Sheehan) v. The Government of Ireland [1987] I.R. 550
Direct United States Cable Co. v. Anglo-American Telegraph Co. (1877) 2 App. Cas. 394
Monahan v. Legal Aid Board [2009] 3 I.R. 458
Adam v. Minister for Justice [2001] 3 I.R. 53
Re Via Net Works (Ireland) Ltd. [2002] 2 I.R. 47

In re Eircom Ltd [2012] IEHC 107
(High Court, Kelly J, 30 March 2012)

High Court grants protection of court to group of telecommunications companies and appoints interim examiner pending the hearing of examinership petition.

Examinership – petition to appoint interim examiner – protection of court – debts of €4.08 billion – inability to service debts from existing revenues – breach of financial arrangements – need to restructure debts – s. 2 of the Companies (Amendment) Act 1990 – receivership and liquidation being the only alternatives – over 5,000 staff – strategic importance of companies to the state – whether reasonable prospect of survival of the company – whether interim examiner to be appointed pending the hearing of the petition – existing state of negotiations.

No cases cited.

DPP v Cunningham [2012] IECCA 64

(Court of Criminal Appeal, Hardiman J ( judgment of court), 11 May 2012)

Court of Criminal Appeal quashes ten convictions and orders retrial on nine counts of money laundering, on grounds that the search warrant was repugnant to the constitution.

Criminal law – appeal from conviction – money laundering – Northern Bank raid – unconstitutional search warrant – s.29(1) of the Offence Against the State Act, 1939 – Damache v DPP – whether the appellant was entitled to rely on this precedent to invalidate his conviction which predated the Damache decision by some years – search warrant central to case –evidence of the fruit of the invalid warrant – whether applicant retrospectively entitled to the benefit of recent decision – finality of a criminal case – Court of Final Appeal – Whether the result in Damache could have been anticipated – “Burnfoot Module” of Morris Tribunal Report (2008) – Article 40.5 – the “inviolability” of the dwelling – Historical and contemporary comparative aspect – Article 40.4.2 & 34.2 & 34.5.1 of the Constitution – Section 29 of the Courts of Justice Act, 1924 – Courts (Establishment and Constitution) Act, 1961 – whether applicant is bebarred from relying on Damache due to his own conduct – whether appeal is the correct remedy.

“The Court would also recall here that the essence of the constitutional guarantee in Article 40.5 – the “inviolability” of the dwelling – is one with very deep roots in the European constitutional tradition. Article 3 of the short lived republican Constitution of France of 1848 had provided that the residence of every person dwelling in French territory was “inviolable.” This exact phrase is to be found in relation to the protection afforded to the dwelling in Article 15 of the Belgian Constitution, Article 72 of the Danish Constitution and Article 14(1) of the Italian Constitution. Article 115 of the German (Weimar) Constitution of 1919 provided that the dwelling was a “sanctuary and is inviolable”, save that exceptions might “be permitted by authority of law.” Those who might be tempted to doubt the intrinsic importance of the guarantee contained in Article 40.5 would do well to reflect on the ultimate fate of its closest historical counterpart. Article 115 of the Weimar Constitution was suspended “until further notice” by paragraph 1 of the notorious constitution amending decree promulgated in the wake of the Reichstag fire in February 1933. This decree also recited that “warrants for house searches” were thereafter “to be permissible beyond the legal limits otherwise prescribed.” Millions were thereafter to discover the ugly reality of what the suspension of that key constitutional guarantee actually entailed.”

A. v. The Governor of Arbour Hill Prison [2006] 4 IR 88

CC v. Ireland [2006] 4 IR 1

Murphy v. The Attorney General [1982] IR 241

The State (Byrne) v. Frawley [1978] IR 326

de Búrca v. Attorney General [1976] IR 38

Pringle v. Ireland [1994] 1LRM 467

Dalton v. Minister for Finance [1989] ILRM 519

Ryan v. O’Callaghan, High Court, 22 July 1987 Barr J.

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

Director of Public Prosecutions v. Dunne [1994] 2 I.R. 537

McDonald v. United States 335 U.S. 451-455-456 (1948)

Groh v. Ramirez 540 U.S. 551 (2004)

Brigham City v. Stuart 540 U.S. 398 (2006)

Corrigan v. Irish Land Commission [1977] I.R. 317

McDonnell v. Ireland [1998] 1 I.R. 134

Marbury v. Madison 1 Cranch 137 (1803)

Muckley v. Ireland I.R. 472.

Blanchfield v. Harnett [2002] 3 I.R. 207

Director of Public Prosecutions v Special Criminal Court [1999] 1 I.R. 60

Kennedy v. Director of Public Prosecutions [2007] IEHC 3

Osmanovic v. Director of Public Prosecutions [2006] IESC 50, [2006] 3 I.R. 504

McMahon v. Attorney General [1972] I.R. 69

(BVerfG, 2 BvR 1444/00) German Constitutional Court in its decision of 20^th February 2001

R v Ward [2012] NICC 8

(Crown Court of Northern Ireland, McFarland J, 2 March 2012)

Crown Court of Northern Ireland sentences young man to a statutory minimum sentence of 2 years for sexual assault of woman.

Sentencing – sexual assault – 44 year old lady out jogging – previous convictions for sexual assault – Sexual Offences Prevention Orders made in past and not complied with – high likelihood that you will commit a further offence – custodial sentence – Sexual Offences Act 2003 – Article 13(3)(b) of the Criminal Justice (NI) Order 2008 – Safeguarding Vulnerable Groups (NI) Order 2007.

“I am obliged to specify a period that is appropriate to satisfy the requirements of retribution and deterrence having regard to the seriousness of the offence. Now that our legislation for sexual offences has been codified along virtually identical terms to the English 2003 Act, courts in this jurisdiction have increasingly considered the guidance on sentencing set out by the English Sentencing Council published in April 2007. For sexual touching the suggested starting point is 12 months with a range of 6 months to 24 months. This case has involved momentary touching by a hand on the clothed genitalia and the sentence, taking into account the substantial aggravation in the case, would be in the upper part of the range. This guidance would include an element to satisfy other sentencing requirements such as rehabilitation which I must discount when determining this period.”

R v. EB [2010] NICA 40

R v. Lang [2005] EWCA Crim 2864

R v Owens [2011] NICA 48

R v MJ [2012] EWCA Crim 132

R v White [2012] NICC 9

(Crown Court of Northern Ireland, McFarland J, 23 March 2012)

Crown Court of Northern Ireland sentences woman to a 14-year minimum custodial sentence for her part in murder of Polish National in Newry.

Sentencing – murder – Article 5(2) of the Life Sentences (Northern Ireland) Order 2001 – Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 – determining the minimum term of imprisonment which must be served before Parole can be considered – high likelihood of general re-offending and a significant risk of serious harm to the public – brutal murder of Polish National – subsidiary role in the assault – higher tariff of sentence due to nature of murder

“I consider that whilst White’s culpability places her into this same higher starting point, I take into account her subsidiary role in the assault, particularly when one considers that the two principle factors placing the case into this starting point were carried out largely by Cunningham. She played her part in what was a joint enterprise but it would be unjust to punish her to the same extent as Cunningham.”

R v McCandless [2004] NI 269

R v Morrin [2011] NICA 24

Practice Statement [2002] 3 All ER 412

Sfar v. DPP [2012] IESC 28

(Supreme Court, Denham CJ (Hardiman J., Clarke J. concurring), 15 May 2012)

Supreme Court allows appeal from High Court, and quashes any purported orders of the District Court prohibiting the appellant from keeping animals.

Judicial review – appeal from High Court (O’Neill J) – judicial review of District Court Judge – District Court order of Judge Brennan – seizure of dogs made under the Protection of Animals Act 1911 – “keeping dogs” as provided for under s. 18(1) of the Control of Dogs Act, 1986 – 15 charges of cruel ill-treatment – Article 8 of the European Convention on Human Rights – 10 year prohibition on keeping animals – O.84,r.26(4) of the Rules of the Superior Court 1986 – remittal to District Court – European Convention on Human Rights Act 2003 – EU Community law, particularly Directive No. 90/667/EEC 29 Nov. 1990 – word “animals” has been scratched out and the word “dogs” has been inserted – Section 14 of the Courts Act, 1971, as substituted by s. 20 of the Criminal Justice (Miscellaneous Provisions) Act, 1997 – Order 35 of the District Court Rules – quashed orders purported to have been amended by District Court judge.

“In this case the High Court quashed the orders on the 16th October, 2008. Thus, no orders were then extant. However, the orders, having been quashed, were purported to be amended by the District Court judge. No new order was made, and the orders still bear the date of 2008. It appears that the order of O’Neill J. was misinterpreted. The situation now is that there are no orders of the District Court in proper form. The addendum to the quashed order before the Court appears to have purported to be for all the purported orders.”

Bowes v. Judge Devally [1995] 1 I. R. 315

Henderson v. Henderson (1843) 3 Hare 100, 67 E.R. 313

DPP v Buck [2012] IECCA 109

(Court of Criminal Appeal, O’ Donnell J (judgment of the court), 20 October 2011)

Court of Criminal Appeal: a) grants an order extending time to apply for a certificate to appeal to the Supreme Court;  but b) refuses certificate, on grounds that issue of refusal to adduce new evidence was not a point of law of exceptional public importance.

Criminal law – appeal from conviction from murder and arson – s.29 of the Courts of Justice Act 1924 – point of law of exceptional public importance – application to adduce evidence on appeal – test of materiality in Willoughby/O’Regan – admissibility of fresh evidence relating to events which occurred during the trial – accused had been himself a witness in a case in which the judge had been a defence counsel almost 10 years earlier – ground of appeal was that it was contended that the trial judge ought to have recused himself from the trial – evidence unlikely to have an important or material effect on the outcome of the case.

“In this case however the parties engaged very fully on the merits of the underlying points of objective bias and prejudicial publicity, and argued them in some detail. Having considered these arguments, the Court came to the conclusion that the points raised were at best flimsy, with or without the new evidence and accordingly that the outcome of the case would not be altered by the admission of the evidence. On that basis the Court considered that it was obliged to refuse the application to admit the new evidence. The applicant may well consider that this was an overly rigorous application of the Willoughby test, and even an erroneous conclusion. But that in itself is not a ground to grant the certificate under s.29. The Applicant remains free to argue the original grounds on his application for leave to appeal but this Court does not consider that the issue raised is a point of exceptional public importance which could justify an appeal to the Supreme Court. In those circumstances the Court will extend the time for the bringing of this application, but will refuse the application for the s.29 certificate.”

Willoughby v DPP [2005] IE CCA 4

The People (DPP) v O’Regan [2007] 3 IR 805

Murphy v The Minister for Defence [1991] 2 IR 161

Lynagh v Mackin [1970] IR 180

Ladd v Marshall [1954] 1 WLR 1489