Minister not negligent as Habitats Directive created no duty of care towards fishermen

2 March 2016 by

In this case, the Supreme Court held that:

firstly, a public body cannot be liable in negligence for exercising a statutory duty, where the legislation does not create a duty of care towards the claimant;

secondly, it cannot be liable in negligence based upon the policy it pursued in applying legislation, unless the claimant has brought successful judicial review proceedings impugning that policy; and,

thirdly, the High Court should not award damages to a company for a wrong perpetrated against a related company because both companies have shared directors.


Cromane Seafoods Ltd and O’Sullivan McCarthy Mussel Developments Ltd are companies with a common shareholding. Since the 1970s, O’Sullivan is involved in the cultivation and harvesting of mussels in Castlemaine Harbour, which it sells exclusively to Cromane. In 1993, the National Parks announced that it was going to designate Castlemaine Harbour as a special protection area. Its notice in the Irish Times stated that: “It is not envisaged that designation will restrict the current usage pattern of these areas for activities such as fishing … or their use for shellfish culture”. In 1997 the Habitats Directive was transposed into Irish law. Subject to those regulations, Castlemaine Harbour was designated as a Special Area of Conservation (SAC). ECJ case law (2004 & 2007) on Article 6.3 of the Directive confirmed that activities within SACs are prohibited until an impact assessment proves that they will not cause harm.

Subsequent to its designation as an SAC, mussel cultivation and harvesting proceeded in Castlemaine Harbour without interruption. In 2008, O’Sullivan invested €1 million in a new vessel for mussel cultivation. However, subject to the ECJ decision in 2007, and because the Minister for Agriculture and Marine had not carried out the necessary environmental impact assessments, the Harbour was closed to mussel cultivation for most of 2008 to 2010. Cromane and O’Sullivan issued High Court proceedings against the Minister for Agriculture for negligence and breach of legitimate expectation. O’Sullivan was claiming for its loss of income from being unable to access the Harbour; Cromane was claiming for loss of profit due to O’Sullivan being unable to supply produce.

High Court

Hanna J (here) held that it would have been possible for the Minister to place himself in an informed position to balance the obligation to protect the environment within the Harbour while allowing the cultivation of mussels.

Therefore he was negligent in not doing so. He awarded Cromane €125,000 and O’Sullivan €275,000.

The Minister appealed that decision.

Supreme Court

The Court split 3 – 2. Clarke J wrote the dissenting judgment (here). He asked:

Why, without good reason and the presence of an appropriate countervailing factor, should public authorities not be liable for the consequences of their actions in exactly the same way as anyone else? [14.5]. …

The real question on the duty of care, therefore, comes down to this. In the light of developments in European law, did the Minister owe a duty of care to those who, to his knowledge (and up to then with his permission), were carrying out activities in protected areas, to ensure that he had appropriate survey(s) and other scientific evidence available to enable a decision to be made for the purposes of considering whether to permit the continuance of traditional activities and, should appropriate evidence be found to be present, to allow those activities to be authorised? [15.4].

He would have upheld the High Court decision that the Minister was liability for negligence against O’Sullivan, but he would have allowed the rest of the appeal. Laffoy J concurred with Clarke.

Writing for the majority though (here), Charleton J stated that any analysis of liability for negligence begins with the question of whether there is a duty of care. He held that, where the relationship between parties is governed by statutory powers, the analysis begins with the “legislative matrix”.

It must be shown that these powers expressly set up a duty of care to be exercised by the defendant in favour of the plaintiff or that such a duty of care arises by necessary implication.

In the context of discretion as to the allocation of resources or as to the order in which problems might be tackled, any argued for existence of a duty of care may, depending on the context, be inimical both to the wider duty owed within that statutory context to the community at large and also to the non-application of the law of negligence even where the decision maker acted beyond the powers conferred, unless that decision maker otherwise acted wrongfully by misfeasance in public office.

This requires malice, in the sense of improper motive, or knowledge by the decision maker that the decision would be in excess of the delegated powers. Otherwise, public bodies may also commit recognised torts, including negligence. Here, there was nothing to suggest that the duty of the appellant Minister under the Sea-Fisheries and Maritime Jurisdiction Act 2006 gave rise to any duty of care towards these fishermen. On the contrary, the considerations in the legislation are expressly directed towards the conservation of fish stocks, their rational exploitation, the furtherance of the common fisheries policy and the consequent benefit towards the community.

Even if that were not the case, no discretion arose once Castlemaine Harbour had been declared an SPA and an SAC. Under the Habitats Directive, article 6.3, the duty of the State was clear, which was to conserve the protected sites and to not allow any non-conservation activity until it was certain that it would not impact upon the environment and the species within. Hence, any amelioration in the decisions made as to the opening of Castlemaine Harbour, were negotiated from the European Commission by the appellant Minister as a concession. All this was done in good faith.

Charleton J allowed the Minister’s appeal. MacMenamin J wrote a concurring judgment (here) and Dunne J concurred with Charleton.


Does the media have a constitutional right to publish material, which overrides a jury verdict of defamation?

24 February 2016 by

In this determination (McDonagh v Sunday World) the Supreme Court granted McDonagh leave to appeal the decision of the Court of Appeal, which overturned a High Court (judge and jury) award of €900,000 for defamation.

The Court determined that McDonagh had raised five issues as being issues of general public importance, or that it is in the interest of justice that they should be determined by the Supreme Court:

(a) whether it is open to the Court of Appeal to reverse a jury verdict that a statement was defamatory of the plaintiff arrived at even in the face of strong evidence to the effect that the defending allegation was true;

(b) whether the media have a constitutional right to publish material, and that this right cannot be compromised by a jury verdict to the effect that such material was defamatory of the plaintiff;

(c) whether it was necessary for the jury to be warned by the trial judge that, objectively speaking, the plaintiff’s credibility had been compromised;

(d) whether the Court of Appeal is entitled to reverse the verdict of the jury on the grounds that it was perverse, if some other alternative explanation was open to the jury;

(e) the present legal status in the State of the rule in Browne v. Dunn [how the evidence of a Garda witness should be treated] in circumstances where little of the evidence adduced by the newspaper, either in regard to the allegation of drug dealing, or loan sharking, had, in fact, been directly challenged in cross-examination.


In 1999 the Sunday World published an article describing McDonagh as a drug dealer, a loan shark, a tax evader and a criminal. McDonagh issued High Court proceedings seeking damages for defamation. The Sunday World’s defence was that the allegations were true. The jury found that the Sunday World’s evidence did not prove that McDonagh was a drug dealer or a loan shark; but it had proven that he was a tax cheat and a criminal. The jury awarded McDonagh €900,000 in damages. The Sunday World appealed that decision to the Court of Appeal.

The Court of Appeal (here) overturned the jury decision and award, stating:

” 105. First, it is clear that the jury verdict so far as it concerned the drug dealing allegation cannot be allowed to stand. Viewed objectively, the evidence overwhelmingly pointed to the conclusion that the plaintiff was, indeed, a drug dealer associated with the drugs seizure at Tubbercurry.

If the allegation was correct, the newspaper had a constitutional right to publish this information by virtue of Article 40.6.1.i and that right cannot be compromised by a jury verdict which was, in essence, perverse.

106. Second, the evidence adduced in relation to the loan sharking allegation was much more limited. It might have been open to a properly instructed jury to find for the plaintiff on that allegation. It would, however, be necessary for the jury to have been told in express terms that the failure by the plaintiff effectively to cross-examine Garda Doherty regarding the loan sharking admissions meant that such evidence carried considerable weight.

It is true that the jury might elect to believe that the plaintiff’s denial that he made such a statement to Garda Doherty, but it would also have been necessary for the jury to have been warned in appropriate terms that the plaintiff’s credibility had, objectively speaking, been compromised. As the jury was not so instructed, I do not think that the verdict on the loan sharking allegation can be allowed to stand.

107. In these circumstances I believe that the Court should allow the appeal of the newspaper against the entirety of the verdict. As the drug dealing allegation has been found to be true, I would also dismiss that part of the plaintiff’s claim. It follows that I would direct a new trial on the loan sharking allegation only.”

Should legal aid for European Arrest Warrant cases be provided on a statutory basis?

Judge Gerard Hogan
24 February 2016 by

(Pictured: Mr Justice Gerard Hogan. Photo: Collins)

In this determination (Minister for Justice v O’Connor) the Court granted O’Connor leave to appeal a Court of Appeal decision that it does not breach the constitutional guarantee to equal treatment before the law (Article 40.1) that the State provides legal aid on a statutory basis for a defendant fighting surrender to the International Criminal Court, whereas legal aid for a European Arrest Warrant case is provided under an administrative scheme.

The Court will also allow argument on whether it is necessary to make a preliminary reference to European Court of Justice on whether EU law requires that legal aid be provided in EAW cases as a statutory right.


The High Court granted the Minister an order allowing for O’Connor’s surrender under an EAW request, and it rejected his proceedings for a declaration that the provision of legal aid in EAW cases on an administrative basis (the Attorney General’s office has discretion to refuse costs) breached the guarantee of equality before the law.

In the Court of Appeal (here), Ryan P and Irving J upheld both the High Court’s decisions; Hogan J dissented in part. He was of the opinion that the distinction made by the State between the provision of legal aid on an administrative basis for EAW cases, and the provision of legal aid on a statutory basis under the International Criminal Court Act 2006, breached the right to equality before the law as guaranteed by Article 40.1 of the Constitution. He also stated “the failure on the part of the Oireachtas to ensure that persons facing surrender requests under the 2003 Act had the same rights by law to legal aid as they would if facing trial on indictment in this State for corresponding offences amounts to a breach of Art. 40.1”

The Supreme Court determined that, given the reasoned dissenting judgment by Hogan J, there are arguments both ways on the equality issue; and if the equality argument was successful it would apply to all others facing a surrender application. Therefore the issues met the constitutional threshold for an appeal to the Supreme Court.

The Court certified two questions for appeal:

(a) Whether, in the plenary proceedings, the determination as to unconstitutional inequality suggested in the dissenting judgment of Hogan J. represents the law and, if so, whether any such inequality established would render an order of surrender in the EAW proceedings inconsistent with the Constitution; and

(b) Whether, in the EAW proceedings, it is necessary or appropriate to refer a question of European law to the Court of Justice concerning the fact that legal representation for the purposes of defending an application for surrender under the 2003 Act is provided by means of an administrative scheme rather than (as in, for example, the relevant provisions in respect of the International Criminal Court) a statutory scheme.

Supreme Court to review if Court of Appeal misunderstood role of appellate court

24 February 2016 by

In this determination (Leopardstown Club v Templeville Developments) the Supreme Court granted Leopardstown leave to appeal a decision of the Court of Appeal, where it is alleged that the COA overturned the High Court trial judge’s findings of fact.

The Supreme Court determined that it is an issue of genuine public interest that an appeal be allowed where it is alleged that the COA misapplied the rule from Hay v O’Grady regarding the role of an appellate court.

The rule from Hay v. O’Grady [1992] 1 I.R. 210 was stated by by McCarthy J at 217:

1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.

2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority. …

The Court’s determination states that:

Without in any way prejudging the issue, the principle established in the authority of Hay v. O’Grady [1992] 1 I.R. 210, and the jurisprudence derived therefrom, is fundamental to the operation and role of appeal courts, whether it be the Court of Appeal, or this Court. … The legal status of explicit or implicit findings of fact, and inferences by a trial judge, are fundamental to the role of appeal courts. If there is misunderstanding, clarification of the law is a matter of general public importance to be determined by this Court.

The Court also granted leave to appeal regarding the correct interpretation of s 86 of the Land & Conveyancing Law Reform Act 2009 (here) and the COA’s application of the rule from Gahan v. Boland, to clarify whether constructive notice is a defence against a claim of misrepresentation.

Court dismisses appeal over Corrib gas terminal planning permission as moot

four courts
9 February 2016 by

Dismissing this appeal (here) in an action under s 160 of the Planning and Development Act 2000, Dunne J stated that “notwithstanding the fact that a pre-commencement condition requiring agreement between the developer and the planning authority on a particular issue has not been concluded but where there is subsequent agreement, a court will not generally grant relief pursuant to s 160 of the Act”.

In October 2004, An Bord Pleanala granted Shell planning permission for the construction of a gas terminal in County Mayo, subject to, among other things, Shell providing Mayo County Council with security for the reinstatement of the land to its original condition after activity has ceased at the plant (C0ndition 37).

In March 2005, Sweetman issued High Court proceedings under s 160 of the Planning and Development Act 2000 seeking a range of inhibiting and mandatory injunctions and orders permitting him to inspect the sites.

By the time the case came to hearing in March 2006, the issues had been narrowed to two, one of which was Shell’s compliance with Condition 37. Sweetman argued that the arrangement that Shell was proposing and that the Council were agreeable to was not in compliance with Condition 37, and he was seeking an injunction prohibiting further work on the site until there was full compliance.

Dismissing Sweetman’s proceedings, Smyth J held that there was substantial compliance and only formalities remained to be fulfilled. Sweetman appealed that decision to the Supreme Court.

Supreme Court

In a notice of appeal dated April 2006, Sweetman sought a declaration that Condition 37 was not complied with and an order restraining work until there was full compliance.

However, he did not actively pursue the appeal, which lay dormant until 2014 when it appeared on the uncertified list on the Chief Justice’s direction. The parties corresponded by letter, and Shell’s solicitors provided details of its compliance with Condition 37 and sought withdrawal of the appeal.

Sweetman did not withdraw the appeal. Although the terminal construction had been completed in the intervening years, and has since commenced production, Sweetman was was not seeking an order that the terminal be shut down. He was seeking a determination that Condition 37 had not been complied with, but that Shell be given an opportunity to comply.

Dunne J noted that although Sweetman did not withdraw his appeal, he effectively had to be forced to proceed with it through its inclusion in the uncertified list. He noted that given the nature of the remedies he was originally seeking – injunctive relief – he was facing a difficult struggle to begin with.

Given his failure to proceed promptly, each delay decreased his likelihood of succeeding, as the courts’ power under s 160 of the 2000 Act is discretionary. In this case that discretion would have had to have regard to the other parties that would be affected i.e Shell, which had invested significantly on the legitimate understanding that it was in compliance with planning law and those in employment, either during construction or processing; etc.

Dunne J stated that it is unacceptable to conduct litigation of this nature in the manner that this case was conducted.

In conclusion, she reviewed the changed circumstances since the notice of appeal in 2006. Shell had completed the terminal and commenced production; Sweetman was not seeking the shut down of the plant; the Council had agreed to Shell’s security, and, as it was not party to the proceedings, Sweetman could not challenge that decision.

Given those circumstances, Dunne J determined that there was no live dispute between the parties and dismissed the appeal as moot.


High Court shouldn’t have made award not sought in pleadings

9 February 2016 by

Here, the Supreme Court allowed Blanchfield’s appeal, as:

28. The approach adopted in the High Court of awarding the sum of €75,000 to the Respondent against the Appellant for services rendered on a quantum meruit basis was incorrect in that:

(a) neither a claim for such relief nor the matters which would have established an entitlement to it had been pleaded; and

(b) there was insufficient evidence before the High Court to arrive at a proper valuation of the quantum meruit, even assuming entitlement to payment on a quantum meruit basis could be established.


The parties were to be partners in a joint venture property development in France, in which Reynolds was to invest €750,000 (2006).

That partnership did not proceed. Reynolds claimed that, subsequently, Blanchfield agreed to pay him €200,000 for services to ensure the successful outcome of the development. That involved, among other things, attending site meetings and meetings with the local mayor, prospective investors and prospective sales agents. Blanchfield denied that he had an agreement with Reynolds for the provision of those services, that he had agreed to pay any sum to Reynolds or that he owed any sum to Reynolds.

In October 2008, Reynolds issued High Court proceedings by summary summons seeking judgement against Blanchfield for €200,000 for alleged breach of contract. In January 2010, the Master of the High Court granted judgment for that sum, including interest from November 2008, plus costs.

In February 2010, the High Court (McKechnie J) vacated that order and ordered that the case proceed to full hearing. The trial took place in April 2011.

High Court

During evidence, the trial judge (Kearns P) stated that the crucial issue to be resolved was whether there had been an express agreement between the parties on payment for Reynolds’ services. He asked the parties whether, if he was unsatisfied as the terms of any agreement between them, he should decide what sum might be owed on a quantum meruit basis. Blanchfield objected on grounds Reynolds had not sought that in his pleadings. The trial judge said he would therefore resolve the case on an all or nothing basis.

In an ex tempora judgement, the trial judge said that he was satisfied that Blanchfield had agreed that he must pay Reynolds for his services; and that a sum of €200,000 was mentioned. But on the balance of probabilities, he was not satisfied that Blanchfield had agreed to pay that sum. Despite Blanchfield’s objections though, the trial judge was satisfied that he had enough information to make a fair assessment on a quantum meruit basis of the value of the services provided and made an award on €75,000 in favour of Reynolds. Blanchfield appealed that decision to the Supreme Court.

Supreme Court

Blanchfield argued that Reynolds made no claim in his pleadings for an award based on quantum meruit; that Reynolds provided no witness evidence of the value of the services provided that could be challenged in cross examination; and that the issue of resolving the case on a quantum meruit basis was raised by the trial judge – neither party invited him to do so.

Laffoy J cited from Delany and McGrath on Civil Procedure in the Superior Courts and from settled case law that neither party to proceedings will be allowed to make a case that is materially different to that asserted in their pleadings; to allow that would put the other party in the unfair disadvantage of not knowing in advance the case they have to answer.

Reynolds, in his pleadings, sought a specific sum of €200,000 which he claimed was contractually owed. The trial judge found that, on the balance of probabilities, that was not the case.

Laffoy J allowed Blanchfield’s appeal and overturned the High Court order.

Should the courts stop a deportation pending a High Court appeal?

3 February 2016 by

In this determination (here) the Supreme Court granted an order permitting the State to appeal the Court of Appeal’s decision in Chinguara & Others v Minister for Justice and Equality.

The issue is whether the courts should grant an injunction preventing the deportation of a non-national where the High Court has found that the appellant is not eligible for subsidiary protection and that the deportation order is valid, pending an appeal of that decision to the Court of Appeal.


After an unsuccessful application for refugee status in 2008, Chinguara (and his wife and their two children) submitted an application for subsidiary protection. They did not challenge the decision to refuse refugee status.

In 2011, the Minister refused their application for subsidiary protection and issued deportation orders. In 2012, the High Court refused leave for judicial review of the Minister’s decision as Chinguara could show no stateable grounds for quashing the decision. They appealed that decision to the Supreme Court. That case was transferred to the Court of Appeal after the creation of that court (they did not appeal the decision to issue deportation orders). After the adverse High Court decision, however, they changed address to avoid deportation. They did not present themselves to the Garda National Immigration Bureau and remained in the State, working illegally.

In 2015, they presented themselves again, seeking an undertaking from the State that they would not be deported pending the hearing of their appeal. When the State refused to give that undertaking, they applied to the Court of Appeal for an injunction prohibiting their deportation pending the outcome of their appeal.

Court of Appeal

The Court of Appeal found that they had an arguable case regarding their application for subsidiary protection. It held that looking at the parents’ case in isolation, there was little to commend granting the injunction: they were not at risk of serious harm if deported, and they had evaded their obligations under immigration law.

However, citing the authority of Okunade v Minister for Justice and Equality (here), the court accepted that the children were innocent of their parents’ deceptions and it would be unjust to burden them with the consequences by allowing their deportation to proceed. In order to protect the childrens’ constitutional right to the company and care of their parents, the court granted an injunction against deportation for their parents, also.

Supreme Court

The State (Minister for Justice and Equality, Ireland and the Attorney General) applied for leave to appeal the Court of Appeal’s decision to the Supreme Court.

The State argued that the Court of Appeal had misapplied a number of Supreme Court judgements, including Okunade, PBN v MJE (post) and PO v MJE (post). It had extended the Supreme Court’s decision in Okunade: that case concerned an application for an injunction against deportation before a High Court decision in the case, whereas the High Court had found in this case that there was no merit to Chinguara’s case. The State argued that the test from Okunade is not the appropriate test to be applied after the High Court has made a determination in a case.

In addition, the State argued that the childrens’ constitutional rights are not absolute. And given the size of the High Court’s asylum and immigration list, the COA’s decision, if it is allowed to stand, will make it difficult if not impossible for the State to maintain proper immigration controls. It would absolve adult applicants of disregarding immigration law by reference to their blameless children, and it would incorrectly allow them to profit from their wrongdoing.

The Court’s determination goes into significant detail on the arguments and counter-arguments submitted by the parties. It concluded that the State had shown that the issue raised is of general public importance warranting an appeal to the Supreme Court.

What is the maximum sentence for indecent assault against a male (1981-1991)?

2 February 2016 by

On Tuesday, 2nd February, a seven judge panel will hear argument in the DPP’s appeal against the Court of Appeal’s decision in DPP v Maher (here).

The DPP is appealing against the Court of Appeal’s legal reasoning that led it to conclude that two years imprisonment was the maximum sentence permissible for the offence of indecent assault against a male between the years 1981 and 1991. At the time, a term of up to ten years was permitted for the offence of indecent assault against a female.

Legal History

  • The Offences against the Person Act 1861 (s 61) provided for imprisonment not exceeding ten years for indecent assault against a male.
  • The Criminal Law Amendment Act 1935 provided for imprisonment not exceeding two years for indecent assault against a female (first offence).
  • The Criminal Law (Rape) Act 1981 raised the penalty for indecent assault against a female to a term not exceeding ten years.
  • The Criminal Law (Rape) (Amendment) Act 1990 replaced the offence of indecent assault with one of sexual assault  and provided for a term of imprisonment not exceeding five years.

In DPP v SM (No 2) [2007] 4 IR 369 (High Court) Laffoy J held that s 61 0f the 1861 Act did not survive the enactment of the Constitution in 1937 because of the disparity between the penalty for indecent assault against a male and the penalty for the same offence against a female.

She held that it offended against the guarantee of equality provided under Article 40.1 of the Constitution. The Defendant in that case was charged with numerous counts of indecent assault against young males committed between 1966 and 1976.

Laffoy J held that, if he was convicted, he should not receive a sentence greater than if the offences were committed against females (two years, at that time).


In 2012, Maher pleaded guilty to 19 counts of indecent assault against young males between 1982 and 1984. At the time, the maximum term of imprisonment for indecent assault against a female had been increased to ten years.

However, the trial judge held that (following DPP v SM) the maximum sentence permitted for indecent assault against a male was two years. The trial judge sentenced Maher to two years for each offence to run concurrently. The DPP appealed the leniency of that sentence to the COA.

Court of Appeal

The COA reasoned that, following DPP v SM, from the time of the enactment of the 1937 Constitution the maximum term permissible for indecent assault against a male was two years (same as against a female). Although the Criminal Law (Rape) Act 1981 increased the maximum permissible term to ten years for an offence committed against a female, it did not increase the maximum term for indecent assault committed against a male. Amending the sentence that a one year term for one of the offences would run consecutively (increasing the overall term to three years), it upheld the High Court finding that two years was the maximum permissible sentence for the offence against a male.

Supreme Court

The DPP sought an order from the Supreme Court certifying that the case raised an issue of general public importance justifying an appeal to the Supreme Court. The DPP argued in her submission that the Court of Appeal misapplied DPP v SM. The decision in that case did not limit the penalty for indecent assault against a male to a maximum term of two years, it provided that sentencing was subject to common law guidelines but limited to the maximum statutory term that could be imposed for indecent assault against a female. Therefore, subsequent to the 1981 Act, the imposition of a penalty for indecent assault against a male was subject to common law guidelines but could not exceed the statutory maximum term of ten years applicable for indecent assault against a female.

In its determination (here), the Court held that, as the issued raised would likely arise in other cases concerning offences committed between 1981 and 1991, the DPP had satisfied the requirements of Article 34 of the Constitution and granted an order allowing an appeal relating to the correct sentencing guidelines for the offence of indecent assault committed against a male between June 1981 and January 1991.

Can the Garda Commissioner summarily dismiss a garda convicted of a criminal offence?

Martha McEnerny
29 January 2016 by

(Pictured: Ms Martha McEnery. Photo: Collins)

In this determination (here) the Supreme Court granted an order allowing the Garda Commissioner to appeal the Court of Appeal’s decision in McEnery v Commissioner of An Garda Síochána (here).

The issue is “clarification of the circumstances in which the power of summary dismissal of a garda convicted of a criminal offence, by a jury or by a judge summarily, can be utilised in disciplinary proceedings”.


In 2011, Waterford Circuit Court convicted McEnery of assault contrary to s 2 of the Criminal Law Act 1997. The trial judge sentenced her to four months imprisonment, suspended for six months. The Court of Criminal Appeal upheld that conviction.

Although McEnery had a clear disciplinary record otherwise and had received commendations on a number of occasions, the Garda Commissioner served her with notice of his intention to summarily dismiss her pursuant to Regulation 39 of the Garda Síochána (Discipline) Regulations 2007, on grounds that she was unfit for retention in the force.

McEnery issued judicial review proceedings seeking an order of certiorari quashing the Commissioner’s decision. She argued that the Circuit Court conviction did not absolve the Commissioner from conducting his own inquiry. Kearns P (here) dismissed that application. He held that, although summary dismissal power was unusual and exceptional, it is not for the courts to decide what behaviour warrants dismissal of a garda: that is a matter for the Commissioner and the Minister. McEnery appealed that decision to the Court of Appeal.

Overturning the High Court decision, the Court of Appeal held that the plain wording of Regulation 39 require that the material facts and the breach of discipline both merit dismissal. The Commissioner sought permission to appeal that decision.

The Supreme Court determined that the Court of Appeal judgment would have “significant implications for the Commissioner’s ability to maintain discipline in An Garda Síochána and thus for public confidence in An Garda Síochána.

Therefore, the decision of the Court of Appeal impacts more generally and outside the specific and individual circumstances of this case”. That demonstrated that the case satisfied the requirement under Article 34 of the Constitution that “the decision involves a matter of general public importance” authorising the Supreme Court to hear the appeal.


Fayleigh v Plazaway: single incident of misconduct wouldn’t cause loss of confidence in arbitrator

Harp symbol of the Court

Harp symbol of the Court

1 January 2016 by

In this case, the Court held that a single incident of misconduct would not cause the parties to the dispute to justifiably lose confidence in the Arbitrator.



Plazaway provided hotel management services to Fayleigh under a ten year contract. Plazaway also provided “shared services” which it provided to other hoels under its management. Under a term of the contract, Fayleigh could terminate the contract subject to a payment to Plazaway of one year’s management fee. At some point in 2008 Plazaway stopped providing management services but continued to supply the shared services. There is a dispute between the parties as to whether that occurred in March or December of 2008 and whether Plazaway decided to step back from providing the management services or Fayleigh terminated the contract.

The contract provided for arbitration, and an arbitrator was appointed. Hearings began in February 2011. During the third day of hearings, Fayleigh sought to have 17 volumes of discovered documents submitted as evidence. Plazaway objected to the way that evidence was presented and objected that it was not proven. The Arbitrator was concerned, however, that the cross examination of witnesses on such a large volume of documents would take so long that the arbitration would cost more than the sum in dispute. The Arbitrator therefore stated that he would read all 17 volumes at a later date and make an objective consideration of their relevance. In June 2012 there was a direction hearing at which Fayleigh reminded the Arbitrator that he had undertaken to read the discovered documents. In May 2013 though, the Arbitrator delivered his determination without having done so, and gave judgment in favour of Plazaway for €476,000. Fayleigh brought High Court proceedings to have that decision set aside on grounds of misconduct by the Arbitrator.

In the High Court, Ryan J found that there was misconduct on the part of the Arbitrator and set aside his award in part and returned the dispute to the Arbitrator for reconsideration. Fayleigh appealed that decision to the Supreme Court.

Supreme Court

In the Supreme Court, Fayleigh argued that when the High Court made a determination of misconduct by the Arbitrator it should have set aside the full award to Plazaway, that the High Couert should not have returned the dispute to the same arbitrator and that an award of costs should be made against the Arbitrator.  O’Donnell J (here) upheld the decision of the High Court that the Arbitrator’s refusal to consider Farmleigh’s submitted documents was misconduct. But he distinguished this case from Galway County Council v. Samuel Kingston Construction Ltd [2010] 3 IR 95 where there was a series of matters that caused the parties to lose confidence in arbitrator.

Pointing out that the costs of the dispute had already gone above the sum in dispute, O’Donnell J held that a single incident of misconduct would not cause the parties to the dispute to justifiably lose confidence in the Arbitrator, and he upheld the High Court decision to return the dispute to the Arbitrator who had full knowledge of the issues and facts of the dispute. He advised that the Arbitrator should approach the matter with a fully opened mind and seek submissions from the parties on how to proceed.

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