Killian Flood: Legal Review 2022
As another year draws to a close, lawyers across Ireland will be settling down for the Christmas break. December is always a busy period as both clients and the courts are keen to finalise matters before every sits down to turkey, selection boxes and (for those inclined) festive tipples for three weeks.
Our publication continues to go from strength to strength, with the newsletter passing 9,500 subscribers and our LinkedIn following rising to 18,000 so far this year. ILN also averages 100,000 unique visitors to the website per month, which is exceptional growth in a crowded media market for legal news.
In part, this growth has been driven by the continuous development of case law in the legal system and the need for practitioners to stay up-to-date on the leading issues of the day. As such, it seems appropriate to recap and review some of the pivotal decisions from the year to date.
In January, the Supreme Court delivered a significant ruling in Burke v. The Minister for Education and Skills  IESC 1 where the court clarified the scope of judicial deference to executive power. It was held that the “clear disregard” standard of review would not apply to executive decisions which affect an individual’s constitutional rights and there was no reason to extend deference “over and above the presumption of constitutionality”. However, a later case involving a member of the Burke family would garner much more national attention.
February was a busy month for important decisions and began with McDonald J. delivering the latest judgment in Hyper Trust Limited t/a The Leopardstown Inns v. FBD Insurance plc  IEHC 39. The claim mostly dealt with the concept of the “closure” of a premises and whether a partial closure of bar counters could attract coverage under an insurance policy. Later in the year, the court would reject a claim where coverage was provided for closures “as a result of human notifiable disease manifesting itself at the premises” (Premier Dale Limited v. Arachas Corporate Brokers Limited  IEHC 178).
In Clare County Council v. McDonagh and McDonagh  IESC 2, Hogan J. held that a local authority was not entitled to an interlocutory injunction removing members of the Travelling community from public lands. The decision is considered important for the observations that the local authority had arguably failed in its duty to provide adequate accommodation to the Travellers and that the balance of convenience did not favour rendering them to be “effectively homeless”.
Additionally, the Court of Appeal reaffirmed that there was no primary/secondary victim distinction for psychiatric damage (Sheehan v. Bus Éireann and Anor.  IECA 28), and a challenge to the lawfulness of the Special Criminal Court was rejected (Dowdall v. DPP and Ors.  IEHC 81 and upheld today by the Supreme Court).
In An Taisce v. An Bord Pleanála  IESC 8, it was held that the Planning Board did not need to consider the upstream consequences on the production of milk when it granted an application for a major cheese factory in Kilkenny that would consume 4.5 per cent of the national herd’s milk production.
In March, the Court of Appeal reversed a decision by the HSE to place a consultant gynaecologist on administrative leave despite the fact that he had engaged in unauthorised experiments on patients. It was held that the expert inquiry established that suspension was not appropriate, but this was ignored by the CEO Mr Paul Reid (O’Sullivan v. HSE  IECA 74).
Finally, in April both Collins and Murray JJ delivered substantial judgments in Ulster Bank Ireland Limited and Ors. v. McDonagh and Ors.  IECA 87 relating to the operation of the Civil Liability Act 1961 and debt claims. In a joint judgment, it was held that that an action by a bank of professional negligence proceedings could not be considered the same “damage” as the debt claim and, accordingly, the concurrent wrongdoer provisions of the CLA did not apply.
In May, the Supreme Court determined that the Access to Information on the Environment Regulations did not apply to the President of Ireland, meaning that the office is immune from requests for information. Similarly, attempts to obtain documents from the Council of State and the Secretary to the President’s Office were rejected (Right to Know CLG v. Commissioner for Environmental Information  IESC 19).
In tax law, the Court of Appeal held that a gin distiller had a legitimate expectation that excise duty would not apply to alcohol purchased for the purpose of producing hand sanitiser in the early stages of the pandemic, despite a written authorisation never being provided (Arderin Distillery Limited v. The Revenue Commissioners  IEHC 267).
The Supreme Court also upheld a sexual assault conviction for a 14-year-old boy who slapped the bare bottom of a younger child, stating that it was the indecency of the act rather than the sexual intent which rendered the matter to be a sexual assault (The People at the Suit of the DPP v. FN (A Minor)  IESC 22). The High Court also held that the “reasonable mistake” defence for child sexual abuse was unconstitutional because it was to be proved on the balance of probabilities. This created an unfair legal burden on an accused in criminal law proceedings, it was said (C.W. v. The Minister for Justice and Equality and Ors.  IEHC 336).
Further, in Director of Public Prosecutions v. Davitt  IEHC 320, Bolger J. determined that Gardaí only had a right of audience before the District Court where they had initiated and conducted the prosecution. This therefore threw the long-established practice of court presenters into turmoil.
In a blow to personal injury plaintiffs, the High Court upheld the validity of the Judicial Council’s Personal Injuries Guidelines, which means that the recent reductions in damages assessments by PIAB will remain in force (Delaney v. PIAB and Ors.  IEHC 321).
The Trinity term was somewhat quieter than the other terms for significant rulings, although in J.N. v. Harraghy  IEHC 407, the High Court determined that a Disability Complaints Officer had the power to direct the delivery of services to disabled children earlier than the timeframes contained in a service statement.
Further, the Supreme Court determined that expert evidence was not generally necessary to challenge the constitutional validity of legislation and there was no principle that the onus of justifying legislation lay on the State (O’Doherty and Anor. v. The Minister for Health and Ors.  IESC 32).
October began with the High Court determining that counsellors to the HSE National Counselling Service were required to report allegations of child sexual abuse by their adult patients to Tusla pursuant to the provisions of the Children First Act 2015 (McGrath v. HSE  IEHC 541). The Supreme Court also determined that an accused man did not have a right to be interviewed by gardaí for the purpose of having a memorandum of his defence placed on record and put to a jury. It was held that the full range of criminal trial rights did not extend to the investigation stage of criminal activity and the only requirement was for the investigation to be conducted within fair procedures so that trial in due course of law could take place (Director of Public Prosecutions v. JD  IESC 39).
In the exceptional case of Powers v. Greymountain Management Ltd (in liquidation)  IEHC 599, the High Court determined that it would pierce the corporate veil in order to find two Irish directors and two shadow directors personally liable for a multinational fraud. In Krikke and Ors. v. Barranafaddock Sustainable Electricity Limited  IESC 41, the Supreme Court held that the High Court was wrong to determine that certain wind turbines were unauthorised developments in the context of a section 160 of the Planning and Development Act 2000.
In a language rights case, the Supreme Court held that the State unreasonably delayed in publishing environmental legislation in Irish (Glann Mór Céibh Teoranta and Ors. v. The Minister for Housing, Planning and Local Government and Ors.  IESC 40).
The Court of Appeal was busy in personal injuries cases. In Duffy v. Brendan McGee trading as McGee Insulation Services and Anor.  IECA 254, the Court of Appeal criticised an expert witness’ “wholesale abdication” of his duty to the court to be an independent expert and outlined the circumstances in which expert evidence could be disregarded. In Keating v. Mulligan  IECA 257, Mr Justice Noonan criticised the “litigation misconduct” of a defendant and their legal team by engaging in “gratuitous and sustained impugning of the integrity” of a plaintiff during a section 26 application. In Meehan v. Shawcove Limited and Ors.  IECA 208, Mr Justice Noonan outlined the appropriate principles for compensating multiple injuries and the overall proportionality of damages awards.
Perhaps the most important case of the year was Costello v. Government of Ireland and Ors.  IESC 44, in which the Supreme Court narrowly held that the ratification of CETA could not proceed as the legislation as drafted would infringe the judicial sovereignty of the State. Notably, the court provided suggestions on how to amend the relevant legislation to make the ratification of CETA constitutionally permissible.
It was wigs on the green in the High Court regarding consent orders and the Recoverable Benefits and Assistance Scheme. Mr Justice Twomey issued several judgments stating that consent orders which apportioned liability could not be made, only for Mr Justice Barr and Mr Justice Coffey to disagree. At present, the practice seems to be that barristers should outline the basis of the apportionment rather than just seek a consent order simpliciter from the court.
Finally, on the last day of term, the High Court decided to release Mr Enoch Burke from prison, stating that he was using his continued imprisonment for defying a court order to his perceived advantage and the court would not facilitate this (The Board of Management of Wilson’s Hospital School v. Enoch Burke  IEHC 719).
In summary, the year saw a huge number of important judgments being made by the Irish courts. As the law is only becoming increasingly more complex and specialised, this is sure to continue for 2023.
On a personal note, I would like to thank all the loyal readers of the ILN case reports over the last year. I am acutely aware that there are a limited number of reports which are circulated as widely as mine and I certainly feel privileged when I meet a someone who reads the articles. Your continued support is greatly appreciated.