Supreme Court dismisses appeal allowing new legal argument on aquaculture licence renewal pending period.

THE SUPREME COURT

259/2011

Hardiman J.

O’Donnell J.

Clarke J.

Between:

Lough Swilly Shellfish Growers Co-Operative Society Ltd.

& Atlanfish Ltd.

Plaintiffs/Respondents

And

Danny Bradley and Robert Ivers

Defendants/Appellants

Judgment of O’Donnell J. delivered on the 13th of March, 2013

1 This case presents an intriguing of point of statutory construction of apparently general application, which appears not to have

arisen in any reported decision in any jurisdiction within the reach of the researches of counsel or indeed the Court. However, this

issue is surrounded on this appeal by a morass of confusion, procedural complexity, and simple error.

2 On the 20th of October 1994 the first named plaintiff obtained a licence (“the foreshore licence”) in respect of a portion of the

foreshore of Lough Swilly, County Donegal, for the purposes of oyster and mussel cultivation. On the same day the Minister for the

Marine granted the first named plaintiff a licence (“the aquaculture licence”) to cultivate oysters and mussels at the designated place

in Lough Swilly near Inch Island. The aquaculture licence was expressed to be exclusive. Both licences were for a period of 10 years

and thus expired on the 19th of October 2004. However, it was provided by s.101(c) of the Sea Fisheries and Maritime Jurisdiction

Act 2006 (“2006 Act”), inserting a new s. 19A(4) in the Fisheries (Amendment) Act 1997 (“1997 Act”), that a licensee who had

applied for a renewal of an aquaculture licence would be entitled to continue the aquaculture in operation pending the decision on the

renewal. At the time the subject matter of the proceedings, the plaintiffs’ licence had indeed expired and an application for renewal

had been made but had not been determined. Accordingly the interpretation and effect of s. 19A(4) of the 1997 Act as inserted by s.

101 of the 2006 Act, was an essential element in the title of the plaintiffs and was therefore central to the legal point sought to be

advanced on this appeal.

3 The defendants are fishermen who have traditionally fished for shellfish in Lough Swilly. As and from around September 2006 they

began to enter the area of the plaintiffs’ foreshore licence and remove oysters. Their grievances about their exclusion from a rich

source of shellfish in a traditional fishing area was complicated further by complaints made by environmental campaigners that the

plaintiffs’ seeding of gigas oysters which, it was alleged, was having a detrimental effect on the existence of the native oysters in

Lough Swilly. To this generalised complaint, the defendants added the claim that they were entitled to continue to harvest native

oysters wherever they might be found.

4 The plaintiffs sought and obtained an interlocutory injunction, and then pursued a claim for a permanent injunction and sought

extensive damages. The defendants denied any breach of the plaintiffs’ rights both by denying the plaintiffs’ entitlement as a matter

of law and any breach as a matter of fact. The position is perhaps best stated in a paragraph contained in the first named

defendant’s replying affidavit in the injunction proceedings:

“The position is that the licence expired on or about the 19th October 2004 and has not been formally renewed by the

appropriate government department. In the period 2004-2007 no steps would appear to have been taken by the

Department of Communications Marine and Natural Resources to issue renewal of the plaintiffs licence. In October 2006

the plaintiff received a letter from an official in the Department of Communications Marine and Natural Resources which

would appear to ground the entirety of the plaintiffs claim to the entire fisheries around Inch Island. The unwillingness or

inability on the part of the Department to issue a licence to the plaintiffs since October 2004 means that the matter has

remained unresolved in that the plaintiff does not hold a current licence for the area or areas adjoining that or the

alleged offences said to have taken place. I can also state that some members of the original co-op have died while

others have departed in acrimony. This therefore is clearly not an application by the original licence holders but a totally

different application which appears to be driven by the individual wishes of the plaintiff to obtain undisputed control of

the native oyster beds, which in turn will provide considerable additional wealth. The gains of the plaintiffs will be at the

expense of the indigenous and traditional fishermen of Lough Swilly. The entire application is designed to con all local

fishermen by threatening them with financial ruin. The only two who had the temerity to resist and challenge the

plaintiffs’ assumption have been the subject of this injunction.”

In addition to denying interference with the plaintiffs’ rights, and putting them on proof of their licences, the defendants amended

their defence to include, among other things, a plea that s. 19(A)(4) of the 1997 Act (as inserted by s. 101 of the 2006 Act) was

unconstitutional.

5 The trial came for hearing in 2009 and the Court first heard the non-constitutional claims. De Valera J. held that trespass had been

established and while rejecting the plaintiffs’ claims for extensive damages, awarded them €25,000 damages. The relevant provisions

of the order of the 28th of May 2009 (which was only perfected on the 8th February 2010) provided as follows:

“It is ordered that the first named defendant its servants or agents or anyone acting on his behalf with his consent … be

restrained until the determination of the third party issue herein (and in the event of the third party issue not being

proceeded with be restrained permanently) from entering personally or by means of any vehicle boat or ship the area of

Lough Swilly in the County of Donegal identified by the Irish national grid reference as set in the schedule to the licence

granted by the Minister for the Marine to the first named plaintiff on the 28th of October 1994 ….”.

The constitutional issue was argued in November 2009 and by order of the 29th of June 2010 (perfected on the 22nd of October

2010), that claim was also dismissed.

6 At this point, all the various contentions raised by the defendants against the plaintiffs’ claims had been defeated. No attempt had

been made to appeal either order and no suggestion had been made that the defendants were considering any such option. However,

on the 28th of February 2011 the defendants (who, it appears, had by then, having failed to pay the award of damages, been

threatened with bankruptcy) attended a seminar organised by the environmental group Coastwatch and heard a contribution from a

lawyer who ultimately became junior counsel herein to the effect that there was an argument that s. 19(A) of the 1997 Act was not

in force. Thereafter the defendants changed lawyers and embarked upon a circuitous process in an attempt to raise this point, or

appeal, or both.

7 The defendants brought a motion to speak to the minutes of the original order of the 28th of May 2009 pointing out that the order

did not address the possibility of the constitutional claim (referred to in the order as the third party claim) proceeding and yet failing,

which of course is what occurred. In the event, the judge agreed on the 1st of June 2011 to amend this order under the slip rule.

This much was uncontroversial and indeed it could not have been thought to have been a matter of concern to the defendants since

it only clarified, in formal terms, the order and the judgment which were already clear. However the notice of motion also sought to

contend that the original decision of the 28th of May 2009 had been decided per incuriam on the basis that the Court had been

unaware of the point asserted in relation to the effectiveness of s. 19A(4). This point, we were told, was apparently only mentioned

to the trial judge who, while expressing the view that it was a point which should be argued, considered, not surprisingly, that he was

functus officio. However, having established by this route that an order in this case was made in June 2011 – even if only amending

the original order – the defendants immediately took the opportunity of appealing, on the 10th June 2011. They then brought a motion

returnable for the 29th July 2011 seeking to stay the order of the 28th of May 2009 awarding damages, and extending the time for

appealing that part of the order of the 29th of June 2010 refusing the defendants counterclaim but disavowing any desire to appeal

the dismissal of the constitutional claim. The motion was grounded on a joint affidavit of the defendants and supported by an affidavit

from the environmental campaigner Karen Dubsky. This series of manoeuvres perhaps served the purpose of forestalling any

bankruptcy application, but at a cost of presenting a comprehensive procedural tangle that has enveloped this appeal.

The Appeal Point

8 The sole point sought to be raised on this appeal was apparently simple. Section 101 of the Sea Fisheries and Maritime Jurisdiction

Act 2006 operated, it was argued, to insert a new s. 19A into the Fisheries (Amendment) Act 1997. That legislation in turn contained

a fairly standard provision, in s. 1(3), in respect of the commencement of the legislation and provided as follows:

“This Act shall come into operation on such day or days as may be fixed therefor by order or orders of the Minister,

either generally or with reference to any particular purpose or provision, and different days may be so fixed for different

purposes in different provisions of this Act.”

In the event, two commencement orders had been made. First, the Fisheries (Amendment) Act 1997 (Commencement) Order 1998

(S.I. No. 46 of 1998) commenced eleven provisions of the Act from the 26th of February 1998. The second Commencement Order, the

Fisheries (Amendment) Act 1997 (Commencement) (No. 2) Order 1998 (S.I. No. 203 of 1998) was in two parts and commenced a

number of provisions from the 16th June 1998, and then commenced from the 30th June 1998 “the remainder of the Act which was

not commenced by the…[first Commencement Order]…, but excluding sections 11 and 13 the commencement of which would be

considered later.”

9 In the event neither s. 11 or s. 13 was commenced. Thus the position, in 2006, when the Sea Fisheries and Maritime Jurisdiction

Act was passed, and as it happened came into force, was that the 1997 Act had been commenced save for ss. 11 and 13. It should

be said that the 2006 Act for its part did not contain any such commencement provisions and thus came into force on the day it was

signed by the President in accordance with Article 25.4.1 of the Constitution. The point made on behalf of the appellants however, by

way of a rhetorical question, was that while s. 101 came into effect on that day, and was effective to achieve the insertion of s. 19A

into the 1997 Act, what commencement order under the 1997 Act commenced the new s. 19A? This argument was put in a number of

ways. If the 1997 Act was read together with its amendments as a single Act, then s. 1(3) required a commencement order for each

relevant provision. Section 19A was not commenced (and logically could not have been commenced) by either of the commencement

orders in 1998. Looked at in another way it was said that the 1997 Act contained two types of sections: those commenced by a

formal order, and those (ss. 11 and 13) which had not been commenced. While s. 101 of the 2006 Act was thus effective in inserting

s. 19A into the 1997 Act, that in itself did not answer the question as to whether it inserted it in the commenced portion of the Act,

or in the uncommenced portion. The bringing into force of the provisions involved, it was said, a two stage process – the

commencement of s. 101 which inserted s. 19A of the 1997 Act, and then the commencement of that section in turn. All that could

be demonstrated, it was argued, was the commencement, of s. 101. But s. 19A required to be brought into operation. Section 1(3) of

the Act set out the mechanism for commencement. While a simple commencement order could achieve that purpose, no such order

had been made in respect of s. 19A. Accordingly, there was no statutory extension of the licence, and it followed that the

defendants could not have committed any trespass.

The Response of the Plaintiff and the Attorney General

10 The position of the plaintiff and the Attorney General was essentially similar. Both raised procedural objections. They argued that

since the original order restraining trespass and awarding damages had been made on the 28th of May 2009 and perfected on the 8th

of February 2010 and the defendants could not comply with the established criteria permitting an extension of time for appeal, the

defendants should not be permitted to appeal that order. Furthermore, both parties argued that this specific point as to the alleged

need for a commencement order in respect of s. 19(A) had not been argued in the High Court at all. Accordingly it was said that the

Court should not entertain it by reference to the principle in Henderson v. Henderson (1843) 3 Hare 100 (“Henderson”), recently

restated and applied in In the matter of the Proceeds of Crime Act 1996; F.McK. v. T.H. and J.H. [2007] 4 I.R.186. In the course of

the argument however, it became apparent that this principle was only of tangential relevance in this case. The fact that in the

ordinary course a litigant may be precluded from litigating a point in a second set of proceedings that could, and should, have been

brought in the first set of proceedings, is itself not in evidence a justification, still less, authority, for preventing a litigant from

advancing the point, albeit belatedly, in the first and only set of proceedings, whether at first instance or on appeal. Indeed, the

rigour of the approach in Henderson might, if anything, be a justification for permitting a point to be advanced in the original

proceedings even at a late stage, if the consequence is that otherwise the point could never be litigated at all. Indeed, that is the

principle which underlies the Court’s jurisdiction under Order 28 Rule 1 of the Rules of the Superior Courts to permit “at any stage of

the proceedings” an amendment on such terms as may be just “for the purpose of determining the real questions in controversy

between the parties.”

11 It appears that the true issue involved in the defendants’ failure to raise and argue this specific point in the High Court is the

general and repeatedly stated reluctance of the Supreme Court to permit a party to argue for the first time in the Supreme Court a

point not argued and therefore not decided in the High Court. This long established reluctance was expressed perhaps most forcefully,

in constitutional terms, by Henchy J. in Movie News Ltd v. Galway County Council (Unreported, Supreme Court, 25th July 1973)

(“Movie News”) when he said:

“It would in effect be deciding this case as of first instance. However, save for matters committed to it by the

Constitution or by statute, this Court is only an appellate jurisdiction. It should not – except for exceptional reasons

which do not exist in this case – under the guise of an appeal, enter on the trial of a matter as of first instance and

thereby deprive the party aggrieved with its decision of the constitutional right of appeal which he would have had if

that matter had been decided in the High Court.”

In K.D. (C) v. M.C. [1985] I.R. 697 (“K.D.”) it was said by Finlay C.J. that it was “a fundamental principle, arising from the exclusively

appellate jurisdiction of this Court in cases such as this that, save in the most exceptional circumstances, the Court should not hear

and determine an issue which had not been tried and decided in the High Court. To that fundamental rule or principle there may be

exceptions, but they must be clearly required in the interests of justice.”

12 However, for their own reasons neither party sought to invite the Court to dismiss the appeal in limine on either of these grounds.

Indeed, it emerged that both parties were anxious to have the central point decided. For the Attorney General it was apparent that

the particular issue was one of general application which could perhaps arise in a large number of situations, and it was therefore

undesirable that there should be uncertainty over such an issue. On the plaintiffs’ part the issue was one of title and it would not be

particularly beneficial to have endured this protracted litigation without settling this issue so that others could seek to maintain the

point even if the present plaintiffs were restrained from trespass. Accordingly, that while the defendants formally maintained their

objections, they made it clear that they did not want the Court to address the points on a preliminary basis.

13 The position therefore is that this appeal comes before the Court on a single ground, and it is resisted on the basis of the three

arguments two of which are essentially procedural. While normally the Court would be entitled, and perhaps wise, to address the

preliminary issues first, the administration of justice may sometimes require, or at least permit, something more. Here, I am influenced

by a number of issues: the fact that the issue may recur whether in relation to this section or some other amendment: that it would

be undesirable if these proceedings did no more than simply ventilate the issue and therefore increase the risk that it may recur: on

the other hand, the obviously unsatisfactory nature of the proceedings to date for the defendants who now face a permanent

injunction, the risk of committal in default, and the threat of bankruptcy in respect of the damages claim, and the liability for

considerable costs. It would, I consider, be particularly undesirable that the defendants could face the possibility of losing this appeal,

be subject to permanent restraint, and yet believe that the plaintiffs may not have been entitled to bring this action at all.

Furthermore not only have the Parties not sought to have any of these issues determined in advance of the substantive issue, they

have, for their different reasons, requested the Court to address the central argument. In the circumstances, I think the Court is

entitled to address the points raised in whatever sequence appears best suited to the best resolution of the case, which in this case

may involve addressing, albeit with some misgivings, the issue raised by the defendants.

The Respondents’ Case

14 The plaintiff adopted the arguments of the Attorney General in relation to this point. In the written submissions it was asserted on

behalf of the Attorney General that the starting point was Article 25.4.1 of the Constitution which provides:

“Every Bill shall become and be law as on and from the day on which it is signed by the President under this Constitution,

and shall, unless the contrary intention appears, come into operation on that day.”

The fundamental question here therefore, as indeed in any question of statutory construction, is the intention of the Oireachtas to be

understood from the legislation itself set in its factual and legal context. It was argued on behalf of the Attorney General that there

were very many examples on the Statute Book in which acts with commencement provisions were subsequently amended, and the

amending provisions were not themselves the subject of any commencement order under the parent Act. One particular example was

that provided by the Planning Acts. The Planning and Development Act 2000 was a comprehensive overhaul of the law on planning. By

s. 270 it is provided that the Act should come into force on such dates as the Minister should appoint. Over a subsequent four year

period the provisions of the Act were brought into force by seven separate commencement orders. However, s. 13 of the Planning

and Development (Strategic Infrastructure) Act 2006 inserted a new section 50 and s. 50A into the 2000 Act. The 2006 Act itself

was commenced by order, but no separate order was made under the 2000 Act commencing the new ss. 50 and 50A inserted into

that Act. On the appellants’ argument it would follow, it was suggested, that those provisions were dormant. However, in due course,

in 2010, ss. 32 and 33 of the Planning and Development (Amendment) Act 2010 inserted a new s. 50A and a new s. 50B into the 2000

Act. If the appellants’ argument was correct therefore, the Oireachtas would appear to have solemnly but ineffectually sought to

amend a provision which itself had never been in force.

15 At the hearing, counsel for the Attorney General acknowledged that this was an argument from practice rather than principle.

Furthermore, he also properly brought to the Court’s attention a case which suggested that on one occasion at least the Executive

had commenced, or purported to commence, an amending provision by a commencement order made under a parent Act. This was

illustrated by the important case of Podger v. The Minister for Agriculture, Food and Rural Development [2002] 4 I.R. 16 (“Podger”).

The facts of the case are complex but illustrate quite neatly the point which arises here. That case concerned a direction made to

the appellant to move certain sheep from the Curragh where he had the benefit of grazing rights. Such a direction could be made

under s. 17A of the Diseases of Animals Act 1966, which had been inserted in that Act by s. 2(1) of the Diseases of Animals

(Amendment) Act 2001, which had been passed on the 9th of March 2001. The Act of 2001 did not contain any commencement

provision. However, the parent Act did. As it happened, a commencement order under the 1966 Act was made on the 27th of March

2001 which purported to bring into operation the new s. 17(A). However, the relevant direction given to the applicant was given on

the 26th of March and, it was argued, could not be valid if the amendment introduced in 2001 required a commencement order under

the 1966 Act, since that order had only been made on the 27th of March, and a day after the relevant direction to the applicant.

Thus the issue in the case was presented in a very clear way: if s. 17A of the 1966 Act as inserted by s. 2(1) of the 2001 Act came

into operation on the date of passage of the 2001 Act (the 9th of March 2001) then the direction given to Mr Podger was valid and

effective: if however the commencement order under the 1966 Act was necessary to bring into force s. 17A then the direction was

invalid, since it had been made prior to the date of commencement pursuant to the commencement order under the 1966 Act.

16 While it might have been thought that s. 10(1)(b) of the Interpretation Act 1937 might have authorised the making of a direction

order after the passage of the 2001 Act, that argument was rejected by Ó Caoimh J. However the learned judge rejected the

applicant’s claim on the basis that he considered it had not been necessary to make a commencement order bringing s. 17A into

operation. In this regard he said:

“In regard to the first issue, namely whether it was necessary to make an order bringing s. 17(A) into operation, I

believe having regard to the Act of 2001, that it was one which was clearly on its face intended to come into immediate

operation on its passing and to be of immediate force and effect. I consider that s. 2(2) of the Act indicates clearly that

the intention of the legislature was that s. 17(A) was intended to be in force from the date of the passing of the Act of

2001 and in these circumstances I do not accept the submission advanced on behalf of the applicant that the section

had no force or effect until an order was made pursuant to s. 1(2) of the Act of 1966. I consider that the reference to

s. 17(A) remaining in force, where the words “shall remain in force” are used, indicates the intention of the legislature

that it was to be in force upon the passing of the Act of 2001.” (p.20)

Helpful though that case is, it was a case decided at first instance and not appealed to this Court, and also one apparently of first

impression in that it does not appear that the Court was referred to any other authority or text.

17 Counsel for the Attorney General also sought to argue that the appellants’ point was misconceived when a number of other

examples were considered. He took the example of a parent Act with the subsequent amendment and in circumstances where the

parent Act did not itself contain any commencement provision and thus came into force on the day it was signed by the President.

But, if the appellants were correct, and it was not simply necessary to commence the amending Act, but also to commence the

amendment being inserted into the parent Act, then the question arose when that provision was commenced. Indeed, on this

argument, it could not be commenced, unless the amending provision was held to have been commenced by the Act of passage of

the original (unamended) parent Act which was a logical absurdity. The only logical conclusion was that the amending section was

commenced by the enactment and bringing into force of the amending legislation. But if that was so in the case of Acts which did not

require a commencement order, or if one was required, where one had been made, there was no reason why the same could not apply

in a case such as this. If the intention of the Oireachtas was clear in such cases that the amending provisions should come into force

immediately, then the same approach was possible here. Accordingly, if these arguments were correct, then why was the coming into

force of s. 101 of the 2006 Act not sufficient to bring s. 19A into operation.

Conclusion

18 In my view the point advanced by the appellant is not persuasive. The precision in drafting of legislation is valuable in bringing

clarity, but there is a point in which clarifying precision can merge into pointless pedantry. The argument is like an illusionist’s trick

that involves acceptance of, or distraction from, one point, after which the reasoning seems to follow with apparent logic to a

conclusion that defies common sense.

19 It is perhaps surprising that this point does not appear to have been considered in any reported case or any of the major texts in

this important area of the law. The closest point is perhaps that which was briefly considered in the case of Rex v. Minister of Town

and Country Planning; Ex Parte Montague Burton Ltd [1951] 1 K.B. 1 which dealt with a related conundrum in relation to

commencement provisions. The standard from of provision is in a form which states that the Act or its component provisions shall

come into force when an order is made. However, the argument was raised that this gave rise to an impossible circularity. To have

the power to commence the Act under the section, it was necessary for the Act to be commenced. This argument was robustly

rejected by Tucker L.J. in a conclusion which appears to have been accepted ever since:

“That ingenious argument does not appeal to me because I think that the ordinary and natural interpretation must be

given to the section which itself brings the Act into operation, namely, that it must necessarily come into operation with

the passing of the Act, which was on August 6, 1947. Any other interpretation would really make nonsense of the

provisions of the Act.” (p.5)

Subsequently the issue also arose in the New South Wales case of Fagan v. Dominitz [1958] S.R. (NSW) 122. In that case the

Poisons Act of New South Wales was separated into a number of parts, Section 1(2) contained a standard commencement clause

providing that the Act would commence on such day or days as may be appointed. Part II was purported to be brought into effect as

of 1 April 1953 but it was successfully argued in a prosecution brought pursuant to the statute that Part II did not in fact come into

effect because Part I which contained the commencement clause had itself not been commenced. In an appeal by way of case

stated the acquittal was overturned. Street C.J. cited with approval that portion of the judgement of Tucker L. J. already quoted

above, adding some further views as follows:

“I think that the act can only be read reasonably and intelligently if section 1 (2)(b) is, as was submitted by the

appellant, to be regarded as an immediate grant of power independently of any proclamation and Grant coming into

existence upon the date when the act received the Royal Assent. That is the principle upon which the reasoning in the

judgement of the Court of Appeal proceeded in Rex v Minister of Town and Country Planning’ .… the principle enunciated

by Tucker LJ appears to me to be exactly in point in the present case. I can see every reason for the legislature desiring

to have different Parts of the Act brought into operation at different times and it would seem that Part II is really the

whole basis on which the operation of the act became effective“.

On this authority Gobbi, “When to Begin: A Study of New Zealand Commencement Clauses with Regard to those Used in the United

Kingdom, Australia and the United States” (2010 )31 3 S.L.R. 153-216, concluded :-

“Like title clauses, commencement classes come into being (take effect) for the purposes of their respective Acts the

moment they are enacted. For this reason, commencement clauses do not require commencement clauses”.

20 In my view a similarly robust line of argument is appropriate here. The life blood of the law, if not logic, is certainly not a pointless

and obstructive pedantry. It is not at all apparent to me why it should be necessary to suggest that the bringing into force of an

amending provision is only effective to insert the amendment in the parent Act, but not to bring it into force. This concept of an

amendment requiring a form of double movement( insertion into the act and then commencement of the section inserted ) is central

to the appellants’ argument. However, I think there is considerable force in the argument made by counsel for the Attorney General

by reference to a situation where an Act has already been commenced either by signature of the President or indeed by the due

making of the commencement order under the Act. In such cases it seems to be accepted – correctly in my view – that the coming

into force of the amending section contained in the amending Act occurs when the amending Act is signed by the President or

commenced pursuant to the commencement provision contained in that amending Act. If this is so, I see no reason to suppose that

the same cannot occur in the case of an amendment to an Act which contains a commencement provision. No commencement order

under the parent Act was made because it was not necessary, because the section was already commenced and in full force by the

coming into force of the amending Act. The answer to the question therefore which seeks the commencement order under the 1997

Act of s. 19A is that there is none under that Act because s. 19A was already commenced. It did not come into the 1997 Act in a

state of suspended animation and in need of some further step to bring it into operation.

21 This approach is, in my view, consistent with Article 25.4.1. The Article in effect creates a presumption that unless the contrary

appears, an Act comes into force on the date of signature and on the same day as it is signed by the President. The intention of the

Oireachtas is to be gleaned from the Act against its legal, factual and historical background. It seems quite clear that the Oireachtas

could not be said to have otherwise intended in this case. If the Oireachtas had wished to defer the coming into force of s. 19A or

permit that option, it could have done so simply by making provision for commencement of s.101. There could be no sensible reason

for commencing s.101, but nevertheless intending that s. 19A would remain ineffective. The passage of s. 101 has no purpose other

than to secure the coming into force of s. 19A.

22 Furthermore it is worth considering why commencement orders are normally utilised. The underlying reasoning is well set out in the

judgment of Lord Reed in the United Kingdom Supreme Court in M v. Scottish Ministers [2012] 1 W.L.R. 3386:

“Where no provision is made for an Act or provision of an Act coming into force, it comes into force at the beginning of

the day on which the Act receives the Royal Assent… In practice however, it is common for an Act to provide that it is

to come into force at a time after it has received the Royal Assent, either on a date specified in the Act itself, or on a

date or dates to be fixed by a separate order. Usually, although not invariably, this is done in order to allow time for

persons affected by the Act to familiarise themselves with its provisions to make any necessary adjustments to their

affairs. Officials may also require time to prepare for the work involved in administering the Act. It may, for example, be

necessary to draft regulations or other instruments to be made under the Act, after consultation with those concerned,

or to prepare explanatory material for the guidance of officials and the public. The delay in commencement thus allows

persons affected by the Act sufficient time to prepare for its practical operation.” (para.24)

No reason could be advanced for bringing s.101 into force but yet delaying the operation of s. 19A. Again this points to it being the

plain intention of the Oireachtas that s.19A was to come into force immediately.

23 In my view, the foregoing analysis is also consistent with the conclusions arrived at independently by Ó Caoimh J in Podger.

24 Has the point been made the subject of a valid appeal? It is clear in my view, that a party cannot seek to avoid the consequences

of the time limits for the appeal of orders of the High Court by the simple stratagem of seeking to speak to the minutes of the order

and then if a further order is obtained, to appeal that order. Logically, the only appeal which could be brought against the order made

on the 1st of June 2011 is an appeal against the Court’s amendment of the order and possibly an appeal against the Court’s decision

not to reopen the argument (insomuch as that was truly raised). But neither of those matters would avail the appellants in this case,

or permit them to do the only thing which they wish to do, which is to argue, on this appeal, the question of the commencement of s.

19A. Accordingly, the question becomes whether the Court should grant an extension of time to permit the appellant to argue that

point. Plainly, the appellants cannot bring themselves within the criteria in Éire Continental Trading Co., Ltd. v. Clonmel Foods, Ltd.

[1955] I.R. 170 even generously interpreted. Those criteria are, I accept, guidelines, and the Court retains a residual discretion.

However, in litigation, and particularly litigation which has been so drawn out and bitter as this, parties are entitled to believe, and

conduct their affairs, on the belief that at some stage the matter has come to an end. The only grounds for extending the time within

which to appeal here is the fact that the defendants had heard it suggested that s. 19A might not have come into force. If this was

a sufficient ground then logically it could arise at any time and there would never be a point at which this litigation, or any High Court

case, could be said to have terminated. The situation might be otherwise if there was an extant appeal in being, and it was sought

maybe to extend the grounds of appeal. That however does not arise here and would in any event raise the issue of the extent to

which it is possible to argue on appeal a ground not advanced in the Court below to which I will now turn.

Argument of a New Ground of Appeal

25 Even if time were extended for an appeal, the appellants must still overcome the fact that they have not argued this point in the

High Court, albeit that the operation, effect and constitutional validity of s. 19A were all to the forefront of the case. Both Movie

News and K.D. were cases which were expressed in very strong terms, and might be understood as creating an absolute rule against

the argument of any point not raised explicitly in the High Court. However, with respect to the judgment of Henchy J. in Movie News

the proposition that the objection to any argument of a new point in an appeal is grounded in the constitutional right of appeal, is not

beyond argument. Indeed, if it were so, it is hard to see how it could admit of the exceptions, unless the exceptions were themselves

mandated by the Constitution.

26 The Constitution requires that there be an appeal to the Supreme Court. However it says nothing about the content or nature or

procedure of that appeal. Fundamentally, what it requires therefore is that the correctness of the decision and resolution of the case

in the High Court be capable of being reconsidered in a court of appeal. The appeal actually provided, which is something less than a

full rehearing, is plainly compatible with the Constitution. Even an appeal in a case concerned only with a point of law is not limited to

a rerun of the case heard in the High Court with the substitution of judges of the Supreme Court for the judge of the High Court. It is

for example, common case of the Supreme Court to receive much more elaborate and detailed argument than that advanced in the

High Court, and to be referred to case law and materials not presented to the High Court, and in some cases post-dating the High

Court hearing. There is furthermore an established jurisdiction in the Supreme Court to admit fresh evidence either on interlocutory

appeals, or on full appeals. See Order 58 Rule 8 of the Rules of the Superior Courts and Fitzgerald v. Kenny [1994] 2 I.R. 383. By

definition this means that the Supreme Court will hear matters never advanced in the High Court. In cases where injunctions or orders

are made, whether interlocutory or final, the Supreme Court may take into account matters which have occurred since the High Court

hearing in considering the appropriateness of the order to be made. Again, while it is normally both desirable and helpful that the

Court has the benefit of the considered views of the High Court judge in any particular point which is the subject matter of an appeal,

that desirable objective cannot be said to be an absolute prerequisite to a valid appeal. In a case where a number of points are

argued but the High Court considers that the case can be disposed of on only one, the Supreme Court may, if it considers necessary,

consider the points which were argued, even if not decided, in the Supreme Court. See the observations of Murray J. in Dunne's

Stores v. Ryan [2002] 2 I.R. 60 . In A.A. v. The Medical Council [2003] 4 I.R. 302 at p.308 Keane C.J. said:

“…the court is not automatically precluded in every case from considering such an issue simply because it has not been

subject of a determination by the High Court Judge. Whether a party is to be precluded from advancing again arguments

which were relevant to an issue in the case and on which he relied in the High Court must, in the interests of justice, be

determined according to the circumstances of the particular appeal before this court.”

Accordingly a certain sensible flexibility is exercised by the Court depending on the demands of the case, and a similar approach could

be considered when a point is sought to be argued which was not advanced in the High Court though closely connected to points

which were argued, and which would not have any implication for the evidence adduced in the High Court.

27 What the Constitution requires is an appeal which permits the Supreme Court to consider whether the result in the High Court is

correct. The precise format and procedure of any such appeal is not dictated by the Constitution. While that object is often and best

achieved by a careful analysis of the argument in the High Court and the High Court’s adjudication of said argument, it does not follow

that the constitutional appeal must always be limited to that process. Prior to the coming into force of the 1922 Constitution, it was

possible to seek leave to argue a fresh ground of appeal in the Court of Appeal but only on strict conditions. See Wylie, The

Judicature Acts (Ireland): and rules of the Supreme Court (Ireland) 1905, copiously annotated, (Dublin; 1906), p.781. Nothing in the

1922 or 1937 Constitutions suggests any different understanding of the concept of an appeal form the High Court in performance of

the administration of justice. There is a spectrum of cases in which a new issue is sought to be argued on appeal. At one extreme lie

cases such as those where argument of the point would necessarily involve new evidence, and with a consequent effect on the

evidence already given (as in K.D. for example); or where a party seeks to make an argument which was actually abandoned in the

High Court (as in Movie News); or, for example where a party sought to make an argument which was diametrically opposed to that

which had been advanced in the High Court and on the basis of which the High Court case had been argued, and perhaps evidence

adduced. In such cases leave would not be granted to argue a new point of appeal. At the other end of the continuum lie cases

where a new formulation of argument was made in relation to a point advanced in the High Court, or where new materials were

submitted, or perhaps where a new legal argument was sought to be advanced which was closely related to arguments already made

in the High Court, or a refinement of them, and which was not in any way dependent upon the evidence adduced. In such cases,

while a court might impose terms as to costs, the Court nevertheless retained the power in appropriate cases to permit the argument

to be made. Here the defendants attacked s. 19A with a blunderbuss of legal arguments, but nevertheless contrived to miss this

particular point. It may be that in such cases there is no reason in principle why the Court may not properly permit the argument to

be made. The question whether the Supreme Court is precluded from exercising such a jurisdiction either by the terms of the

Constitution or the weight of authority, is however a matter which it is not necessary to resolve in this case, since I would not

extend time for the appeal and the point which it was sought to argue on this appeal, is misconceived. Accordingly, I would dismiss

the appeal.