Supreme Court dismisses appeal on damages quantum where State admitted liability without identifying specific legal causes of action.

THE SUPREME COURT

356/05

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN

DAVID KEATING

APPLICANT / RESPONDENT

v

JUDGE TIMOTHY CROWLEY, IRELAND AND THE ATTORNEY GENERAL

APPELLANTS/RESPONDENTS

JUDGMENT of Murray C.J. delivered on the 12th day of May 2010

This is an appeal brought by the second and third named appellants (hereafter the appellants) against an award of damages for the

total sum of €214,000 to the applicant/respondent (hereafter the respondent) for loss and damage claimed to have been sustained as

a result of the breach of certain constitutional and legal rights. A sum of €100,000 damages has been paid to the respondent as

directed by the High Court with a stay on the balance pending the outcome of this appeal.

The respondent’s claim was heard and determined in the High Court as an assessment only the appellants having decided not to

contest liability.

The Notice of Appeal lodged on behalf of the appellants is an appeal only on the issue of the quantum of the damages awarded, as is

also acknowledged to be the case at paragraph 7 of the affidavit of Miss G. Hodge and dated 12th September 2008 and filed on their

behalf.

Application by Appellants to Amend Notice of Appeal and for a Retrial on Liability

When this appeal was first listed for hearing as an appeal against assessment of damages only the Court indicated that it was difficult

to identify the cause or causes of action in respect of which the State had admitted liability and the legal basis on which the State

agreed that it was liable to pay damages to the appellant which they had agreed would be assessed by the Court. This raised

questions concerning the jurisdiction or at least the basis in law on foot of which the Court could review the assessment of damages

since any assessment of damages depended, inter alia, on identifying the causes of action involved and the causal connection

between any wrong admitted to have been committed and the damages or compensation awarded. The Court invited the parties to

consider this situation and to make submissions as to how the Court should proceed.

In response the appellants, as part of their submissions in this regard, applied to this Court by way of Notice of Motion pursuant to

Order 58 rule 6 of the Rules of the Superior Courts for an order (i) amending the notice of appeal and (ii) remitting the proceedings to

the High Court for a determination of the issue of the liability of the State to the respondent for damages. The additional grounds of

appeal which the appellants seek to have included in an amended Notice of Appeal are the following:-

(a) That the learned High Court Judge ought not to have awarded damages to the respondent without first having

determined the issue of whether the courts have jurisdiction to award damages in respect of the passing by the

Oireachtas of a law affecting personal rights that is subsequently found to be unconstitutional and

(b) that the learned High Court Judge ought to have found as a matter of law that the appellants have no liability to the

respondent in respect of any infringement of the constitutional rights of the respondent arising solely from the passing by

the Oireachtas of legislation and/or implementation and application to the respondent in good faith and without malice of

those provisions.

The appellants have also sought “an order remitting the within proceedings to the High Court for the determination of the issue of

State liability for damages when rights are affected by acts done pursuant to the provision of an Act of the Oireachtas which is found

to be unconstitutional.”

In a Grounding Affidavit supporting the foregoing application, the solicitor for the appellants stated, inter alia:-

“I say and am instructed that the State parties now acknowledge and accept that it is necessary that the issue of State

liability for damages when rights are affected by acts done pursuant to the provision of an Act of the Oireachtas which

was found to be unconstitutional should be decided before any issue of the quantum of such damages is addressed. I

say and am instructed that it is acknowledged that this fundamental jurisdictional matter should be decided in the first

instance, prior to any consideration of the issue of quantum of damages. … it is acknowledged and accepted that in

circumstances where this fundamental jurisdiction issue was not raised or argued in the High Court, that the interests of

justice require that the matter should first be tried and decided by the High Court before consideration by this

honourable Court on appeal.” (paragraph 13).

The position adopted by the State, in its submissions to this Court, is that there was no authority of this Court, or other basis in law

to support the respondent’s entitlement for damages as a consequence of the Court’s earlier conclusion in these proceedings that

certain provisions of the Domestic Violence Act 1996 (hereinafter “the Act of 1996”) were unconstitutional. It was submitted “No

authority was put before the High Court or otherwise notified to the State to support Mr. Keating’s claim for damages. Indeed, any

relevant authority is hostile to the case made by Mr. Keating in his damages claim.”

In substance the State now seeks to impugn the decision of the High Court at this stage in these proceedings on the grounds that

there is no legal basis for attributing liability to the State for the payment of damages to the respondent for the wrongs which he

alleges to have sustained and that the matter should be remitted to the High Court to have the issue of State liability decided.

The respondent in the appeal contended that given the course of the proceedings, and the admission of liability in the High Court the

State is in effect estopped from raising the issue of liability at this stage. He also submitted that it would be an injustice to the

plaintiff to permit the issue of liability to be reopened at this stage and, insofar as the Court might have a discretion to permit the

appellants to reopen the issue of liability at this stage, there are no compelling or exceptional circumstances which would warrant the

exercise of that discretion in favour of the State.

The first issue which the Court has to consider, in the light of the appellants’ application, is whether the State should be permitted to

amend and extend their appeal so as to impugn the decision of the High Court to award damages on the grounds that the State had

no liability even though liability was admitted in the High Court.

If that application is refused, as I consider it should be, the next issue is whether, in the particular circumstances of the case, the

appellants’ appeal discloses justiciable grounds of appeal, and only if so, whether they are well founded in whole or in part.

Issue Concerning Amendment and Retrial on Liability

The application of the appellants referred to above seeks an amendment of the Notice of Appeal in the form indicated and, in an

express acknowledgment that the issue of liability which the appellants now wish to be tried should not in any event be tried in this

Court as a court of final appeal but in the High Court as the court of first instance, seeks an order remitting that issue for trial by the

High Court.

I think it would be useful to set out at this point the sequence of events concerning the claim for damages:

1. The respondent issued judicial review proceedings with a view to setting aside the interim barring order on the grounds that

certain provisions of the Act of 1996 were unconstitutional and subsequently, claimed damages for loss and damage

sustained as a result of the unconstitutional making and enforcement of that order against him. The claim for damages

was included after the respondent had been permitted to amend the grounds and relief sought in the judicial review. That

occurred before the hearing and determination of the constitutional issues;

2. By consent of the parties the issues concerning the constitutionality of the Act of 1996 were heard and determined by the High Court and

all issues concerning damages including liability were left in abeyance pending the outcome of the constitutional challenge;

3. This Court allowed the respondent’s appeal against the finding of the High Court in favour of the constitutionality of the Act of 1996 on the

grounds that its provisions failed to ensure that an interim barring order, granted ex parte, would expire within a short period of time so

that its continuance in force thereafter could only be ordered after a hearing of each party on the merits;

4. The Court remitted the matter to the High Court for the determination of the issues concerning damages, “if any”, to be awarded to the

respondent;

5. The respondent served on the appellants detailed points of claim on the issue of damages;

6. The appellants served detailed points of defence on the respondent denying liability and damages;

7. The trial of issues concerning damages before the High Court at which, from the outset, the appellants abandoned its

defence on liability and agreed that the matter should proceed as one of assessment of damages only;

8. The appellants appealed to this Court on the issue of the quantum of damages only.

Subsequent to all the foregoing the appellants brought their application to resurrect the issue of the State’s liability in this case and

seek a retrial on that basis.

As concerns the application to amend the grounds of appeal so as to pursue a defence of no liability, it should first of all be pointed

out that this is not an application to introduce new grounds of appeal concerning the determination of the High Court on an issue

which has already been challenged on other grounds in the appeal already filed.

Nor is it even an attempt to challenge on appeal an issue which was contested in the High Court. It is an attempt to set up a case of

liability de novo for the purpose of resisting the respondent’s claim in a retrial on grounds which had been conceded at the

commencement of the trial in the High Court.

Neither is the application itself grounded on any error of law or fact alleged to have been committed by the trial judge or any injustice

in the conduct of the hearing. The application is made solely because, on further reflection after the Notice of Appeal was lodged, the

appellants have concluded that they ought to have maintained the issue of State liability, rather than abandoned it, at the trial. The

appellants have now adopted the view that they are in a strong position to argue that the State has no liability in law to the

respondent.

In the light of the foregoing, the appellants’ application, as indeed they acknowledge in their submissions, falls well outside the

ordinary discretion which the Court is normally called upon to exercise if a party seeks to amend a Notice of Appeal.

When the matter came for trial before the High Court all issues, both liability and quantum, were due to be tried by the Court on their

merits. By consent the appellants submitted to a determination of the issue of liability in favour of the respondent and in effect

invited him to present his case on the basis that he had to tender evidence only for the purposes of an assessment of the amount of

damages to be awarded to him.

Absent fraud, or some fundamental issue of justice arising from the conduct of the proceedings, it is difficult to contemplate

circumstances in which a party would be permitted, in an appeal or otherwise, to impugn a determination by the High Court of an

issue, such as liability, which had been expressly conceded by the party concerned. Of course, it is not contended that there was

anything in the nature of fraud or fundamental injustice and, in any event, the setting aside of a determination by the High Court on

such grounds would require the bringing of separate proceedings before the High Court. (See L.P. v. M.P. [2002] 1.I.R. 219 and In re

Greendale Developments Ltd (In Liquidation) (No. 3) [2000] 2 I.R. 514).

The appellants acknowledge, as they are bound to do, that the issue of liability could have and (from their perspective) should have,

been pursued in the High Court, and that it was only on further reflection, after they had lodged their appeal on quantum only to this

Court, that they concluded that they should seek to have a trial of the issue of liability.

In short it was intended that the judgment of the High Court, on the basis of the appellants’ admission, would be final and conclusive

as regards liability.

Arguments of the Appellants

The appellants submit that it is of fundamental importance to the State as to whether the State may be liable for damages when an

individual’s rights are adversely affected by acts done pursuant to the provisions of an Act of the Oireachtas which enjoys the

presumption of constitutionality, but which is subsequently found to be unconstitutional. While it is accepted in those submissions

that as a general principle the Supreme Court will refuse to allow a party to raise an issue on appeal that was not argued before the

High Court, it is submitted, nonetheless, that there are exceptions to this principle even if those exceptions are very limited.

From the foregoing proposition the appellants relied on the judgment of Finlay C.J., in K.D. (otherwise C.) v. M.C. [1985] I.R. 697

where he stated (at p. 701):-

“It is 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 has 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.”

The appellants submitted that the exceptional circumstances in this case which would entitle them to succeed in their application

include the following:

"• The fact that the issues affect the doctrine of separation of powers inherent in the Constitution;

• The fact that the issues go to the jurisdiction of the Courts to award any damages at all in this case;

• The legal significance and novelty of the issues involved;

• The likely importance of the issues in future cases;

• The absence of any serious prejudice to the respondent.”

In their written submissions the appellants stated that it was fully accepted that the State “should bear responsibility for any costs

incurred by the respondent arising from the State’s failure to raise the liability issue in the High Court in the first instance.” This, it

was submitted, removed the only real prejudice that the respondent could suffer if the matter was remitted to the High Court for a

re-trial on the issue of liability.

I would first observe that the facts and circumstances of K.D. (otherwise C.) v. M.C. (cited above), were quite different to the

situation in the present case. In that case the appellants (where the Court refused to hear the issue) sought to raise for the first

time in the Supreme Court a mixed question of law and fact which had not been raised or decided in the High Court. In the present

proceedings the liability of the State was expressly put in issue and decided on the basis of an express admission of liability by the

State. On foot of that admission the High Court determined that the State was liable to the appellants and awarded damages

accordingly.

It would not be really correct to treat this case as one in which the issue of liability was simply not tried and decided. It was not tried

as an issue because the State took the position that there was no argument which could be made against its liability to the

appellants and that the issue should be determined on that basis. In that sense the issue was decided.

The terms of the High Court order included the following:-

“There being no denial of liability in the points of defence herein except as to damages the Court doth reserve judgment

herein and the same coming on accordingly for judgment on this day the Court doth find that the respondent was

negligent the Court doth assess damages under the following headings.”

The order then went on to recite the damages awarded under the various headings. These are referred to in detail later in this

judgment. The reference to a finding of negligence against the appellants is obviously intended as a reference to the Court’s

determination on the issue of liability for the wrongs alleged by the respondent.

There may indeed be, as Finlay C.J. stated, “most exceptional circumstances” where the Court would hear and determine an issue

which has not been “tried and decided” in the High Court if that is clearly required in the interests of justice. The liability of the State,

having been in contention between the parties until it was conceded, was an integral part of the decision of the High Court. In any

event, even if the principle stated by Finlay C.J., were to be applied in this case I do not think that the appellants have in any sense

established that the reopening and retrial of these proceedings are required in the interests of justice.

Undoubtedly the principles of law of general importance arise as regards any State liability to individuals where the application of an

Act of the Oireachtas has caused them adverse consequences, and that law is at some later date found to be unconstitutional.

However, these proceedings are the respondent’s proceedings in which he sought and obtained an award of damages against the

State. The problem which has arisen in this appeal is that the principles of law according to which liability was conceded and thus

found in favour of the respondent were never stated, nor are they readily discernible. The appellants now wish to say that there is no

basis in law at all for such an award. To determine the principles of law to be applied would involve a substantial hearing and

extensive legal argument.

In those circumstances, and since the High Court did not have to address any legal principles, because it was not required to do so,

on foot of which the liability of the State might arise, it is not a precedent in law for other cases on the issues which the appellants

refer to in their submissions, and which I have cited above. The decision in this case only binds the parties to these proceedings.

These are issues which it is open to the State to litigate in other proceedings as they might arise. The State chose not to do so in

this particular case. In my view it would be wholly unjust to a plaintiff who had, by agreement, proceeded against a defendant in his

claim for damages as an assessment only if a defendant were to be permitted to change his or her mind after the High Court decision

(and indeed after it had lodged its Notice of Appeal) and seek to have a retrial of the whole matter which, depending on the precise

determination on the question of liability, could also involve a retrial on the question of damages.

One cannot lose sight of the fact that the respondent exercised his constitutional right of access to the courts to have certain

issues, including his claim for damages determined in accordance with law. The appellants had every option to defend the claim on all

issues. The respondent succeeded in his action and the damages were assessed on the basis of a general admission of liability on the

part of the State for the wrongs alleged. Having completed that judicial process before the High Court it is somewhat cavalier, to say

the least, for the appellants to argue that the respondent’s legal costs to date are the only prejudice which he would suffer if the

judgment of the High Court was set aside and the matter remitted for trial de novo on the issue of liability. To accede to the

appellants’ application would be to deny the respondents the rights and benefits of a judgment of the High Court, even if subject to

the appeal in question.

The situation in which the appellants find themselves is entirely of their own making and in my view it would be unconscionable to set

aside the order of the High Court on the question of liability because the appellants wish to raise that issue at this stage when they

could have done so in the court of trial. The respondent would lose the benefit of the order of the High Court on this issue which is

not impugned by the appellants on any ground of error or defect in the judicial process.

Apart from the principle that “the finality of proceedings both at the level of trial and possibly more particularly at the level of ultimate

appeal is of fundamental importance to the certainty of the administration of law,” (Hamilton C.J., In re Greendale Developments

Limited (In Liquidation) (No. 3) [2000] 2 I.R. 514 at p. 528) to deny the respondent the benefits of a determination of the issue of

liability by the High Court on the grounds advanced by the appellants would be a denial of justice.

As mentioned above, it was clearly the intention of, and accepted by both parties that when the trial on the assessment of damages

took place in the High Court that the decision would finally determine the issue of liability between the parties in this case.

In that light the issue of liability between these parties can probably be regarded as being governed by the principle of res judicata.

On that ground the appellants would be estopped per res judicatum from raising again the issue of liability in this appeal. The result

would be no different if one were to adopt the view expressed obiter in Bradshaw v. McMullan [1920] 2 I.R. 47, that estoppel arising

from a judgment by consent was more properly characterised as an estoppel by conduct, as noted in Delaney and McGrath, Civil

Procedure in the Superior Courts, (Sweet and Maxwell, 2001) (at p. 651).

In any event I am satisfied that to grant the application of the appellants to amend the Notice of Appeal with the view to reopening

the issue of liability would be to permit an abuse of the process of the courts. In the judgment delivered in this Court in In The Matter

of Vantive Holdings & Ors., [2009] I.E.S.C. 69 (Unreported, Supreme Court, 14th October, 2009) express reference was made (at p.

7) to the inherent jurisdiction of this Court “to protect the integrity of the due process of the administration of justice and the

finality, in principle, of a judicial decision.”

In that case it was noted (at p. 8) that the petitioner “had an opportunity to present to the Court all the evidence at its disposal

which was material to having the application decided in its favour… it deliberately chose not to do so … . On that basis it permitted

the application to be heard and determined by the High Court and on appeal by this Court.”

The attempt by the petitioner in that case to bring a second petition on foot of material evidence which was deliberately withheld in

the course of the proceedings concerning an earlier petition was held to constitute an abuse of the process of the Court. It was

observed (at p. 9) in that judgment that “to permit the petition to proceed, unless there are exceptional excusing circumstances,

would undermine the integrity of the proper and efficient administration of justice and the principle of finality.”

In this case the appellants deliberately refrained from pursuing the issue of liability but now wish to reopen the case and raise that

issue in a second hearing before the High Court.

In this case there are of course no excusing circumstances, and apart from or in addition to, the question of the appellants being

estopped from raising the issue of liability, I am in any event satisfied that it would constitute an abuse of the process of the Courts

to permit them to do so.

Accordingly, the application to amend the Notice of Appeal and have the matter remitted to the High Court on the issue of liability

should be refused.

The Appeal

I now come to the issue as to how the appeal brought by the appellants on the issue of damages should be determined. Before

addressing that issue I think it is appropriate in this context to set out certain details concerning the course of these proceedings,

the earlier decision of this Court on the question of constitutionality, the nature of the damages claimed and the damages awarded.

Relevant Dates Concerning District Court Proceedings

6th November 1998: (a) District Court made an interim order pursuant to s. 4 of the Act of 1996 barring the respondent from the

family home until the 3rd February, 1999 without leave of the court.

(b) Summons issued by the District Court requiring the respondent to attend at the District Court at 2 p.m. on the 3rd February 1999

to answer the application of his wife for a barring order in respect of the family home.

8th November 1998: The respondent became aware of the making of the barring order and initiated an application to the District

Court seeking an order terminating the barring order.

15th November 1998: Respondent arrested, detained and subsequently charged with a breach of the barring order when he refused to

leave his wife’s home at the request of the Garda Síochána.

16/17 November 1998: Respondent released from custody on bail relating to the offence of breaching the interim barring order.

23rd November 1998: Return date for application made by the respondent to have the interim barring order discharged pursuant to s.

13 of the Act of 1996. (application not proceeded with).

3rd February 1999: Order of High Court granting leave to apply for judicial review and date on which interim barring order was due to

expire.

The Supreme Court Finding of Unconstitutionality

It is important to note that the primary ground on which the respondent attacked the constitutionality of the relevant provisions of

the Domestic Violence Act 1996 was the jurisdiction granted to the District Court to grant to a spouse in an ex parte application, an

interim order barring the other spouse from the family home and thus without giving that other spouse an opportunity to be heard at

that stage. This, the respondent claimed, was a denial of a right to a fair hearing and in breach of his constitutional rights.

In its judgment in D.K. v. Crowley [2002] 2 I.R. 744 on the constitutional issue this Court rejected that claim but held that the

relevant provisions were unconstitutional because of the failure of the Act of 1996 to ensure that an interim barring order made ex

parte would only remain in force for a short period of time after which its continuance could only be determined by a full hearing on

the merits with both parties being heard.

The Court referred to s. 4(4) of the Act of 1996 which had the effect that the interim barring order continued in force until “the

determination by the Court of the application for a barring order”. As a consequence of the latter provision there was no statutory

time limit on the effect of an interim barring order granted ex parte pursuant to s. 3 and such an order could continue in force until

such time as the original applicant saw fit to seek a long-term or permanent barring order or the person, the subject of the barring

order, made an application for its discharge. In the latter case the onus would be on the applicant, the spouse who had been barred.

In this particular case the District Court, when it issued the interim barring order did specify a date for the hearing of the barring order

application as such and the summons required the respondent to attend the District Court on the 3rd February 1999 almost three

months after the making of the interim barring order.

Again on the facts of this case the respondent himself had indeed initiated, on the 8th November, 1998, an application to the District

Court seeking an order terminating the interim barring order and the return date for that application was the 23rd November 1998.

However in such an application the onus was on the respondent to establish why the interim order should be discharged.

In this context the Court in D.K v. Crowley stated at p. 760:-

“Seen in that context, the failure of the legislation to impose any time limit on the operation of an interim barring order,

even when granted ex parte in the absence of the respondent, other than the provision that it is to expire when the

application for an interim barring order itself is determined, is inexplicable. While in the present case, the District Judge

fixed the hearing of the application for a barring order for a date three months into the future, the court notes that the

statute nowhere imposes on the District Court any obligation, when granting an interim barring order, to limit its

duration in time. If no date is fixed for the hearing of the application for the barring order itself, as distinct from the

interim barring order, it would be a matter for the applicant for the interim barring order to bring the matter before the

District Court again. Manifestly, he or she will have little incentive to do so while the interim order remains in force.

It is, undoubtedly, the case that the respondent may apply to the court at any time to have the interim order

discharged or varied. No reason has been advanced, however, presumably because there is none, as to why the

legislature should have imposed on respondents, in this particular form of litigation, with all its draconian consequences,

the obligation to take the initiative in issuing proceedings in order to obtain the discharge of an order granted in his or

her absence which it may be, should never have been granted in the first place. It has not been demonstrated that the

remedy of an interim order granted on an ex parte basis would be in some sense seriously weakened if the interim order

thus obtained were to be of a limited duration only, thus requiring the applicant, at the earliest practical opportunity, to

satisfy the court in the presence of the opposing party that the order was properly granted and should now be

continued in force.

The court fully appreciates the considerations which the executive and legislature would have had in mind in providing for

the granting of interim barring orders on an ex parte basis. In the many cases where the spouses are still living together

and one is being subjected to violence by the other which may also extend to the children, it may simply not be

practicable for the application to be made on notice to the respondent. It is not the existence of a jurisdiction to grant

interim barring orders on an ex parte basis which creates a serious constitutional difficulty it is the manner in which the

legislation has provided for the granting of such orders.” (emphasis added).

The Court went on to draw an analogy with s. 17 of the Child Care Act 1991 where an order made by the District Court, on the

application of the Health Authority with regard to the care of a child without notice to a parent could not remain in force for a period

exceeding eight days.

In its judgment the Court concluded at p. 762 as follows:

“The court is, accordingly, satisfied that the procedures prescribed by s. 4(1), (2) and (3) of the Domestic Violence Act

1996 in failing to prescribe a fixed period of relatively short duration during which an interim barring order made ex parte

is to continue in force, deprived the respondents to such applications of the protection of the principle of audi alteram

partem in a manner and to an extent which is disproportionate, unreasonable and unnecessary. The appeal will,

accordingly, be allowed, the order of the High Court set aside and an order substituted therefor (sic) granting a

declaration that s. 4(3) of the Act of 1996 is invalid having regard to the provisions of the Constitution and an order of

certiorari quashing the interim barring order of the District Court.”

As will be seen from the above the constitutional frailty in the Act of 1996, as found by this Court, was confined to the failure of the

Act to ensure that an ex parte interim barring order would only remain in force for a short period of time such as eight days. It was as

a consequence of this frailty, and not because of the jurisdiction of the District (which it still has) to grant interim barring orders on

an ex parte application albeit that provision of the Act was found unconstitutional, and the District Court order itself set aside.

The Claim for Damages

Subsequent to the decision of this Court on the constitutional issues the respondent, on 9th April, 2003, lodged a document entitled

“Points of claim for damages”. These were lengthy and often repetitive but essentially consisted of the following claims:

1. Damages, including aggravated and exemplary damages, for false imprisonment. This related to his arrest on 15th

November, 1998 for his breach of the interim barring order made by the District Court which was then still extant but

subsequently quashed for the reasons explained. The wrongful imprisonment was said to result from the making of the

interim barring order in a manner which was contrary to constitutionally guaranteed fair procedures because the

respondent was not given an opportunity to defend himself in the ex parte proceedings and/or because it continued in

force under the terms of the said Act for an unreasonable period of time which had been held to be unconstitutional.

2. Damages for failing to provide the respondent with his constitutional right to rebut the allegations made by his spouse

on the making of the ex parte interim barring order or within a reasonable period thereafter as a result of which he was

forced under the sanction of the criminal law to vacate/leave his family home, damaging his parental relationship with his

children and his prospect of obtaining custody of his children.

3. Damages for “severe anxiety, mental distress and trauma, loss and deprivation of convenience, financial and economic

loss through the consequential loss of his employment and/or loss of his family rights and enjoyment of same” arising from

the above.

4. Damages for failure of the appellants to protect and vindicate the respondent’s constitutional rights and in particular to

guarantee and protect the family in its constitution and authority by requiring the plaintiff, on foot of the District Court

order, to leave the family home.

5. Damages because the respondent’s “good name and character was undermined causing him opprobrium in the eyes of

right thinking members of society and in the eyes of his family, relatives, friends, acquaintances including his work mates

…”

6. Damages for failing to guarantee or protect the family in its constitution as required by the Constitution due to the

failure of the State to provide by law for the immediate accommodation needs of the respondent and his family or financial

means so that the respondent could afford suitable alternative accommodation and not be prejudiced when seeking

custody of his children and so as to prevent any further damage to his relationship as a parent with his children following

the making of the barring order.

7. Damages for failing to respect or protect the respondent and his inalienable constitutional right and duty as a parent to

provide for the physical and social education of his children.

8. Damages for unjust attack on his good name “with a consequence of granting of the … barring order … [he] suffered

grave and irreparable damage to his good name and character in the minds/eyes of right thinking members of

society/public more particularly in respect of his family by whom he was ostracized and further ostracized from the local

community where he had lived up to 6th November, 1998, from his relatives and friends, including his work

mates/colleagues and became the subject of public and private opprobrium and comment …” It was claimed that the

aforesaid damage to his good name and character was further aggravated as a result of his arrest for an alleged breach

of the barring order and his subsequent charge and detention.

9. Damages for failing to protect and vindicate the respondent’s constitutional property rights by barring him from his

home. Damages because “the respondents [that is to say the Judge of the District Court, Ireland and the Attorney

General] and each or any of them … issued an interim barring order, invalid having regard to the provisions of Bunreacht

na hÉireann which order by its inherent nature wronged the plaintiff/applicant and caused profound personal injury and

substantial and continuing loss and damage to him and the plaintiff/applicant claims damages.” (phrase in parenthesis

inserted).

All the points of claim for damages were responded to in “Points of defence on behalf of the second and third named respondent” in

which liability in respect of all or any of the claims for damages was denied. Thus both liability and quantum were put in issue in the

points of defence at this stage but liability was subsequently conceded by the State at the trial.

The Damages Awarded

The damages awarded to the respondent were made by the learned High Court Judge under the following headings:

(i) Loss of convenience of housing from 6th November,

1998 to October 2002 €12,000

(ii) General inconvenience and effect on the respondent due to absence of

adequate housing €45,000

(iii) Unlawfull arrest, custody and false imprisonment €20,000

(iv) General damages for loss of an amenity to work as a handyman €12,000

(v) Loss of constitutional right to enjoy children and marital privacy: Past: €40,000

Future: €10,000

(vi) Loss of reputation and good name €50,000

(vii) Emotional and psychological suffering €25,000

Total: €214,000

Decision

The appellants have a right of appeal to this Court but if they are to succeed they must in the first instance establish that they

appeal on grounds which have a justiciable legal basis which would permit this Court, inter alia, to review whether the High Court was

correct in law making the assessment of damages which the appellant seek to impugn.

As can be seen from the points of claim the respondent sought damages for the global consequences, one might say, in his personal

life alleged to flow from the interim barring order made by the District Court and his arrest by the Gardaí for an alleged breach of that

order. At no stage has the case been made that there was any malice or lack of bona fides on the part of the appellants. The

evidential case made in the High Court by the respondent for damages for these global consequences which he claimed to flow from

these two events were grounded on the admission of liability by the State for the wrongs alleged. There is one point concerning the

State’s admission of liability which may require clarification and I will refer to it later. At this point, while I do not think it is necessary

for the purpose of the issue under consideration to review extensively the factual circumstances of the case and in particular all the

evidence given by or on behalf of the respondent at the trial, some general observations on the scope of the damages awarded may

be useful.

The interim order was made on the ex parte application of the respondent’s wife alleging abuse, including physical abuse, often

associated with excessive drinking, on his part over a period of 1½ years prior to the application to the District Court. The respondent

has substantially denied the allegations (and there has been no decision resolving that conflict of fact) but that was the basis on

which the District Court order was made. It is now common case that the respondent and his wife were never reconciled and they are

unlikely to do so at any stage.

As regards the first two items of damage referred to above, namely those related to housing, the High Court, having noted that the

house in which he lived with his wife was a corporation house in which the respondent was a joint tenant concluded that it would

have been unreasonable for him to surrender his joint tenancy for the purpose of seeking other accommodation from the corporation

prior to the Supreme Court decision of 9th October 2002 and awarded him €12,000 “in terms of the loss of rent, loss of convenience

of housing up to the 9th October 2002”. As regards the second sum for housing the learned High Court Judge stated at p. 26:-

“In terms of allowing a reasonably liberal figure of years for getting on to the housing list going by the bed and

breakfast/hostel route I consider that it is a much more challenging and serious downturn of the plaintiff’s situation and

very intrusive of his rights and his culture and his personal self esteem and pride and also challenging to his health. On

that basis, even though it might be notional in the outturn of events, I consider that if he were brave enough to face

into that, a modest figure to compensate him for that would be €15,000 a year and that by 3 years into the future

amounts to €45,000.”

The next head of damage was that awarded for arrest, custody and false imprisonment. This claim for false imprisonment was not

advanced on the basis of the classical common law tort. Here it was acknowledged that at the time of the arrest the Gardaí had the

statutory power to arrest the respondent for breach of a then extant District Court Order made under provisions which were

subsequently found to have been unconstitutional.

As regards the “loss of an amenity to work” the learned trial judge found that the respondent had not established a claim for loss of

earnings as such but as a person who, as a result of the proceedings in the District Court, had, as he found, come to be regarded as

somewhat of a pariah. As a consequence of this the trial judge found that he had not been asked to do the kind of handyman jobs

which neighbours and others in the community used to ask him to do. Allowing for a “fade factor” the learned trial judge awarded him

the sum referred to above namely €12,000 not as a loss of income but as a loss of amenity of life.

As regards the loss of the constitutional right to enjoy children and marital privacy the learned trial judge stated at page 29 of his

decision:-

“In terms of the poor access, access into the house; the publicly perceived rift between himself and the children and

that is a past element, which is mainly in the past, but will also persist into the future until things settle down, but it is

mainly in the past and accordingly I award €50,000 in respect of that item, €40,000 for the past and €10,000 for the

future totalling €50,000.”

As regards the plaintiff’s loss of good name the learned trial judge noted that “this arises on a constitutional basis, it cannot be

defined nor is it pleaded as a matter of defamation because the ingredients of the defamation seem to be lacking here”. On the basis

that his relationship with his brothers and with other people suffered and that people avoided and shunned him arising from the

District Court proceedings, including the making of the barring order, the learned trial judge determined that he should be

compensated in the sum of €50,000.

In making the award for emotional and psychological suffering the learned trial judge discounted evidence that the respondent’s

alcoholism, suicidal thoughts and apparent attempts by him to end his own life were as a result of the barring order but that the

plaintiff was a “poor subject for the onslaught of the unconstitutional order” and some of these difficulties may have been made

worse. Accordingly he awarded the sum of €25,000.

It might also be noted that for the purpose of assessing damages the learned High Court judge had inter alia, ruled that certain

mitigating steps that were alleged to be open to, but not availed of by the respondent, such as the expedition of divorce proceedings

which had been commenced or taking advantage of the hearing fixed for 3rd February, 1999, could not properly be considered a

failure to mitigate on the part of the respondent because the wrongful acts of the appellants had placed him in difficulties and in a

disadvantageous situation in that regard.

It seems to me to be patently clear that a crucial element in the assessment of damages in the particular circumstances of the claim

in this case is the legal basis for the liability of the State for the purpose of determining the extent to which the State can be held

vicariously liable for the order made by the District Court under a law (which was then extant) and a bona fide arrest by the Gardaí

under the authority of a law which was then extant for breach of the District Court order. The legal parameters of the cause of action

would also be crucial in determining such issues as a causal connection between the wrong complained of and the damages sustained

or remoteness of damage.

Such difficulties have now been fully acknowledged by the appellants who of course now say that the learned trial judge could not

have decided the issue of damages without determining the legal basis for the liability of the appellants something for which, for the

reasons outlined earlier in this judgment, he can hardly be faulted in the light of the attitude of the State.

Assuming, as one must for present purposes, that the course of events in the respondent’s personal life were attributable to some

wrong on the part of the State, and not stemming from any inherent or inevitable difficulty arising from a de facto breakdown in the

respondent’s marital relationship, they are nonetheless alleged to be attributable to:

(a) An order made by a judge of the District Court under a law then extant but subsequently set aside not because its

jurisdiction to grant an ex parte interim barring order was unconstitutional as such but because the relevant provisions of

the Act failed to limit the continuation of such an order to a short period; and

(b) his arrest by the Gardaí, acting bona fide under the law as it then stood, for a breach of that order.

Before addressing these issues further there is one aspect concerning the State’s admission of liability which I wish to clarify.

At one stage it was suggested that the State had admitted liability only for such consequences as occurred between 8th November,

1998 and 3rd February, 1999. That is to say from a reasonably short period after the making of the interim barring order and the date

when the interim barring order was due to expire as specified in the order of the District Court. That incidentally was also the date on

which liberty to bring judicial review proceedings was sought and the proceedings before the District Court were stayed by order of

the High Court.

There is no doubt but that the respondent’s proceedings proceeded before the High Court on an admission of liability and he was

permitted to give and call evidence as to the global consequences of which he complained effectively without objection. In the

course of submissions to the trial judge on issues concerning damages counsel for the State at one point suggested that damages be

limited to the dates referred to above but went on to confine his submissions to saying that no damages should be awarded to the

respondent for loss arising from lack of accommodation or being out of work after 3rd February 1999 since that was the date when

the interim barring order expired. Therefore any damage or loss sustained by the respondent after that date could not be said to have

been caused by the making of the interim barring order. It was open to the respondent, it was submitted, to go into that Court on

that date and have a hearing on the merits. This was not so much a denial of liability of the wrong caused to the respondent but an

argument addressed to the causal connection between the wrong admitted and the damage claimed to have been sustained or to put

it alternatively, the remoteness of damage. This in fact was the approach of counsel for the State on that issue in the High Court and

in the course of his submissions he indicated to the learned trial judge that he should first examine what the State did wrong and then

examine what flowed from that wrong since there must be cause and effect as he put it.

I do not propose to analyse the learned trial judge’s ruling or approach to this question except to say that he found that the wrongs

admitted to have been committed by the State, that is to say the making of an interim barring order and the respondent’s arrest for

breaching the barring order of the District Court, had put him in a position that he was so disadvantaged from defending his position in

the District Court that the State could not rely on that opportunity to appear in court as a ground for limiting the damages to which

he was entitled.

This, I would add, is an example of the difficulty that this Court would face in endeavouring to review that decision by the High Court

since the legal criteria on foot of which the State admitted it was liable were never identified either by the State in admitting liability

or the learned trial judge when awarding damages (since he had no need to do so). Even if this Court found some fatal flaw on the

face of the reasoning of the learned trial judge on this point the Court would still find it difficult, if not impossible, to assess what the

damages should be without reference to some legal criteria or the identification of a known wrong on foot of which liability was

admitted. (Remitting the matter to the High Court would only be meaningful if the liability issue was reopened and for reasons stated

above this cannot be done).

The Merits of the Appeal

It is important to recall, though previously noted, that the appellants in their submissions have accepted that there was a

fundamental deficiency in the legal basis for their appeal on the issues concerning the assessment of damages. In their submissions

the appellants acknowledged:-

“I say and am instructed that the State parties now acknowledge and accept that it is necessary that the issue of State

liability for damages when rights are affected by acts done pursuant to the provision of an Act of the Oireachtas which

was found to be unconstitutional should be decided before any issue of the quantum of such damages is addressed. I

say and am instructed that it is acknowledged that this fundamental jurisdictional matter should be decided in the first

instance, prior to any consideration of the issue of quantum of damages. … it is acknowledged and accepted that in

circumstances where this fundamental jurisdiction issue was not raised or argued in the High Court, that the interests of

justice require that the matter should first be tried and decided by the High Court before consideration by this

honourable Court on appeal.” (paragraph 13).

Moreover, at the hearing counsel for the appellants conceded that if the Court were to proceed with the hearing as an assessment of

damages that would be unsatisfactory because the basis for the award would not have been identified.

I think the approach fairly expressed at this stage by the appellants above is correct as regards the issues in the appeal on the

quantum although the matter cannot now be remitted to the High Court for the reasons already stated.

It is undoubtedly the case that in certain circumstances the State is liable to pay compensation to individuals for breach of their

constitutional rights. This may be particularly so when the State at the time the damage was caused, was acting unlawfully and with

mala fides or in misfeasance of public office.

It is an altogether different matter to determine the liability of the State, including its vicarious liability, for acts bona fide done by a

judge exercising his jurisdiction under a law which at the time enjoyed the presumption of constitutionality or other bona fide exercise

of statutory powers which also enjoyed such a presumption.

In the ordinary course of events a trial for damages only proceeds on the basis of an admission of liability for a known tort or other

wrong known to the law and sufficiently identified in the pleadings. This permits a court to assess damage by reference to the

established legal parameters of the wrong in question. Thus identifying the tort or cause of action is of fundamental importance

enabling as it does issues concerning vicarious liability and remoteness of damage to be resolved by reference to an established body

of law or discernible principle. Where a new point of law arises, or indeed where a plaintiff asserts a novel right to damages, such

issues can be argued and determined in the court of trial. If resolved in whole or in part in favour of a plaintiff and damages assessed

then, on appeal, this Court is in a position to review the decision of the High Court, including the assessment as to damages, having

regard to the legal basis on foot of which the High Court awarded damages.

As has been seen, the wrongs alleged by the respondent against the State have been framed under the general rubric of breach of

constitutional rights. Generally speaking it can be said that such rights are vindicated through the establishment of well established

remedies and causes of action known to the law. Certainly it may be the case that established causes of action may not provide an

adequate remedy so as to properly vindicate the breach of the constitutional right. In such circumstances the Courts have jurisdiction

to provide a remedy, even if in another form, in order to ensure that a right is vindicated where other necessary criteria for

establishing legal liability are established.

Certain dicta of Barrington J., in McDonnell v. Ireland [1998] 1 I.R. 134 seems to me particularly relevant in this context. That was a

case in which the Court as a whole had great difficulty, to say the least, in identifying what, if any, cause of action the plaintiff had

in claiming damages for the adverse effects of a statute subsequently found unconstitutional. Because the parties had agreed liability

and damages the Court was able to deal with a net contingent issue, namely, whether the statute of limitations applied which it held

it did, whatever “the amplitude” of the cause of action. Unlike this case, identifying the amplitude of the cause of action was not

necessary for the purpose of deciding the point at issue. In that case Barrington J., in his own judgment agreeing with the result,

made reference to the remedies available for breach of constitutional rights and observed at p. 147:-

“No doubt also there have been cases where the common law provided no adequate remedy for a breach of

constitutional rights and where the courts have been prepared to fashion a remedy on the principle of ubi jus ibi

remedium.”

Barrington J., went on to cite Walsh J. in Byrne v. Ireland [1972] I.R. 241 and in Meskell v. Coras Iompair Eireann [1973] I.R. 121 at

132 in support of that view and I do not think it is necessary to cite those particular extracts. But as Barrington J., went on to

observe:-

“… in the passages quoted, Walsh J., was dealing with special or exceptional cases where the general body of the law

provides no appropriate remedy.” (Page 147).

He later went on to state at pp 147-148:-

“The general problem of resolving how constitutional rights are to be balanced against each other and reconciled with

the exigencies of the common good is, in the first instance, a matter for the legislature. It is only when the legislature

has failed in its constitutional duty to defend or vindicate a particular constitutional right pursuant to the provisions of

Article 40.3 of the Constitution that this Court, as the court of last resort, will feel obliged to fashion its own remedy. If,

however, a practical method of defending or vindicating the right already exists, at common law or by statute, there will

be no need for this court to interfere.”

…

“There is no doubt that constitutional rights do not need recognition by the legislature or by common law to be

effective. If necessary the Courts will define them and fashion a remedy for their breach…”

“But, at the same time, constitutional rights should not be regarded as wild cards which can be played at any time

to defeat all existing rules. If the general law provides an adequate cause of action to vindicate a constitutional

right it appears to me that the injured party cannot ask the court to devise a new and different cause of action.

Thus the Constitution guarantees the citizen’s right to his or her good name but the cause of action to defend his

or her good name is the action of defamation. The injured party, it appears to me, has to accept the action for

defamation with all its incidents including the time limit within which the action must be commenced. Likewise the

victim of careless driving has the action of negligence by means of which to vindicate his rights.” (emphasis

added).

As a matter of general principle I think what Barrington J. stated is correct. For example the respondent in this case has done, as

regards his claim for general loss of reputation and good name, exactly what Barrington J. deprecated. Nonetheless the State

admitted liability for damages for loss of reputation and for reasons set out earlier in this judgment are not now entitled to repudiate

that admission of liability so as to recommence the proceedings on that issue. On the other hand this Court is hardly in a position to

review the award of damages for damage to the respondent’s good name arising from the matters which he complains of unless the

legal criteria according to which damages should have been awarded or can be assessed are discernible. In so saying I do not purport

to give a definitive ruling on whether the respondent could have a cause of action in this respect since this is not the issue before

the Court. If an issue as to whether there was a right to damages for breach of a person’s constitutional right to a good name existed

independently of any remedy afforded by an action in defamation, then the legal basis on which any such issue was resolved in the

court of first instance would be open to review in the ordinary way, including any damages awarded. A court of appeal is not in a

position to treat an assessment of damages in the abstract without reference to the legal parameters of the cause of action as an

issue which is justiciable on appeal. This consideration also applies to the other claims for which the respondent was awarded

damages.

In the light of the foregoing considerations and the manner in which the State admitted liability, it is simply impossible for this Court to

embark on a consideration of heads of damage or their quantification. To attempt to do so would require the Court to endeavour to

make a range of speculative assumptions as to the scope of the liability of the State, and indeed the very principle of such liability,

for the adverse effects on individuals generally of a statute declared to be unconstitutional. To endeavour to address issues

concerning the review and quantification of damages, when the High Court has not identified any legal basis for liability in this case

due to the general concession made by the State, would be, at best, a dubious exercise in the abstract.

For these reasons I do not consider that the State has demonstrated any valid or justiciable basis on which it can seek to impugn the

decision of the High Court and I would dismiss the appeal.