Blascaod Mor Teoranta v. Commissioners of Public Works in Ireland (No.4) [2000] IEHC 130; [2000] 3 IR 565; [2001] 1 ILRM 423 (28th June, 2000)

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Blascaod Mor Teoranta v. Commissioners of Public Works in Ireland (No.4) [2000] IEHC 130; [2000] 3 IR 565; [2001] 1 ILRM 423 (28th June, 2000) URL: http://www.bailii.org/ie/cases/IEHC/2000/130.html Cite as: [2000] 3 IR 565, [2000] IEHC 130, [2001] 1 ILRM 423

1. This matter which came back before me in May 2000 is a sequel to the Judgment that I delivered on the 27 ^th of February 1998 and these further proceedings follow on from the Judgment of the Supreme Court given by Mr Justice Barrington on the 27 ^th of July 1999 now reported at [2000] 1 ILRM 401. The Plaintiffs had complained among other things of (a) infringements of their property rights and (b) infringements of the equality guarantee in Article 40 of the Constitution. The Supreme Court considered their complaint of unfair discrimination in relation to their property rights. Section 4, sub-section (2) of the An Blascaod Mór National Historic Park Act, 1989 created two categories of landowners. The first category comprised those owners who were ordinary residents on the Great Blasket before the 17 ^th of November 1953, and their relatives, including their lineal descendants for all time. The second category included any person, who was not a native resident or a relative of a native resident, who had bought land on the island, for example the Plaintiffs. This introduced an unusual and dubious classification with ethnic and racial overtones. Barrington J. for the Supreme Court went on to say: -

“In the present case the classification appears to be at once too narrow and too wide. It is hard to see what legitimate legislative purpose it fulfils. It is based on a principle - that of pedigree - which appears to have no place (outside the law of succession) in a democratic society committed to the principle of equality. This fact alone makes the classification suspect. The Court agrees with the learned trial Judge that a Constitution should be pedigree blind just as it should be colour blind or gender blind except when those issues are relevant to a legitimate legislative purpose. This Court can see no such legitimate legislative purpose in the present case and has no doubt but that the Plaintiffs are being treated unfairly as compared with persons who owned or occupied and resided on lands on the Island prior to November 1953 and their descendants.

The Court agrees with the learned trial Judge that the Act is invalid having regard to the provisions of the Constitution. The Court agrees moreover that as the distinction between persons whose lands can be acquired compulsorily and persons whose lands cannot be acquired compulsorily is central to the Act, the Act must fall in its entirety.”

“The effect of these provisions is that the Commissioners can acquire compulsorily the lands of any of the Plaintiffs but cannot acquire compulsorily lands owned or occupied by any person who was ordinarily resident on the Island before the 17 ^th day of November, 1953. Nor can it acquire compulsorily land that is owned or occupied by a relative of a person, where that person owned or occupied it and was ordinarily resident on the Island before that date. As the term ‘relative’ includes lineal descendants of any person who owned or occupied land on the Island and was ordinarily resident on it throughout any time prior to the 17 ^th day of November, 1953 the number of persons whose lands are excluded from the compulsory provisions of the Act is potentially very large and virtually indeterminate. The number of persons whose lands are subjected to the compulsory provisions is very small and consists principally, if not exclusively, of the Plaintiffs. Under these circumstances the Plaintiffs might be excused for assuming that the Act was aimed at them.”

3. At the conclusion of the hearing before me in 1998 I had deferred the issue of damages pending the outcome of an appeal on the validity of the Act. In June 1998 a motion was brought to re-enter the case to deal with the matter of damages. Points of Claim were delivered by the Plaintiffs and Points of Defence were delivered by the Defendants. It was agreed between the parties that two preliminary issues should be dealt with on the basis that detailed evidence with regard to quantum would be left over pending the outcome of these issues which, it was envisaged, would resolve the question of whether damages could be awarded. I was told that the full evidence with regard to the damages was likely to be lengthy. While I expressed concern about the peril of foundations in fact not being laid, I was assured that both parties were agreed that the issue of whether such actions as were involved in the preliminary issues could lie should be treated as preliminary issues and that the heads of damage to be claimed could be proved succinctly for the purpose of the preliminary issues, whereas taking the full evidence in respect of quantification of damages would be a lengthy affair.

5. From evidence given in the proceedings previously it was apparent that the 1989 Bill was inspired by Fonduireacht an Bhlascaod. In the particulars in the Points of Claim delivered on the 14 ^th of February, 2000 and in the case made to the court it was contended that the Defendant Minister was guilty of misfeasance in that: -

6. No claim of misfeasance had been made in the plenary summons or statement of claim. The Points of Defence delivered on the 20 ^th of April 2000 did not plead the Statute of Limitations. However an application was made to the court that the Points of Defence might be amended so that the Statute of Limitations should be pleaded. This amendment was allowed on terms in respect of costs. Since any cause of action of misfeasance in public office must have accrued in 1989, such cause of action, which only emerged in the Points of Claim, would be out of time. The plea of statute bar in the amended Points of Defence would seem to close the door on this claim of misfeasance.

7. A more fundamental objection to this claim of misfeasance in public office is that the Minister as a member of the Oireachtas shall not be amenable to any court or any authority other than the House itself in respect of any utterance in either House. The need for freedom of debate in the Oireachtas and considerations stemming from the separations of powers give the background to this immunity. Furthermore Article 15, section 12 of the Constitution provides that utterances made in either House wherever published should be privileged. Article 15, section 13 operates so as to oust the jurisdiction of the courts over the Minister in respect of such utterances so that an utterance in either House of the Oireachtas is privileged and cannot form the subject matter of any form of legal proceeding.

8. I accept that the tort of misfeasance in public office is committed when an act is performed by a public official, either maliciously or with actual knowledge that it is committed without jurisdiction and is so done with the known consequence that it would injure the Plaintiff. In Northern Territory v. Mengel ( 1995) 185 CLR 307 Brennan J. of the High Court of Australia said of this tort:-

“Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff. Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office. If the impugned conduct then causes injury, the cause of action is complete.”

9. While I accept that there was evidence that the initial draft Bill emanated from the Fonduireacht I am not aware that there was any impropriety in this pressure group drafting a Bill or presenting it to a Minister. There was no evidence given in the earlier proceedings that the Bill was tainted by evasion of the normal departmental channels although there was certainly evidence that the Bill was introduced and passed with remarkable expedition and that there was a lack of consultation with the Commissioners of Public Works and with the Plaintiffs.

10. However, it was conceded on behalf of the Plaintiffs that there was no mala fides on the part of the members of the Oireachtas. While various allegations of negligence were made against the Minister, I do not think that the Plaintiffs seriously laid the ground for this claim. I have already indicated why the claim for misfeasance in public office is not maintainable at this stage of the case.

In Glencar Exploration Plc. and Andaman Resources Plc., v. County Council of the County of Mayo, delivered on the 20 ^th of August 1998, Kelly J. was dealing with a claim of misfeasance in public office. In that case the Plaintiff sued the County Council for introducing a mining ban despite advice from the County Manager, County Secretary and Solicitor. However, the members of the County Council did act in reliance on the advice of Senior Counsel, who was an expert in planning law and the local authority were able to defeat a claim of misfeasance against them on the basis that they put into evidence the advice given and so this aspect of the claim failed as the elected members of the County Council believed they had legal authority to act as they did.

11. I am aware from evidence previously given that the Minister was speaking in Seanad Éireann as Minister introducing that 1989 Bill and as such he is entitled to the immunity given by Article 15.13 of the Constitution which ousts the jurisdiction of the court. Accordingly in the narrow circumstances of this case, the answer on the first issue is in the negative.

13. It is common case that the Plaintiffs are making a novel claim. They contend that they are entitled to compensation in damages for the detriment caused to them by the passing of An Blascaod Mór National Historic Park Act, 1989 (‘the Act’) which has been found to be invalid. The judgment of the High Court as to the repugnance of the entire Act was upheld by the Supreme Court. In the course of his judgment Barrington J. dealt with the unfair treatment of the Plaintiffs under the equality provisions in the Constitution in the specific context of their property rights. While the number of persons exempt from compulsory acquisition on the grounds of lineage was potentially very large and virtually indeterminate, the number of persons whose lands were subject to the compulsory provisions was very small and consisted principally, if not exclusively, of the Plaintiffs.

14. The Plaintiffs complained that the passing of this invalid Act affected their property rights in respect of about 17/25ths of the Great Blasket. They say that the passing of the Act had a detrimental effect on their right to use and dispose of their property. It should be pointed out that they remained in control of their properties and were not actually dispossessed of them. I was concerned that the court should have a factual background to the claim for damages and the parties agreed that the gist of the evidence with regard to the heads of alleged damage could be presented by Peter Callery and James Callery giving evidence of the nature of the damage envisaged on behalf of the Plaintiffs. It was agreed by the parties that an outline or flavour of the headings of damages could be given in evidence for the purpose of the liability issue and that detailed quantification of the damage would be left over as this could be lengthy and would only be relevant if it was held that there was liability in damages in the circumstances of the case.

15. Peter Callery gave evidence that the passing of the Act made the Plaintiffs’ interest in the Island unsaleable. Taylor Collings had done restoration work on the houses in the village for some eight years after 1972 and in 1986 and 1987 the Plaintiffs had done some further maintenance but, with the threat of expropriation, the Plaintiffs’ plans for the development of the property had been frustrated and the structures had continued to deteriorate since June 1989. Since May 1998 the Plaintiffs had expended well over £200,000 on restoring some five of the houses. The Plaintiffs had been adversely affected by what Peter Callery described as a colossal media campaign. This had affected him in his business as a solicitor but when the Plaintiffs’ side of the matter had come out, then people had come to rethink the situation. The Plaintiffs believed that grants had been available from the EU but that the applications for grants in respect of safe landing piers was subsequently turned down because the Commissioners did not have a National Park on the Island. The costs of repair and remedial work were greater because they were delayed.

16. The Plaintiffs had offered to co-operate in respect of the preservation of the Island beginning with an offer in 1973 which was rejected and a further offer in June 1984 suggesting a meeting received no response. Peter Callery's evidence was confirmed by his brother James Callery who spoke about the massive cost of having to bring equipment by helicopter, and a landing craft for an excavator and dumper, in order to put in a sewage system. He had been particularly upset at suggestions that his opposition to State acquisition of the Island could affect the availability of State assistance towards his preservation of Strokestown House. However, it transpired that these remarks had been made in June 1993 well after the passing of the invalid Act.

2º Save as otherwise provided by this Article, the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of this Constitution, and no such question shall be raised (whether by pleading, argument or otherwise) in any Court established under this or any other Article of this Constitution other than the High Court or the Supreme Court.”

22. While this Article says that the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of the Constitution, it has been firmly established in case law that redress can be obtained for executive acts done in contravention of constitutional rights. The Courts have usually adapted existing tort law when awarding damages for the infringement of constitutional rights. For example, in Kennedy and Arnold v. Ireland [1987] IR 587, damages were awarded in respect of invasion of privacy by agents of the executive because of unjustified telephone tapping. The judgment focused on the intrusion on their right to privacy rather than on the interference with their freedom of expression. The present claim differs in that the Plaintiffs are claiming damages as resulting from the effects on their property rights of the enactment of the invalid 1989 Act rather than from an unlawful tortious act or omission.

23. I suspect that the reason why there is a dearth of Irish cases directly in point is that, when the Constitution was enacted by the People on the 1 ^st of July 1937, lawyers had been imbued with the idea that parliament was sovereign and that the validity of the enactments of parliament were immune from scrutiny by the Courts. There was also the feeling that the Courts should exercise restraint and reticence in interfering with the Legislature on the basis of the respect which one great organ of State owes to another. However, the Constitution itself now vests jurisdiction in the High Court and the Supreme Court under Article 34.3.2º to determine the validity of a Statute.

25. The Plaintiffs' argument is that their property rights should be vindicated by an award of damages. There is no Irish case directly in point but assistance can be derived from Byrne v. Ireland [1972] IR 241 and from Murphy v. Attorney General [1982] IR 241. The Plaintiffs say that it would be an anomaly if damages could not be obtained for breaches of fundamental rights guaranteed by the Constitution. They say that there is no reason in principle why the State should not be held liable for loss caused by a legislative Act which is invalid in the same way as redress can be obtained for an unlawful executive act. The Plaintiffs point to a number of countries in which the Constitution itself expressly creates a right of action for constitutional infringements. For example the Canada Act, 1982, section 24(1) states: -

27. Section 8 of the Human Rights Act, 1988 in the United Kingdom was also cited. I note that judicial remedies envisage a court finding an act of a public authority to be unlawful and then granting relief or a remedy or making such orders as it considers just and appropriate. Section 6 deals with acts of public authorities and says that it is unlawful for a public authority to act in a way which is incompatible with a Convention right; however under section 6(3) it is stated that: -

28. This exemption seems to me to recognise that Parliament in the UK is regarded as distinct from other public authorities. However I accept the proposition that some States have Constitutions which specify that there is a right of action for a remedy for infringements of constitutional rights. The lack of any such explicit provision in the Irish Constitution seems significant. However damages have been a usual form of redress and have been granted, where appropriate, in vindication of rights such as rights of property and equality of treatment.

29. Counsel for the Plaintiffs also contended that the Plaintiffs were entitled to costs on a solicitor and client basis. He relied on McHugh v. Commissioner of An Garda Síochana [1986] IR 228 in which the Plaintiff was awarded such costs. However McHugh’s case differs as the stance taken by the Defendant was after McWilliam J’s decision in Garvey v. Ireland [1981] IR 75 and accordingly the Defendant was on notice of the precariousness of the attitude he was adopting but chose to maintain his stance despite the knowledge that it was probably untenable.

30. Counsel for the Plaintiffs strongly urged the relevance of a comparison with the situation in the European Union (E.U.) in which a State may be held liable for the enactment of national legislation which is in breach of the provisions of the E.C. Treaty. He particularly relied on R. v. Secretary of State for Transport ex parte Factortame Ltd. and others (No.5) [1999] 3 WLR 1062. The Merchant Shipping Act, 1988 was intended to protect British fishing communities by preventing foreign nationals from fishing against the United Kingdom's quota under the Common Fisheries Policy adopted by the European Community. A reference by a Divisional Court was made as to whether, as a matter of Community law, the claimants had an entitlement to damages and if so, what considerations the national court should apply in determining claims. The European Court of Justice (E.C.J.) ruled that, where a breach of Community law was attributable to national legislation, individuals suffering loss or injury thereby were entitled to compensation if this was a field in which the Member State had a wide field of discretion to make legislative choices; if the rule of Community law breached was intended to confer rights upon individuals; if the breach was “sufficiently serious” and if there was a direct causal link between the breach and the damage sustained. The Divisional Court held that the breaches of Community law resulting from the Act of 1988 were sufficiently serious to give rise to liability for any damage that might subsequently be shown to have been caused to the Applicants. The Court of Appeal upheld that decision.

31. On appeal by the Secretary of State to the House of Lords, it was held that the deliberate adoption of legislation which was plainly discriminatory on grounds of nationality was a fundamental breach of clear and unambiguous articles of the E.C. Treaty; that it was inevitable that when the Act of 1988 took effect it would seriously affect the rights of non-British citizens with financial stakes in British registered fishing vessels; that the seriousness of the breach was underlined by the following facts: the Government had chosen to resort to primary legislation with a very short transitional period; there was no possibility of obtaining interim relief under domestic law as it then stood; the Applicants were obliged not merely to avoid being removed from the old register but to apply to be put on a new one; the Government took a calculated risk by choosing to disregard the Commission's opinion that the Act contravened Community law; although the Government had acted in good faith and obtained legal advice, the breach had not been shown to be excusable; and, accordingly, since the Government had manifestly and gravely disregarded the limits on its discretion, the breach of Community law was sufficiently serious to entitle the Applicants to damages for losses directly caused by the breach.

32. Counsel argued that by analogy if the House of Lords was prepared to allow damages because the Merchant Shipping Act, 1988 was in breach of the Articles of the E.C. Treaty, being discriminatory on grounds of nationality, then this bore a similarity to the present case. I note that at page 1083 Lord Hope of Craighead said: -

“It is a novel task for the Courts of this country to have to assess whether a breach is sufficiently serious to entitle a party who has suffered loss as a result of it to damages. The general rule is that where a breach of duty has been established and a causal link between the breach and the loss suffered has been proved the injured party is entitled as of right to damages. In the present context however the rules are different. The facts must be examined in order that the court may determine whether the breach of Community law was of such a kind that damages should be awarded as compensation for the loss. The phrases ‘sufficiently serious’ and ‘manifestly and gravely’ which the European Court has used indicated that a fairly high threshold must be passed before it can be said that the test has been satisfied.”

33. It is interesting to note that in Factortame (No.5) Lord Slynn acknowledged that the appellant could rely on the fact that it took legal advice. While at one stage the Law Officers advised that there was a reasonably good prospect that the proposed legislation would be upheld by the E.C.J., this advice was given with qualifications and furthermore the views of the Commission when consulted were to the contrary, so that the decision of the member State to proceed, being aware of the Commission's views, was more likely to be in manifest and serious breach of Community law.

34. Counsel for the Plaintiffs pointed out that the 1989 Act in this case did not involve a choice of economic policy where a high degree of culpability would be required. He urged that the pedigree based differentiation was a sufficiently serious breach of a superior law for the protection of individuals. The Supreme Court made it clear that those affected by the Act were only a small group of Plaintiffs. The Defendants had the option to produce legal opinion as a way of trying to justify their stance as in Glencar and Factortame, but had chosen not to do so.

37. It is interesting to note that the Advocate General included Ireland in the category of States in which the legislature apparently has immunity. I have quoted this lengthy extract because parts clearly do not support the Plaintiff’s argument and these need be read in context and because the Advocate General at para 96 stresses the reasons for the legislature’s immunity or non-liability except in rare circumstances.

38. Counsel also referred me to Advocate General Tesauro's remarks on Parliamentary sovereignty in the Brasserie du Pêcheur v. Germany and R. v. Secretary of State, ex parte Factortame (Cases C-46/93 and C-48/93) (1996) ECR 1029 at page 1088 under the heading “The Obligation of the State to Compensate for Acts or Omissions of the Legislature”. Advocate General Tesauro pointed out that the national Courts in their order for reference showed that they were debarred by their national law from awarding damages precisely because the infringements of Community law at issue are attributable to the legislature, either because it failed to amend a national law so as to bring it into conformity with Community law (Case C-46/93, Brasserie du Pêcheur ) or because it passed a national law inconsistent with Community law (Case C-48/93, Factortame III ). Essentially therefore, given that it is impossible to bring an action for damages in the event of action or inaction on the part of the legislature, in such a case the national law leads to the negation of the very principle of liability. At paragraph 36 he went on to describe the origin of this:-

39. That view, which took root above all in legal systems in which the law was not reviewed in the light of some higher parameter, should take on a different complexion where there is a higher norm which can be used to verify, and, in an appropriate case, deny the legality of the legislatures’ activity. Yet, also in those legal systems in which there is not only a clear, formal hierarchy as between constitutional rules and legislative rules, but also a mechanism of ad hoc supervision as to constant compliance with that hierarchy (Austria, Italy, Germany and Spain, for example), the question as to whether compensation can be awarded for loss or damage ensuing from an unconstitutional law is far from having been incontestably resolved. The fact remains, however, that in such a case it cannot be ruled out that the State will be called upon to answer for the loss or damage caused by laws declared unconstitutional.

40. And that is not all. It is well known that, in most legal systems, compensation is awarded in certain cases for the diminution of assets sustained by individuals on account of a perfectly lawful activity of the legislature, in that it was brought into being without any infringement of any enabling law: take for instance, cases of nationalisation and expropriation for purposes of public utility. If, therefore, it is conceded that the sacrifice lawfully imposed on the legal and financial situation of individuals for the sake of the public interest must be accompanied by fair compensation, it would be curious, to say the least, not to consider that if such loss or damage is produced by a legislative act which is unlawful because it conflicts with a superior rule (constitutional, Community or in any event prevailing over the Act) there is no room for compensation.”

43. In the present case I have reservations about the analogy between an Act which is repugnant to the constitutional rights of equality and property and a national statute which is in breach of Community law. Furthermore, State liability for breach of Community law springs from legislation which is very different to the domestic laws dealing with the basis for State liability for legislation. As stated by Advocate General Léger in R. v. MAFF, ex parte Hedley Lomas (Ireland) Ltd ., (Case C-5/94) (1996) I ECR 2553 at paragraph 95(b): -

1 Counsel on behalf of the Plaintiffs in this case relied particularly on the French synthetic cream case of Société Anonyme des Produits Laitiers “La Fleurette” (1938) Recueil le Bon 25, in which the Conseil d'État found that legislation prohibiting the production of such creams had failed to take into account sufficiently the interests of La Fleurette, the only maker of synthetic cream, and awarded damages against the State. My understanding is that the court did not have power to find the legislation invalid, in the absence of a mode of measurement against a higher law and so the remedy available was in damages. While I accept that the French Court awarded damages against the State in respect of the adverse effects of legislation, I am dubious as to the value of this as a precedent to be imported into Irish law.

45. It is contended on behalf of the Plaintiffs that where an unconstitutional Act has caused loss or damage to Plaintiffs, particularly to a very restricted category of Plaintiffs, then there is an obligation to compensate the victims and the measure of their compensation is the extent of the loss suffered. In Meskell v. CIE [1973] IR 121 Walsh J. stated, in the context of the right of association, that a right guaranteed or granted by the Constitution: -

“can be protected...or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and ...the constitutional right carries within it its own right to a remedy or for the enforcement of it. Therefore, if a person has suffered damage by virtue of a breach of a constitutional right or the infringement of a constitutional right, that person is entitled to seek redress against the ... persons who have infringed that right.”

46. The nature of the relationship between a citizen and the State is complicated by the obligations of the State which, through its organs or agents, must engage in such activities as policing, imprisoning and legislating. In the course of making laws, the legislature frequently has to take into account conflicting individual rights and the exigencies of the common good within a process involving balancing and adjusting the scope of rights. There is therefore little justification for a regime of strict liability for infringement of a constitutional right where such rights are competing and in conflict. In such circumstances “ ubi ius, ibi remedium ” is too simple a formula and strict liability would in many cases be too low and easy a threshold to reach.

“The wrong that was committed in this case was an unjustified infringement of a constitutional right, not a tort; and it was committed by a servant of the State and accordingly Ireland can be sued in respect of it: see Byrne v. Ireland [1972] IR 241. It was suggested, however, that the State could not be vicariously liable because the actions of the prison officers were wrongful and outside the scope of their employment. The State may be liable for the acts of a servant of the State which amounts to an infringement of a constitutionally protected right even though done outside the scope of the State’s servant’s employment-but I need express no view on that point now. That is because the State is clearly liable for such a wrong when it can be shown that had the wrong been a tort vicarious liability would attach to the State.”

47. This case is helpful in making the point that there can be a wrong done by way of infringement of a constitutional right which is not necessarily also a tort. There is also an indication that the Court may take a wide view of vicarious liability on the part of the State. However the imposition of vicarious liability should be confined to situations where the wrong, although not amounting to a tort, is similar in nature to tortious misconduct.

48. The Plaintiffs contend that the Minister, knowing that this Act would infringe their property rights and discriminate against them, wrongly persisted in its enactment. The Act contained provisions based on pedigree which should have no place in a democratic society committed to the principle of equality. Furthermore there is no doubt that there was concern and attention devoted to this aspect, which is manifest from the wording concerning “lineal descendant” in the 1989 Bill as introduced and the wording actually enacted in section 4(4) of the 1989 Act.

In Glencar Explorations plc. v. Mayo County Council, High Court, Unreported, 20 August 1998, the Defendant County Council produced the advices of Senior Counsel and thereby showed that the Council acted on the basis of legal opinion and thus justified the stance taken, for the purpose of defending themselves against the claim of misfeasance in public office. In Factortame (No.5) the Secretary of State for Transport also produced legal advice in an effort to justify his stance but this did not succeed in protecting him from the claim in damages as he had legislated despite being aware of the contrary views of the Commission and of the fact that the advices given to him had been qualified.

49. In this case no opinion from the Attorney General or Counsel has been produced by the Defendants to justify the classification of citizens on grounds of pedigree. It is hardly credible that advice was not taken on this contentious aspect. The Supreme Court said that both the meaning and the impact are clear and the effects are clearly foreseeable. The Plaintiffs contend that there was culpable negligence either in failing to obtain legal opinion in respect of the validity of the pedigree classification or else in ignoring the advice given about the probable frailty of the provisions about lineage. Counsel for the Defendants reject this by saying that there may have been no opinion from the Attorney General or that it may have been given to the Government and thus be confidential to the extent that privilege may not be waived. While I am sympathetic to the Plaintiffs’ suggestions on this aspect, I do not think that the plea of misfeasance in public office is open to the Plaintiffs at this stage of the case nor am I satisfied on balance that there has been adequate positive evidence of negligence against the Defendants. The obligation of the State in Article 40.3 is, as far as practicable, by its laws to defend and vindicate the personal rights of the citizens and, secondly to protect as best it may from unjust attack, and, in the case of injustice done, to vindicate, the property rights of every citizen. It is implicit that circumstances may arise in which the State may have to balance its protection of the right to private property against other obligations arising from the exigencies of the common good.

In Pine Valley Developments Ltd. v. Minister for the Environment [1987] IR 23 a preliminary issue was tried as to whether an action for damages was maintainable in circumstances where the Minister had granted outline planning permission which the Supreme Court subsequently held to have been granted ultra vires and to be a nullity. The Plaintiffs brought an action against the Minister claiming damages for breach of statutory duty, negligence and negligent misrepresentation and claiming damages against Ireland for failure to vindicate their property rights and for failure in its laws to respect and, as far as practicable, to defend and vindicate their property rights. At page 38 of the Supreme Court judgment Chief Justice Finlay quoted from the judgment delivered by O’Higgins C.J. in Moynihan v. Greensmyth [1977] IR 55 which stated as follows: -

“I am satisfied that it would be reasonable to regard as a requirement of the common good an immunity to persons in whom are vested statutory powers of decision from claims for compensation where they act bona fide and without negligence. Such an immunity would contribute to the efficient and decisive exercise of such statutory powers and would, it seems to me, tend to avoid indecisiveness and delay, which might otherwise be involved.”

52. The Minister in that case was performing an administrative function but the Court appears to have regarded him as having a quasi-immunity in his role of discharging this public duty. It is considered that the members of the Oireachtas enjoy absolute privilege in respect of statements in either House. If the Minister enjoys a quasi-immunity in respect of administrative acts, it seems that only in exceptional circumstances could the State be made liable for damages in respect of invalid legislation where the Legislature is involved in the balancing of the protection of the right of private property against other obligations arising from the common good.

53. It is common case that the members of the Oireachtas personally enjoy immunity from suit. The Plaintiffs’ claim for damages against the State arises in the context of a claim based on an invalid Act. A declaration of invalidity is explicitly envisaged in the Constitution but the extent of redress which follows is in controversy.

“In several parts in the Constitution duties to make certain provisions for the benefit of the citizens are imposed on the State in terms which bestow rights upon the citizens and, unless some contrary provision appears in the Constitution, the Constitution must be deemed to have created a remedy for the enforcement of these rights. It follows that, where the right is one guaranteed by the State, it is against the State that the remedy must be sought if there has been a failure to discharge the constitutional obligation imposed. The Oireachtas cannot prevent or restrict the citizen from pursuing his remedy against the State in order to obtain or defend the very rights guaranteed by the Constitution in the form of obligations imposed upon the State; nor can the Oireachtas delegate to any organ of State the implementation of these rights so as to exonerate the State itself from its obligations under the Constitution. The State must act through its organs but it remains vicariously liable for the failures of these organs in the discharge of the obligations, save where expressly excluded by the Constitution. In support of this it is to be noted that an express immunity from suit is conferred on the President by Article 13 s.8, sub-s.1 and that a limited immunity from suit for members of the Oireachtas is contained in Article 15 s.13, and that restrictions upon suit in certain cases are necessarily inferred from the provisions of Article 28, s.3 of the Constitution.”

“Where the people by the Constitution create rights against the State or impose duties upon the State, a remedy to enforce these must be deemed to be also available. It is as much the duty of the State to render justice against itself in favour of citizens as it is to administer the same between private individuals. The investigation and the adjudication of such claims by their nature belong to the judicial power of government in the State, designated in Article 6 of the Constitution of Ireland, which is vested in the judges and the Courts appointed and established under the Constitution in accordance with the provisions of the Constitution.

In my view, the whole tenor of our Constitution is to the effect that there is no power, institution or person in the land free of the law save where such immunity is expressed, or provided for, in the Constitution itself. Article 13, s.8, sub-s.1 (relating to the President) and Article 15, ss.12 and 13 (relating to the Oireachtas) are examples of express immunities.”

"In the result, any contention that the State enjoys immunity from suit by reason of its sovereignty falls to the ground; apart from what may be provided by Articles 49 and 50, I am unable to find elsewhere in the wording of the provisions of the Constitution any indication of an intention to confer on the State any immunity from suit. So much of the general tenor thereof as is relevant to the topic is basically inconsistent with any contention that the Constitution has given any immunity from suit to the State."

Since Byrne v. Ireland the State has frequently been sued and damages have been awarded against the State for breach of constitutional rights and redress was afforded to the citizen by relief usually modelled on the remedies given in tort. The Courts seem to have adopted three principal approaches to the infringements of constitutional rights. The first approach is to proceed on the basis that the definition of the scope of a right prescribes the circumstances in which the right may be exercised instead of the focus being put on the question of the carelessness or intention of the infringer of the right. However, the question remains whether in any particular case it is just to impose what amounts to strict liability for the infringement of a particular constitutional right. This question arises in a particularly stark form where it is being alleged that the Legislature itself has by its enactment infringed a citizen's constitutional right. I do not think that the infringement can be taken in isolation from its context as the detrimental effect on a person’s right may have to be balanced against others’ rights and the needs of the common good.

57. A second approach is to require that there should be proof of intent to infringe the right or negligence on the part of the infringer. However, it could be that there would be a difficulty in establishing culpable intent or negligence in a case and there may be difficulties in deciding whether the infringement was intentional and the need for these ingredients might impede the protection for a constitutional right. By way of a third, pragmatic approach, Henchy J. in Murphy v. Attorney General [1982] IR 241 made it clear that such matters as the remedies for infringement of rights are best dealt with in the factual context of each case.

In Murphy v. Attorney General [1982] IR 241 a married couple succeeded in getting those provisions of the Income Tax Act, 1967 declared unconstitutional which had the effect of taxing them more heavily than an unmarried couple. They sought a refund of all the money they had overpaid on demands made under these provisions. After considering the practice of the American Supreme Court of deciding, in relation to the facts and surrounding circumstances, whether a ruling which upsets what was regarded as the law should operate retrospectively or merely prospectively, O'Higgins C.J. said at page 294 that, while he noted the American precedent, he felt bound to consider this matter on the basis of our own Constitution and in the light of its particular provisions. "It is on these and on nothing else that the consequences of a declaration as to invalidity on a question raised under Article 34 of the Constitution must be determined." The majority of the Supreme Court held that enactments are invalid from the time of their purported enactment because the Constitution, truly read and duly accorded the necessarily implied consequences of a breach of its legislative limitations, so ordains.

“Once it has been judicially established that a statutory provision enacted by the Oireachtas is repugnant to the Constitution, and that it therefore incurred invalidity from the date of its enactment, the condemned provision will normally provide no legal justification for any acts done or left undone, or for transactions undertaken in pursuance of it; and the person damnified by the operation of the invalid provision will normally be accorded by the Courts all permitted and necessary redress.”

“But it is not a universal rule that what has been done in pursuance of a law which has been held to have been invalid for constitutional or other reasons will necessarily give a good cause of action: see, for example, the decision of this Court in The State (Byrne) v. Frawley . While it is central to the due administration of justice in an ordered society that one of the primary concerns of the Courts should be to see that prejudice suffered at the hands of those who act without legal justification, where legal justification is required, shall not stand beyond the reach of corrective legal proceedings, the law has to recognize that there may be transcendent considerations which make such a course undesirable, impractical, or impossible.

Over the centuries the law has come to recognize, in one degree or another, that factors such as prescription (negative or positive), waiver, estoppel, laches, a statute of limitation, res judicata , or other matters (most of which may be grouped under the heading of public policy) may debar a person from obtaining redress in the courts for injury, pecuniary or otherwise, which would be justiciable and redressable if such considerations had not intervened.”

“For a variety of reasons, the law recognizes that in certain circumstances, no matter how unfounded in law certain conduct may have been, no matter how unwarranted its operation in a particular case, what has happened has happened and cannot, or should not, be undone. The irreversible progressions and bye-products of time, the compulsion of public order and of the common good, the aversion of the law from giving a hearing to those who have slept on their rights, the quality of legality - even irreversibility - that tends to attach to what has become inveterate or has been widely accepted or acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and other factors may convert what has been done under an unconstitutional, or otherwise void, law into an acceptable part of the corpus juris . This trend represents an inexorable process that is not peculiar to the law, for in a wide variety of other contexts it is either foolish or impossible to attempt to turn back the hands of the clock. As an eminent historian vividly put it, speaking of the pointlessness of seeking to undo or reshape the facts of history: ‘The statue has taken it shape and can never go back to the quarry.’

62. In this judgment I deliberately avoid any general consideration of the broad question as to when, and to what extent, acts done on foot of an unconstitutional law may be immune from suit in the Courts; for any conclusion I might express would in the main be obiter. In any event, I think experience has shown that such constitutional problems are best brought to solution, step by step, precedent after precedent, and when set against the concrete facts of a specific case.”

63. In a sequel to the Murphy case the Oireachtas passed the Finance Act, 1980, section 21 of which sought to impose the same burden of taxation on married couples, who had not already paid their tax for the tax years immediately prior to the date of the Murphy decision. This position was found to be unconstitutional in Muckley v. Ireland [1985] IR 472 which followed the main part of the Murphy decision. Barrington J. made the point that Article 40 obliged the State to defend and vindicate the personal rights of the citizen in as far as it was practicable to do so but in the Murphy case: - “it was found to be impractical to vindicate the rights of married couples who had paid an invalid tax because directing the State to refund taxes unconstitutionally collected would have caused financial and administrative chaos.” However, in Muckley the taxes had only been assessed and never collected so there was no impracticability in defending the citizen against such exactions which the State had no authority to make.

64. The Defendants’ first contention is that the Oireachtas, consisting of the President and the two Houses of the Oireachtas, enjoys immunity under Articles 15.12 and 15.13 of the Constitution. The Plaintiffs concede that the President and the members of the Oireachtas enjoy personal immunity. This contention does not accord with the decision in Byrne v. Ireland which envisages the right to sue the State nor is there any express statement of immunity in respect of invalid legislation in the Constitution. On the contrary, this contention ignores the jurisdiction given to the Courts by Article 34.3 to deal with the question of the validity of any law.

67. The Defendants contend that this power is limited and extends to the question of validity and not beyond this. However the Courts have repeatedly given relief over and above a declaration of invalidity in appropriate cases in order to redress the actual disadvantage caused by the invalid law where it is practical to do so. For example, in Murphy v. Attorney General the tax was repaid to the Plaintiffs. Arguably this was necessary redress, permitted and justified as it was essential to give the Court order practical effect by allowing relief to the Plaintiffs. In that case, it is also relevant that the loss was readily quantifiable and direct.

68. Thirdly the Defendants suggest that there is immunity on the basis that The People of Ireland gave certain powers to the organs of State. Legislative powers were given to the Oireachtas and The People excluded from the legislative powers given to the Oireachtas the power or right to enact an Act which was repugnant to the Constitution. Thus when the members of the Oireachtas passed the 1989 Act they were acting outside the express limit placed on their authority under Article 15.4 of the Constitution. Since The People had expressly excluded such authority from the Oireachtas they cannot be liable to the party injured by the passing of such an Act and the persons liable must be the persons who passed the Act being the members of the Oireachtas who are protected by the grant of immunity in Article 15.13 of the Constitution. As for the injured parties, the contention is that they are protected by the declaration given by the High Court in respect of the invalidity of the Act under Article 34.3.2º. This seems to me to conflict with the statement of Walsh J. in Byrne v. Ireland that there was no apparent reason why the activity of the Oireachtas should compel the State itself to be above the law. I take “the activity of the Oireachtas” definitely to include legislating.

69. Counsel for the Plaintiffs gave an extreme example in order to make his point on this aspect. He submitted that if the Oireachtas passed an Act authorising the attainder and imprisonment of a specific Solicitor, without lawful cause or process, then a declaration of invalidity and an order for his release from prison would be inadequate redress and in the circumstances damages for the unlawful imprisonment would be a necessary part of the redress. He conceded that the President and the members of the Oireachtas have personal immunity but submits that the State itself should be liable for the malfunction of the system which created invalid legislation.

70. In the circumstances of this case, it seems to me that the Plaintiffs have largely been vindicated by the declaration of invalidity of the 1989 Act. The informed public is aware of their stance and their vindication by the pronouncements of the Supreme Court as to the unjustified discrimination against them and the infringement of their property rights. While I do not accept that the Oireachtas has total immunity in respect of legislation, since the Courts are specifically given the mandate to review legislation for repugnancy, nevertheless for public policy reasons, it seems to me that there must be considerable tolerance of the legislature particularly when it has to weigh in the balance conflicting rights.

71. In the present case the legislature had to consider, among other matters, the preservation and demonstration of the culture of the Great Blasket. Ironically this was an objective which all the parties would have supported. Consideration had also to be given to the interests of those who had lived on the Island and their relations as well as to the property rights of the existing landowners. It is clear that the Legislature failed to strike a proper balance.

72. There is no case in point to give a guideline where damage is alleged to flow from the actual invalid enactment. It seems to me that the appropriate redress in this type of case is a declaration of invalidity. In the circumstances of this case redress should not extend to damages. Having heard cursory evidence, I have concluded that there are a number of imponderables in respect of the heads of damage and that there is a lack of the type of direct causal link necessary. The Plaintiffs have never been dispossessed of their property on the Island and indeed the publicity arising from the litigation may well have made the culture of the Great Blasket even more well known. Moreover, it was argued on behalf of the Plaintiffs that the literature emanating from the Blaskets was the monument to the culture of the Great Blasket and that the built structures were less important.

73. If the judiciary is to proceed resolutely but cautiously in relation to redress where a claim is brought in a recognised type of suit based on tort when an Act is found to be invalid, then the Court should be all the more reticent where the claim is based on the effects of the actual enactment of an invalid Act.

74. My conclusion is therefore that under Articles 15.4.2º and 34.3.2º of the Constitution the Court has jurisdiction to declare an Act invalid and to give necessary and appropriate redress only for such damage as is proved to have flowed directly from the effects of the invalidity without intervening imponderables and events.

75. I have considered the matter of costs. I had already allowed certain costs to the Plaintiff when giving leave for the amended defence to be filed - being half of the Plaintiffs’ costs from the 14 ^th of February 2000 to the 2 ^nd of July 2000, also including half that day’s costs. The Plaintiffs have failed to surmount the final obstacles in their claim for damages. However I am very aware that I previously was of the view that: -

76. I am also influenced by the comments of the Supreme Court to the effect that the Plaintiffs could be excused for assuming that the Act was aimed at them. Taking an overall view of the case and bearing in mind the main outcome, being that the Act has been found to be repugnant, and that it was the Court which deferred the issue of damages (and would have deferred the arguments about the validity of the 1919 Act but for the coercive arguments of the State), I take the view that despite the event on this issue, costs in relation to the question of damages should be allowed to the Plaintiffs against the Defendants on a party and party basis to be taxed in default of agreement.

High Court of Ireland Decisions

Blascaod Mor Teoranta v. Commissioners of Public Works in Ireland (No.4) [2000] IEHC 130; [2000] 3 IR 565; [2001] 1 ILRM 423 (28th June, 2000)