Judgment of Mr. Justice Clarke delivered the 24th May, 2012.
1. Introduction
1.1 The Minister for Finance ("The Minister") has sought to invoke the provisions of the Credit Institutions (Stabilisation) Act, 2010 ("The Act"), in order to put in place an arrangement whereby the notice party ("ILP") sells its life assurance business, often colloquially referred to as Irish Life, to the Minister for a sum €1.3 billion. It is said by the Minister that this measure is necessary in order that ILP meet its regulatory requirements and the Minister and the State meet their obligations to the so called troika.
1.2 The applicants/appellants in each of these cases have challenged, in accordance with the Act, the Minister's actions. The challenge in each case is substantially on the same basis. It will be necessary to refer briefly to certain aspects of the statutory regime in due course.
1.3 In passing it should be noted that, with the exception of the fourth named applicant/appellant in appeal 185/2012, who appeared through counsel who confined himself to adopting the submissions of the third named applicant/appellant ("Mr. Skoczylas"), each of the applicants/appellants in each of the proceedings appeared in person. I will refer to the applicants/appellants in all of the cases collectively as the “lay applicants”. In circumstances which I will outline in a little more detail all of these cases came to be managed before Kearns P. in the High Court. In the course of that case management process Kearns P. made a series of case management orders in each of the cases, on the 8th May last, providing for the exchange of affidavits and legal submissions together with a direction that the substantive hearing was to commence on the 12th June, 2012. I think it is fair to say that the directions made by Kearns P. were urged by the Minister (supported by ILP) based on what was said to be exceptional urgency
1.4 At a very general level the lay applicants are concerned that the timescale imposed by Kearns P. is unfairly prejudicial to their ability to present their case thus, on their submission, creating a risk of an unfair trial. In those circumstances the lay applicants have appealed to this Court against certain aspects of the directions order of Kearns P. This judgment is directed to the issues which arose on that appeal. I turn first to the procedural history of these proceedings insofar as it is relevant to the issues which this Court now has to decide.
2. Procedural History
2.1 On the 28th March, 2012 the Minister made an application, ex parte, for a direction order in respect of a sale of the life assurance business of ILP to the Minister. The application was made under the Act. The application was grounded on a lengthy affidavit from a Mr. Torpey sworn on behalf of the Minister on the previous day, the 27th March. The affidavit included a large amount of exhibits. The affidavit was subject to significant redaction. An unredacted version was subsequently made available to the lay applicants.
2.2 ILP did not actually consent to the direction order. However, ILP had been given prior notice of the terms of the proposed direction order in accordance with s.7(4) of the Act.
2.3 Under s.9A(1)(b) of the Act the deadline for the bringing of an application seeking the setting aside of a direction order is 14 calendar days which, in the circumstances, meant that any application for setting aside had to be brought by Friday 13th April, 2012 which happened to be Good Friday. A number of separate applications were made within that time limit. The application made by Mr. Dowling and others was brought on the 3rd April and was grounded on an affidavit of Mr. Skoczylas. Separate applications were made by Mr. McGann on the 11th April, Mr. Neugebauer on the 12th April and by Mr. Haug and Mr. Keohane on the 13th April.
2.4 As originally issued in accordance with the directions of the Central Office the application in the name of Mr. Dowling and others and that brought by Mr. McGann had a return date of the 30th April, 2012. The other applications were given a return date of the 14th May, 2012.
2.5 However, on the 5th April, 2012 ILP made an application ex parte, at that stage relating only to the Dowling proceedings being the only proceedings commenced at that time, seeking to be joined as a notice party. McCarthy J. made an order giving ILP leave to issue a notice of motion to that effect. ILP in fact issued a motion returnable for the 16th April seeking to be so joined and also seeking to expedite the proceedings. In passing it should be noted that complaint is made about the fact that additional relief (beyond the matters considered by McCarthy J.) was included in the relevant motion. Indeed that complaint is made on behalf of the lay applicants in very strong terms. Unfortunately that complaint portrays a misunderstanding of the procedure. There is no need to obtain court leave to bring a motion seeking expedition as such. In the ordinary way any party to proceedings or a party who claims to be entitled to be joined to proceedings is entitled to bring a motion before the Court without leave provided that the motion properly arises under the Rules. The only reason why any application had to be made by ILP in this case was that its application arose during vacation time when there was no ordinary list available. There would have been no reason in principle why ILP could not have brought a motion seeking both to be joined and for expedition returnable for any day when the case was going to be before the Court in any event. Insofar as it might have been necessary to get the approval of a judge to have the case listed on that occasion (as opposed to coming up in the ordinary lists of the Court), then any such approval would have been purely administrative. There was, therefore, nothing inappropriate about the ILP motion.
2.6 Matters then progressed to the 12th April when the Minister made an application ex parte to Hanna J. seeking to have ILP joined as a notice party. Hanna J. made that order. Criticism is again made of the fact that the Minister issued a motion returnable for the 16th April seeking expedition. That criticism is misplaced for the same reasons already addressed in respect of the similar ILP motion.
2.7 By the 16th April, 2012 all of the cases had been commenced although, as pointed out, the return dates varied between the 30th April and the 14th May. Various Applications of the Minister and ILP came before Kearns P. on the 16th April. I will return to one aspect of what occurred on that day in due course. However, it should be noted that an order was made for the delivery of points of claim within one week with the Minister being given a further week to provide points of defence. It would appear that no points of claim were actually filed on the basis that it was felt that the case was adequately set out in affidavit form. No point was taken by either the Minister or ILP arising out of that failure and points of defence were, in fact, filed. In that context it is of some note to record that there was an important reason why the President directed points of claim and points of defence.
2.8 There is a distinction between pleadings, on the one hand, and evidence, on the other. In the common law system which applies in this jurisdiction the two are considered to fulfil different functions. The purpose of pleadings (and the direction concerning points of claim was in the nature of a direction that there be pleadings even though these proceedings were not plenary proceedings but were commenced by way of notice of motion) is to define the issues which arise with some precision. The function of affidavits is to put evidence before the Court. It is sometimes the case that the distinction can, in practise, become a little blurred. However, the importance of the direction concerning pleadings in this case was that it was intended to define the issues of law and fact which were in dispute and which would give boundaries to the case and allow a judgment to be made as to what further procedural steps were required in the light of the case as so defined. I will refer further to what occurred on the 16th April in due course.
2.9 On the 19th April, 2012 both the Minister and ILP applied to the President in relation to each of the cases other than the case involving Dowling and others. Like orders concerning the delivery of points of claim and defence were made. In passing some complaint is made about the inability of certain of the lay applicants to appear in court on various occasions due to their being based outside the jurisdiction. I do not doubt the practical difficulties with which the lay applicants were faced. However, it is an inevitable consequence of litigation, particularly where, as in this jurisdiction, it is required under the Constitution to be conducted in open court, that the mounting of complex litigation will involve many and regular appearances in court. Ultimately a party who chooses to represent him or herself and who mounts such litigation must be prepared for the inconvenience of attending court when required.
2.10 It should be noted that on the 23rd April an affidavit was delivered on behalf of the lay applicants which raised many of the questions which are specifically addressed in this judgment. Various other affidavits were exchanged.
2.11 The matter came back before the Court on the 1st May, 2012 but because of the unavailability of the President all matters were adjourned to the 8th May. At this point it is appropriate to note that there is a second set of proceedings which is of some relevance to some of the issues with which this Court is concerned. In those proceedings Horizon Growth Fund N.V. ("Horizon") is an applicant. Reference to those proceedings will be made in due course. On the 2nd May, 2012 Horizon applied to the Court for an order linking the proceedings in which Horizon was applicant with these proceedings. No such order has been made.
2.12 When the matter came before the President on the 8th May the directions orders which are the subject of challenge in these appeals were made. I will refer to the operative part of those orders in due course.
2.13 Thereafter the lay applicants appealed to this Court and brought an application for a stay on certain aspects of the directions given by Kearns P. That application came before this Court on Friday the 11th May. This Court placed a stay on that element of the directions order which required the filing by the lay applicants of what is described as their final affidavit which stay, in practise, extended the time for filing that affidavit until Friday the 18th May. On that day an application was brought before the Court by the lay applicants seeking certain amendments to the notices of appeal to which reference will be made in due course. The Court was told that the parties were agreeable for the applications to amend to be adjourned until the substantive hearing of the appeals, which had already been listed for the following Monday, the 21st May. In addition the Court was told that the lay applicants would, in fact, file their affidavit by noon on Sunday the 20th and that, provided the affidavit was so filed, neither the Minister nor ILP would raise any objection to the fact that the filing was marginally late. The matter then came on for hearing on Monday the 21st May.
2.14 So far as the hearing itself is concerned, in addition to the issues which will be explored in the course of this judgment, it is appropriate to record that counsel for the Minister indicated that the Minister consented to the amendment of the notices of appeal and that the Minister would be happy if further changes (beyond that which arose from the stay to which reference has been made) were to be made in the directions so that, instead of requiring a sequential filing of written submissions with the lay applicants being under an obligation to file by the 5th June and the Minister by the 8th June, the Minister was agreeable that written submissions be exchanged on the 7th June. In addition counsel for the Minister indicated that he would not object to the lay applicants being given an opportunity to file any further affidavit evidence which they might wish by the 7th June. Counsel for ILP indicated agreement with the amendment of the notices of appeal and those variations to the timeline. Against that background I turn to the relevant legal principles.
3. The Relevant Legal Principles
3.1 Both the Minister and ILP place reliance on the undoubted jurisprudence of this Court to the effect that an appellate court should be slow to interfere with case management directions made by the court of first instance. See for example P.J. Carroll & Co. Ltd. v. Minister for Health and Children [2005] 1 IR 294 and Dome Telecom Ltd. v. Eircom Ltd. [2008] 2 IR 726. While P.J. Carroll concerned case management in the Commercial List and Dome Telecom related to case management in the Competition List it seems to me that the general point made in both of those cases applies to any case which is being case managed either on a formal or informal basis. Case management only works if there is broad adherence to the directions given by the Court. The trial court must retain a very large measure of discretion over the directions which are appropriate and the measures to be adopted in the event of failure to comply. There would be no reality to the achievement of the undoubted advantages which flow from case management if this Court were, on anything remotely resembling a regular basis, to entertain appeals from parties who were dissatisfied with either the precise directions given or orders made by the Court arising out of failure to comply.
3.2 However, that is not to say that there may not be some circumstances where it is appropriate for this Court to consider an appeal against case management directions. Indeed P.J. Carroll is a case where an appeal was allowed against a procedural direction precisely because it involved a very important aspect of the process in the case in question which concerned the entitlement of the defendant Minister to lead expert evidence. However, it seems to me that the test which should be applied by this Court in deciding whether to entertain an appeal against directions which concern the timing of the filing of documents necessary to allow the case to go ahead or the timing of the trial itself must involve a high threshold. Ordinarily it would seem to me that it would be necessary for this Court to be satisfied that the relevant measures under appeal created a substantial risk of significant procedural unfairness coupled with the likelihood that no remedial action could be put in place either by the trial judge or by this Court on appeal which would have the effect of significantly remedying any unfairness which might be demonstrated to have occurred.
3.3 In that context it seems to me that a number of observations are apposite. First, it is rarely the case that procedural directions are written in stone. Indeed, as the facts of this case already referred to demonstrate, some modest latitude will normally be given to time deadlines provided that there is broad compliance with the measures necessary to ensure a timely trial.
3.4 Second, and perhaps of equal or greater importance on the facts of this case, it always remains open to the trial judge to put in place any measures which the trial judge is persuaded are necessary to ensure overall fairness and, thus, redress any actual prejudice that a party may be able to show as flowing from case management directions put in place. Indeed in many cases it may well be more appropriate to leave these matters to the trial judge. Any judge dealing with case management in advance will have some understanding of the issues likely to arise at trial. However, it is almost inevitably the case that the trial judge (who, of course, may or may not be the same judge as the judge who dealt with case management) will have a much more detailed understanding of the precise issues which will have to be decided at the trial in order to give rise to a fair disposition of the proceedings. A trial judge will, therefore, often be in a much better position to be able to determine with some precision as to whether real prejudice has occurred. A party who has found itself unable, for example, to file what it considers to be sufficient evidence on a particular point due to lack of time will be able to put the missing evidence into context by reference to how that evidence might be material to the issues which really arise for determination. Even if, therefore, tight timelines are imposed, the trial judge will always have a residual discretion to take whatever measures might be considered necessary to ensure a fair trial. For the reasons already addressed it seems to me that the trial judge will often be the best person to make a truly informed decision about whether asserted prejudice caused by a tight timeline is merely theoretical or could have had a real effect on the ability of a party to present its case (without any fault on the side of that party) such as might create a real risk of an unfair trial.
3.5 Against that background it seems to me that this Court should only intervene if there is demonstrated a degree of irremediable prejudice created by the relevant case management directions such as could not reasonably be expected be remedied by the trial judge (or at least where the chances of that happening were small) and where therefore, unusually, the safer course of action would be for this Court to intervene immediately to alter the case management directions. Against the background of those general observations I now turn to the specific issues which arise in this case.
4. The Issues
4.1 It does first need to be recorded that the issues raised on the respective notices of appeal are identical, quite specific and relatively limited. The background to the notices of appeal was, of course, the case management directions themselves. The relevant parts of the order of Kearns P. in each case start with a specific finding "that the within proceedings are urgent". That finding is followed by orders that:-
1. The applicants deliver their final affidavit by 14th May 2012
2. The respondent deliver his replying affidavit by 28th May 2012
3. The applicants deliver written legal submissions by 5th June 2012
4. The respondent deliver written legal submissions by 8th June 2012
5. The commencement of the hearing of the applicant's notice of motion dated the 3rd day of April 2012 be fixed for 10.45 o'clock on Tuesday 12th June 2012
There followed certain provisions as to what was to happen in the event of an appeal (an appeal had been intimated in advance by Mr. Skoczylas) which are of no continuing relevance.
4.2 Likewise an identical notice of appeal, so far as the substance thereof, was filed in each case. There are obviously differences reflecting the case numbers and, most especially in relation to ground 1(c), stemming from whether Mr. Skoczylas is a party to the case in question. Insofar as the substance of the appeals are concerned the notices of appeal set out three matters which the Court was urged to provide for by way of a variation from the order of Kearns P. Those three matters were as follows (taken from the notice of appeal in the case commenced by Mr. Neugebauer):-
“1. That the Applicant be given leave to issue and serve on 14th May 2012 his application regarding the following preliminary matters in the proceedings record number 2012 116 MCA:
a. That there be a proper preliminary hearing regarding the purported urgency of the proceedings record number 2012 116 MCA, as the Applicant claims that the said proceedings are not exceptionally urgent and do not require an exceptionally expedited timetable;
b. That the overlapping twin High Court proceedings record numbers 2011 239 MCA and 2012 116 MCA travel together for the sake of an effectual and complete adjudication upon the matters involved in the said proceedings and for the purposes of duly serving justice;
c. That the overlapping twin High Court proceedings of all the applicants under the record number 2012 116 MCA travel together and that the Lay Applicant can adopt the views and arguments of Mr. Skoczylas (the lead applicant in the proceedings record number 2012 116 MCA), for the sake of an effectual and complete adjudication upon the matters involved in the said proceedings and for the purposes of duly serving justice;
d. That the Applicant has a chance to notify (be not prevented from notifying) the Attorney General about the fact that questions regarding the unconstitutionality of the Act shall arise in the proceedings record number 2012 116 MCA;
e. That the Applicant has a chance to notify (be not prevented from notifying) both the Attorney General and the Human Rights Commissions that issues shall arise in the proceedings record number 2012 116 MCA as to the making of a declaration of incompatibility, with the meaning the declaration of incompatibility has in section 1(1) of the European Convention on Human Rights Act 2003 (No.20 of 2003);
f. That the Applicant has a chance to issue (be not prevented from issuing) his applications regarding discovery and interrogatories in the proceedings record number 2012 116 MCA.
2. That the above preliminary matters in the proceedings under the High Court record number 2012 116 MCA be heard and adjudicated upon on or before 21St May 2012 (the Respondent to issue and serve any replies before then).
3. That - depending on the outcome of the adjudication upon the above-mentioned preliminary matters - in the event that the Honourable Court deems the proceedings to be urgent enough, the following timetable requirements be set:
a. The Lay Applicant to deliver his comprehensive affidavit by 28th May 2012
b. The Respondent to deliver his replying affidavit by 1st June 2012
c. The Lay Applicant and the Respondent to deliver written legal submissions by 8th June 2012 [unchanged vs. the Order of 8 May 2012 in respect of the Respondent's written legal submissions]
d. The Notice Party not to deliver anymore affidavits or legal submissions in order not to slow down the proceedings or create additional requirements for the Lay Applicant, given the inordinate time pressure that the Respondent and the Notice Party have already put the Lay Applicant under
e. The commencement of the hearing of the Applicant's Notice of Motion dated the 13th day of April 2012 remain fixed for 10:45 o'clock on Tuesday 12th June 2012 [unchanged vs. the Order of 8 May 2012].”
4.3 It will be seen that the primary reliefs sought on the appeals were that there be a preliminary application concerning urgency, the linking of cases, the notification of the Attorney General and the Human Rights Commission and discovery and interrogatories. Thereafter it was suggested that those matters be determined by the 21st May and that, in the event that this Court might deem the proceedings to be urgent, an alternative timescale is suggested.
4.4 It is important to note that no appeal was brought in respect of the fixing of the 12th June next as the trial date. So far as the specific case management directions given by Kearns P. are concerned the appeals only related to the first three. In substance this Court had, by giving the stay to which reference has already been made, allowed the lay applicants some additional leeway in respect of filing their principal affidavit. So far as the second and third items are concerned the concession made by counsel on behalf of the Minister at the hearing before this Court provided additional leeway in the sense of extending the time within which the written submissions of the lay applicants had to be filed (coupled with arranging for an exchange of those submissions rather than a sequential filing with the lay applicants first followed by the Minister).
4.5 In substance the alternative timescale suggested by the lay applicants at para. 3 of the notice of appeal is now met, save that the written submissions are to be filed on the 7th rather than the 8th June. Additionally, and importantly, the concession of the Minister afforded a facility to the lay applicants to file further affidavit evidence up to the 7th June with the Minister being prepared, in the words of counsel, to take his chances on the consequences of additional evidence being filed that late in the day. Counsel for ILP indicated that his clients, too, were content to go along with the revised timescale indicated by the Minister. The issues which arose at the hearing had, therefore, to be seen against the backdrop of the fact that there was no appeal against the trial date as such and the specific timeline measures appealed against had been the subject of concessions on behalf of both the Minister and ILP. It would, indeed, be difficult to see how any larger leeway could be given in relation to the filing of evidence and written submissions while still retaining the 12th June trial date.
4.6 It is also important to touch on the amendments to the notices of appeal which were, in the circumstances outlined earlier, accepted on behalf of both the Minister the ILP in the sense that it was agreed that the notices of appeal could be amended in the manner sought. The amendments were very largely technical in nature reflecting the fact that certain aspects of the notices of appeal had been overtaken by events including the passage of time and the stay granted by this Court which led to the fact that the lay applicants' affidavit had, by the time the appeal came on for hearing on Monday 21st May, actually been filed. So far as matters of substance are concerned the amendments sought, in a new para. 3(a) of the notices of appeal, permission "to deliver additional affidavits, if needed, before the hearing of the substantive action” and also permission to file additional affidavits and submissions, if needed, following the discovery interrogatories and expert opinions (para. 3(c)). An additional qualification was placed at the end of para. 3(d) which, in terms, sought to restrict ILP from putting in further affidavits "unless it is necessary for a complete and effectual adjudication upon matters involved in the proceedings" and likewise para. 3(e) is qualified by referring to a continuance of the trial date "if it is still deemed realistic, justified and necessary following the hearing of the appeal".
4.7 Against that background it is appropriate to look at the specific issues now relied on by the lay applicants. In fairness it does have to be noted that the situation with which the lay applicants were faced was a somewhat fluid one with some of the issues originally raised in the notices of appeals being overtaken by events. That coupled with the fact that the lay applicants were not legally represented would, in my view, legitimately leave the Court to consider the scope of the appeal brought on a somewhat more generous basis than might otherwise be the case. However, it does have to be recalled that this Court is an appeal court and is confined to considering the issues properly before it which derive from the notice of appeal filed by the appellant or appellants. There is a limit to the latitude which it is either possible or appropriate for this Court to give in those circumstances. In addition, while acknowledging that the lay applicants are not legally represented and that the courts generally will, in those circumstances, endeavour to ensure that unrepresented parties are not unfairly prejudiced, it nonetheless remains the case that parties cannot expect to benefit by being unrepresented to the extent of being permitted to conduct their proceedings in a way that would not be allowed to a represented party.
4.8 It seems to me to be possible, therefore, to group the issues which arise on this appeal in the following way:-
(i) Whether there should be, as the lay applicants suggest, a preliminary hearing or application regarding urgency;
(ii) Whether there should be linkage between these proceedings and other proceedings involving many of the same parties which is concerned with a challenge to the separate direction given by the Minister under the Act in July, 2011 (“the July Direction”). In that context is should be noted that neither the Minister nor ILP raised any objection to the linkage of all of the proceedings which are the subject of this appeal.
(iii) Questions concerning notification of the Attorney General regarding issues touching on the constitutionality of the Act and the Human Rights Commission concerning the making of a declaration of incompatibility under the European Convention on Human Rights Act, 2003;
(iv) Issues concerning discovery and interrogatories and
(v) Potentially some consequential issues for the timeline depending on the result of some of those earlier issues and some minor additional items. I propose addressing each in turn.
5. Should there be a preliminary issue on delay?
5.1 It is fair to say that difficulties can be encountered in the conduct of litigation involving litigants in person when the precise meaning of terms used in the legal process are not fully understood. It should, in fairness, be recorded that experienced advocates and judges sometimes use terms in a colloquial way in circumstances where any experienced practitioner would fully understand what was meant even though the term may not be used in a precise way. However, when it comes to the making of court orders and the giving of formal directions together with a consideration by this Court of any such issues on appeal then it is important that there be some real precision about the meaning of terms. The concept of a preliminary issue is recognised in the Rules of the Superior Courts. See Order 36 Rules 7 & 9. However, what is envisaged by the rules in that context is the trial of one of the issues of substance arising in the case rather than a consideration by the court of some pre-trial procedural direction. Pre-trial procedural motions might be referred to as preliminary applications although this is not a precise term. Likewise, the court can, in the exercise of its inherent jurisdiction to maintain control over the conduct of trials before it, direct a modular trial where some of the issues are separated out and tried before others. A common example is where, in plenary proceedings, issues of liability and causation are tried first with questions concerning the calculation of damages being left over. See for example Cork Plastics Manufacturing v. Ineos Compound Ltd. [2008] IEHC 93, [2008] 1 ILRM 174.
5.2 However, all of those questions are concerned with looking at all of the issues of substance that arise in the case and deciding how they are to be tried whether all in one go, in a modular fashion, or by separating out a formal preliminary issue. The question of directing a preliminary issue or hearing as to questions that do not arise as part of the substance of the case just does not arise. It is, therefore, misconceived on the part of the lay applicants to suggest that there ever could have been a preliminary hearing as such on the question of urgency. Urgency is not an issue in the case. Urgency is only relevant, if it be at all, to questions concerning the timetable. Urgency, is therefore, but a factor to be taken into account in deciding on the timetable.
5.3 It might be said that urgency arises on this appeal in the sense that a finding on urgency was specifically made and formed part of the reasoning of the trial judge in deciding on the case management directions which are challenged. However, the problem with any such issue arising on these appeals is that the lay applicants did not appeal the fixing of the trial date as such. If the lay applicants had wished to argue that Kearns P. had given insufficient consideration to the urgency argument and that his fixing of a trial date of the 12th June was unfair because the finding of urgency was itself incorrect or based on insufficient analysis then it seems to me that that would have provided grounds for appealing against the fixing of the trial date on that basis. However, no such appeal was brought. It seems to me that it is now too late to maintain an appeal against the trial date, no such appeal having been brought to date. In those circumstances it does not seem to me that the question of urgency really arises. There could never have been an order requiring the trial of the question of urgency as a preliminary matter. It is not an issue in the case as such. Urgency only arises as part of and in the context of the specific timeline which formed the basis of the case management directions.
5.4 In the events that have happened, including the concession made by the Minister to which reference has already been made, that timeline has been adjusted to the maximum extent possible in favour of the lay applicants consistent with a hearing going ahead on the 12th June. Therefore, urgency is no longer of any relevance to the specific case management directions appealed against for those directions have already been loosened to the greatest extent possible while keeping the trial date. In those circumstances, and in the absence of any appeal against the trial date itself, it seems to me that the only possible basis by which urgency could have been the subject matter of an appeal to this Court (as part of the reasoning which led to the directions which were appealed against) has now disappeared. On that basis I am not satisfied that the urgency question remains relevant to this appeal.
5.5 That being said I should record that, as noted earlier, there remains an obligation on the trial judge to ensure that the trial is fair. If, in the context of the issues as they come to be refined and understood at the trial, it becomes clear to the trial judge that any material and irremediable prejudice has been caused by the tight timeline then it will, of course, be a matter for the trial judge to take whatever steps are considered appropriate to deal with that situation. In that context it is of particular importance to note that this Court did not have the benefit of considering the detailed affidavit filed on behalf of the lay applicants for that affidavit was, the Court understands, filed on the Sunday before the Monday hearing in this case. This Court had not, in any event, therefore, any real opportunity to form a considered view as to the real issues likely to arise at the trial and the extent, if any, to which the lay applicants might have been placed at a disadvantage in pursuing those issues by reason of the tight timeline.
5.6 In those circumstances I would not propose varying the order of the trial judge so as to include a direction that there be some form of hearing on urgency. It is next necessary to turn to the linkage issues.
6. Linkage
6.1 As pointed out earlier it is accepted by all parties to these connected proceedings that the cases currently before this Court on appeal are properly linked and will come to trial together. In substance it is the Court's understanding that, while reserving the right to make additional observations, it would be the intention of all of the parties who oppose the Minister's direction to rely substantially on the submissions made by Mr. Skoczylas. That seems an eminently sensible way of dealing with the case.
6.2 The issue which remains is as to whether this Court should direct linkage between these connected (and now linked) cases with the challenge to the July Direction. In his written submissions Mr. Skoczylas draws attention to my own decision in Kalix Fund Ltd v. HSBC Institutional Trust Services (Ireland) Ltd [2010] 2 IR 581 where I address some of the questions which a court may need to consider when faced with a large number of connected cases. While there may be some common ground between the issues which arise in these connected proceedings and the proceedings relating to the July Direction (the same statutory regime applies to both and both are at least generally concerned with the Minister's view as to measures that need to be put in place in respect of ILP generally) it does not seem to me that it has been established that there is any sufficient connection such as would justify this Court in taking the view that a decision of the High Court not to link the two cases, in the discretion of that court, was incorrect. The question of how litigation should be managed to the advantage of the utilisation of scarce court resources and to minimise costs or disruption to parties is a matter on which the High Court enjoys a very wide discretion for obvious reasons. The High Court will be more familiar with the various cases requiring to be heard and will be able to reach an assessment as to how best to balance any competing factors. In those circumstances this Court should only interfere with a decision by the High Court on linkage where it is clearly wrong. I am not satisfied that any basis has been put forward to suggest that the failure to link these connected proceedings with the proceedings in relation to the July Direction is clearly wrong.
6.3 In an additional observation Mr. Haug, who is the applicant in appeal no. 188/2010, suggested that if these proceedings were determined first, (as seems likely in the absence of linkage) and were determined against the lay applicants, then the other proceedings (which concern the investment of monies by the Minister in ILP in return for what is virtually total ownership), would become irrelevant for, in a sense, in Mr. Haug's view, there would be little left to fight over in respect of the shareholding if the life assurance wing of ILP was no longer part of the group. It does, of course, have to be noted that a similar argument could be made in respect of the cases being determined in the opposite order. If the July Direction stands then the Minister will own virtually all of ILP (about 99%) with the previous shareholders owning only a tiny fraction of the equity. In those circumstances the extent to which it might matter to those shareholders that the life assurance business remained within the group would be very significantly reduced. There is, in my view, no compelling reason why one or other case should go first or whether the two cases should be tried together. There is not, in my view, any demonstrated significant prejudice. Doubtless whichever case ran first would require the Court to consider many of the legal issues which arise under the Act. However, once those issues are clarified in whatever case first came to judgment, then those legal issues would not arise again in the second set of proceedings. This is one of the points made in Kalix.
6.4 In all of those circumstances I am not satisfied that any sufficient compelling reason has been put forward such as would justify this Court in interfering with the discretion of the High Court as to linkage. Against that background I now turn to the questions raised relating to the Attorney General and the Commission for Human Rights.
7. The Attorney General and the Commission for Human Rights
7.1 The underlying basis for the issues raised on this appeal under this heading is the desire on the part of the lay applicants to assert that the Act is inconsistent with the Constitution and/or incompatible with the European Convention on Human Rights (“ECHR”). The normal way in which any party may contest the validity of a Statute having regard to the provisions of the Constitution is by commencing plenary proceedings seeking a declaration to that effect. Likewise the normal way in which a party may seek a declaration of incompatibility with the ECHR is by issuing similar plenary proceedings.
7.2 It is true that there have been cases in the past where such plenary proceedings have been tried at the same time as litigation which might well be affected by a declaration of inconsistency with the Constitution. There may also be questions as to the extent to which it may be procedurally possible to seek declarations of inconsistency with the Constitution or with the ECHR in proceedings other than plenary proceedings. However it does not seem to me that there has been a definitive determination by the High Court in this case on the question of whether it is appropriate to allow either or both of those questions to be litigated in these proceedings.
7.3 Mr. Skoczylas drew the court’s attention to an aspect of an earlier case management order made by Kearns P. on the 16th of April last. The order made on that occasion records an application of Mr. Skoczylas “ex parte onto the court for leave to make an application regarding preliminary matters”. The order records that the court refused that application. However at p. 21 of the transcript Mr. Skoczylas is recorded as asking the court “to provide an application regarding preliminary matters in these proceedings because those matters will be overlapping. So points of claim are a separate issue but there are preliminary matters such as joinder of Attorney General, joinder of the Commission of Human Rights”. The President is then recorded as indicating that he cannot advise Mr. Skoczylas on what he should do in relation to matters like that.
7.4 Dealing first with the question of notification of the Attorney General. Order 60 of the Rules of the Superior Courts provides that, where any question as to the validity of any law having regard to the Constitution arises in any action, notice must be served on the Attorney General by the party having carriage of the proceedings if the Attorney General is not already a party. The service of any such notice does not require the leave of the court. Rather it is an obligation on the party concerned. There was, therefore, no basis for the hearing of any preliminary matter concerning the joinder of the Attorney General.
7.5 However, it is clear that in order for the Attorney General to be notified in that way the issue of the constitutionality of a law must “arise” in the proceedings. In that context it is important to note that these proceedings were commenced by notices of motion (in the case of the proceedings first referred to in the title to this judgment on 3rd April, 2012 but in the other cases at a later stage). The only claim made in the respective notices of motion is for an order that the direction order of the Minister be set aside. No claim is made seeking any declaration of inconsistency with the Constitution. Therefore, the question of the compatibility of the legislation with the Constitution did not, and does not to this date, “arise in the proceedings” in the sense in which that phrase is used in order 60. If Mr. Skoczylas wished to raise the constitutionality of the Act then it was incumbent on him either to commence separate plenary proceedings seeking a declaration to that effect or, if he considered it to be procedurally possible, to seek to raise the question of the constitutionality of the Act in these proceedings. As the matter has not been considered I express no view on whether it would have been possible to raise the constitutionality of the Act in proceedings commenced by motion under a specific statutory regime.
7.6 However, Mr. Skoczylas did neither of these things. He did not issue separate plenary proceedings (which of course he could have done without any leave of the court) nor did he seek to bring any motion before the court seeking to amend the notice of motion for the purposes of including a claim that the Act was unconstitutional. In those circumstances the proceedings, even as they currently stand, do not involve an issue as to the constitutionality of the Act. In those circumstances, in turn, there could be no question of the lay applicants notifying the Attorney General, as sought in para. 1 (d) of the notices of appeal, for those issues do not arise in the proceedings. Those issues could only arise in the proceedings if there was a claim to unconstitutionality specifically brought in these proceedings (if that be possible) or if there were separate proceedings commenced involving a direct challenge to the constitutionality of the Act.
7.7 For like reasons there is no issue arising concerning the compatibility of the Act with the ECHR. On this point I would make one additional observation. It does need to be noted that a declaration of incompatibility with the ECHR does not affect the validity of the law found to be in contravention of the ECHR. That does not, of course, mean that any party affected by a law and who has, therefore, standing, in accordance with the relevant jurisprudence, to seek such a declaration is not fully entitled to bring an appropriate case. However in terms of precisely how it would be appropriate to manage litigation involving, on the one hand, substantive issues arising out of a piece of legislation and, on the other hand, a challenge to the consistency of that legislation with the ECHR, different considerations may apply than would be the case in a parallel situation involving a challenge to the consistency of legislation with the Constitution. In the latter case a successful challenge to the constitutionality of the legislation in question would have a direct effect on the substance of the litigation. No such effect would arise from a declaration of incompatibility with the ECHR.
7.8 On that basis it would not be appropriate to vary the order of the President by making provision in any way for service on either the Attorney General or the Commission on Human Rights because issues arising under the Constitution or the ECHR are not before the court. Finally it is necessary to turn to the question of discovery and interrogatories.
8. Discovery and interrogatories
8.1 So far as discovery is concerned the procedure for seeking discovery in the High Court is clear. The starting point must be a written application for discovery setting out the precise categories of documents in respect of which discovery is sought and also setting out the reasons why each category of document is required. That has been the situation since the amended discovery rules were introduced by S.I. No. 233 of 1999. No leave of the court is required to initiate the discovery process. It is in the hands of the relevant party itself to seek discovery by writing the appropriate letter and inviting the opposite party to agree. The only occasion when the courts jurisdiction is invoked is if there is a dispute. I do not understand that any of the lay applicants have initiated the discovery process in that way.
8.2 The court was told in the course of the hearing that the affidavit which had been filed by the lay applicants on the previous day does make mention of certain documents which the lay applicants wish to obtain. The court was also told that the Minister had offered to make available the documents that were before the Minister when he made the decision to make the challenged direction order subject to an undertaking as to confidentiality and to the effect that any relevant documents would only be used for the purposes of these proceedings. I did not understand the lay applicants to demur from giving those undertaking so there seems to me to be no reason why that file cannot now be made available.
8.3 In passing I should note that the file was described in argument by Mr. Skoczylas as “self selected” by the Minister. I do not think that that is a fair characterisation. While it will ultimately be a matter for the trial judge (and only for this court in the event that there was an appeal) it is at least arguable that the reasonableness of the decision of the Minister must be considered on the basis of the application of a similar test to that which would be applied in judicial review proceedings in which context the only relevant materials would be those materials that were actually before the decision maker Minister on the facts of the case.
8.4 Be that as it may the reality is that the lay applicants have not invoked the discovery procedure in accordance with the rules and it would, in those circumstances, be wholly inappropriate for this court to make any order relating to discovery. The lay applicants having failed to implement the discovery process in accordance with the rules questions may now arise as to whether it is too late to invoke that process. However in that context I note the comment made by counsel for the Minister that consideration would be given to any request for documents beyond the file to which reference has been made provided that there was no good reason for declining to make the documents available and provided that the documents could be made available in a time scale that would not disturb the trial date.
8.5 The rules in relation to interrogatories are different in that an application to the court for leave to deliver interrogatories is required by virtue of order 31 of the rules. However it is by no means clear to me, at this stage, as to whether there are any interrogatories which could properly be delivered in this case. Interrogatories only arise where, in the words of Doyle J. in Long v. Conway (Unreported, High Court, Doyle J., 25th July, 1977), same are necessary to facilitate and to expedite the trial of actions by enabling a party to obtain from his opponent information as to facts material to the questions in dispute between them and to obtain admissions of any facts which he has to prove on any issue which is raised between them. It was only on the day before the hearing in this court took place that a detailed affidavit setting out the full basis of the case made by the lay applicants was filed. Legal submissions are still awaited. There have been no formal pleadings in this case even though the President, as already noted, directed points of claim be served but same were not delivered in circumstances where, it would appear, the lay applicants stood on the final substantive paragraph of the grounding affidavit as providing the basis for challenge. Against that background it is impossible to know whether there could be any interrogatories which could be properly delivered and which might be material to the issues of fact which arise in the case. In those circumstances it seems to me that there could be no basis for this court imposing any order in relation to interrogatories at this stage. It seems to me appropriate to conclude by dealing with some further minor issues which arose and by making some general observations.
9. Some Minor Issues and General observations
9.1 The only other issue which arises on the notices of appeal concern the suggestion that ILP be precluded from filing any additional affidavits or submissions which direction is sought "in order not to slow the proceedings or create additional unnecessary requirements". It does have to be recorded that no order of that type could ever be made by this Court. This Court is a Court of Appeal. This Court cannot give pre-emptive directions in advance as to what additional evidence the trial judge, or any judge dealing with case management before the trial, may consider appropriate in relation to the filing of evidence. No order of the type sought by the lay applicants could, in those circumstances, be given by this Court. It is, of course, the case that any litigant is entitled to appear in person and conduct their own case. It is also true that the courts will normally attempt to assist litigants in person who will not, for understandable reasons, always appreciate the procedural law applicable or other questions of practice that may affect how the proceedings are to be conducted. It does have to be recorded that in making the primary submissions on behalf of the lay applicants Mr. Skoczylas both in written and oral presentation, made his case cogently and politely. Nothing which I say should be taken as a criticism.
9.2 However it does have to be noted that parties who represent themselves can suffer from significant disadvantages. While the courts will endeavour to explain relevant procedures, the courts cannot bend the rules in any way that would materially and adversely affect the interests of other parties. I have already identified certain ways in which the actions of the lay applicants in this case were significantly at variance with proper procedure. The failure to invoke the discovery process is one. The suggestion that the Attorney General or the Commission on Human Rights could be notified without the issue of constitutionality arising in the proceedings is another. The mere fact that someone asserts that an Act is unconstitutional does not mean that the issues arises in the proceedings unless there is a specific claim in the proceedings to that effect. Other examples could be quoted. This court has done its best to accommodate the difficulties in which the lay applicants find themselves in presenting their own case. However there is a limit to how far the court can go.
9.3 It seems to me that, subject to the overriding entitlement of the trial judge to deal with any established prejudice that may be demonstrated at the trial, the concessions made by counsel for the Minister go as far as could reasonably be expected to accommodate the lay applicants concerns in a manner consistent with holding the trial date of the 12th June. Given that there was no appeal against the fixing of that trial date no other measures could reasonably be put in place. In those circumstances it seems to me that the appeals must be dismissed, save that there would appear to be consent to a variation of the timetable in the manner suggested by counsel for the Minister.
