Allied Irish Banks Plc v Pierce
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gerard Hogan,Mr. Justice Kelly |
| Judgment Date | 21 May 2015 |
| Neutral Citation | [2015] IECA 89 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No.: 2014/37 |
| Date | 21 May 2015 |
[2015] IECA 89
THE COURT OF APPEAL
Kelly J.
Hogan J.
Mahon J.
Between
and
1. I entirely agree with the judgment which has been delivered by Hogan J., but I wish to add some observations of my own. I do so because of the presence of some remarkable features in the way this litigation has proceeded to date.
2. The objection which was taken concerning the special endorsement of claim on the summary summons appears to have its genesis in what took place at a hearing before the Master of the High Court on the 13 th March, 2014.
3. On that occasion it was apparently the Master himself who expressed his disquiet with the special endorsement of claim. He required submissions to be prepared on the point taken by him. That was so notwithstanding the absence of any evidence on the part of the defendant suggesting any prejudice being caused to her as a result of the alleged infirmity in the endorsement of claim.
4. In an affidavit sworn on the 25 th April, 2014, by Mr. David Galvin on behalf of the plaintiff bank, he exhibited open correspondence from the defendant's financial advisers dated the 10 th September, 2013 and written in the context of this litigation. That correspondence contained an open offer to settle the litigation and the defendant acknowledged her indebtedness to the bank in the sum of €781,000. Notwithstanding that evidence, the Master proceeded to conduct a hearing on the pleading point on the 10 th July, 2014, and reserved his decision until the 16 th October, 2014. It was on that day that he erroneously struck out the summons.
5. The notice of motion seeking leave to enter final judgment was first made returnable before the Master on the 11 th July, 2013. Despite the absence of any affidavit being sworn by the defendant it took until the 16 th October, 2014, before the matter was ultimately and wrongly concluded by the Master.
6. Not merely was the order which was made on that occasion incorrect, but it was made in excess of jurisdiction. If that were the first time that such occurred, it might be unremarkable. But it is not, as is clear from what follows.
7. Hogan J. has analysed the provisions of O. 37 and the role of the Master of the High Court under that order.
8. In my view, the position is crystal clear. The wording of O. 37 makes it plain that the Master has no jurisdiction in contested cases other than to transfer them for judicial determination before a judge.
9. The words of the rule are so clear that it is difficult to imagine how there could be any doubt about what they mean. But if there was any such doubt it was entirely addressed in the series of decisions which are referred to in the judgment of Hogan J. Those decisions go back as far as 1927, but two of them are of very recent vintage. There is the decision of Kearns P. in Bank of Ireland v. Cawley [2013] IEHC 484. In that case the President held that the Master has no jurisdiction to dismiss proceedings in a contested case. That decision was given on the 8 th November, 2013.
10. The second case is the decision of Hogan J. in ACC Bank plc v. Heffernan [2013] IEHC 557. That judgment was delivered just four days before that of the President in Bank of Ireland v. Cawley. There Hogan J. made it clear that the Master has no jurisdiction to make final orders in contested cases and he further analysed the meaning of the expression "in order for hearing" where it appears in O. 37, r. 6. I agree with him that it means nothing more than a case being administratively ready for hearing. It certainly does not give the Master a jurisdiction to strike out a contested case. It matters not whether a contest is on fact or law or by reference to some alleged irregularity in the pleadings or proceedings, the Master has no jurisdiction to adjudicate on it
11. Despite the clarity of the two judgments which I have cited, the Master, within months of their delivery, proceeded to do in the instant case precisely what it had been held he had no power to do by both Kearns P. and Hogan J.
12. The assumption by the Master of this non existent jurisdiction delayed the progress of this litigation for well in excess of a year. It deprived the plaintiff of the ability to make progress in circumstances where, in the correspondence to which I have already referred, the defendant accepted through her financial advisers that she has a liability to the plaintiff for €781,000. During all that period of delay, interest has continued to accrue and costs have multiplied. None of that ought to have happened. It would not have happened if the clear judgments of the President of the High Court and Hogan J. had been followed.
13. I concur in the view that this appeal must be allowed.
[2015] IECA 89
THE COURT OF APPEAL
Peart J.
Hogan J.
Mahon J.
Record No.: 2014/37
In the matter of The European Arrest Warrant Act 2003
European arrest warrants – Murder – Detention – Appellant seeking to appeal against an order for surrender – Whether surrendering appellant to the UK so that he can be placed in detention for preventative purposes would constitute a breach of his constitutional rights
Facts: The appellant, Mr Craig, was convicted of murder in 1974. His life sentence contained an order that he serve a minimum term of 15 years imprisonment (the tariff). Mr Craig was serving his sentence of imprisonment in July, 2002 when he allegedly escaped from an open prison and made his way to Ireland. The question which arose was in respect of his surrender and in respect of the balance of the sentence imposed for murder in circumstances where he had long since served the tariff element of the life sentence. The essential question, therefore, was whether the very act of surrender for this purpose amounted to an unconstitutionality; specifically, if Mr Craig were returned to the UK, would this be for the purpose of serving a period of preventative detention in circumstances where, if this were to be replicated in the jurisdiction of Ireland, this would be precluded by the personal liberty provisions of Article 40.4.1 of the Constitution? The High Court examined these submissions and in November, 2014, certified the question set above for consideration by the Court of Appeal.
Held by Hogan J that, in the light of Minister for Justice, Equality and Law Reform v Brennan [2007] IESC 21 and Minister for Justice v Stapleton [2008] IESC 30, it is clear that s. 37(1)(b) of the European Arrest Warrant Act 2003 can only be successfully invoked by an appellant if it can be demonstrated that the very act of surrender would either itself ex facie amount to an unconstitutionality in the circumstances or where the Court, acting on the clearest of evidence, had significant grounds for apprehending that the appellant would, if surrendered, face a manifestly unfair trial which did not meet contemporary minimum standards presupposed by the Framework Decision. Hogan J held that the latter situation did not arise in this appeal. Hogan J held that the act of surrender would immediately deliver up the appellant into a form of preventative detention which is ex facie a form of unconstitutional detention. Accordingly, therefore, by reason of the two Supreme Court decisions in Lynch and Whelan v Minister for Justice [2010] IESC 34 and The People (DPP) v Daniels [2014] IESC 64, Hogan J found himself coerced to the conclusion that the surrender of the appellant to serve out the balance of the life sentence would, given that he had already long served the punitive element of that sentence as reflected in the tariff, be contrary to s. 37(1)(b) of the 2003 Act. Hogan J held that, by direct analogy with Minister for Justice and Equality v Nolan [2013] IESC 54, if the appellant were to be returned to face a substantive sentence which would contravene the Constitution, then in those circumstances likewise an order for surrender should not be made under s. 37(1)(b). Hogan J dissented from the Court of Appeal judgment of Peart J because he considered that the form, structure and substance of the British sentencing regime for life sentenced persons would compromise fundamental constitutional values by providing for a form of preventative detention and that, by analogy Nolan, the very act of surrender for that purpose would amount in itself ex facie to an unconstitutionality. It was in those circumstances that Hogan J was compelled to say that this would be contrary to s. 37(1)(b).
Hogan J held that he would allow the appeal and answer the certified question posed by the High Court in the affirmative.
Appeal allowed.
In this appeal this Court is required to consider and determine the following question as certified by the High Court (Edwards J.), namely:
‘whether the requested person has been sentenced in the United Kingdom to a life sentence for murder, and has served the portion of the sentence consisting the entirety of the punitive element of the said sentence, would the surrender of that person to serve the balance of his or her sentence constitute a contravention of any provision of the Constitution of Ireland and, in particular, Article 40.4 thereof, except where the contemplated surrender would be prohibited by s. 37(1)(b) of the European Arrest Warrant Act 2003?’
The relevant facts and law have been set out in the judgment of Peart J. which has just...
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