An Blascoad v Commissioner of Public Works

• Jurisdiction: Ireland
• Judge: Mr Justice Declan Budd
• Judgment Date: 28 June 2000
• Neutral Citation: [2000] IEHC 130
• Court: High Court
• Docket Number: [1991 No. 620P],6620 P/1991
• Date: 28 June 2000

BLASCAOD MOR TEORANTA & ORS v. COMMISSIONERS OF PUBLIC WORKS IN IRELAND & ORS

BETWEEN

AN BLASCAOD M ÓR TEORANTA PETER CALLERY, JAMESCALLERY AND KAY BROOKS AND MATHIAS JAUCH

PLAINTIFFS

AND

THE COMMISSIONERS OF PUBLIC WORKS IN IRELAND THE MINISTERFOR THE GAELTACHT IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

AND

BY ORDER, THE MINISTER FOR ARTS, HERITAGE, GAELTACHT ANDTHE ISLANDS (SUBSTITUTED DEFENDANT FOR THE 1 st AND2 nd NAMED DEFENDANTS).

[2000] IEHC 130

Declan Budd

6620 P/1991

THE HIGH COURT

Synopsis:

Damages

Damages; plaintiffs had successfully challenged constitutionality of s.4 (2) An Blascaod Mór National Historic Park Act, 1989, on grounds that it unfairly discriminated against them in relation to their property rights; two preliminary issues agreed as evidence with regard to quantum of damages likely to be lengthy; whether damages can arise in respect of misfeasance in public office by the Minister from the manner in which the invalid Act came to be passed by the Oireachtas; whether the court can award damages against the State for the effects of the passing by the Oireachtas of an unconstitutional Act; whether 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.

Held: No award in respect of misfeasance in public office; no damages to be awarded against the State; court has jurisdiction to give redress only for such damage as is proved to have flowed directly from the effects of the invalidity without intervening imponderables and events.

Blascaod Mór Teoranta v. Commissioners of Public Works - High Court: Budd J. - 28/06/2000 - [2000] 3 IR 565 - [2001] 1 ILRM 423

The plaintiffs were a group of persons who owned lands on the Blaskets Islands. The government passed legislation dealing with ownership of the Blaskets Islands. The plaintiffs challenged the legislation on the basis that it was unconstitutional in the manner that it dealt with their property rights. Both the High Court and Supreme Court held that the legislation in question was discriminatory in the way in which it distinguished between persons who held land on the Blaskets Islands before 1953 and those who acquired landholdings after that date. The legislation was found to be unconstitutional. The case now proceeded in the High Court on the issue of damages. The plaintiffs contended that their property rights should be vindicated by an award of damages. Budd J held, inter alia, that a claim for misfeasance in public office or a claim in negligence was not maintainable. Although the State could, in certain situations, be held liable for its actions the plaintiffs had largely been vindicated by the declaration of invalidity accorded to the An Blascoad Mór National Historic Park Act, 1989. The plaintiffs had not been dispossessed of their property at any stage. An award of damages should only be made where a clear link can be established between damage suffered and the improper acts. However costs would be awarded to the plaintiffs.

Citations:

BLASCAOD MOR TEORANTA V COMMISSIONERS OF PUBLIC WORKS 2000 1 ILRM 401

CONSTITUTION ART 40

BLASCAOD MOR NATIONAL HISTORIC PARK ACT 1989 S4(2)

BLASCAOD MOR NATIONAL HISTORIC PARK ACT 1989 S4

CONSTITUTION ART 15.12

CONSTITUTION ART 15.13

NORTHERN TERRITORY V MENGEL 1995 185 CLR 307

GLENCAR EXPLORATION PLC & ANDAMAN RESOURCES PLC V MAYO CO COUNCIL UNREP KELLY 20.8.1998 1998/20/7466

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

CONSTITUTION ART 34.3

KENNEDY & ARNOLD V IRELAND 1987 IR 587

CONSTITUTION ART 34.3.2

CONSTITUTION ART 15.4.1

BYRNE V IRELAND 1972 IR 241

MURPHY V AG 1982 IR 241

CANADA ACT 1982 S24(1) (CAN)

CONSTITUTION ART 38 (SOUTH AFRICA)

HUMAN RIGHTS ACT 1988 S8 (UK)

HUMAN RIGHTS ACT 1988 S6 (UK)

HUMAN RIGHTS ACT 1988 S6(3) (UK)

MCHUGH V COMMISSIONER OF AN GARDA SIOCHANA 1986 IR 228

GARVEY V IRELAND 1981 IR 75

R V SECRETARY OF STATE FOR TRANSPORT EX PARTE FACTORTAME LTD (NO 5) 1999 3 WLR 1062

R V MAFF EX-PARTE HEDLEY LOMAS (IRL) LTD 1996 ECR 2553

BRASSERIE DU PECHEUR V GERMANY & R V SECRETARY OF STATE FOR TRANSPORT EX PARTE FACTORTAME 1996 ECR 1029

SOCIETE ANONYME DES PRODUITS LAITIERS (LA FLEURETTE) 1938 RECUEIL LE BON 25

MESKELL V CORAS IOMPAIR EIREANN (CIE) 1973 IR 121

KEARNEY V MIN FOR JUSTICE 1987 ILRM 52

BLASCAOD MOR NATIONAL HISTORIC PARK ACT 1989 S4(4)

PINE VALLEY DEVELOPMENTS LTD V MIN FOR ENVIRONMENT 1987 IR 23

MOYNIHAN V GREENSMYTH 1977 IR 55

CONSTITUTION ART 13.8.1

BYRNE, STATE V FRAWLEY 1978 IR 326

MUCKLEY V IRELAND 1985 IR 472

CONSTITUTION ART 15.4.2

BLASCAOD MOR TEORANTA V COMMISSIONERS OF PUBLIC WORKS UNREP BUDD 27.2.1998 1998/11/3594

MERCHANT SHIPPING ACT 1988 (UK)

1 Mr Justice Declan Budddelivered on the 28th June 2000

2 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 onthe 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 the17 ^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 tosay:-

"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."

3 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 itsentirety."

4 Earlier in the Judgment Barrington J. analysed section 4 of the Act. Hesaid:

"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."

5 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 amotion 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.

6 The agreed preliminary issues were:-

7 1. Can damages arise in respect of misfeasance in public office by the Minister from the manner in which the 1989 Act came to be passed by the Oireachtas?

8 2. Can damages arise from the passing of the 1989 Act by reason of the Act being invalid? Or, in other words, can the court award damages against the State for the effects of the passing by the Oireachtas of the...