Brady v Choiseul t/a Potato Services

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 12 October 2016
• Neutral Citation: [2016] IEHC 552
• Court: High Court
• Docket Number: [2012 No. 10930 P]
• Date: 12 October 2016

[2016] IEHC 552

THE HIGH COURT

Noonan J.

[2012 No. 10930 P]

BETWEEN

PAUL BRADY

AND

JOHN BRADY

PLAINTIFFS

AND

OLIVER CHOISEUL TRADING AS POTATO SERVICES,

S.J. MCCREIGHT (POTATOES) LIMITED

AND

DEPARTMENT OF AGRICULTURE AND RURAL DEVELOPMENT

DEFENDANTS

International Law – Sovereign immunity – Agent of government – Northern Ireland Act 1998 – Service of summons – Practice & Procedures – O. 12, r. 26 of the Rules of the Superior Courts – Lack of Jurisdiction

Facts: The third named defendant sought an order under o. 12, r. 26 of the Rules of the Superior Courts and the Court's inherent jurisdiction for setting aside the service of the plenary summons and statement of claim on the primary grounds that it enjoyed benefit of sovereign immunity. The plaintiffs' plea was that the seeds supplied by the defendants to the plaintiffs were of inferior quality, contrary to the certification by the third named defendant. The third named defendant averred that s. 22 (1) of the Northern Ireland Act 1998 provided that the executive power in Northern Ireland shall continue to be vested in Her Majesty and, accordingly, the third named defendant exercised the executive powers conferred under the statute on behalf of the State and thus, had sovereign immunity. The plaintiffs claimed that the third named defendant did not possess an international legal personality sufficient to enable it to claim sovereign immunity.

Mr. Justice Noonan held that the Court lacked jurisdiction to hear the present matter and set aside the service of the amended plenary summons and statement of claim on the third named defendant. The Court found that the third named defendant was engaged in governmental activity as an agent, on behalf of a sovereign state and thus, the third named defendant had a ground to claim for immunity. The Court further found that the third named defendant was administering the seed certification programme in a public capacity and was not engaging in trade or commerce. The Court held that the High Courts were not competent to adjudge the validity of administrative and executive acts by the foreign sovereign acting within its jurisdiction.

JUDGMENT of Mr. Justice Noonan delivered on the 12th day of October, 2016

1 In this application, the third defendant (‘DARD’) seeks an order pursuant to O. 12, r. 26 of the Rules of the Superior Courts and the court's inherent jurisdiction setting aside the service of the plenary summons and statement of claim herein on DARD on the primary ground that it enjoys the benefit of sovereign immunity. Other technical objections to service are raised by DARD on the basis of non-compliance with the Rules of the Superior Courts.

Background facts

2 The plaintiffs are potato farmers with lands in Kilcoole, Co. Wicklow. In March 2012, the plaintiff purchased two batches of ‘Premier Elite’ potato seed from the first defendant, a seed supplier in Co. Offaly. The first defendant sourced this seed from the second defendant, a seed potato business in Northern Ireland. The first batch of seed was supplied to the plaintiffs on 5th March, 2012, directly by the second defendant. On 16th March, 2012, a second batch was supplied by the second defendant to the first defendant, who supplied it to the plaintiffs. The seed in question is alleged by the plaintiffs in their statement of claim to have been certified by DARD in its capacity as the statutory and legal authority in Northern Ireland designated for the purposes of implementing statutory requirements in respect of crop certification. The plaintiff pleads that DARD is the ministry responsible for implementing policy pursuant to the provisions of the Seed Potatoes Regulations (Northern Ireland) 2010 and the Marketing of Potatoes Regulations (Northern Ireland) 1989.

3 The seed was duly planted by the plaintiffs and the essence of their claim is that the crop failed because the seed in fact was not ‘Premier Elite’ but of inferior quality and unknown origin, contrary to its certification by DARD. The plaintiffs claim for the losses they have suffered on the following basis, as pleaded at para. 15 of the amended statement of claim:

‘(15.) The said loss, damage, inconvenience and expense was occasioned the plaintiffs by the breach of contract, negligence, breach of duty, breach of statutory duty and failure of the defendants or any one or other of them to comply with the requisite procedures as set forth in the Seed Potatoes Regulations (Northern Ireland) 2010 and the Marketing of Potatoes Regulations (Northern Ireland) 1989 which provide specific controls and requirements with regard to inspection of seed tubers on farm, seed for export, home trade seed and ware, and in the State with Department of Agriculture, Food and the Marine seed potato certification scheme, which scheme requires that all certified seed comply with the legal standards with regard to varietal purity, and plant health standards’.

4 Particulars of this plea are raised against each defendant in turn. In relation to DARD, the plaintiffs claim that it permitted certification labels to be issued to suppliers which were pre-stamped without the requisite inspection by DARD having taken place, thus leaving the certification system open to significant abuse. The particulars allege that DARD failed to inspect, manage and control the seed certification system in accordance with its policy and the relevant regulations and further that it was negligent in the manner in which it implemented the regulations.

5 Judgment in default has been obtained against the second defendant.

The Evidence on this Application

6 In dealing with the issue of sovereign immunity, DARD places particular reliance on the affidavit of Jim Crummie, head of Plant Health Directorate of what is now called the Department of Agriculture, Environment and Rural Affairs of Northern Ireland or ‘DAERA’. He avers that the affidavit is made with the authority of the Minister of Agriculture, Environment and Rural Affairs in the Northern Ireland Executive. He avers that DAERA is a statutory corporation which exists independently of the Minister and has statutory powers but is under the direction and control of the Minister by virtue of the Northern Ireland Act of 1998 and the Departments (Northern Ireland) Order of 1999. He avers that section 22 (1) of the Northern Ireland Act 1998 provides that the executive power in Northern Ireland shall continue to be vested in Her Majesty and accordingly departments such as DAERA exercise the executive powers conferred under statute on behalf of the Crown. DAERA also oversees the application of EU Agricultural and Rural Development Policy in Northern Ireland pursuant to European Communities (Designation) (No. 3) Order 2000 (S.I. 2000/2812). He avers that DAERA does not have any commercial role in seed marketing. In para. 6 of his affidavit, Mr. Crummie says:

‘(6.) At para. 5 of his affidavit, Mr. Cullen also disputes that ‘the Minister of Agricultural and Rural Development is a Minister of a foreign government’ and that the Minister is ‘entitled in her own right to maintain a claim of sovereign immunity’. These assertions are also misplaced. The Minister is a Minister within the Northern Ireland Executive which is a devolved government within the United Kingdom pursuant to the Northern Ireland Act 1998. Northern Ireland Departments are Crown bodies and the functions in question are conferred on DAERA as such a department. The Executive, the Minister and DAERA are agents of the Crown.’

7 In opposing this application, the plaintiffs place particular reliance on an affidavit from Professor Gordon Anthony, a leading academic lawyer and practising barrister with expertise in the sphere of public law in Northern Ireland. In his affidavit, Professor Anthony exhibits a detailed opinion which deals with state immunity and the status of Northern Ireland Departments. In his opinion, Professor Anthony analyses the doctrine of state immunity in the context of the devolved institutions of the Northern Ireland Government. Professor Anthony expresses his conclusion in the following terms:

‘(27.) To recap, the following, core points can be taken from this opinion:

i. State immunity, as an international law doctrine, can be claimed only by sovereign states. One of the key indicators of sovereign statehood is the capacity to enter into international relations with other sovereign states.

ii. There appear to be two main approaches to the question whether sub-state units can claim state immunity: the first considers whether the sub-state unit share sovereign powers with the state proper; the second considers whether the sub-state unit has the capacity to enter into international relations with sovereign states.

iii. The application of the first approach to the circumstances of Northern Ireland Departments and Ministers would suggest, certainly as regards sovereignty, that they cannot claim state immunity. This is because the Northern Ireland institutions are not legally sovereign and/or competent to act only in relation to transferred matters under the Northern Ireland Act 1998.

iv. On the other hand, the position of the Crown may be a complicating consideration in relation to the first approach. All executive power in the UK, including the devolved territories, is exercised under the authority of the Crown, which acts as a constitutional constant in government. That said, the Northern Ireland Act 1998 makes a clear distinction between the Northern Ireland and UK governments and the functions performed by their Ministers. While Northern Ireland Ministers are therefore competent to act only in relation to transferred matters, no such limits apply to Ministers of the Crown who have, among their responsibilities, the high matters of state.

v. The application of the second approach would lead unambiguously to the conclusion that...