O'Connell v Building & Allied Trades Union

• Jurisdiction: Ireland
• Judge: Mr. Justice Tony O'Connor
• Judgment Date: 12 April 2018
• Neutral Citation: [2018] IEHC 815
• Docket Number: [2002 No. 13328 P]
• Court: High Court
• Date: 12 April 2018

[2018] IEHC 815

THE HIGH COURT

O'Connor Tony J.

[2002 No. 13328 P]

BETWEEN

JOHN O'CONNELL

PLAINTIFF

AND

BUILDING & ALLIED TRADES UNION, EDWARD MORRIS, PATRICK O'SHAUGHNESSY

AND

MICHAEL MCNAMARA

DEFENDANTS

Loss of earnings – General damages – Breach of constitutional rights – Plaintiff seeking general damages – Whether the plaintiff satisfied the High Court as to any specific net loss

Facts: The Court of Appeal, by order made on the 2nd of December, 2016, found that the first defendant, Building & Allied Trades Union (BATU), had breached the constitutional right of the plaintiff, Mr O’Connell, to earn his livelihood from the 1st January, 2000, and ordered that the plaintiff’s claim be remitted to the High Court for the assessment of the quantum of damages to which the plaintiff was entitled by reason only of the said breach by BATU. The plaintiff was also ordered to give, by the 27th January, 2017, particulars of the loss and damage which he claimed to have arisen after the 1st January, 2000, and to have been caused by the said breach, together with the facts relied upon in support of his alleged loss and damage. The plaintiff’s claims founded on the tort of intimidation and conspiracy were dismissed by the Court of Appeal. The Court of Appeal upheld a finding of Ryan J that the claim against the sixth defendant, the Construction Industry Federation (CIF), was statute barred while it concluded in favour of the plaintiff’s appeal as follows: “Third, the plaintiff never received a union card after the probationary period. The trial judge was entitled to conclude on the available evidence that no valid justification for the failure to admit an otherwise prima facie qualified person from membership had been advanced by the Union”, that is, BATU. “Fifth, the trial judge was entitled to find that the Union (but not its individual officials) had infringed the plaintiff’s right to earn a livelihood by excluding him from membership in circumstances where it enjoyed an effective monopoly control of access to the relevant market and by then informing employers that he was not a member, leading them to dismiss him or not to employ him further because he was not a member of BATU. The assessment of damages in respect of this breach of constitutional rights will have to be remitted to the High Court for determination”. It transpired from the sworn evidence of the plaintiff on the 11th April, 2018, that he got advice from a person in the Citizens Advice Bureau about formulating his claim for loss of earnings and he then, rather summarily, read out the specific claims for loss of earnings for the period from January 2000 to December 2008, which he compiled. In short, the total loss of gross earnings were stated to be €368,689.72 for those years with some unspecified claim for pension loss. The plaintiff took the approach that he would have been a full time employee of Davin Builders, Frank McGrath or another builder, based on wages identified in P45s, were it not for the breach of his constitutional right to earn his livelihood. The only allowances identified to reduce the gross figures for those years were the income in the Notices of Assessment for those years which ranged, according to the plaintiff, from €3,491.78 in 2001, €15,184 in 2002, €16,500 in 2003, and €20,085 in 2004, and lower sums for other years.

Held by the High Court (O’Connor J) that it could not make any assessment of the net loss of earnings of the plaintiff based on the evidence adduced.

O’Connor J awarded the plaintiff €15,000 in respect of general damages for the breach of constitutional rights.

Relief granted in part.

EX TEMPORE JUDGMENT of Mr. Justice Tony O'Connor delivered on the 12th day of April, 2018

1 The Court notes that Mr. O'Connell is not in court and an effort was made to contact Mr. O'Connell to remind him about the delivery of the judgment as stated earlier this afternoon following the conclusion of the hearing. In any event, the digital audio recording will be available of this judgment and there is a stenographer here as well.

Introduction

2 The Court of Appeal, by Order made on the 2nd of December, 2016, found that the first named defendant called BATU had breached the plaintiff's constitutional right to earn his livelihood from the 1st January, 2000, and ordered that the plaintiff's claim be remitted to the High Court for the assessment of the quantum of damages to which the plaintiff is entitled by reason only, and I stress the word only, of the said breach by BATU. The plaintiff was also ordered to give, by the 27th January, 2017, particulars of the loss and damage which he claims to have arisen after the 1st January, 2000, and to have been caused by the said breach, together with the facts relied upon in support of his alleged loss and damage.

3 The plaintiff's claims founded on the tort of intimidation and conspiracy were dismissed by the Court of Appeal. The 62 page judgment of the Court of Appeal, having neutral citation [2016] IECA 338, led to five specific conclusions. The findings of Ryan J. in his judgment, having neutral citation [2014] IEHC 360, in favour of the plaintiff on three issues could not be sustained on the evidence, according to the Court of Appeal, and thereby, the claims founded on the specific tort of intimidation and conspiracy were dismissed.

4 The Court of Appeal upheld a finding of Ryan J. that the claim against the sixth named defendant, CIF, that is the Construction Industry Federation, was statute barred while it concluded in favour of the plaintiff's appeal as follows, and I quote:-

‘Third, the plaintiff never received a union card after the probationary period. The trial judge was entitled to conclude on the available evidence that no valid justification for the failure to admit an otherwise prima facie qualified person from membership had been advanced by the Union’, that is, BATU.

‘Fifth, the trial judge was entitled to find that the Union (but not its individual officials) had infringed the plaintiff's right to earn a livelihood by excluding him from membership in circumstances where it enjoyed an effective monopoly control of access to the relevant market and by then informing employers that he was not a member, leading them to dismiss him or not to employ him further because he was not a member of BATU. The assessment of damages in respect of this breach of constitutional rights will have to be remitted to the High Court for determination’.

Background

5 Ryan J., at paragraphs 1 to 9 of his judgment, described the scenario leading to the issue of the plenary summons hearing on the 16th October, 2002. Paragraphs 10 to 21 summarise the plaintiff's claim, according to the pleadings. The detailed judgment of Peart J. for the Court of Appeal which thoroughly reviewed the evidence in the High Court binds and guides this Court in its findings and orders.

Particulars of loss

6 Despite the specific terms of the order about furnishing particulars of loss...