Keating (applicant/ respondent) v Judge Crowley, Ireland and Attorney General (appellant/ respondents)

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 12 May 2010
• Neutral Citation: [2010] IESC 29
• Court: Supreme Court
• Docket Number: [S.C. No.
• Date: 12 May 2010

Keating v Judge Crowley & Ors

BETWEEN

DAVID KEATING

APPLICANT/RESPONDENT

v

JUDGE TIMOTHY CROWLEY, IRELAND AND THE ATTORNEY GENERAL

APPELLANTS/RESPONDENTS

[2010] IESC 29

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

356/05

THE SUPREME COURT

CONSTITUTIONAL LAW

Personal rights

Breach - Damages - Unconstitutional act - Bona fide exercise of judicial power subsequently found unconstitutional - Appropriate remedy for breach of constitutional rights - Whether court has jurisdiction to award damages for breach of constitutional rights - McDonnell v Ireland [1998] 1 IR 134 followed- Appeal dismissed (356/2005 - SC - 12/5/2010) [2010] IESC 29

Keating v Judge Crowley

PRACTICE AND PROCEDURE

Appeal

Notice of appeal - Amendment - Discretion to allow amendment to notice of appeal - Estoppel - Concessions in trial sought to be raised - Whether Supreme Court may consider arguments not raised in High Court - Whether appeal disclosed justiciable grounds - Rules of the Superior Courts 1986 (SI 15/1986), O 58, r 6 - Appeal dismissed (356/2005 - SC - 12/5/2010) [2010] IESC 29

Keating v Judge Crowley

Facts: The appellants sought to appeal an award of damages in the sum of €214,000 for loss and damage sustained as a result of a breach of certain constitutional and legal rights. The appellants had not contested liability. The appeal related only to the quantum of damages. The State contended that there was no legal basis for the award of damages made in circumstances where in the proceedings the Domestic Violence Act 1996 had been found to be unconstitutional. The respondent contended that the admission of liability in the High Court entailed that the State was estopped from raising the issue of liability. The issue of damages had been left in abeyance pending the outcome of the constitutional challenge.

Held by the Supreme Court per Murray CJ (Denham, Hardiman, Geoghegan & Fennelly JJ. concurring), while the State would be liable to pay compensation to individuals for a breach of their constitutional rights in certain circumstances, it was a different matter where the acts were completed bona fides by a judge exercising his functions under a statute enjoying the presumption of constitutionality. The State had admitted liability and could not now repudiate that admission of liability so as to recommence the proceedings on that issue. The Court would not give a definitive ruling on whether the respondent could have a cause of action as this was not the issue before the Court. It was impossible for the Court to embark on a consideration of heads of damage or their quantification. The State had not demonstrated any valid basis on which it could seek to impugn the decision of the High Court and the appeal would be dismissed.

Reporter: E.F.

RSC O.58 r6

P v P 2002 1 IR 219 2001/20/5450

GREENDALE DEVELOPMENTS LTD IN RE (NO 3) 2000 2 IR 514

D (K E) ORSE C v C (M) 1985 IR 697

BRADSHAW v M'MULLAN 1920 2 IR 47

DELANY & MCGRATH CIVIL PROCEDURE IN SUPERIOR COURTS 2001 651

VANTIVE HOLDINGS & ORS, IN RE UNREP SUPREME 14.10.2009 2009/57/14518 2009 IESC 69

DOMESTIC VIOLENCE ACT 1996 S13

KEATING v CROWLEY 2002 2 IR 744 2003 1 ILRM 88 2002/14/3380

DOMESTIC VIOLENCE ACT 1996 S4(4)

DOMESTIC VIOLENCE ACT 1996 S3

CHILD CARE ACT 1991 S17

MCDONNELL v IRELAND 1998 1 IR 134

BYRNE v IRELAND 1972 IR 241

MESKELL v CIE 1973 IR 121

1 JUDGMENT of Murray C.J. delivered on the 12th day of May 2010

2 Judgment delivered by Murray C.J. [nem diss]

3 This is an appeal brought by the second and third named appellants (hereafter the appellants) against an award of damages for the total sum of €214,000 to the applicant/respondent (hereafter the respondent) for loss and damage claimed to have been sustained as a result of the breach of certain constitutional and legal rights. A sum of €100,000 damages has been paid to the respondent as directed by the High Court with a stay on the balance pending the outcome of this appeal.

4 The respondent's claim was heard and determined in the High Court as an assessment only the appellants having decided not to contest liability.

5 The Notice of Appeal lodged on behalf of the appellants is an appeal only on the issue of the quantum of the damages awarded, as is also acknowledged to be the case at paragraph 7 of the affidavit of Miss G. Hodge and dated 12 ^th September 2008 and filed on their behalf.

Application by Appellants to Amend Notice of Appeal and for a Retrial on Liability

6 When this appeal was first listed for hearing as an appeal against assessment of damages only the Court indicated that it was difficult to identify the cause or causes of action in respect of which the State had admitted liability and the legal basis on which the State agreed that it was liable to pay damages to the appellant which they had agreed would be assessed by the Court. This raised questions concerning the jurisdiction or at least the basis in law on foot of which the Court could review the assessment of damages since any assessment of damages depended, inter alia, on identifying the causes of action involved and the causal connection between any wrong admitted to have been committed and the damages or compensation awarded. The Court invited the parties to consider this situation and to make submissions as to how the Court should proceed.

7 In response the appellants, as part of their submissions in this regard, applied to this Court by way of Notice of Motion pursuant to Order 58 rule 6 of the Rules of the Superior Courts for an order (i) amending the notice of appeal and (ii) remitting the proceedings to the High Court for a determination of the issue of the liability of the State to the respondent for damages. The additional grounds of appeal which the appellants seek to have included in an amended Notice of Appeal are the following:-

8 (a) That the learned High Court Judge ought not to have awarded damages to the respondent without first having determined the issue of whether the courts have jurisdiction to award damages in respect of the passing by the Oireachtas of a law affecting personal rights that is subsequently found to be unconstitutional and

9 (b) that the learned High Court Judge ought to have found as a matter of law that the appellants have no liability to the respondent in respect of any infringement of the constitutional rights of the respondent arising solely from the passing by the Oireachtas of legislation and/or implementation and application to the respondent in good faith and without malice of those provisions.

10 The appellants have also sought "an order remitting the within proceedings to the High Court for the determination of the issue of State liability for damages when rights are affected by acts done pursuant to the provision of an Act of the Oireachtas which is found to be unconstitutional."

11 In a Grounding Affidavit supporting the foregoing application, the solicitor for the appellants stated, inter alia:-

"I say and am instructed that the State parties now acknowledge and accept that it is necessary that the issue of State liability for damages when rights are affected by acts done pursuant to the provision of an Act of the Oireachtas which was found to be unconstitutional should be decided before any issue of the quantum of such damages is addressed. I say and am instructed that it is acknowledged that this fundamental jurisdictional matter should be decided in the first instance, prior to any consideration of the issue of quantum of damages. ... it is acknowledged and accepted that in circumstances where this fundamental jurisdiction issue was not raised or argued in the High Court, that the interests of justice require that the matter should first be tried and decided by the High Court before consideration by this honourable Court on appeal." (paragraph 13).

12 The position adopted by the State, in its submissions to this Court, is that there was no authority of this Court, or other basis in law to support the respondent's entitlement for damages as a consequence of the Court's earlier conclusion in these proceedings that certain provisions of the Domestic Violence Act 1996 (hereinafter "the Act of 1996") were unconstitutional. It was submitted "No authority was put before the High Court or otherwise notified to the State to support Mr. Keating's claim for damages. Indeed, any relevant authority is hostile to the case made by Mr. Keating in his damages claim."

13 In substance the State now seeks to impugn the decision of the High Court at this stage in these proceedings on the grounds that there is no legal basis for attributing liability to the State for the payment of damages to the respondent for the wrongs which he alleges to have sustained and that the matter should be remitted to the High Court to have the issue of State liability decided.

14 The respondent in the appeal contended that given the course of the proceedings, and the admission of liability in the High Court the State is in effect estopped from raising the issue of liability at this stage. He also submitted that it would be an injustice to the plaintiff to permit the issue of liability to be reopened at this stage and, insofar as the Court might have a discretion to permit the appellants to reopen the issue of liability at this stage, there are no compelling or exceptional circumstances which would warrant the exercise of that discretion in favour of the State.

15 The first issue which the Court has to consider, in the light of the appellants' application, is whether the State should be permitted to amend and extend their appeal so as to impugn the decision of the High Court to award damages on the grounds that the State had no...