McDonnell v Ireland

• Jurisdiction: Ireland
• Judgment Date: 01 January 1998
• Date: 01 January 1998
• Docket Number: [1991 No. 13713P; S.C. No. 37 of 1996]
• Court: Supreme Court

High Court

Supreme Court

[1991 No. 13713P; S.C. No. 37 of 1996]

McDonnell v. Ireland

Tony McDonnell

Plaintiff

and

Ireland, The Attorney General, The Minister for Communications and An Post

Defendants

Cases referred to in this report:-

Byrne v. Ireland [1972] I.R. 241.

Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305; [1991] I.L.R.M. 497.

Cox v. Ireland [1992] 2 I.R. 503.

Educational Company of Ireland v. Fitzpatrick (No. 2) [1961] I.R. 345; (1961) 97 I.L.T.R. 16.

Garvey v. Ireland [1981] I.R. 75; (1979) 113 I.L.T.R. 61.

Hanrahan v. Merck, Sharp & Dohme (Ireland) Ltd. [1988] I.L.R.M. 629.

Kennedy v. Ireland [1987] I.R. 587; [1988] I.L.R.M. 472.

Murphy v. The Attorney General[1982] I.R. 241.

Meskell v. Coras Iompair Éireann éireann [1973] I.R. 121.

Pine Valley Developments v. The Minister for Environment [1987] I.R. 23; [1987] I.L.R.M. 747.

R. v. Khan [1996] 3 W.L.R,. 162; [1996] 3 All E.R. 289.

Rylands v. Fletcher (1868) L.R. 3 H.L. 330.

Tate v. Minister for Social Welfare [1995] 1 I.R. 418; [1995] I.L.R.M. 507.

Thomas Hunter Ltd. v. James Fox & Co. Ltd.[1966] I.R. 520.

Tuohy v. Courtney [1994] 3 I.R. 1.

Limitation of action - Damages for breach of constitutional rights - Delay in the institution of proceedings - Whether breach of constitutional rights "tort" - Whether statute barred - Statute of Limitations Act, 1957 (No. 6), s. 11 (2).

Constitution - Statute - Declaration of invalidity - Effect of declaration - Whether declaration of unconstitutionality rendered statute void ab initio - Constitution of Ireland, 1937, Articles 15.4 and 25.5.1.

Plenary summons.

The facts have been summarised in the headnote and are fully set out in the judgment of Carroll J., infra.

The plaintiff instituted proceedings by plenary summons dated the 1st October, 1991, seeking the following reliefs:-

"1. A declaration that the purported termination of the plaintiff's contract of employment with the third defendant was unconstitutional and void.

• 2. A declaration that the refusal of the third and fourth defendant to pay the plaintiff full incremental payments, superanuation and other pension benefits is unconstitutional and void."

The matter came on for hearing in the High Court (Carroll J.) on the 16th January, 1996.

Notice of appeal was filed on the 8th February, 1996. The appeal was heard by the Supreme Court (Hamilton C.J., O'Flaherty, Barrington, Keane and Barron JJ.) on the 10th April, 1997.

By virtue of s. 34 of the Offences Against the State Act, 1939, whenever a person holding an office in the civil service was convicted by a Special Criminal Court of a scheduled offence, such as membership of an unlawful organisation, such person would, immediately on conviction forfeit such office.

By virtue of the Postal and Telecommunications Services Act, 1983 the functions of the Minister for Posts and Telegraphs were transferred to the fourth defendant. Further, by s. 45 (1) the fourth defendant was to accept into its employment on the vesting day every person who immediately before the vesting day was a member of the staff of the Department of Posts and Telegraphs and was designated by the Minister for employment by that company.

By virtue of s. 2 (1) of the Postal and Telecommunications Services (Amendment) Act, 1984, any claim in respect of loss or injury alleged to have been suffered by any person arising out of the exercise before the vesting day of functions assigned to the fourth defendant was to lie against the fourth defendant and not the State nor the third defendant.

Section 11 (2) of the Statute of Limitations, 1957, limits the time within which an action founded on tort may be instituted by a plaintiff to six years from the date on which the cause of actions accrued.

The plaintiff was a fully established civil servant working in the postal service from 1963. In May, 1974, he was arrested and charged with membership of a proscribed organisation. Immediately, he was served with notice of suspension from duty. He was tried and convicted of the offence charged by the Special Criminal Court. Pursuant to s. 34 of the Act of 1939, the plaintiff was deemed to have automatically forfeited his position in the civil service as a result of his conviction on the 30th May, 1974. On his release, he applied in March, 1975, for re-instatement. His application was refused on the basis that he had automatically forfeited his position. Following the establishment of the fourth defendant in 1984, the plaintiff again sought reinstatement. This was refused on the basis that he had automatically forfeited his position upon conviction and furthermore he was not a designated person pursuant to s. 45 of the Act of 1983.

In July, 1991, the Supreme Court held in Cox v. Ireland[1992] I.R. 53, that s. 34 of the Act of 1939 was unconstitutional.

On foot of this, the plaintiff instituted proceedings claiming that his purported dismissal was unconstitutional and had no legal effect. He sought declarations that the purported termination of his employment and the refusal of the third and fourth defendants to pay him full incremental payments and pension benefits was unconstitutional and void. He also sought damages from the first defendant.

On behalf of the plaintiff it was submitted that s. 34 of the Act of 1939 had been unconstitutional ab initio. Therefore the section never operated and hence the plaintiff had never automatically forfeited his office and was still an established civil servant. It was further submitted that the Statute of Limitations did not apply to declaratory relief which should be granted ex debito justitiae. On behalf of the defendants, it was submitted that breach of a constitutional right was a tort and was therefore covered by the Statute of Limitations. Hence, the plaintiff's claim was statute barred.

Held by the High Court (Carroll J.) in refusing the relief sought, 1, that breach of a constitutional right was a tort in that it was a civil wrong for which the normal remedy was an action for unliquidated damages. As a result the Act of 1957 applied to claims for breaches of constitutional rights.

Tate v. Minister for Social Welfare [1995] 1 I.R. 418 followed. Murphy v. The Attorney General[1982] I.R. 241considered.

2. That the cause of action arose when the plaintiff was notified that his position as a civil servant was forfeited in 1974. His application for reinstatement in 1984 did not serve to revive the cause of action.

3. That while the automatic forfeiture of the plaintiff's position was an act following on foot of an unconstitutional law, it was now immune from suit as his cause of action was statute barred pursuant to s. 11 (2) of the Act of 1957.

4. That the plaintiff had no cause of action against the fourth defendant as he had no contract with it and as he was not a designated person pursuant to s. 45 (1) of the Act of 1983, there was no obligation on it to employ him.

5. That the claim by the first three defendants that if any liability attached it was the fourth defendant who was liable pursuant to s. 2 (1) of the Act of 1984 failed as the purported forfeiture pursuant to s. 34 of the Act of 1939 was an automatic forfeiture. Hence no function was exercised and no such function could be assigned to the fourth defendant. Accordingly, the fourth defendant had no liability to the plaintiff in any event.

Held by the Supreme Court (Hamilton C.J., O'Flaherty, Barrington, Keane and Barron JJ.), in dismissing the plaintiff's appeal, 1, that a declaration of unconstitutionality in respect of an Act of the Oireachtas rendered the Act void ab initio and not void from the date of such declaration.

• Murphy v. The Attorney General [1982] I.R. 241 applied.

(Per Barrington J.): Having regard to Article 15.4 of the Constitution of Ireland, 1937, a declaration of unconstitutionality of an Act of the Oireachtas rendered the Act void ab initio as it never became a valid law.

(Per O'Flaherty J.): That laws should be observed until they are struck down as unconstitutional. The consequences of striking down legislation can only crystallise in respect of the immediate litigation which gave rise to the declaration of invalidity.

2. That a breach of constitutional rights was a civil wrong which was remediable by an action for unliquidated damages and accordingly having regard to the flexible and evolving nature of tort law could be described as a tort and therefore within the ambit of s. 11 (2) of the Act of 1957.

(Per Barrington J.): Because the general law provided an adequate cause of action to vindicate the plaintiff's constitutional rights in that it was possible for him to base his claim in tort and breach of duty together with a claim for equitable relief, the court should not interfere in devising a new and different cause of action based on breach of constitutional rights and accordingly the plaintiff's claim was out of time due to the Act of 1957 andlaches.

Byrne v. Ireland [1972] I.R. 241 and Meskell v. Coras Iompair Éireann éireann[1973] I.R. 121considered.

(Per Barron J.): As s. 34 of the Act of 1939 was void ab initio, the plaintiff's contract of employment had never been terminated. The correct cause of action was breach of contract together with claims of equitable relief rather than a claim for breach of constitutional rights but such a cause of action was statute barred pursuant to s. 11 (1) of the Act of 1957 and laches.Furthermore, any right of action in relation to rights guaranteed pursuant to the Constitution was co-extensive with a claim based on breach of contract.

Thomas Hunter Ltd. v. James Fox & Co. Ltd. [1966] I.R. 520 and Meskell v. Coras Iompair Éireann éireann[1973] I.R. 121considered.

Ex tempore

Carroll J. 19th January, 1996

The plaintiff was born on the 8th July, 1946, in Gibbstown Gaelteacht, County Meath. He joined the postal service at age sixteen, on the 9th October, 1963, as a postal clerk...