McElhinney v Williams

• Jurisdiction: Ireland
• Judge: Hamilton C. J.
• Judgment Date: 01 January 1996
• Neutral Citation: 1995 WJSC-SC 4966
• Court: Supreme Court
• Docket Number: [1993 No. 4564P]
• Date: 01 January 1996

MCELHINNEY v. WILLIAMS

BETWEEN:

JOHN McELHINNEY

Plaintiff/Appellant

and

ANTHONY IVOR JOHN WILLIAMS AND HER MAJESTY'S SECRETARY OFSTATE FOR NORTHERN IRELAND

Defendants/Respondents

1995 WJSC-SC 4966

HAMILTON C. J.

O'FLAHERTY J.

BLAYNEY J.

175/94

THE SUPREME COURT

Synopsis:

ACTION

Foreign State

Minister - Defendant - Liability - Immunity - Plea - Cause of action - Tort committed by foreign soldier within the State - Claim of sovereign immunity upheld - Generally recognised principles of international law - Reciprocal statutory provisions not relevant - European Convention on State Immunity, article 31 - Constitution of Ireland, 1937, Article 29 - (175/94 - Supreme Court - 15/12/95) - [1995] 3 I.R. 391

|McElhinney v. Williams|

CONSTITUTION

International relations

International law - Principles - Recognition - Foreign State - Minister - Defence - Immunity - Plea - Cause of action - Tort committed by foreign soldier within the State - Claim of sovereign immunity upheld - Reciprocal statutory provisions not relevant - (175/94 - Supreme Court - 15/12/95) - [1995] 3 I.R. 391

|McElhinney v. Williams|

SOVEREIGN IMMUNITY

Claim

Foreign State - Minister - Defendant - Plea - Cause of action - Tort committed by foreign soldier within the State - Claim of sovereign immunity upheld - Reciprocal statutory provisions not relevant - (175/94 - Supreme Court - 15/12/95) - [1995] 3 I.R. 391

|McElhinney v. Williams|

WORDS AND PHRASES

"Sovereign immunity"

Foreign State - Minister - Defence - Plea - Cause of action - Tort committed by foreign soldier within the State - Claim of sovereign immunity upheld - Reciprocal legislation not relevant - (175/94 - Supreme Court - 15/12/95) - [1995] 3 I.R. 391

|McElhinney v. Williams|

Citations:

BRUSSELS CONVENTION 1968 ART 5(3)

JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 S3

GOVT OF CANADA V EMPLOYMENT APPEALS TRIBUNAL (EAT) 1992 2 IR 484

UNFAIR DISMISSALS ACT 1977

STATE IMMUNITY ACT 1978 S5 (UK)

CONSTITUTION ART 29.3

SAORSTAT & CONTINENTAL STEAMSHIP CO V DE LAS MORENAS 1945 IR 291

CONGRESS DEL PARTIDO 1983 AC 244

CHRISTINA, THE 1938 AC 485

LITTRELL V USA 1994 4 AER 203

FOREIGN SOVEREIGN IMMUNITIES ACT 1976 S1605(a) (US)

STATE IMMUNITY ACT 1982 S3 (CAN)

FOREIGN SOVEREIGN IMMUNITIES ACT 1985 (AUS)

EUROPEAN CONVENTION ON STATE IMMUNITY 1972 ART 11

EUROPEAN CONVENTION ON STATE IMMUNITY 1972 ART 31

STEINBERGER 1984 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW

PALESTINE RAILWAYS ADMINISTRATION, IN RE V11 ANNUAL DIGEST 146

ABOUTEBOUT V ETAT HELLENIQUE V1 (1948) ANNUAL DIGEST 279

LANDGERICHT KIEL (1954) ANNUAL DIGEST 117

AUSTRIA: JURISTISCHE BLATTER (1961) ANNUAL DIGEST 43

LETELIER V REPUBLIC OF CHILE 448 F SUPP 665

DE SANCHEZ V CENTRAL BANK OF NICARAGUA 515 F SUPP 900

USA V DOLLFUS MIEG ET COMPAGNIE 1952 1 AER 572

O'CONNELL INTERNATIONAL LAW 2ED 847

1 Judgment delivered on the 15th day of December 1995 by Hamilton C. J.

2 This is an appeal brought by the Plaintiff/Appellant (hereinafter referred to as the Appellant) against the judgment delivered and order made by Costello J. (as he then was) on the 15th day of April 1994, whereby it was ordered:-

"That service of a notice of concurrent summons herein upon the second named Defendant (hereinafter called the Secretary of State) be and the same is hereby set aside on thegrounds that the Appellant is not entitled to implead the Secretary of State as a member of a foreign sovereign government in the Courts ofIreland."

3 This Order was made pursuant to an application brought on behalf of the Secretary of State pursuant to a notice of motion dated the 21st day of January 1994 in which the following relief was sought:-

4 1. An order setting aside service of a notice of a concurrent summons herein upon the second named defendant on the grounds that the plaintiff is not entitled to implead the second named defendant, as a member of a foreign sovereign government in the Courts of Ireland;

5 2. Further or in the alternative an order staying that all further proceedings herein as against the second named defendant on the grounds set forth at paragraph 1 above.

6 The application was brought in the following circumstances:-

7 1. On the 29th June, 1993 the plaintiff caused to beissued a plenary summons in the High Court in which damages for assault, trespass to the person, negligence and breach of duty was sought against each of the defendants.

8 2. The general endorsement of claim contained the followingstatement:-

"The claim herein arises in respect of a tort which occurred in the jurisdiction of the republic of Ireland in whose courts it is sought to litigate the plaintiff's claim herein in accordance with the provisions of Article 5, paragraph 3 of Section 2 of the Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial matters (including protocol annexed to that Convention) signed at Brussels on 27th September, 1968 and as amended by the 1978 Session convention and the 1982 Accession Convention and the provisions of Section 3 of the Jurisdiction of Courts (European Communities) Act, 1988and that no proceedings are pending between the same parties in another contractual state".

9 3. On the 5th day of November, 1993 an appearance was entered on behalf of the Secretary of State inwhich it was alleged that:-

"take notice that we have this day entered an appearance at the Central Office, Four Courts, Dublin for the second defendant to the originating summons in this action, solely to contest the jurisdiction of the Court."

10 4. The basis of the appellant's claim in these proceedings is set forth at paragraphs 4 and 5 of the Statement of Claim which allege asfollows:-

11 2 "4. At about 11.30 p.m. on the 4th March 1991 in or about the village of Muff in the County of Donegal, the first named defendant wrongfully assaulted the plaintiff by pointing a loaded gun at him and pulled the trigger of the said gun:-

12 (a) deliberately with the intention of shooting himor,

13 (b) deliberately in order to intimidate and frighten him,or

14 (c) recklessly."

15 5. At the said time, the first named defendant was purporting to be acting in the course of his duties on behalf of the second named defendant, but, in the circumstances had no lawful authority to so act or to have in his possession or to use or threaten to use the saidgun."

16 5. By notice of motion dated the 13th January 1994, the appellantsought:-

17 2 "1. An order granting liberty to substitute in respect of the second named defendant, Her Majesty's Secretary of State forDefence.

18 2. An order granting liberty to amend the third paragraph of the Statement of Claim herein to appropriately describe the second nameddefendant.

19 3. Directions regarding service of the so amended proceedings on Her Majesty's Secretary of State for Defence and on the first nameddefendant."

20 6. By notice dated the 8th day of April 1994 the appellant served notice of his intention to cross examine Nicholas Proctor Perry on the contents of his affidavit and required the Solicitors for the Defendants to produce the said Nicholas Proctor Perry for cross examination on the hearing of the applications hereinbefore referred to.

21 7. The motions brought by the Secretary of State and the Appellant were heard by the learned trial judge on the 13th and 14th days of April, 1994 and hedelivered judgment thereon on the 15th day of April, 1994.

22 The learned trial judge stated in relation to the motion brought by the Secretary of State the issue raised therein was whether the principle or doctrine of sovereign immunity should be applied to the facts of this case and stated that:-

"The submission on behalf of the Secretary of State is that the applicable principles are to be found In the judgments of the Supreme Court in the Government of Canada .v. The Employment AppealsTribunal (1992) 2 I.R. page 484"

23 (hereinafter referred to as the Government of Canada case).

24 It was submitted before the learned trial judge by the appellants that the Court should not apply the principle enunciated in the Government of Canada case to the facts of this case and that the principles enunciated in that case applied to a statutory claim under the Unfair Dismissals Act, 1977and had no application to claims for damages for personal injury caused by torts taken place within the jurisdiction.

25 In addition, it was submitted on behalf of the appellant that it is a well established principle of international law that the principle of reciprocity should apply and that the Irish Courts should not grant immunity to the United Kingdom Government because the United Kingdom State Immunity Act, 1978 would not grant sovereign immunity to Ireland if Ireland were sued in the United Kingdom for a tort committed in the United Kingdom in circumstances similar to those in the presentcase.

26 It was further submitted that if the doctrine of immunity were to apply, it should yield in this case because this case consisted of an infringement of a constitutionally protected right and to apply the principle would involve an infringement of that constitutionalright.

27 The learned trial judge held that he was bound by the principles established by the Supreme Court in the Government of Canada case in that he was obliged to apply these principles to the present case.

28 He held that the claim to sovereign immunity was validly made and he granted the relief sought on the motion before him.

29 In view of the conclusion reached by him on the applicability of the Government of Canada case he did not consider it necessary to consider whether the principles established in the legislation to which he had been referred and in the Convention and in the Draft Convention of the International Law Associate which had been produced had established a principle of international law as had been urged by...