McGee v The Governor of Portlaoise Prison and Others

JudgeMr. Justice O'Donnell
Judgment Date25 May 2023
Neutral Citation[2023] IESC 14
CourtSupreme Court
Docket NumberS:AP:IE:2022:000059
Christopher McGee
Governor of Portlaoise, The Minister for Justice and Equality and Ireland and The Attorney General

[2023] IESC 14

O'Donnell C.J.

Dunne J.

Charleton J.

O'Malley J.

Woulfe J.

Hogan J.

Collins J.




Judgment of Mr. Justice O'Donnell, Chief Justice delivered on the 25 th day of May, 2023.


. It is possible to conceive of a legal code which seeks to set out detailed rules and where individual court decisions merely seek to develop the doctrines contained in the code in a logical fashion, and where even then the room for development is necessarily limited by the detail already contained in the code. A constitution in a common law system, however, is not such a code. While it will often contain some detailed provisions in relation to the structure of the State, it also contains guarantees of rights that, as described by Justice Robert H. Jackson, speak in “majestic generalities”. The development of constitutional law in a common law system owes more to chance, therefore, than to systematic deduction from accepted principle. It is dependent on the happenstance of litigation raising an issue that is recognised as such by the lawyers and judges involved, and then the manner in which it is analysed. Development is at best incremental, random, and unpredictable. But if, however, the drafters of the 1922 or 1937 Constitutions had intended to produce a comprehensive code, then the question of when the rights protected by the Constitution would give rise to a successful claim for damages in a civil action is undoubtedly one that would have demanded particular attention and careful analysis.


. In the first place, the drafters would have had to consider if the Constitution created a right between citizens (or other rights holders) and the State alone, or if it could affect the relations between private parties; in modern parlance, whether the Constitution created rights having vertical effect only, or whether they also had horizontal effect, and, if so, in all cases, or only in certain circumstances. Assuming the Constitution could come into play in any way in the relations between private parties, it would also be necessary to distinguish between a number of different circumstances.


. First, and perhaps the easiest, is when it is contended by other parties to private litigation that the Constitution invalidates a statutory provision or common law rule with the effect of altering the outcome of proceedings from what would otherwise have been the case, in the absence of a Constitutional claim. A simple example would be those cases in which it is alleged that the provisions of the Statute of Limitations which would otherwise bar a plaintiff's claim against a defendant are invalid having regard to the Constitution ( O'Brien v. Keogh [1972] I.R. 144; O'Brien v. Manufacturing Engineering [1973] I.R. 344; Moynihan v. Greensmith [1977] I.R. 55 Cahill v. Sutton [1980] I.R. 269; Tuohy v. Courtney [1994] 3 I.R. 1). On the other side of the equation, a constitutional right might be called in aid to defeat a claim which would otherwise be permitted within the statute law but which it is contended cannot properly or fairly be prosecuted ( O Domhnaill v. Merrick [1984] I.R. 151). These are cases in which the Constitution can be seen to have an indirect, but nevertheless sometimes decisive, effect on private law litigation between individual parties. But the field of application of constitutional law is still public law. In theory, the two claims could be separated and the question of the constitutionality of a provision established in one set of proceedings against the State and Attorney General to which the private law defendant was not a party, and where the outcome would be of general application, and a subsequent, or parallel proceeding to which the Attorney General was not a party, and where the only issue is whether the plaintiff is entitled to damages or other relief against the individual defendant.


. At the other extreme are claims in public law, where a plaintiff who can establish sufficient standing to do so, may succeed in the claim that either an Act of the Oireachtas, or indeed, the conduct of the Executive branch is invalid having regard to the Constitution. Does that by itself give rise to any claim for damages against the State? So far, the High Court has given contrasting answers to this question ( Redmond v. Minister for Environment (No. 2) [2004] IEHC 24, [2006] 3 I.R. 1, An Blascaod Mór Teoranta and ors v. Commissioner of Public Works in Ireland and ors [2000] IEHC 130, [2000] 3 I.R. 565) and this Court has yet to definitively address this issue. However, this issue has been discussed in the case law of other jurisdictions, such as in the Supreme Court of Canada in Mackin v New Brunswick (Minister for Finance) [2002] 1 SCR 405, where the court decided that normally a declaration of invalidity was a sufficient remedy but that an award damages was available, but not merely on proof of loss or damage consequent on the invalid legislation: it was necessary to prove something more, such as bad faith, akin to the principles applied in this jurisdiction in Pine Valley Developments v. Minister for Environment [1987] I.R. 23.


. A refinement in this category of claim is where the ground in which the invalidity is established, is that the legislation or act of the Executive is found to breach one of the personal rights of the citizen guaranteed by the Constitution – as opposed to the claim that the legislation or act of the Executive is inconsistent with some provision of the Constitution of general application but which itself does not create an individual or personal right, such as breach of the non-delegation doctrine which might invalidate the Act but could not be said to breach a personal right of the plaintiff.


. In these latter cases, the claim is one not in private law but rather in public law, and the appropriate respondent is one or more of the organs of the State. If such a cause of action is maintainable, it would be a vertical claim, i.e., one in which a claim for damages or other relief is made by a person or individual against the State in respect of a breach of a right which under the Constitution the State is obliged to respect, defend, and vindicate. A further distinct subheading of claim is where a claim is made against the State in respect of the conduct of its servants or agents alleging that their conduct infringed constitutional rights, but not necessarily constituting a recognised tort. Again, this has been discussed in Canada in cases such as Vancouver (City) v. Ward [2010] SCR 28, and Henry v British Columbia (Attorney General) [2015] SCR 214. As will be seen, this is one such case.


. Finally, in this regard, there is a class of claim which may be described as a “pure” horizontal claim. That arises where it is contended that the obligation which the Constitution places upon the State to defend and vindicate the personal right of the citizen, and in particular, by its laws to protect from unjust attack, and in the case of injustice done, vindicate the life, person, good name, and proper rights of every citizen has the effect that where those rights are said to be infringed by another private party, the law of the State must give an entitlement to seek some remedy against the other party including and, if necessary, damages. If the private law of the State, contained in the form of either statute or common law, does not itself recognise a cause of action in such circumstances, then the Constitution, nevertheless, requires a remedy be provided to the individual against the person or entity alleged to have wrongfully injured their life, person, good name, or property rights. This type of horizontal claim has been called a “pure Meskell claim” in reference to the case in which it was first recognised by this Court; Meskell v. Córas Iompair Éireann [1973] I.R. 121 (“ Meskell”).


. If these issues were not already enough, a drafter of a comprehensive constitutional code, particularly if approaching this matter by reference to recognisable features of the legal system in 1922 or 1937, would also have had to address a related issue relating to the liability of the State, or, as it was then considered, the immunity of the State, in tort. This is once again, a separate category. It does not concern a novel claim against the State in public law or give rise to any new cause of action. Rather, it concerns the question of whether the conduct of the State itself, or more commonly its servants or agents, could give rise to a liability in circumstances where the same conduct would give rise to a cause of action against an individual citizen. That is to say, whether the State can be liable for an existing tort recognised by the law and applied in private law.


. This issue was resolved in Byrne v. Ireland [1972] I.R. 241 (“ Byrne”) in favour of the proposition that the State was not entitled to any immunity in tort. Thereafter, the State could be sued in the same circumstances as an individual citizen might, most obviously and commonly, for the negligence of its servants or agents in the driving of motor cars. However, this also meant that the State could be liable for wrongs that only a public authority could commit, such as misfeasance of public office, and moreover, in circumstances where the effective monopoly of the State over certain matters such as arrest and detention might give rise to claims of wrongdoing, which only the State (through its servants or agents) could in practice commit.


. The above categories are not necessarily exhaustive, but they have in common the fact that they are all examples of cases in which the Constitution gives rise to the...

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