Murphy v Ireland

• Jurisdiction: Ireland
• Judge: Miss Justice Carroll
• Judgment Date: 21 February 1996
• Neutral Citation: 1996 WJSC-HC 1891
• Court: High Court
• Docket Number: Record No. 3310P/1993,[1993 No. 3310 P]
• Date: 21 February 1996

1996 WJSC-HC 1891

THE HIGH COURT

Record No. 3310P/1993

MURPHY v. IRELAND

BETWEEN

PHILIP GERARD MURPHY

PLAINTIFF

AND

IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Citations:

OFFENCES AGAINST THE STATE ACT 1939 S34(1)

COX V IRELAND 1992 2 IR 503

MCDONNELL V MIN FOR COMMUNICATION 1996 2 ILRM 222

STATUTE OF LIMITATIONS 1957 S11(2)

TATE V MIN FOR SOCIAL WELFARE 1995 ILRM 507

KELLY ON THE IRISH CONSTITUTION 3ED 707

MESKELL V CIE 1973 IR 121

MURPHY V AG 1982 IR 241

CIVIL LIABILITY ACT 1961 S2

O'HANRAHAN V MERCK SHARP & DOHME 1988 ILRM 636

EAST DONEGAL CO-OP V AG 1970 IR 341

TRIMBOLE, STATE V GOVERNOR OF MOUNTJOY PRISON 1985 IR 550

CONSTITUTION ART 40.3.1

KEARNEY V MIN FOR JUSTICE 1986 IR 116

SNELL PRINCIPLE OF EQUITY 27ED 35

OFFENCES AGAINST THE STATE ACT 1939 S34

Synopsis:

ACTION

Cause

Accrual - Employment - Termination - Wrong - Wrongdoer's procurement of breach of contract - Constitutional right to earn livelihood - Damages claimed for infringement of constitutional right - Defendant pleaded statute of limitations - Statute applicable as plaintiff's action based on tort committed 20 years before action - No independent cause of action under the Constitution -(1993/3310 P - Carroll J. - 21/2/96) - [1996] 3 IR 307- [1996] 2 ILRM 461

|Murphy v. Ireland|

CONSTITUTION

Personal rights

Infringement - Action - Commencement - Delay - Action barred by statute of limitations - Laches - Plaintiff's right to earn livelihood - Procurement of breach of contract by Department of State - Plaintiff's employment terminated pursuant to statute on conviction for criminal offence - Statute subsequently declared invalid - Plaintiff's action commenced 20 years after employment terminated - Adequate common-law remedy available to plaintiff from date of termination - Plaintiff's cause of action founded on tort which attracted provisions of statute of limitations - Statute of Limitations, 1957, s. 11 - Constitution of Ireland,1937, Article 40 - (1993/3310 P - Carroll J. - 21/2/96)

|Murphy v. Ireland|

LIMITATION OF ACTIONS

Constitution

Personal right - Infrimgement - Allegation - Employment - Termination - Wrong - Wrongdoer's procurement of breach of contract - Constitutional right to earn livelihood - Damages claimed for infringement of constitutional right - Defendant pleaded statute of limitations - Statute applicable as plaintiff's action based on tort committed 20 years before action - No independent cause of action under the Constitution - (1993/3310 P - Carroll J. - 21/2/96) - [1996] 3 IR 307 - [1996] 2 ILRM 461

|Murphy v. Ireland|

1 Judgment of Miss Justice Carrolldelivered the 21st day of February 1996.

2 In this Action the Plaintiff claims damages for breach of constitutional rights. He was appointed to the post of Assistant County Engineer with Waterford County Council on 31st March, 1970. He was convicted on 22nd May, 1973 on four counts connected with the importation of fire arms and explosives in March 1973 in the MV Claudia. He was sentenced to two years imprisonment concurrent on each count, suspended on his entering into a bond and getting an independent surety and on condition that he keep the peace and be of good behaviour for two years.

3 The Department of Local Government wrote to the County Manager of Waterford County Council on 12th September, 1973, notifying the Council of the forfeiture by the Plaintiff of his position as Assistant County Engineer pursuant to Section 34(1) of The Offences Against the State Act, 1939. The County Secretary notified the Plaintiff of this forfeiture on the 14th September, 1973, the date he received the letter. The Plaintiff appealed to the Government on 15th October,1973 to reinstate him, but this request was refused on 9th November,1973.

4 The Plaintiff found different employment over the years at different times and is currently employed by the South Eastern Health Board as Project Co-ordinator for the new Regional Hospital at Ardkeen, CountyWaterford.

5 After the Supreme Court gave its decision on the 11th July, 1991, in the case of Cox -v- Ireland ( 1992 2 I.R. 503) that Section 34 of The Offences Against the State Act, 1939 was unconstitutional, the Plaintiff issued these proceedings on the 6th May, 1993, i.e. almost twenty years after he had been notified of the forfeiture of his position.

6 The Plaintiff gave some evidence of damage suffered as a result of the forfeiture. But by agreement, any question relating to proof of damage was left over until the question of the liability of the State wasestablished.

7 This case is on all fours with a similar case, McDonnell -v- Ireland and Ors., in which I gave judgment on 19th January, 1996. In that case, Mr. McDonnell issued his proceedings over sixteen and a half years after his position with the Department of Post and Telegraphs was forfeited in similar circumstances. He was unsuccessful. I held that the Statute of Limitations, 1957 Section 11(2) applied to a breach of constitutional right in the nature of a tort. The word "tort" was not defined in the Act and breach of statutory duty had always been considered to be included within the meaning of the word "tort". I had held in Tate -v- The Minister for SocialWelfare ( 1995 ILRM 507) that the meaning of the word was sufficiently wide to include breach of obligations of the State under Community Law. So inMcDonnell -v- Ireland, I held that the word "tort" was sufficiently wide to include breach of constitutional right.

8 Not surprisingly, Mr. Comyn for the State relied on the judgment in McDonnell -v- Ireland. He said tort is a civil wrong for which damages are sought. He referred to Kelly on the Irish Constitution (3rd Edition at page 707):

"In the aftermath of Meskell -v- C.I.E. and in particular Walsh J.'s remark therein that constitutional rights can be protected or enforced by action "even though such action may not fit into any of the ordinary forms of action in either common law or equity", it was speculated that nominate torts such as assault, battery, libel and false imprisonment might disappear to be replaced by an "innominate claim for infringement of personal rights". In fact nothing so dramatic as that has occurred; instead the Courts have tended to take the view that the Law of Tort generally provides adequate protection for personal rights and that it is only in those cases where common law remedies are inadequate or non-existent that an action based directly on the Constitution would arise."

9 Mr. Comyn said Meskell -v- C.I.E. & Ors. ( 1973 I.R. 121)was a conspiracy case, based on tort and was not a pure constitutionalcase.

10 In the Cox case, no question of...