Ogieriakhi v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Malley
• Judgment Date: 13 July 2017
• Neutral Citation: [2017] IESC 52
• Court: Supreme Court
• Docket Number: [S.C. No. 34 of 2016],[Supreme Court Appeal No. 34/2016] [High Court Record No: 2012/ 15 SP]
• Date: 13 July 2017

BETWEEN:

EWAEN FRED OGIERIAKHI

APPELLANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND, ATTORNEY GENERAL

AND

AN POST

RESPONDENTS

[2017] IESC 52

O'Malley Iseult J.

Denham C.J.

O'Donnell Donal J.

McKechnie J.

Clarke J.

O'Malley Iseult J.

[Supreme Court Appeal No. 34/2016]

[Court of Appeal No. 51/2015]

[High Court Record No: 2012/ 15 SP]

THE SUPREME COURT

Damages – European Union law – Error of law – Appellant seeking damages as a remedy for breach of European Union law – Whether an inexcusable error of law caused the appellant's loss

Facts: The appellant, Mr Ogieriakhi, was dismissed by the fourth respondent, An Post, in October, 2007 because he did not have a work permit. He initiated a claim for unfair dismissal in the Employment Appeals Tribunal. On the morning of the hearing he was informed that the first respondent, the Minister for Justice and Equality, had decided to grant him "Stamp 4" permission to remain, and counsel for An Post confirmed that it was prepared to re-employ him in those circumstances. He refused this offer. The High Court (Hogan J) decided to refer certain questions to the Court of Justice of the European Union. After receipt of that Court's ruling, Hogan J held that the appellant was entitled to damages for loss suffered by reason of the failure on the part of the State to properly implement European Union Directive (2004/38/EC). In so holding, he found that the appellant's claim satisfied the criteria set out in Francovich, Bonifaci & Ors v Italian Republic (C-6/90 & C-9/90) [1991] ECR I-5357 and Brasserie du Pècheur v Federal Republic of Germany and R v Secretary of State for Transport ex parte Factortame (C-46/93 & C-48/93) [1996] ECR I-1029. He considered it appropriate to award damages for six years loss of earnings. Having taken account of certain matters that went to the issue of mitigation he awarded €107,905 under this heading as against the second and third respondents, Ireland and the Attorney General. He also awarded €20,000 in respect of the dismissal, on the basis that it constituted a breach of the appellant's constitutional right to a good name. That decision was overturned in its entirety by the Court of Appeal. That Court considered that the conditions for the jurisdiction to award damages for failure to implement EU measures had not been met. In finding that the breach by the State was not sufficiently serious, the Court ruled that the mistake had been honest and excusable, and found that the Directive had not been sufficiently clear and precise to give rise to liability for the error in interpretation. The Court of Appeal further held that there was no applicable national legal principle under which the appellant was entitled to damages for what had happened to him. By determination dated the 16th June, 2016, the appellant was granted leave to appeal to the Supreme Court on the following questions: a. Whether an honest and excusable misunderstanding on the part of the State officials as to the requirements of a Directive is a significant factor in considering whether or not the breach of the Directive was serious; b. Whether a person who has suffered damage as a result of the incorrect transposition of a Directive in this State is entitled to claim damages under domestic law, or is confined to the criteria established by the Court of Justice of the European Union in Francovich and Brasserie du Pècheur; c. Whether the finding that the failure of the State to implement the Directive correctly did not give rise to damages under the principles set out in Francovich and Brasserie du Pècheur necessarily entailed a finding that the appellant had no right to damages under domestic law, including under the Constitution; d. Whether the appellant, as a person who was dismissed because of the application to him of regulations which failed to properly implement the Directive, had any remedy under domestic law; e. Whether the obligation to mitigate loss can require a person in the applicant's position to accept an unwritten offer of employment.

Held by O'Malley J that the right to damages as a remedy for breach of European Union law required the appellant to demonstrate not just that an error of law caused his loss, but that the error of law concerned was inexcusable. In the circumstances of the case O'Malley J considered that it was not, and that no right of his under the national legal order had been infringed such as to give rise to a right to damages.

O'Malley J held that she would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice O'Malley delivered the 13 ^th day of July 2017.

Introduction

1 This appeal concerns, firstly, the right to damages (often referred to as ' Francovich' damages) that may in some circumstances be claimed by a person who suffers loss as the result of the incorrect application of European Union law by the authorities of a Member State. Secondly, there is a question as to whether domestic Irish law can provide a separate remedy in damages for what occurred to the appellant.

2 The appellant is a foreign national who has, since the events described in this judgment, become an Irish citizen. His claim arises from the fact that in 2007 he was refused permission to remain in the State, and lost his job with An Post, as a direct result of the misinterpretation of the relevant residence regulations by the Minister for Justice and Equality. He has always argued, and the State parties now accept, that he did in fact have a right to reside here at that time by virtue of a European Union Directive. The core issue in the case is whether the European Union law criteria for a claim of this nature, set out in Francovich, Bonifaci & Ors. v. Italian Republic ( C-6/90 & C-9/90) [1991] E.C.R. I-5357 and subsequent authorities, are satisfied.

3 The appellant also claims that the misinterpretation of the relevant provisions resulted in a breach of his constitutional rights, in particular the right to work and the right to his good name, entitling him to damages if no other remedy is adequate.

4 The Regulations in question (made under the powers conferred by the European Communities Act 1972), which came into effect on the 30 ^th April, 2006, were intended to implement a European Union Directive (2004/38/EC). The Directive dealt with, inter alia, the right of residence of third-country nationals married to EU citizens who exercise freedom of movement rights within the Union. The Regulations introduced a new right of permanent residence for such EU citizens and their spouses, exercisable when they have lived in the State for a five year period.

5 The appellant's wife, a French national, lived and worked in the State between 1999 and the end of 2004, and the appellant resided here throughout that period and beyond. The Minister's belief was that the Regulations did not give him an entitlement to permanent residence as of the time of his application in 2007, primarily because his wife had left the State at the end of 2004. This interpretation was based on a mistaken view of the effect of the Directive, a fact that became indisputable when the judgment of the Court of Justice of the European Union in Secretary of State for Work and Pensions v. Lassal ( Case C-162/09) [2010] E.C.R. I-9217 was delivered on the 7 ^th October, 2010.

6 If the correct view had been taken of the appellant's application it would have been clear (subject to certain other arguments that were ultimately disposed of in the appellant's favour and are no longer in issue) that he was entitled to permanent residence and was therefore entitled to continue to work without the need to obtain a work permit.

7 The appellant was dismissed by An Post in October, 2007 because he did not have a work permit. He initiated a claim for unfair dismissal in the Employment Appeals Tribunal ('EAT'). On the morning of the hearing he was informed that the Minister had decided to grant him 'Stamp 4' permission to remain, and counsel for An Post confirmed that it was prepared to re-employ him in those circumstances. He refused this offer, because at the time he wished to engage in a business project. In this appeal he has argued that he was not obliged by the principles relating to mitigation of loss to accept an oral rather than written offer.

8 The High Court (Hogan J.) decided to refer certain questions to the Court of Justice of the European Union (see [2013] IEHC 133). After receipt of that Court's ruling, Hogan J. held that the appellant was entitled to damages for loss suffered by reason of the failure on the part of the State to properly implement the Directive (see [2014] IEHC 582). In so holding, he found that the appellant's claim satisfied the criteria set out in Francovich and Others ( C-6/90 and C-9/90) and Brasserie du Pècheur v. Federal Republic of Germany and R v. Secretary of State for Transport ex parte Factortame ( C-46/93 & C-48/93) [1996] E.C.R. I-1029. He considered it appropriate to award damages for six years loss of earnings. Having taken account of certain matters that went to the issue of mitigation he awarded €107,905 under this heading as against Ireland and the Attorney General. He also awarded €20,000 in respect of the dismissal, on the basis that it constituted a breach of the appellant's constitutional right to a good name.

9 This decision was overturned in its entirety by the Court of Appeal (see [2016] IECA 46). That Court considered that the conditions for the jurisdiction to award damages for failure to implement EU measures had not been met. In finding that the breach by the State was not sufficiently serious, the Court ruled that the mistake had been honest and excusable, and found that the Directive had not been sufficiently clear and precise to give rise to liability for the error in interpretation. The Court of Appeal further held that there was no...