Shields v The Central Bank of Ireland

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Faherty
• Judgment Date: 26 October 2022
• Neutral Citation: [2022] IECA 241
• Docket Number: Record Number: 2020/250

Between/

Lawrence Shields

Applicant/Appellant

and

The Central Bank of Ireland

Respondent

[2022] IECA 241

Whelan J.

Faherty J.

Haughton J.

Record Number: 2020/250

THE COURT OF APPEAL

Mootness – Strike out – Judicial review – Appellant appealing against the order striking out his proceedings as having become moot – Whether there was a live adverse decision for the appellant to challenge

Facts: The appellant, Mr Shields, on 19 February 2019, submitted an application form to the respondent, the Central Bank of Ireland, seeking the exchange of banknotes to the value of €4,950. The amount involved was made up of 51 x €50 notes and 12 x €200 notes which were in a damaged condition. The application was sent via the Bank of Ireland and was received by the respondent on 21 March 2019. By letter of 5 April 2019 (the First Decision), the respondent informed the appellant that it had been determined that the banknotes had been intentionally damaged and that they were being withheld by the respondent so as to avoid the return of the notes into circulation. On 29 July 2019, the appellant made an ex parte application seeking leave for judicial review of the First Decision. By order of the High Court (Barrett J) of 29 July 2019 (as perfected on 31 July 2019) the appellant was granted leave to apply for judicial review. In November 2019, the respondent made a decision to exchange the appellant’s banknotes for value. This was communicated to the appellant by letter dated 6 November 2019 (the Second Decision). The respondent applied for a declaration that the proceedings were moot together with an order striking out the proceedings. In the alternative, the respondent sought an order dismissing the proceedings on the grounds that they were bound to fail. The appellant appealed to the Court of Appeal against the order of the High Court (Barr J) of 16 November 2020 striking out his proceedings as having become moot. The appellant disputed the Judge’s finding that the proceedings were moot and asserted that a live controversy remained in respect of: (a) the primary relief of certiorari; (b) the applications for mandamus; (c) the application for a declaration as to the appellant’s due process and property rights which required judicial oversight; and (d) the appellant’s outstanding claim for damages. The appellant’s primary contention was that the High Court in striking out the proceedings as moot erred in failing to properly apply the principles set out in Lofinmakin v Minister for Justice, Equality and Law Reform [2013] 4 IR 274 to the facts of the case and failed, in particular, to conduct the requisite two-stage analysis mandated by Lofinmakin.

Held by Faherty J that not only was there no live adverse decision for the appellant to challenge, there was also no underlying reasoning (or “basis”) for the First Decision that remained operative. Faherty J held that this was made clear by the contents of the Second Decision. Faherty J held that the upshot of the Second Decision was that the funds which the appellant proffered to the respondent had been exchanged for value; in effect the essential object sought to be achieved by the institution of the proceedings had come to pass. Faherty J held that when the Judge found that once the First Decision fell away so also did the appellant’s complaints about procedural frailties and lack of reasoning in respect of the impugned decision, he was clearly invoking the established mootness principles in Lofinmakin and Malone v Minister for Social Protection [2014] IECA 4, namely that once the alleged illegal decision is supplanted or superseded, any alleged frailties of reasoning or breach of fair procedures in respect of that decision likewise fall away.

Faherty J dismissed the appeal and upheld the decision in the court below including the Judge’s adjudication on costs. Faherty J held that the respondent should be awarded its costs.

Appeal dismissed.

UNAPPROVED

Judgment of Ms. Justice Faherty delivered on the 26 ^th day of October 2022

1 . This is Mr. Shield's (hereinafter “the appellant”) appeal against the Order of the High Court (Barr J.) of 16 November 2020 striking out his proceedings as having become moot. The Order was made on foot of an application brought by the Central Bank of Ireland (hereinafter “the respondent”) for a declaration that the proceedings were moot together with an order striking out the proceedings. In the alternative, the respondent sought an order dismissing the proceedings on the grounds that they were bound to fail.

2 . In the event, in a judgment delivered on 15 October 2020 Barr J. (“the Judge”) determined that the proceedings were moot. Before setting out the basis upon which the Judge reached his determination, it is apposite to set out the background to the proceedings.

3 . On 19 February 2019, the appellant submitted an application form to the respondent seeking the exchange of banknotes to the value of €4,950. The amount involved was made up of 51 x €50 notes and 12 x €200 notes which were in a damaged condition. The application was sent via the Bank of Ireland and was received by the respondent on 21 March 2019. In his application form the applicant said that all the banknotes were in an envelope that had been put into a fire and that the notes were retrieved from the fire. At the foot of the form, the following declaration was made and signed by the appellant:

• • He was entitled to submit the damaged euro notes for exchange;

• • The damaged currency was not deliberately mutilated, soiled or damaged;

• • The damaged currency did not originate from any illegal activity;

• • All information provided was accurate;

• • The appellant was aware that the respondent might forward details of the application, including copies of ID received, to other authorities such as An Garda Síochána and/or the Revenue Commissioners;

• • The appellant understood the requirements in relation to exchange of damaged euro notes as set out in the application form.

4 . By letter of 5 April 2019 (“the First Decision”), the respondent informed the appellant that it had been determined that the banknotes had been intentionally damaged and that they were being withheld by the respondent so as to avoid the return of the notes into circulation. The appellant was advised that the respondent had reached its decision “following assessment, testing and analysis of the banknotes in accordance with Decision of the ECB of 19 April 2013 on the denominations, specifications, reproduction, exchange and withdrawal of euro banknotes” (hereinafter “the ECB Decision”).

5 . There followed a series of correspondence between the appellant's solicitors, J.T. Flynn & Co, and the respondent and later with the respondent's solicitors, McCann Fitzgerald, commencing with a letter of 24 April 2019 from J.T. Flynn & Co. which stated that the notes submitted were lawfully within the possession of the appellant, that proper protocol had been followed and that a valid provable reason had been provided for the minor damage to the banknotes. It was further stated that theft had been committed by the respondent pursuant to the Criminal Justice (Theft and Fraud Offences) Act 2001 and that the decision of 5 April 2019 had created such a stressful and outrageous shock and unlawful accusation that the appellant had had to consult his doctor. The respondent was called upon to immediately refund the appellant and an account number was provided for this purpose. The respondent was further informed that the writer had received instructions to seek a mandatory injunction compelling the refund of the money.

6 . On 3 May 2019, the respondent advised that the appellant's letter was receiving consideration and he was requested not to take any further steps at that time.

7 . On 14 May 2019, the respondent wrote to the appellant's solicitors advising that the damage to the banknotes was consistent with their “having been immersed in a chemical, (acid or similar), resulting in…alteration of the condition of the surface of the banknote, attack of a chemical nature (strong acid type) on the edges of the banknote”. The respondent repeated its assertion that it had reason to believe that the notes had been intentionally damaged. The letter went on to state:

“Should your client wish to furnish the Bank with further information/submissions in relation to the damage to the bank notes, however, the Bank will give any such submission due consideration and will reconsider its decision not to exchange the notes in accordance with Article 3(3)(a) of the decision”.

8 . The appellant, however, did not provide any such information in correspondence sent by his solicitors on 16 May 2019, his solicitors asserting only that the contents of the respondent's letter were “incredible”. In the absence of the respondent having furnished them with a copy of its report, they requested the immediate return of the banknotes so that the appellant could embark on his own forensic analysis.

9 . By letter dated 17 May 2019, the respondent repeated its assertion that there was sufficient reason to believe that the notes “have been chemically treated”. It further stated:

“Should you opt to make a further submission to the Bank, you may wish to include, in particular, details of the source of the banknotes and any explanation of the findings of chemical damage. We would advise that you should also provide additional information about the circumstances leading to your assertion that the notes were put into a fire.

In light of the Central Bank's obligations as a National Central Bank under the Decision, we are unable to release samples of the bank notes to you, but we will send the notes for further analysis to an external accredited laboratory. We will reassess the decision not to exchange the damaged banknotes to your client in light of all the information that is available —...