Tate v Minister for Social Welfare

• Jurisdiction: Ireland
• Judgment Date: 03 February 1995
• Date: 03 February 1995
• Docket Number: [1993 No. 5070P]
• Court: High Court

High Court

[1993 No. 5070P]

[1993 No. 6410P]

Tate v. Minister for Social Welfare

Teresa Tate

Plaintiff

and

The Minister for Social Welfare, Ireland and The Attorney General

Defendants

Tate v. Minister for Social Welfare

Esther Robinson and Others

Plaintiffs

and

The Minister for Social Welfare, Ireland and The Attorney General, Defendants

Cases mentioned in this report:—

Amministrazione delle Finanze dello Stato v. Simmenthal (Case 106/77) [1978] E.C.R. 629; [1978] 3 C.M.L.R. 263.

Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305; [1991] I.L.R.M. 497.

Costa v. E.N.E.L. (Case 6/64) [1964] E.C.R. 585; [1964] C.M.L.R. 425.

Cotter and McDermott v. The Minister for Social Welfare (No. 1)(Case 286/85) [1987] E.C.R. 1453; [1987] 2 C.M.L.R. 607.

Cotter and McDermott v. The Minister for Social Welfare (No. 2)(Case C-377/89) [1991] 1 E.C.R. 1155; [1991] 3 C.M.L.R. 507.

De Weerd v. Bestuur van de Bedrijfsvereniging voor de Gezondheid(Case C-343/92) [1994] 1 E.C.R. 571.

Doran v. Thompson & Sons Ltd. [1978] I.R. 223; (1978) 113 I.L.T.R. 93.

Emmott v. The Minister for Social Welfare (Case C-208/90) [1991] 1 E.C.R. 4269; [1991] 3 C.M.L.R. 894.

Francovich v. The Italian Republic (Cases C-6/90 and C-9/90) [1991] 1 E.C.R. 5357; [1993] 2 C.M.L.R. 66.

Garden Cottage Foods Ltd. v. The Milk Marketing Board [1984] A.C. 130; [1983] 3 W.L.R. 143; [1983] 2 All E.R. 770.

Hanrahan v. Merck, Sharpe & Dohme (Ireland) Ltd. [1988] I.L.R.M. 629.

Humblet v. Belgium (Case 6/60) [1960] E.C.R. 559.

Johnson v. The Chief Adjudication Officer (No. 2) (Unreported, European Court of Justice, 6th December, 1994).

Marshall v. South West Hampshire Area Health Authority (No. 2)(Case C-271/91) [1993] E.C.R. I-4367.

Meagher v. The Minister for Agriculture [1994] 1 I.R. 329; [1994] 1 I.L.R.M. 11.

R. v. Secretary of State for Transport, ex p. Factortame (Case C-213/89)[1990] 1 E.C.R. 2433; [1990] 3 C.M.L.R. 1.

Rewe-Handelsgesellschaft Nord v. Hauptzollamt Kiel (Case 158/80)[1981] E.C.R. 1805; [1982] 1 C.M.L.R. 449.

Rewe-Zentralfinanz v. Landwirtschaftskammer für das Saarland(Case 33/76) [1976] E.C.R. 1989; [1977] 1 C.M.L.R. 533.

Steenhorst-Neerings (Case C-33/91) [1993] E.C.R. 5475.

Van Gend en Loos v. Nederlandse Administratie der Belastingen(Case 26/62) [1963] E.C.R. 1; [1963] C.M.L.R. 105.

European Union - Directive having direct effect - State failing to implement Directive by due date - Whether State liable in damages for such failure - Nature of cause of action against State for failing to implement Directive - Whether damages should include compensation for delays in implementing Directive - Council Directive 7/79/EEC, art. 4, sub-article 4.

European Union - Directive dealing with equal treatment for men and women in matters of social security - State providing compensation for men who had lost entitlement to benefits under principle of equal treatment - Whether failure to make similar payments to women also a breach of principle of equal treatment - Social Welfare (Preservation of Rights) Regulations (No. 2), 1986 (S.I. No. 422) - European Communities (Social Welfare) Regulations, 1992 (S.I. No. 152).

European Union - Minister empowered to make regulations to give full effect to reception of community law into domestic law - Regulations failing to give full effect to community law - Whether such regulations ultra vires - Whether court should declare such regulations null and void - Whether such declaration amounting to legislation by court -European Communities (Social Welfare) Regulations, 1992 (S.I. No. 152) - European Communities Act, 1972 (No. 27) ss. 2 and 3.

Limitation of actions - State's failure to implement European Union Directive - Whether a tort - Whether State could rely on six year limitation period in absence of implementation of Directive - Whether new cause of action arising on foot of statutory instrument not fully compensating victims of State's failure to fully implement Directive on due date - Whether new cause of action confined to positive acts - Social Welfare (Preservation of Rights) Regulations (No. 2), 1986 (S.I. No. 422) - European Communities (Social Welfare) Regulations, 1992 (S.I. No. 152) - Statute of Limitations, 1957 (No. 6), s. 11, sub-section 2 (a).

Damages - Exemplary damages - State's failure to implement European Directive - State endeavouring to avoid implementing Directive fully - Substantial cost to State in implementing Directive - Whether exemplary damages appropriate.

Plenary Summons.

The facts and the relevant statutory provisions have been summarised in the headnote and are fully set out in the judgment of Carroll J., infra.

Proceedings in the case bearing the record number 1993 No. 5070P were commenced by plenary summons issued on the 16th July, 1993; and in the case bearing the record number 1993 No. 6410P, by plenary summons issued on the 17th September, 1993.

By consent of the parties, both actions were heard together by the High Court (Carroll J.) on the 21st, 22nd, 23rd, 24th, 28th, 29th and 30th June, 1994. Further submissions were made by counsel on the 12th January, 1995.

By s. 11, sub-ss. 1 (e) and 2 (a) of the Statute of Limitations, 1957, an action to recover any sum recoverable by virtue of any enactment, or an action founded on tort, shall not, subject to certain exceptions not relevant hereto, be brought after the expiration of six years from the date on which the cause of action accrued.

Section 2 of the European Communities Act, 1972, provides as follows:—

"From the 1st day of January, 1973, the treaties governing the European Communities and the existing and future acts adopted by the institutions of those Communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties."

Section 3, sub-s. 1 of the Act of 1972 empowers a Minister of State to make regulations for enabling s. 2 to have full effect.

Council Directive 7/79/EEC deals with the principle of equal treatment for men and women in matters of social security. Article 4, sub-art. 1 provides inter alia:—

"The principle of equal treatment means that there shall be no discrimination whatsoever on grounds of sex, either directly or indirectly, by reference in particular to marital or family status."

Ireland should have implemented the Directive by the 23rd December, 1984, but did not do so until the coming into force, on various dates towards the end of 1986, of the Social Welfare Act, 1985, which prospectively removed differences in the treatment of married men and married women. However, the Social Welfare (Preservation of Rights) Regulations (No. 2), 1986, introduced payments to compensate those married men who had ceased to be entitled to certain benefits as a result of the Act of 1985. The payments under the regulations of 1986 were stated to be transitional and were gradually reduced until finally removed by the European Communities (Social Welfare) Regulations, 1992. The regulations of 1992 also provided for retrospective payments in regard to some of the differences in the treatment of married men and women prior to the coming into force of the Act of 1985; but the regulations of 1992 did not make any provision for retrospective payments to married women:

• (a) with regard to the transitional payments made to married men under the regulations of 1986;

• (b) with regard to "adult dependancy allowance" paid to married men in similar circumstances between the 23rd December, 1984, and the coming into force of the Act of 1985;

• (c) of the full amount of "child dependancy allowance" as had been paid to married men in similar circumstances between the above dates, or of any child dependancy allowance at all in respect of the above dates where the woman had had a dependant spouse or a spouse on social welfare, notwithstanding that such restrictions had not then applied to married men;

• (d) of unemployment assistance at the same rate as had been paid to married men in similar circumstances between the above dates, in that a different means test was applied.

The plaintiffs were all married women living with their husbands between the 23rd December, 1984, and the coming into force of the Act of 1985, and subsequent thereto; some had had eligible children living with them at the relevant times. Evidence was given that any who had written to the Department of Social Welfare in relation to the arrears, prior to instituting proceedings, had been told that the Department was awaiting the outcome of litigation. The court also heard that the cost of paying arrears to all affected women was likely to be between £265 million and £354 million, depending on the rate of interest applied to the arrears. The Consumer Price Index was put in evidence in relation to the current value of the relevant payments made to married men but not to married women.

The plaintiffs claimed declarations that they were entitled to receive the same benefits, under the same rules, as married men; that the State had failed to fully or properly implement the Directive of 1979; that the regulations of 1992 were ultra viresthe powers of the Minister for Social Welfare and so were null and void; and that the regulations of 1992 were repugnant to Article 15, s. 2 and Article 40, s. 3 of the Constitution. They also sought damages for breach of duty of care, breach of statutory duty and breach of constitutional duty, together with interest under the Courts Act, 1981. A claim for an account was not pursued. By agreement, the precise amount, if any, to which each plaintiff was entitled, was to be assessed by the Department of Social Welfare in the light of the court's ruling.

The defendants contended that the plaintiffs had ceased to suffer unequal treatment after the coming into force of the Act of 1985; that any claims arising more than six years prior to the institution of proceedings were statute-barred; that the plaintiffs were...