University College Cork v The Electricity Supply Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Frank Clarke
• Judgment Date: 21 October 2020
• Neutral Citation: [2020] IESC 66
• Court: Supreme Court
• Docket Number: [Appeal No: 70/2018]
• Date: 21 October 2020

Between/

University College Cork – National University of Ireland

Plaintiff/Appellant

and

The Electricity Supply Board

Defendant/Respondent

[2020] IESC 66

Clarke C.J.

O'Donnell J.

MacMenamin J.

Dunne J.

Charleton J.

[Appeal No: 70/2018]

THE SUPREME COURT

Case management – Cross-appeal – Contributory negligence – Respondent bringing a cross-appeal – Whether it was appropriate for the cross-appeal to go ahead as planned

Facts: A case management hearing was conducted before the full panel which heard both the appeal brought by the appellant, University College Cork (UCC), to the Supreme Court and which was due to hear a cross-appeal brought by the respondent, the Electricity Supply Board (ESB). The first issue raised was as to whether it was appropriate for the cross-appeal to go ahead as planned on 16 November. It was argued on behalf of the ESB that it would not be appropriate for the Court to hear the cross-appeal concerning contributory negligence for the Court could not reach any proper conclusion on the relative contributions of UCC and the ESB until the High Court determined the issues which had been remitted back to it. The second issue canvassed concerned the question of whether it was open to the ESB to argue, on the cross-appeal, that UCC should be fixed with any liability for damage caused which can be attributed to its professional advisers on the basis of the provisions of s. 35(1)(i) of the Civil Liability Act 1961. The third issue which required determination concerned the extent to which it was open, on the cross-appeal, for UCC to argue that contributory negligence in excess of 40% should be determined against UCC. The High Court fixed UCC’s contribution in that percentage. The Court of Appeal did not find it necessary to make a final decision on the issue of contributory negligence given that the Court of Appeal came to the view that the ESB were not negligent in the first place. However, the Court of Appeal did observe that certain elements of the findings of the High Court on the issue of contributory negligence were not, in the view of the Court of Appeal, sustainable. For the purposes of the cross-appeal to the Court the ESB did not seek to depart from those views expressed in the judgment of the Court of Appeal.

Held by Clarke CJ that it may be that, when the Court had considered the issues which arose on the cross-appeal, it would conclude that some issues may either have to be remitted back to the High Court or, indeed, deferred for further consideration by the Court in the light of the ultimate decision of the High Court on the issues already remitted back. However, the Court did not consider that the possibility that such an eventuality may arise should prevent the cross-appeal going ahead to the greatest extent possible. Regarding the second issue,...