Class Actions

Multitude of credible allegations against the same individual in similar circumstances constitutes powerful circumstantial evidence of guilt”
J.D. McCOMBS J. November 19, 2013 Ontario Superior Court of Justice

The Irish justice system makes no provision for class actions thereby forcing a defendant to defend a multiplicity of cases where there are many complainants. This can be very costly for a defendant making any victory a pyrrhic victory in light of the huge costs incurred in having to defend many cases.

The importance of formulating a good and effective strategy early, in conjunction with your legal and other professional advisors, cannot be underestimated. The “there are always limited exceptions” theory in common law jurisdictions such as Ireland can sometimes render such a strategy difficult to formulate where the judiciary are generally afforded a discretion in adjudicating in cases.

This is illustrated in 2 recent very similar planning cases that both ended up in the Irish High Court; yet opposing rulings were made by each of the 2 Judges that heard these cases.

Both cases were appealed to the High Court by Wicklow County Council/An Bord Pleanala seeking demolition orders of 2 (sic) chalets, both constructed without the requisite planning permissions, in County Wicklow under Section 160 of the Planning and Development Act 2000, as amended.

In the first case heard in the High Court Ms. Fortune’s chalet was saved by High Court Judge Hogan (now sitting in the Court of Appeal) who relied, inter alia, on Article 40.5 of the Constitution which states that “The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.” . Judge Hogan would not grant a demolition order unless the continuedoccupation (..of the property) and retention would be so manifestly at odds with important public policy objectives that demolition was the only fair, realistic and proportionate response“.

However the Kinsella’s were not so fortunate when (now retired) High Court Judge Kearns granted an Order for the demolition in the case Kinsella v Wicklow County Council [2015] IEHC 229 stating that there are limited circumstances in which the High Court may depart from its previous decisions (such as the Fortune decision above) and they applied here. Judge Kearns preferred to rely on, inter alia, a European Court of Human Rights decision rejecting the argument that the right to establish a home in a particular place outweighed the community interest in protecting the environment and the efficiency and integrity of planning law enforcement.

Judge Kearns also held that Judge Hogan’s test could be seen as the High Court intermeddling with the powers of the designated planning authorities contrary to  the Constitutional separation of powers between the three branches of Government – the legislature, the executive and the judiciary.

A case in point is Johnson & Johnson and its DePuy Orthopaedics unit facing some 8,000 lawsuits over the recalled DePuy ASR defective hip implant device. At least 3,500 patients in Ireland received the defective implants in 16 public and 14 private hospitals before DePuy ordered the product recall. Many have now issued High Court proceedings alleging that the metal-on-metal hip replacement systems caused significant pain further leaking chromium and cobalt into patient’s bloodstreams leading to a number of serious health problems.

The content of this publication is for information and does not constitute legal or other advice. Readers should obtain their own legal and other advice as required.