Drafting

To eliminate any potential “opening the door to foreign law arguments” in inserting the boilerplate “This contract is governed by Irish law” (on its face seems watertight but buyer beware applies) clauses it may be prudent to revise this wording to the following:

The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the laws of Ireland.

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Rules of European Court of Human Rights 28 March 2024

“PRACTICE DIRECTIONS VI. Exceptional avenues after a case has been decided

1. There may be very rare situations in which the parties did not have objective means of knowing which judge(s) would be involved in deciding their case.
2. As regards judgments, under Rule 80 of the Rules of Court the parties may ask for a revision of a judgment in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party. Given the principle of finality of judgments in Article 44 of the Convention and, in so far as it calls into question the final character of judgments of the Court, revision, which is not provided for in the Convention but was introduced by the Rules of Court, is an exceptional procedure. Requests for revision of judgments are therefore subjected to strict scrutiny (see Pardo v. France (revision – admissibility), 10 July 1996, § 21, Reports of Judgments and Decisions 1996-III). As attested by the Court’s recent case-law, the possibility of revision may include issues of impartiality (see X v. the Czech Republic (revision), no. 64886/19, §§ 7-21, 30 March 2023). The imperative to apply rigorously the principle of objective impartiality may call exceptionally for the revision of the Court’s judgment where grounds for a judge’s inability to sit have been shown to exist.
3. At the same time, it is not possible to request revision in relation to inadmissibility decisions, which are by their nature final and not amenable to appeal. In such situations it is nevertheless possible for the Court to reopen a case. Although neither the Convention nor the Rules of Court expressly provide for such reopening, according to its case-law, in very exceptional circumstances, where there has been a manifest error of fact or in the assessment of the relevant admissibility requirements, in the interests of justice the Court has the inherent power to reopen a case which had been declared inadmissible and to rectify any such errors (see, for instance, Boelens and Others v. Belgium (dec.), no. 20007/09 et al, § 21, 11 September 2012). It cannot be excluded that such errors may also relate to the impartiality of a judge.
4. However, it is important to stress that neither of these avenues are available as a means of appeal against the Court’s judgments or decisions. As described above, they are only to be used in those very rare and exceptional circumstances in which the parties had no way of knowing that a particular judge would be deciding their case, and of his or her inability to sit for one of the reasons listed in Rule 28 of the Rules of Court. The Court will carefully scrutinise any requests raising concerns of impartiality submitted after a case has been decided. It will ensure that any abusive, frivolous, vexatious or unsubstantiated complaints in this respect shall not be taken into consideration (see, mutatis mutandis, Rule 36 § 4 (b) of the Rules of Court).

The rationale for above Practice Direction would apply also to jury trials where only after the event does “the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party.“

As a law student in University College Dublin 2000-2003 one of my fellow students had what at the time I could not understand a keen interest in who the Judge was. I now understand this interest. Behind the mantra of the “facts and the law” the personality/inherent human biases of the Judge does percolate into their reasoning and thinking and decision making.

There will be some Judges you cannot help but admire and respect and the now retired Chief Justice of Ireland Frank Clarke ( Clarke C.J. ) is one of them for his intellect, fairness, clarity, incisiveness and pragmatism/common sense.

One of his often quoted passage in  Connelly v. An Bord Pleanála [2018] IESC 31 in relation to the need for administrative bodies to give adequate reasons is:-

“5.4     In my view it is of the utmost importance, however, to make clear that the requirement to give reasons is not intended to, and cannot be met by, a form of box ticking.  One of the matters which administrative law requires of any decision maker is that all relevant factors are taken into account and all irrelevant factors are excluded from the consideration.  It is useful, therefore, for the decision to clearly identify the factors taken into account so that an assessment can be made, if necessary, by a court in which the decision is challenged, as to whether those requirements were met.  But it will rarely be sufficient simply to indicate the factors taken into account and assert that, as a result of those factors, the decision goes one way or the other.  That does not enlighten any interested party as to why the decision went the way it did.  It may be appropriate, and perhaps even necessary, that the decision make clear that the appropriate factors were taken into account, but it will rarely be the case that a statement to that effect will be sufficient to demonstrate the reasoning behind the conclusion to the degree necessary to meet the obligation to give reasons.

…

6.15     Therefore, it seems to me that it is possible to identify two separate but closely related requirements regarding the adequacy of any reasons given by a decision maker.  First, any person affected by a decision is at least entitled to know in general terms why the decision was made.  This requirement derives from the obligation to be fair to individuals affected by binding decisions and also contributes to transparency.  Second, a person is entitled to have enough information to consider whether they can or should seek to avail of any appeal or to bring judicial review of a decision.  Closely related to this latter requirement, it also appears from the case law that the reasons provided must be such as to allow a court hearing an appeal from or reviewing a decision to actually engage properly in such an appeal or review.”

“84.  The Government submitted that the hearing of cases by multiple judges is normal in the Irish legal system where interlocutory applications are heard by the judge in charge of a particular list, whereby the main proceedings may be heard by a different judge . It stated that this procedure did not contribute to the delay and pointed out that judges in charge of particular lists are accustomed to dealing with the various forms of interlocutory motions. ” ref: KEANEY v. IRELAND – 72060/17 (Judgment : Right to a fair trial : Fifth Section) [2020] ECHR 292 (30 April 2020)

This submission by the Irish Government fails to recognise that on occasion “only a careful reading” of the various pleadings will disclose potential anomalies/inaccuracies. Furthermore where proceedings last years before multiple judges there is a risk of overlooking or forgetting the fact that a party has resiled from previous submissions made to the Court years previously which can have significant consequences for the sound administration of Justice.

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“293.          In my ruling, I stressed that the issue of fairness  could not be considered by reference to the position of one side alone. The position of both sides must be taken into account. ” ref  Nolan & Ors v Dildar Ltd & Ors (Approved) [2024] IEHC 4 (10 January 2024) McDonald J.

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Connelly v DPP [1964] AC 1254, Lord Devlin noted that the courts have:

‘an inescapable duty to secure fair treatment for those who come or are brought before them’.

KYPRIANOU v. CYPRUS – 73797/01 [2005] ECHR 873 (15 December 2005)

15/12/2005 “The fairness of the judges is the quintessence of the administration of justice. “

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O’Connor v Wexford County Council (Approved) [2021] IECA 239 (30 September 2021)

“24. The trial judge’s reference to Byrne v Ardenheath is, I think, somewhat problematic in a number of respects. It was not referred to by either party in oral and written submissions as a relevant authority. That of itself does not mean that a court ought not be entitled to refer to authorities that might not necessarily be cited in argument but nonetheless come to the attention of the court in carrying out research for the purposes of a judgment.
Sometimes a court may refer to a case or cases that may illustrate a particular point being made in the course of a judgment but may not necessarily be decisive to the outcome.

25. In such cases, it is not usually necessary to seek further assistance from the parties before judgment is delivered. However, where a court intends placing primary reliance for its decision on a judgment that has been neither cited nor the subject of argument by the parties, in general the proper approach is to invite the parties to address the court in
relation to that authority before a final view is reached.

26, If that procedure were adopted in this case, it is perfectly possible that the trial judge might have been swayed by arguments as to its relevance or non-relevance but unfortunately, that opportunity was not afforded the parties and, in particular, the plaintiff. In my view, Byrne v Ardenheath is of little, if any, assistance in the present case. It bears a passing
factual resemblance to the present case in that it involved a person slipping down a steep grassy slope instead of pursuing an alternative route. There, however, the similarity ends.”

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Access to Justice – fact or fiction?

Ms Justice Butler is a highly regarded Judge as was retired High Court Judge Deirdre Murphy who went on the record about certain solicitor firms hiring self styled “supermodel” Counsel so they can seek to persuade the relevant powers/paying parties their own instruction fee so by corollary “deserves” to be on the “supermodel” scale.

(ref ” supermodels wouldn’t get out of bed for less than $10,000 a day (as Linda Evangelista said) – https://www.independent.ie/style/fashion/naomis-10-day-fast-before-catwalk-return/29636336.html” )

Lay litigants use “dense, repetitive and prolix pleading”, along with multiple applications and appeals, Ms Justice Butler was quoted as telling the Sunday Business Post.

The causes of such actions were “rarely clearly identified or properly pleaded”, and the time it took to deal with many of their applications was often “completely disproportionate” to their importance.https://www.lawsociety.ie/gazette/top-stories/2021/12-december/Lay-litigants-can-be-problematic-says-Law-Society

It would be myopic to think this style of pleading confined to lay litigants as the very rich can also show a determination not to leave any “procedural stone unturned” motivated by oppression, unwillingness to lose, greed or just because they can in a legal justice system with poor case management.

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Hogan J in AIB v Tracey [2013] IEHC 242; [2013] 3 IR 398 (at p. 404 – 405):

“These allegations were ventilated in civil proceedings in open court and, as I have already found, the affidavits were effectively openly read into the record of the court. Given that these proceedings were in open court pursuant to the requirements of Article 34.1 of the Constitution, it follows that any cloak of confidentiality or protection from non-disclosure vanished at that point. In this respect, therefore, the present case is a very different one from Breslin v. McKenna [2008] IESC 43; [2009] 1 IR 298.

[22] The open administration of justice is, of course, a vital SAFEGUARD in any free and DEMOCRATIC society. It ensures that the judicial branch is subjected to scrutiny and examination and helps to promote confidence in the fair and even handed administration of justice. Any system of secret court hearings could pave the way for judicial ARROGANCE, overbearing judicial conduct and ABUSE.

[23] In these circumstances the public are entitled to have access to documents which were accordingly opened without restriction in open court. This is simply part and parcel of the open administration of justice which the Constitution, subject to exceptions, enjoins. Entirely different considerations would naturally arise in respect of material which was not opened in open court or which was protected by the in camera rules or by reporting restrictions imposed, for example, pursuant to s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008.”

* emphasis added

26/05/2020

“Judges do not enter into correspondences regarding matters before the Court. I consider correspondence with a Judge’s Judicial Assistant as correspondence with their Judge and should not happen. Any correspondence relating to matters before the Court should properly be addressed to the Registrar “

Pat Treacy on behalf of the Office of the CEO

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The Art of the Advocate (London, 1980) (pp. 49 to 50), Richard du Cann gives an account of the celebrated libel action, Laski v. Newark Advertiser Co. Ltd., tried by Lord Goddard L.C.J. and a jury in 1946. At an earlier point in the trial, the plaintiff’s junior counsel Sir Valentine Holmes conceded, in a single, somewhat off-hand sentence, that damages would not be sought in relation to one particular allegation imputing cowardice to the plaintiff. In his final speech however, leading counsel for the plaintiff Sir Gerald Slade Q.C. asked for a verdict in his client’s favour on this allegation. Sir Patrick Hastings Q.C., counsel for the defendant, then intervened to demonstrate by reference to the transcript that Slade’s junior had previously abandoned this point. Du Cann acknowledges the tremendous pressure this must have created for Slade at that moment: “In that one possibly ill-considered sentence, which was not vital to the argument then taking place, the whole of Slade’s point, one upon which he believed he could win the whole case, was swept away in the middle of his final speech. Whatever the obligations to his client and whatever the personal feelings he had himself, Slade recognized the most important single fact of the situation: Hastings had already addressed the jury on the basis that the point was abandoned”. Slade then told Lord Goddard: “I am not going back on anything Sir Valentine Holmes said, any more than I should go back on anything I said myself; and I therefore prefer to err on the side of fairness and I shall not ask the jury to deal with that part of the libel at all”. Du Cann’s comment on this is that “[t]his is honest dealing of a very high order indeed”.

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Judges may and do conduct their own forensic research into cases but where their decision is determined by their own research finding a case not canvassed by either party “fairness” dictates the parties to the suit are afforded the opportunity to reply. Apart from a legal costs perspective (financial prejudice where penalised with costs order upon being deemed to be the “loser”) perhaps the case is inaccurately cited or extracts not properly contextualised.

The late Alfred Watson injured by a wave whilst working as a carpenter on the Cornwallis ship on November 6th, 1935 could scarcely have imagined his case in Canada would be cited in an Irish Court some 80 odd years later (omitting however reference to the relevant Canadian statutory provision called in aid by the Supreme Court of Canada of which there was no corresponding Irish Statute law) ref Canadian National Steamships Co. Ltd. v. Watson, [1939] S.C.R. 11

and partially quoting an extract deemed to be of relevance:

“CANADA Cannon J.—The appellant complains of the concurrent judgments of the lower courts allowing; to the respondent $4,000 damages unanimously awarded by a jury for an accident to the respondent, on November 6th, 1935, while a member of the crew of the ss. Cornwallis, owned by the appellant. The Cornwallis was a British vessel registered at Vancouver, B.C., and at the time of the accident was proceeding on the high seas to Charlottetown, P.E.I. The respondent, a carpenter on board the vessel, was engaged, with other members of the crew, in putting locking bars on the hatches. While so engaged, about one hundred miles off Bermuda, a wave crashed onto the deck, where the respondent was working, swept him off his feet and carried him about twenty-five feet across the deck, causing him to strike his head violently against a bulkhead with the result that the respondent suffered a severe injury which necessitated an operation and a long treatment in the hospital from which he was finally discharged on the 17th of March, 1936.

The jury found the accident to be due to the fault of the appellant, in the following language:

Question 4: Was the said accident due to the fault of the defendant; if so, state in what said fault consisted? Answer: Yes (unanimous). If the Chief Officer, Lieutenant Scott, had ordered life lines erected earlier the accident might have been avoided.

The defence was a denial of negligence, and, alternately that, if there was any, it was the negligence of a fellow servant from which, under the common law of England, which was applicable, no cause of action arose.

On appeal it was held that section 265 of the Merchants’ Shipping Act (Imperial), 1894, applied, whereby, upon a conflict of laws appearing, the Court is to apply the law of the port of registry, in this case, Vancouver; that the law of British Columbia, in Quebec, must be proved as a fact; that no such fact had been alleged and no proof offered and that such law must be presumed to be the same as the law of Quebec, where the rule of common employment does not exist.

Section 265 of the Merchants’ Shipping Act of 1894 reads as follows:

Where in any matter relating to a ship or to a person belonging to a ship there appears to be a conflict of laws then if there is in this part of this Act any provision on the subject, which is expressly made to extend to that ship, the case shall be governed by that provision, but if there is no such provision, the case shall be governed by the law of the port at which the ship is registered.

The only provision in the Act which might have an application to the Cornwallis and its crew is section 261 applying to seagoing British ships registered out of the United Kingdom; but none of the paragraphs would cover damages resulting from an accident caused by the negligence of the owner or his servants; therefore, the case must be governed by the law of the port where the ship was registered. The vessel being registered in the port of Vancouver, in the province of British Columbia, the law of that province on negligence might have applied if it had been alleged and proven. The absence of allegation distinguishes this case from that of Loganv. Lee[11]. This Court, in cases from the province of Quebec, must follow the rule that all facts in support of the action, e.g., the law of another province, must be alleged and proved; otherwise it would be unfair for this Court to take suo motu judiciary notice of the statutory or other laws of another province, ignored in the pleadings, when the Quebec courts did not consider them, and, forsooth were prohibited from considering them as applying to the case.

Moreover, common employment must not only be alleged but proven; and there should be a finding of the fact of common employment by the jury. This has not been done in this case.

I, therefore, reach the conclusion that lex fori is the Quebec law; lex loci contractus is also Quebec law, because the respondent was engaged in Montreal. The lex loci

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commissi delicti would be either the law of England or that of the port of registration. The latter was not pleaded; and the defence of common employment, under the law of England, is not established—was not put to the jury.

To my mind, the real difficulty in the case is the nature of the finding of the jury as to the cause of the accident. They affirm that the accident was due to the fault of the defendant; but, when asked in what the fault consisted, they would not affirm categorically that the cause of the accident was the omission of the Chief Officer Scott to order life lines erected earlier. They simply say that the accident might have been avoided. Is this a verdict sufficient to give us the certainty required to connect the injuries suffered by the respondent with the alleged negligence or omission? Is it clear, under the verdict, that the cause of the accident was this omission? The verdict seems to be based not on a fact of which the jurymen were convinced but on a probability or a possibility. It may be fairly implied from the verdict that even if these lines had been erected, in view of the nature of some of the evidence, as to the protection afforded by the life lines, against such a wave, the plaintiff would have been unable to resist the impact of the water and would have suffered the injuries of which he complains. This finding, which must be the basis of the judgment allowing damages, is unsatisfactory. If the jury were uncertain and unable to affirm that plaintiff would have been saved if the life lines had been erected, and this is the only negligence now suggested against the appellants, are we entitled to say that the verdict shows that the plaintiff has discharged the onus of proving that the alleged negligence or fault caused the damage?

I would, therefore, agree with the Chief Justice and order a new trial, the costs of both appeals and of the abortive trial to abide the result of the new trial.

New trial ordered, costs of both appeals and abortive trial to abide result of new trial.

Solicitor for the appellant: C. A. Harwood. Solicitor for the respondent: H. H. Harris”

Irish Court 2021

“68.     Perhaps of rather more compelling authority for the applicability of the law of the flag is the decision of the Supreme Court of Canada in Canadian National Steamships v. Watson [1939] 1 DLR 273. The case concerned a British vessel, registered at Vancouver, British Columbia. When the ship was 100 miles off the coast of Bermuda, she was struck by a wave that swept the respondent off his feet, carried him 25 feet across the deck and brought his head into violent contact with the bulkhead, resulting in severe injury. Duff C.J. upheld the decision of Lord MacNaghten in Carr v. Fracis Times & Co [1902] AC 176, 182 applying the two-limbed rule in Phillips v. Eyre (1870) LR 6 QB 1 to an action for damages in respect of personal injuries caused by a tortious act on board a vessel, committed outside the province in which that action was brought. 

69.     Consequently, the Plaintiff had to show that the act complained of was actionable under the lex fori, and that it was not justiciable under the law of the place where the tort was committed. It was thought that, in determining the lex loci delicti, it could “… either be the law of England” (on the basis that this was the law of the ship’s flag) or “… that of the port of registration.”; if the law of the flag differed from the law of the country in which the ship’s port of registry was situated, then the latter was held to take primacy over the former. Thus, although it was a British ship, the ship was registered in Vancouver; as a result, it was held that the lex loci delicti was the law of British Columbia.

70.     In the event, the law of British Columbia was not pleaded, but in the absence of proof to the contrary, the Plaintiff was entitled to rely on the presumption that the general law of the place where the tort occurred is the same as the lex fori i.e. the law of Quebec. The Supreme Court nevertheless emphasised that, had the law been pleaded and proven, it would have governed questions of liability in the case:

         “The case must be governed by the law of the port where the ship is registered. The vessel being registered in the port of Vancouver in the Province of British Columbia, the law of that province on negligence might have applied if it had been alleged and proven.” **

          Accordingly, I find that I agree with the statement set out in Cheshire North & Fawcett that, at common law, in the absence of a conflict with the port of registration, the law of the flag is the decisive factor whenever the acts complained of all occurred on board a single vessel.”

** OMITTED BY Irish Court – See full extract from Canadian Watson Judgment above [The only provision in the Act which might have an application to the Cornwallis and its crew is section 261 applying to seagoing British ships registered out of the United Kingdom; but none of the paragraphs would cover damages resulting from an accident caused by the negligence of the owner or his servants; therefore, ..]OMITTED