End of term: A look at the year in case law

As practitioners have gotten used to working in a new litigation environment, where remote hearings have become firmly rooted as a key tool in the administration of justice, one thing that has not changed is the prodigious output of case reports from Irish Legal News. Since January, this author has written case reports for 100 judgments, which represents 15 per cent of the 664 available judgments uploaded to the Courts Service website. 

Our publication continues to go from strength to strength, with the newsletter passing 8,500 subscribers and our LinkedIn following rising to 16,000 so far this year. 

In part, this growth has been driven by the continuous development of case law in the legal system and the need for practitioners to stay up-to-date on the leading issues of the day. As such, it seems appropriate to recap and review some of the pivotal decisions from the year to date.

Hilary Term

In January, the Supreme Court delivered a significant ruling in Burke v. The Minister for Education and Skills [2022] IESC 1 where the court clarified the scope of judicial deference to executive power. It was held that the “clear disregard” standard of review would not apply to executive decisions which affect an individual’s constitutional rights and there was no reason to extend deference “over and above the presumption of constitutionality.”

February was a busy month for important decisions and began with McDonald J. delivering the latest judgment in Hyper Trust Limited t/a The Leopardstown Inns v. FBD Insurance plc [2022] IEHC 39. The claim mostly dealt with the concept of the “closure” of a premises and whether a partial closure of bar counters could attract coverage under an insurance policy. Later in the year, the court would reject a claim where coverage was provided for closures “as a result of human notifiable disease manifesting itself at the premises” (Premier Dale Limited v. Arachas Corporate Brokers Limited [2022] IEHC 178).

In Clare County Council v. McDonagh and McDonagh [2022] IESC 2, Hogan J. held that a local authority was not entitled to an interlocutory injunction removing members of the Travelling community from public lands. The decision is considered important for the observations that the local authority had arguably failed in its duty to provide adequate accommodation to the Travellers and that the balance of convenience did not favour rendering them to be “effectively homeless”.

Additionally, the Court of Appeal reaffirmed that there was no primary/secondary victim distinction for psychiatric damage (Sheehan v. Bus Éireann and Anor. [2022] IECA 28), and a challenge to the lawfulness of the Special Criminal Court was rejected (Dowdall v. DPP and Ors. [2022] IEHC 81 and upheld today by the Supreme Court).

In An Taisce v. An Bord Pleanála [2022] IESC 8, it was held that the Planning Board did not need to consider the upstream consequences on the production of milk when it granted an application for a major cheese factory in Kilkenny that would consume 4.5 percent of the national herd’s milk production. 

In March, the Court of Appeal reversed a decision by the HSE to place a consultant gynaecologist on administrative leave despite the fact that he had engaged in unauthorised experiments on patients. It was held that the expert inquiry established that suspension was not appropriate, but this was ignored by the CEO Mr Paul Reid (O’Sullivan v. HSE [2022] IECA 74). 

Finally, in April both Collins and Murray JJ delivered substantial judgments in Ulster Bank Ireland Limited and Ors. v. McDonagh and Ors. [2022] IECA 87 relating to the operation of the Civil Liability Act 1961 and debt claims. In a joint judgment, it was held that that an action by a bank of professional negligence proceedings could not be considered the same “damage” as the debt claim and, accordingly, the concurrent wrongdoer provisions of the CLA did not apply.

Easter Term

In May, the Supreme Court determined that the Access to Information on the Environment Regulations did not apply to the President of Ireland, meaning that the office is immune from requests for information. Similarly, attempts to obtain documents from the Council of State and the Secretary to the President’s Office were rejected (Right to Know CLG v. Commissioner for Environmental Information [2022] IESC 19).

In tax law, the Court of Appeal held that a gin distiller had a legitimate expectation that excise duty would not apply to alcohol purchased for the purpose of producing hand santiser in the early stages of the pandemic, despite a written authorisation never being provided (Arderin Distillery Limited v. The Revenue Commissioners [2022] IEHC 267).

The Supreme Court also upheld a sexual assault conviction for a 14-year-old boy who slapped the bare bottom of a younger child, stating that it was the indecency of the act rather than the sexual intent which rendered the matter to be a sexual assault (The People at the Suit of the DPP v. FN (A Minor) [2022] IESC 22. The High Court also held that the “reasonable mistake” defence for child sexual abuse was unconstitutional because it was to be proved on the balance of probabilities. This created an unfair legal burden on an accused in criminal law proceedings, it was said (C.W. v. The Minister for Justice and Equality and Ors. [2022] IEHC 336.

Further, in Director of Public Prosecutions v. Davitt [2022] IEHC 320, Bolger J. determined that Gardaí only had a right of audience before the District Court where they had initiated and conducted the prosecution. This therefore threw the long-established practice of court presenters into turmoil. 

In a blow to personal injury plaintiffs, the High Court upheld the validity of the Judicial Council’s Personal Injuries Guidelines, which means that the recent reductions in damages assessments by PIAB will remain in force (Delaney v. PIAB and Ors. [2022] IEHC 321).

Trinity Term

The Trinity term was somewhat quieter than the other terms for significant rulings, although in J.N. v. Harraghy [2022] IEHC 407, the High Court determined that a Disability Complaints Officer had the power to direct the delivery of services to disabled children earlier than the timeframes contained in a service statement.

Further, the Supreme Court determined that expert evidence was not generally necessary to challenge the constitutional validity of legislation and there was no principle that the onus of justifying legislation lay on the State (O’Doherty and Anor. v. The Minister for Health and Ors. [2022] IESC 32).

Conclusion

In summary, this year has already seen several important rulings in across a range of areas of law. As sure as the law continues to develop, Irish Legal News will continue to provide timely updates for our readers.