Supreme Court allows appeal on procedural grounds, remitting amendment motion to High Court for determination.

THE SUPREME COURT

Appeal No 111/1990

Appeal No 217/2007

Hardiman J.

Macken J.

Finnegan J.

BETWEEN

JOHN ROONEY

PLAINTIFF/APPELLANT

and

THE MINISTER FOR AGRICULTURE AND FOOD

THE MINISTER FOR FINANCE

THE TAOISEACH

IRELAND AND THE ATTORNEY GENERAL

DONAL McDAID

PATRICK DELANEY

THE IRISH FARMERS ASSOCIATION

ERAD THE MANAGEMENT BOARD FOR DISEASE ERADICATION ALAN GILLIS, PATRICK DELANEY, DENIS COFFEY, TERENCE

O’CONNOR, DENIS G. HICKEY, JAMES NOONAN AND JOHN MALONE AS BOARD MEMBERS OF ERAD THE MANAGEMENT BOARD

FOR DISEASE ERADICATION THE MINISTER FOR THE PUBLIC SERVICE THE OMBUDSMAN

RESPONDENTS

Judgment of Mr Justice Finnegan delivered on the 9th day of March 2010

On these appeals the court is concerned with one only of several sets of proceedings instituted by the appellant

concerning the operation of provisions of the Diseases of Animals Act 1966 and in particular the compensation provisions

thereof and the non-statutory system of grant payments operated by the Minister for Agriculture and Food. The action

was commenced by way of special summons but was then referred for plenary hearing and full pleadings were exchanged

between the parties. On the 19th February 1990 three motions came on for hearing before the High Court (Barron J.) as

follows:-

1. Motion by the sixth, seventh and eight named defendants that the action against them be dismissed. The order sought

was made.

2. A motion by the Ombudsman that the action against him be dismissed. The order sought was made.

3. A motion by the plaintiff for judgment in default of defence against the eighth to fifteenth named defendants. The

motion was dismissed.

The appellant appealed the orders made on each of the three motions (Appeal No. 111 of 1990). The appeal came before

the Supreme Court on the 12th October 1990. The court directed that the claim in the first two paragraphs of the

plaintiff’s statement of claim be tried as a special case pursuant to the Rules of the Superior Courts, Order 34, (as

requested by the appellant in his statement of claim) between the plaintiff and the first, second, third and fourth named

defendants (the State defendants). The appellant had issued a motion before the High Court seeking a special case but

that stood adjourned pending the hearing of Appeal No. 111/1990 by order of the 30th July 1990 (Costello J.). The

paragraphs in question read as follows:-

“1. A declaratory order that the plaintiff is legally and constitutionally entitled to compensation under

and in accordance with the Diseases of Animals Act 1966 and also under and in accordance with the

Bovine Tuberculosis (Attestation of the State and General Provisions) Order 1978. The plaintiff also asks

this honourable court on making the declaratory order to grant him remedy or relief of exemplary

damages or whatever relief the honourable court thinks fit.”

2. That a special case be tried as follows:

“That the system of grant payments as operated by the first defendant in his implementation of the

Diseases of Animals Act 1966 through the Disease Eradication Schemes are unconstitutional and illegal

when they are used as an alternative to compensation or in a manner that fails to comply with the

compensation provisions of the Irish Constitution. The self disposal of reactor animals as per directions

of the first defendant in no way whatsoever diminishes herd owners legal and constitutional right or

entitlement to compensation or in no way whatsoever relieves the first defendant of his duty to

honour and safeguard such entitlement which is herd owners as of right.”

On the 12th October 1990 Appeal No. 111 of 1990 was adjourned pending the hearing of the special case.

That special case came on for hearing in the High Court (Lavan J.) over four days in January 1991 and in a reserved

judgment delivered on the 16th May 1991 the appellant’s claims were refused. The appellant appealed that order to the

Supreme Court (Appeal No. 224 of 1991). Judgment was given on both appeals, that is Appeal No. 111/1990 and Appeal

No. 224/1991 on the 19th December 1991. The judgment of the Supreme Court on the special case is reported at 1991 2

I.R. 540. The appeal was dismissed. Following delivery of judgment on the special case the Supreme Court dealt with

Appeal 111/1990 and dismissed the appeals against the two orders of Barron J. dismissing defendants from the action.

The appellant maintains that his appeal against the order of Barron J. on his motion for judgment in default of defence

was not dealt with on the 19th December 1991. The order of the 19th December 1991 refers only to the motions

dismissing defendants from the action. A reading of the transcript of the proceedings on the 19th December 1991

convinces me that the applicant is correct and that the order of the Supreme Court accurately reflects what transpired

on that day.

Having heard argument in relation to all three motions McCarthy J. said:

“In the circumstances no grounds having been advanced by the plaintiff in regard to the substantial

nature of these appeals as to whether or not the Ombudsman and the three defendants for the Irish

Farmers Association should be dismissed out of the action and having established that the orders made

by Mr Justice Barron were the correct orders I will dismiss these appeals accordingly.”

O’Flaherty J. and Egan J. agreed. Counsel for the State respondents then said:-

“There is an appeal outstanding.”

McCarthy J. replied:-

“I think effectively it would be better to let it stand.”

There was clearly an oversight and no determination was made on the appellant’s appeal in relation to the motion seeking

judgment in default of defence.

By the date of the hearing of the motions before Mr Justice Barron the defences had indeed been delivered and the

appellant’s complaint is that they were not delivered within the time limited by the Rules of the Superior Courts. Ordinarily

in these circumstances the only issue on the hearing of the motion would be in relation to the costs of the motion. The

action proceeded thereafter to a full hearing on the special case which necessarily involved consideration of the defences

delivered. Notwithstanding this the appellant seeks to be allowed to wind back the clock and obtain judgment in default of

defence. It is in the interests of justice that this outstanding issue in these protracted proceedings be determined without

further delay.

The circumstances giving rise to Appeal No. 217 of 2007 are as follows. Following judgment given by the Supreme Court

on the 19th December 1991 on the special case the appellant brought a further motion before the Supreme Court seeking

to reopen that decision, previous decisions of the Supreme Court and of the High Court. On the same day the Ombudsman

brought a motion supported by the State defendants and the sixth, seventh and eight named defendants seeking to have

the appellant restrained from taking any further step in the proceedings other than in relation to the taxation of costs and

that application was acceded to. By order of the 5th October 2001 the Supreme Court ordered as follows:-

“And It Is Ordered under the inherent jurisdiction of the court that the plaintiff be restrained from

taking any further step in these proceedings other than in relation to the taxation of costs whether in

the High Court or in this court except with the leave of this court such leave to be sought by

application in writing made to the registrar of this court.”

The appellant issued a notice of motion in the High Court on the 8th January 2001 returnable on the 5th February 2001

seeking liberty to amend his statement of claim delivered on the 6th November 1989. The motion was listed for hearing on

the 2nd November 2001, that is between the hearing of Appeal No 217/2007 (the special case) and the delivery of

judgment on the same and after the making of the restraint order on the 5th October 2001. On the 25th October 2001

the appellant appeared on the call-over of the list for the 2nd November 2001: there was no appearance by the State

defendants. The appellant informed the court of the restriction order made by the Supreme Court on the 5th October

2001 and on his consent it was ordered that the motion be adjourned generally with liberty to re-enter. By motion issued

on the 18th July 2006 and returnable on the 31st July 2006 the appellant sought to have the motion re-entered. The

motion came on for hearing before Smyth J. on the 19th June 2007. The issue before the High Court was whether having

regard to the terms of the order of the Supreme Court of the 5th October 2001, by which date the motion to re-enter

had issued but had not yet been heard, the order of the Supreme Court restrained the appellant from proceeding to a

hearing of the motion without leave of the Supreme Court. The appellant’s submission both in the High Court and on this

appeal is that the phrase “these proceedings” refers only to proceedings on the special case and did not inhibit him in

pursuing the remainder of his claim set out in the statement of claim. The respondents contended that the order inhibited

the further prosecution of the action. The hearing of the motion to re-enter extended over ten days in the High Court

(Smyth J.). Smyth J. held that the order of the Supreme Court of the 5th October 2001 inhibited the appellant from taking

any further step in the action without leave of the Supreme Court other than in relation to the taxation of costs.

Accordingly the appellant was not entitled without the leave of the Supreme Court to re-enter the motion to amend his

statement of claim. The leave of the Supreme Court not having been obtained the court refused to hear the motion. The

appellant now appeals against that order. The issue for this court accordingly is whether the restraint order made on the

19th December 1991 affects only the proceedings by way of special case or extends to the entirety of the proceedings.

The procedure by way of special case arises under the Rules of the Superior Courts, Order 34 and in this case under Rule

2 thereof which provides as follows:-

“If it appear to the court that there is in any cause or matter a question of law, which it would be

convenient to have decided before any evidence is given or any question or issue of fact is tried, or

before any reference is made to an arbitrator, the court may make an order accordingly, and may

direct such question of law to be raised for the opinion of the court, either by a special case or in such

other manner as the court may deem expedient, and also such further proceedings as the decision of

such question of law may render unnecessary may thereupon be stayed.”

The procedure was considered in Tara Exploration and Development Company v Minister for Industry and Commerce

[1975] I.R. 242. At page 255 O’Higgins C.J. said:-

“It is a procedure very rarely availed of in our courts…The infrequent use of this procedure may be

explained by the restricted field in which it can operate. First of all there must be a question of law

which can be identified amongst the issues in the action. Further, this question of law must be such

that it can be decided before any evidence is given. If special facts have to be proved or if facts are in

dispute the rule does not apply. In addition it must appear to the court to be convenient to try such

question of law before any evidence is given. This will involve a consideration of the effect of other

issues in the case and whether its resolution will reduce these significantly or shorten the hearing.

Convenience in this respect must also be considered in the light of what appears fair, proper and just

in the circumstances.”

It is quite clear that the special case procedure can be availed of where the opinion on the special case will determine the

outcome of the proceedings but also where its effect will be to significantly reduce the issues in the case or shorten the

hearing. In this case there is nothing to suggest that either the High Court or the Supreme Court considered whether a

decision on the special case adverse to the appellant would finally dispose of the action.

` Following the delivery of judgment on the special case the form of order to be made was discussed with the parties.

The appellant considered that the decision on the special case determined one element of his claim only while the

respondents considered that its effect was to determine the entire case. In relation to the form of the order to be made

on the special case the following discussion took place between counsel for the State respondents and McCarthy J.:-

Mr Geoghegan: It does seem to determine the issue in the case itself and whatever the order the court makes I think

should make that clear.

McCarthy J.: Certainly Mr Justice O’Flaherty’s judgment reflects the possibility – certainly without encouraging it – but

some other argument may be made. This court ordered in October 1990 that the plaintiff’s claim as set out in the

statement of claim be tried in the High Court and pending the outcome of that all other matters to stand adjourned. The

special case was then drawn by the plaintiff and it came before Mr Justice Lavan and it was part amended. His order was

to refuse the plaintiff’s claim as set out in the special case so it would seem to follow that’s the order that this court

should confirm, except to make it clear that it is the plaintiff’s claim as set in the special case do stand refused.

And later:-

McCarthy J.: The order of the court will be that the plaintiff’s claims, as detailed in the special case, as amended, they

stand refused.

From the foregoing it is quite clear that the intent of the order of the 19th December 1991 was that the plaintiff’s claim

comprised in the special case should be dismissed, but that if there are further or other claims in the statement of claim

they should not be affected and the appellant should be entitled to pursue the same. No adjudication was made as to

whether any such claims exist. Whether or not any such claims exist is a matter to be determined in the High Court.

It is therefore necessary to determine the extent of the restriction placed upon the appellant by the order of the 5th

October 1991 and for this purpose to consider the judgment of the court delivered by Keane C.J. The order of the 5th

October 1991 was made between the hearing of the appeal on the special case and the delivery of judgment on that

appeal. From the judgment it appears that the appellant brought a motion seeking to re-open decisions of the Supreme

Court and of the High Court “in these proceedings”. The order is entitled in relation to Appeals Nos. 111 of 1990 and 224

of 1991, the latter being the appeal against the judgment and order of Lavan J. on the special case. The motion was then

described as “another attempt to re-open issues conclusively and finally decided by this court”. Having regard to the

history of the proceedings it seems to me that the phrase “these proceedings” can only refer to the proceedings on the

special case. The only substantive issue conclusively and finally decided by the Supreme Court relates to the special case

being the order directing the special case of the 12th October 1990. The High Court decision of Lavan J. on the special

case was the subject of Appeal No 224 of 1991 upon which judgment was awaited. Reading the restriction in terms of the

history of the proceedings it seems to me that it should be interpreted narrowly and as relating to the special case only. I

would allow the appeal. Accordingly the appellant is entitled to proceed without leave of the Supreme Court with the

remainder of the claims which survive following the decision of the Supreme Court on the special case, if any such claims

there are. It is a matter for the High Court to determine whether any such claims exist. Likewise it is a matter for the High

Court to hear the motion to re-enter the motion to amend the statement of claim and rule upon the same and I would

remit the matter to the High Court for that purpose.

To summarise then, the position in relation to Appeal No. 111 of 1990 is that the appeal against refusal of Barron J. of the

motion for judgment in default in defence remains to be determined. The position in relation to Appeal No. 217 of 2007 is

that it remains for the following matters to be dealt with in the High Court:-

1. To hear the appellant’s motion to re-enter the motion to amend the statement of claim.

2. If the motion is re-entered to hear the same.

It will be for the High Court to determine whether the statement of claim, as existing or as amended pursuant to leave

granted by the High Court, contains any issue which is not disposed of by the judgment of the Supreme Court on the

special case.

Accordingly on Appeal No. 217 of 2007 I would allow the appeal and remit the matter to the High Court to hear and

determine the motion to re-enter the appellant’s motion to amend the statement of claim. In relation to Appeal No. 111 of

1990 I would hear the parties as to how the outstanding appeal can most expeditiously be dealt with.

Rooney v The Min for Agriculture & Ors