Intentional Emotional Harm
Cases
M O’C v The KLH
[2006] I.E.H.C. 199 Judgment of Ms. Justice Dunne delivered on the 22nd day of June 2006
The first named defendant by notice of motion dated 8th June, 2006, seeks an order setting aside the notice of trial by a judge and jury herein dated 14th March, 2006. The notice of motion herein is grounded upon an affidavit of Caroline Keane solicitor on behalf of the first named defendant.
The basis upon which it is sought to strike out the notice of trial herein is that the matters at issue in these proceedings are not such as should proceed before a jury. As set out in the affidavit of Caroline Keane, it is claimed that the plaintiff’s claim herein is pursuant to contract and that insofar as the right to a jury is based on a claim for assault by the second named defendant it is not a matter that should proceed by way of trial by jury. Some correspondence passed between the solicitors for the first named defendant and the plaintiff in regard to this issue which reached no conclusion on the issue but I do not think it is necessary to refer to that correspondence.
A replying affidavit was sworn by the solicitor acting for the plaintiff. Save that the solicitor for the plaintiff Patrick O’Riordan complains of the delay in bringing this application there is nothing else of relevance or of assistance contained in the affidavit to which reference need be made.
Mr. Callanan SC on behalf of the first named defendant referred to s. 1(1) of the Courts Act, 1988. It provides as follows:
1. (i) Notwithstanding s. 94 of the Courts of Justice Act, 1924, or any other provisions made by or under statute, or any rule of law, an action in the High Court
(a) claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty, whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of any such contract or any such provision,
(b) under s. 48 of the Civil Liability Act, 1961 or
(c) under s. 18 (inserted by the Air Navigation and Transport Act, 1965) of the Air Navigation and Transport Act 1936, or a question of fact or an issue arising in such an action, shall not be tried with a jury.
Section 1(1) therefore abolished the right to a jury in actions for damages for personal injuries caused by negligence, nuisance or breach of duty. A limited saver was provided by subs. 3 which provides as follows:
1 (3) Subsection 1 of this section does not apply in relation to –
(a) an action where the damage is claimed consist only of damages for false imprisonment or intention of trespass to the person or both,
(b) an action where the damages claimed consist of damages for false imprisonment or intentional trespass to the person or both and damages (where claimed in addition, or as an alternative, to the other damages claimed) for another cause of action in respect of the same act or omission, unless it appears to the court on the application of any party, made not later than seven days after the giving notice of trial or at such later time as the court shall allow, or on its own motion at the trial, that, having regard to the evidence likely to be given at the trial in support of the claim, it is not reasonable to claim damages for false imprisonment or intentional trespass to the person or both as the case may be, in respect of that act or omission, …
The action herein is not one which comes within the scope of s. 1(3) (a). At issue between the parties herein is the question of whether the action herein comes within the scope of s. 1(3) (b). Mr. Callanan SC in his submissions stated that the statement of claim herein contained a multiplicity of claims including breach of contract, negligence, breaches of employment law, inter alia. The matters complained of range over not just one incident or one type of incident but consist of claims in respect of other matters as well. Accordingly, a jury would be dealing with a number of separate incidents not just flowing from incidents of sexual assault or assault simpliciter. Accordingly, he submitted that the statement of claim herein ranged too widely from the exception provided by s. 1 (3) (b).
It may be useful to consider the statement of claim herein. Paragraph 5 of the statement of claim sets out in detail the alleged express and or implied terms of the plaintiff’s contract of employment. Without going through all of those in detail it would be helpful to refer to the first alleged term namely:
“That the first named defendant, its servants or agent would not subject the plaintiff to sexual assault, sexual harassment, intimidation, victimisation, bullying, harassment, unreasonable and arbitrary treatment.”
Para. 6 of the statement of claim outlines details of an alleged sexual assault on the plaintiff by the second named defendant, a co-worker of the plaintiff employed by the first named defendant. It is alleged subsequently that the second named defendant was acting in the course of his duties at the time of the alleged assault and that consequently the first named defendant is vicariously liable for the matter complained of. I think I should also quote paras. 8 and 9 respectively of the statement of claim in full.
“8 Further or in the alternative the first named defendant in failing to take any action against the second named defendant and in pre-judging the complaint made by the plaintiff against the second named defendant, subsequently acquiesced in the second named defendant’s behaviour and accordingly is estopped from denying responsibility for same.
9 Wrongfully and in breach of the contractual terms set out above, commencing in December, 1998, and continuing until 2001, when the plaintiff was forced to resign from her position with the first named defendant, the plaintiff was subjected to ongoing harassment, victimisation, intimidation and isolation by the defendants and each of them and/or their respective servants or agents. Furthermore and in further breach of the terms set out above the first named defendant, its servants or agents systematically ignored complaints made by the plaintiff and exposed her to an ongoing risk of injury, loss and damage by reason of their deliberate refusal to deal with same.”
Thereafter lengthy particulars are furnished as to the matters complained of by the plaintiff. The plaintiff goes on to plead that as a result of the matters complained of she has suffered severe personal injuries, loss and damage and further particulars are then given of the alleged personal injuries, loss and damage. The statement of claim goes on to plead that the said personal injuries, loss and damage were caused by the negligence and breach of duty of the first named defendant, its servants or agents and again particulars are given in regard to that.
Paragraph 12 of the statement of claim relates to the manner in which the first named defendant is alleged to have dealt with complaints made by the plaintiff in respect of the first named defendant and in relation to a loss of statements made by the plaintiff in relation to the said incidents. Again that aspect of the plaintiff’s claim is referred to for the purpose of seeking aggravated damages or exemplary damages.
Ms. Donnelly SC appeared on behalf of the plaintiff herein. She argued that the proceedings herein had been mischaracterised by Mr. Callanan. This was not a breach of contract case as he suggested. On the contrary it was an assault case. She referred to the decision of the Supreme Court in the case of Sheridan v. Kelly & McDonnell (Unreported, Supreme Court, 6th April, 2006). That case concerned an allegation of assault including sexual assault against a Christian Brother at a school in which the plaintiff was a student. In that case the plaintiff served a notice of trial for judge and jury. The second named defendant served a notice of motion to have the case transferred to the personal injuries list to be tried by a judge sitting alone. In the High Court, Kearns J. made an order granting the reliefs sought because the plaintiff had joined another cause of action with his claim for damages for “intentional trespass to the person.” Ms. O’Donnell placed particular emphasis on a passage from the judgment of Fennelly J. at p. 4 thereof in which it was stated as follows:
“Mr. O’Donoghue argued that the damages were not, however, claimed ‘in respect of the same act or omission’ as the damages in respect of the assault. To consider this proposition, it is relevant to recall that the statement of claim, as summarised above, commences by alleging that the first named defendant committed sexual assaults on the plaintiff; then alleges that the plaintiff suffered personal injury by reason of those assaults and then that the second named defendant was vicariously liable for those assaults. The personal injuries particularised in the statement of claim are alleged to have been suffered ‘as a consequence of the matters complained of herein..’. Mr. O’Donoghue placed reliance on certain particulars of negligence alleged against the second named defendant apparently going somewhat beyond the simple allegation of vicarious liability. For example, it is pleaded, as mentioned above, that the second named defendant ‘failed to have in place the procedures or measures appropriate for the regulation and supervision of [its] members…’”
I do not think that any of these matters take this case outside the scope of subsection (3) (b). It is clear that the core of the plaintiff’s claim is that he was sexually assaulted by the first named defendant. Everything alleged can be traced back to that key allegation. Insofar as the claim is simply based on alleged vicarious liability, there is full correspondence between the damages alleged to flow from the acts of the two defendants. However, the subsection allows the plaintiff in certain cases and provided he claims damages as a result of one of the two specified causes of action, namely “false imprisonment, or intentional trespass to the person,” or both also to seek jury trial where he pleads that he has suffered damages caused by, for example, negligence. The subsection requires however that these two causes of action be linked by a claim that the damages arose “in respect of the same act or omission.” The focus is on the damages and the relevant act or omission which causes them. The same act may give rise to a claim under different legal headings. Acts giving rise to a breach of contract may also, depending on the factual context, constitute negligence or trespass. The subsection does not require that the damages be identical. They may be “claimed in addition, or as an alternative, to the other damages claimed….””
In the circumstances it was held that the claim came within s. 1(3) (b) of the Act of 1988. On the basis of that authority, Ms. Donnelly submitted that the focus was on the damages that flowed from the acts complained of. She said that there had been in this case a series of intentional acts of trespass.
It will be seen from the passage above quoted from the judgment of Fennelly J. in the Sheridan case that the facts of the present case go far beyond what was considered by the Supreme Court in that case. Clearly a plaintiff can seek a jury trial provided damages are claimed for either false imprisonment or intentional trespass to the person or both where he also pleads that damages have been caused by negligence or indeed, breach of contract. However it is clear from that case that if more than one cause of actio7n is claimed, the claim for damages must arise in respect of the same act or omission. As was stated by Fennelly J. therein
“the focus is on the damages and the relevant act or omission which causes them.”
One of the difficulties that emerged in the course of argument in this case was how to categorise the matters complained of by the plaintiff that occurred between 1998 and 2001. The plaintiff has sought damages in respect of incidents complained of during that period. Whilst there may be a separate cause of action in respect of the complaints made by the plaintiff during that period, any damages which flow from the matters complained of during that period clearly could not be said to flow from the alleged sexual assault or indeed the subsequent physical assault alleged to have taken place. Ms. Donnelly referred to the claim for damages for the intentional and/or reckless infliction of emotional upset and mental distress, harassment, victimisation, and argued that they amount in practical terms to intentional trespass to the person of themselves and thus in respect of those incidents they constitute separate causes of action for which the plaintiff is entitled to have a jury trial. These matters were more particularly described in para. 9 of the statement of claim and in the particulars furnished in that paragraph. In support of her argument in this regard she referred to McMahon and Binchy on the Law of Torts (3rd Ed.) at para. 22.28 where the learned authors stated:
“Where a person intentionally or recklessly inflicts emotional suffering on another, he may be guilty of a tort. The precise scope of the tort is somewhat uncertain.”
The authors in support of that contention referred to a decision Wilkinson v. Downton [1897] 2 QB 57. In that case the defendant as a practical joke told the plaintiff that her husband had been injured in a road accident, that he was lying on the ground with both legs broken and that she was to go to fetch him. The plaintiff suffered a violent shock resulting in severe injures. At para. 22. 29 the authors go on to describe the manner in which the court held for the plaintiff :
“The action did not fit easily into any established categories, but as the court
“obviously had no love for the defendant; and as in many another hard case, the enormity of the outrage overthrew the settled rule of law.”
Liability was imposed on the basis that the defendant had:
“Wilfully done an act calculated to cause physical harm to the plaintiff, that is to say, to infringe her legal right to personal safety, and have in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. The wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.”
Ms. Donnelly then referred to a decision of the House of Lords in the case of Wainright v. Home Office [2003] 3 WLR 1137. That was a case in which a mother and son were stripped searched for drugs on a prison visit. The search was not conducted according to prison rules and the claimants were humiliated and distressed. The second claimant developed post traumatic stress syndrome. They claimed damages for trespass and in addition damages for battery. The trial judge held that trespass to the person consisting of wilfully causing a person to do something to himself which infringed his right to privacy had been committed against both claimants and further that trespass to the person consisting of wilfully causing a person to do something calculated to cause harm to him, namely, infringing his legal right to personal safety, had been committed against the second claimant as had battery. Damages were awarded. The Court of Appeal allowed the Home Office Appeal against the finding of trespass dismissed the first claimant’s claim and reduced the award of damages to the second claimant. On appeal by the claimants the House of Lords held that there was no common law tort of invasion of privacy; that insofar as there might be a tort of intention to cause harm under which damages for distress which did not amount to recognised psychiatric injury might be recoverable the necessary intention was not established on the facts of the case. The House of Lords in that case distinguished the case of Wilkinson v. Downton. At para. 41 Hoffman L.J. stated
“commentators and counsel have nevertheless been unwilling to allow Wilkinson v. Downton to disappear beneath the surface of the law of negligence. Although, in cases of actual psychiatric injury, there is no point in arguing about whether the injury was in some sense intentional if negligence will do just as well, it has been suggested (as the claimants submit in this case) that damages for distress falling short of psychiatric injury can be recovered if there was an intention to cause it. This submission was squarely put to the court of appeal in Wong v. Parkside Health NHS Trust [2003] 3 All ER 932 and rejected. Hale L.J. said that before the passing of the Protection from Harassment Act, 1997, there was no tort of intentional harassment which gave a remedy for anything less than physical or psychiatric injury. That leaves Wilkinson v. Downton with no leading role in the modern law.”
Hoffman L.J. went on to say at para. 44:
“I do not resile from the proposition that the policy considerations which limit the heads of recoverable damages in negligence do not apply equally to torts of intention. If someone actually intends to cause harm by a wrongful act and does so, there is ordinarily no reason why he should not have to pay compensation. But I think that if you adopt such a principle, you have to be very careful about what you mean by intend. In Wilkinson v. Downton, Wright J. wanted to water down the concept of intention as much as possible. He clearly thought, as the Court of Appeal did afterwards in Janvier v. Sweeney [1919] 2 K.B. 316, that the plaintiff should succeed whether the conduct of the defendant was intentional or negligent. But the Victorian Railway Commissioners case, 13 A.C. 222, prevented him from saying so. So he devised a concept of imputed intention which sailed as close to negligence as he felt he could go.
If on the other hand one is going to draw a principled distinction which justifies abandoning the rule that damages from mere distress are not recoverable, imputed intention will not do. The defendant must actually have acted in a way which he knew to be unjustifiable and intended to cause harm or at least acted without caring whether he caused harm or not. …
Iin my opinion, therefore, the claimants can build nothing on Wilkinson v. Downton [1897] 2 QB 57. It does not provide a remedy for distress which does not amount to recognised psychiatric injury and so far as there may be a tort of intention under which such damage is recoverable, the necessary intention was not established. I am also in complete agreement with Buxton LJ [2002] QB 1334, 1355 to 1356, paras. 67-72, that Wilkinson v. Downton had nothing to do with trespass to the person.”
In support of her argument, Ms. Donnelly also referred to the provisions of the Non-Fatal Offences Against the Person Act, 1997 which creates a criminal offence of harassment. Accordingly she argued that the matters complained of by the plaintiff herein at paragraph 9 of the statement of claim and in respect of which damages are claimed for ongoing harassment, victimisation, intimidation and isolation come within the definition of intentional trespass to the person.
Mr. Beatty responded on behalf of the first named defendant. He disagreed with the contention that the matters relied on by Ms.Donnelly, namely harassment victimisation etc., constitute intentional trespass to the person. He pointed out that there was no authority to support that contention. He added that the scheme of the section was such as to exclude from the scope of the Act actions where assault and battery had been pleaded in order to have a jury trial in what was an action for damages for personal injuries caused by negligence. In the present case a number of heads of damages were claimed in respect of a number of causes of action. He argued that this was clearly not what was intended to be permitted by the exception contained in subs. 3.
Having regard to the Supreme Court decision in the case of Sheridan v Kelly and McDonnell referred to above, it is clear to me that insofar as the claim herein is for damages for a sexual assault together with assault simpliciter, it would be open to a plaintiff in such circumstances to seek damages under the heading of breach of contract and negligence provided that that claim for damages arose out of the same act or omission. In this case the claims made by the plaintiff go far beyond that. There are a number of separate causes of action in respect of separate incidents and an ongoing pattern of behaviour. As such I do not think that the subsequent matters complained of by the plaintiff could be said to be within the scope of s. 1(3) (b).
A further argument was made by Ms. Donnelly to the effect that the matters complained of between 1998 and 2001 which are severally described as victimisation, isolation; harassment and so on could come within the definition of intentional trespass to the person. Not only is there no authority to support that contention, her argument is premised on the slim foundation provided by the decision in the case of Wilkinson v. Downton. I find the comments of Hoffman LJ to the effect that Wilkinson v. Downton has nothing to do with trespass to the person to be a persuasive authority. If one looks briefly at the particulars given by the plaintiff at paragraph 10 of the statement of claim herein as to the effect of the matters complained of in paragraph 9 of the statement of claim it may illustrate the extent of the problem I have in accepting that the matters complained of amount to intentional trespass of the person:
“The plaintiff was greatly distressed and upset by the various incidences of sexual assault, intimidation, harassment and victimisation to which she was subjected during her employment with the first named defendant. The plaintiff felt greatly isolated as a result of the failure of any person in the first named defendant to address adequately or otherwise the various complaints made by her. The plaintiff was affected with feelings of guilt arising out of the incidents referred to above and could not understand why no action had been taken on foot of her complaints. The plaintiff ultimately attended Ms. V B, psychotherapist in March, 2002 and related to her that for the period referred to above her quality of life and day to day living deteriorated significantly.”
The plaintiff then set out further particulars of the symptoms she alleges she suffered from during that time.
It seems to me to be impossible to reach the conclusion contended for by Ms. Donnelly that the matters complained of by the plaintiff amounting to intimidation, harassment and victimisation can come within a definition of intentional trespass to the person. I am not of the view that on their own or considered together perhaps under the heading of harassment, they could be considered as a tort as opposed to a heading of damages in negligence or breach of contract but it is not necessary to come to a final view on this issue.
In the circumstances I think that the notice of trial herein should be set aside.
Sullivan v Boylan (No.2)
[2013] IEHC 104
JUDGMENT of Mr. Justice Hogan delivered on 12th March, 2013
1. Few things are more important in life than the security of one’s own dwelling and the right to come and go from that abode without interference. It is a right which perhaps most of us take for granted. It is only when that security has been threatened by intruders – such as in the aftermath of a burglary – that we realise that how important that sense of safety, security and a general sense of repose from the cares of the world actually is. It is precisely for those reasons that Article 40.5 of the Constitution safeguards the inviolability of the dwelling: see generally The People (Director of Public Prosecutions) v. Barnes [2006] IECCA 165, [2007] 3 IR 130, per Hardiman J.
2. In this judgment I am now called upon to make an award of damages following a finding by me that the third defendant had gravely infringed the constitutional rights of this plaintiff in my first judgment in this matter: Sullivan v. Boylan [2012] IEHC 389. While the details of the ordeal to which the plaintiff was subjected by the third defendant are recorded in that judgment, it may be helpful if the background facts are briefly recapitulated.
3. The plaintiff, Ms. Sullivan, lives alone in Clontarf, Dublin 3. She engaged the first and second defendants (whom I shall collectively describe as “Boylan contractors”) in December, 2011 to build an extension to her property and to carry out certain refurbishments works. The works commenced in February, 2012 and ceased in May, 2012. By April, Ms. Sullivan had paid €84,000 of the initial contract sum of €91,250. There was subsequently a dispute as to whether certain contracted works had been carried out or whether instead certain additional work had to be performed over and above that which had originally been contracted for. In sum, therefore, the issue is whether Ms. Sullivan owes the Boylan contractors €7,000.00 (approximately) or €20,000.00 (approximately) or perhaps nothing at all.
4. It is clear nevertheless that there is a legitimate argument regarding the existence of any such debt or, if there is a debt, the amount of same. The Boylan contractors decided, however, to put the matter into the hands of a debt collector, Patrick McCartan. It is the latter’s conduct which gave rise to these proceedings and which required to be restrained by injunction.
The Conduct of Mr. McCartan
5. The first contact which Ms. Sullivan had with Mr. McCartan was on 1st August, 2012. She received a telephone call from him during which Mr. McCartan identified himself as someone who worked with financial institutions. He said that he had heard from Mr. Boylan and wanted to hear her side of the story. She had understood Mr. McCartan to be some kind of intermediary, and while Mr. McCartan sought a meeting, Ms. Sullivan indicated that she would get back to him.
6. Ms. Sullivan did not have to wait long for Mr. McCartan. He turned up unannounced on the 3rd August, and appears to have allowed himself through the front door. Ms. Sullivan, whilst surprised, was not taken aback by this because Mr. McCartan did not then behave aggressively. He identified himself as the person who had rung earlier, and she invited him further into the house to show the difficulties which had arisen on the construction works. Mr. McCartan did not say that he was a debt collector but rather indicated that – or, at least appeared to indicate that – there might be some room for a constructive engagement between Ms. Sullivan and Mr. Boylan. Ms. Sullivan was quite happy with that meeting.
7. Matters changed for the worst on the 8th August, 2012, when Ms. Sullivan received an email from Mr. McCartan claiming she owed the sum of €23,783 to the Boylan contractors. The email was in the following terms:-
“I can have Mr. Boylan accept if paid by Friday the sum of €20,000.00 of which payment must be made [directly to a particular bank account]. Failure for this to appear in the account by Friday 12 noon, my instructions are to act immediately and secure judgment and park our vehicle DEBT COLLECTOR fully signage outside your house and place of work. I really would prefer an amicable agreement to settle, however I have a responsibility to my client to collect as per instructions with less interruption from yourself. You do not need any more grief from neighbours and the site of a large van with signage directed and with your details is something that should be avoided. I expect your reply and settlement as per instructions above.”
It was purportedly signed in the name of Greenbank Solutions Credit License 564337 licensed to operate in the UK, Ireland, USA, and Europe.
8. On receipt of this email Ms. Sullivan contacted her solicitor who, in turn, sent a letter to Mr. Boylan asking him to desist. On the 10th August, Mr. McCartan contacted Ms. Sullivan by telephone. She explained that she had instructed her solicitor to handle matters with Mr. Boylan. Shortly after that she received a text message from Mr. McCartan in the following terms:-
“Deirdre you have refused to co-operate, I gave you a week and no reply. I am assuming no payment has been made. I have it made quite clear a full €23k is now required plus 10% our fee or we will expose you on this debt and will get it.”
She received approximately seven further phone calls from Mr. McCartan from the same telephone number later that afternoon, but she did not answer them.
9. Not surprisingly, Ms. Sullivan was extremely distressed by this persistent calling and she sent him a text message asking him to desist from this. Giving evidence before me at the damages hearing on 1st March, 2013, Ms. Sullivan explained that she found this series of threatening phone calls very distressing and frightening and she felt that she was being watched.
10. She then received a further text message from Mr. McCartan in the following terms:-
“My calls and presence will continue. You created the problem and agreed with me. I … will embarrass you to your neighbours if you continue also a charge will be placed on your property and a judgment. Your choice as my client is correct.”
Ms. Sullivan’s solicitor, Mr. MacGuill, then wrote a further letter to Mr. McCartan asking him to desist from this conduct and drawing his attention to the provisions of s. 10 and s. 11 of the Non-Fatal Offences Against the Person Act 1997 (“the Act of 1997”), and indicating that any further direct approaches to her for the sums in dispute would be referred to the Gardaí.
11. Unfortunately, however, Mr. McCartan did not desist. He sent her an email on the 15th August in the following terms:-
“Dear Madam,
Unfortunately for you and your lies this matter is now being in possession and legal charge being obtained immediately please do not insult me with a letter of a so called solicitor with no letter heading or qualifications why has he to hide all you have a minimum of three days to pay or your broader investments and business will be of interest to the Revenue, do not underestimate my knowledge of your hidden undeclared properties and business.”
Ms. Sullivan comments in her affidavit that:-
“I have no undeclared properties and business. I had had issued in relation to foreign property [which] were sorted out with the Revenue Commissioners a number of years ago with the assistance of a tax adviser. I do not know how Mr. Boylan or Mr. McCartan obtained access to that information.”
The harassment nonetheless continued unabated, as another email followed:-
“Dear Madam,
Your non-cooperation adds to our increased demand for payment due to Mr. Boylan. If you decline to acknowledge as from tomorrow as previously indicated we will cause you severe embarrassment, your neighbours have also indicated they will not tolerate increased traffic or nuisance operations causing inconvenience to their access. We are within our rights and failure by you to settle your debt will only add to your discomfort in the area. You owe the money so pay up and save yourself all this embarrassment. We look forward to your early settlement.
Greenbank Collections Licensed Debt Collectors.”
Worse was to follow. On Friday 24th August Ms. Sullivan received an email from Mr. McCartan as follows:-
“We will be in attendance after 4.00pm for full debt otherwise our van will maintain a spot outside your house to highlight your refusal to settle.”
There then followed a text message:-
“We are sitting outside till you come out with payment €25,000 or we start knocking on doors and telling the neighbours.”
12. Ms. Sullivan was extremely alarmed by this, but felt that she had no option but to return home immediately from work. She found a large Northern Ireland registered white van parked directly in front of her house with the signage – “Licensed Debt Collectors” – prominently displayed. Ms. Sullivan recognised Mr. McCartan and spoke to him. She drew attention to the fact that her architect was finalising her report on the disputed works. Ms. Sullivan was very distressed and in her agitated state she called Mr. McCartan a criminal. While it is clear from her affidavit that she was contrite about having made that statement, one must adjudge it to be pardonable in the circumstances given the extreme distress to which she had been subjected. Mr. McCartan indicated that he took exception to her remark and telephoned Mr. Boylan. However, there was an altercation between Mr. McCartan and Ms. Sullivan and a very unsatisfactory subsequent conversation between Mr. Boylan and Ms. Sullivan.
13. As indicated, Ms. Sullivan was extremely distressed as a result of this and drove to Clontarf Garda Station. Ms. Sullivan found the Gardaí very sympathetic and they had not previously been aware of Mr. McCartan’s presence outside her house. They accompanied her back to her house where after discussions with Mr. McCartan the Gardaí indicated that he would leave shortly. The Gardaí acknowledged, however, that they were powerless to stop him coming back. The Gardaí were also plainly of the view that they could take no steps as such to stop Mr. McCartan parking his vehicle with the debt collection signage directly outside Ms. Sullivan’s house.
14. Shortly after he had parked his van outside her house, Mr. McCartan then sent Ms. Sullivan another text in the following terms:-
“Madam, solicitors are money grabbing hoods without the mask. Do not threaten me with an uneducated [solicitor] as most were fraud in the good times. You have till Monday to have €20k in my account or else the Garda said I can park outside if I want. Your neighbours are not impressed and we will be back if you refuse to pay with your name in large print Monday. As for your remark a full apology and I will have you for every euro you may have as I have you taped. Monday?”
(I have redacted some of the coarser language used).
Ms. Sullivan was naturally extremely frightened and shocked to receive this text message. She spoke with Garda Hanrahan of Clontarf Garda Station who had been present earlier that day. While Garda Hanrahan advised her to retain all emails and text messages, Ms. Sullivan formed the view that the Gardaí considered the Mr. McCartan was within his rights in parking the vehicle outside her front door.
15. Matters came to a head on Monday 27th August, 2012, when Mr. McGuill sought undertakings on behalf of Ms. Sullivan from both Mr. Boylan and Mr. McCartan prior to making an application to this Court. The prospect of litigation did not, however, daunt Mr. McCartan in the least. The telephone calls kept coming and on that morning he had sent an email saying that she had “one hour” to contact him with payment as otherwise “the van goes back, and seizure of goods will take place [and] a vigil will be maintained outside your home to let everyone know how deceptive your are.” Further emails along similar lines were sent later that day and, as it happens, on the 28th and 29th August.
16. It was against this background that the application for an interlocutory injunction was first made to me on the following day, Tuesday, 28th August. While I granted certain relief ex parte, the matter was adjourned on a number of occasions to enable the defendants to put their side of the case. Although the Boylan contractors have subsequently given appropriate undertakings to the Court and have terminated Mr. McCartan’s retainer, Mr. McCartan has never appeared and has not been represented at any of these hearings.
17. I accordingly granted the plaintiff an interlocutory injunction restraining Mr. McCartan from effectively watching and besetting her home. I subsequently granted a permanent injunction restraining Mr. McCartan from engaging in such conduct.
18. It is clear that Ms. Sullivan found the entire episode frightening and deeply traumatic. She felt that there was no one to whom she could turn, as her parents were elderly and she did not want to cause them needless anxiety. She lost weight and she was prescribed a mild sleeping tablet by reason of the extreme stress to which she had been subjected.
19. As I observed in the course of the original judgment:-
“… it has to be said that it is, frankly, difficult to speak with moderation in respect of the conduct of Mr. McCartan. His behaviour has, however, been contemptible, irresponsible and outrageous. He has sought to harass, bully, defame, vilify and intimidate Ms. Sullivan and to all but imprison her in her own home. It is behaviour which in a civilised society cannot be tolerated for an instant and it represents conduct which this Court cannot and will not allow.”
The findings in the first judgment
20. In the course of the first judgment I concluded that Mr. McCartan’s conduct amounted to a prima facie breach of ss. 10 and 11 of the Non-Fatal Offences against the Person Act 1997 (“the Act of 1997”) . These sections provide:-
“10(1) Any person who, without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence.
(2) For the purposes of this section a person harasses another where—
(a) he or she, by his or her acts intentionally or recklessly, seriously interferes with the other’s peace and privacy or causes alarm, distress or harm to the other, and
(b) his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other’s peace and privacy or cause alarm, distress or harm to the other.
(3) Where a person is guilty of an offence under subsection (1), the court may, in addition to or as an alternative to any other penalty, order that the person shall not, for such period as the court may, specify, communicate by any means with the other person or that the person shall not approach within such distance as the court shall specify of the place of residence or employment of the other person.
(4) A person who fails to comply with the terms of an order under subsection (3) shall be guilty of an offence.
(5) If on the evidence the court is not satisfied that the person should be convicted of an offence under subsection (1), the court may nevertheless make an order under subsection (3) upon an application to it in that behalf if, having regard to the evidence, the court is satisfied that it is in the interests of justice so to do.
(6) A person guilty of an offence under this section shall be liable—
( a ) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both, or
( b ) on conviction on indictment to a fine or to imprisonment for a term not exceeding 7 years or to both.
11.(1) A person who makes any demand for payment of a debt shall be guilty of an offence if—
(a) the demands by reason of their frequency are calculated to subject the debtor or a member of the family of the debtor to alarm, distress or humiliation, or
(b) the person falsely represents that criminal proceedings lie for non-payment of the debt, or
(c) the person falsely represents that he or she is authorised in some official capacity to enforce payment, or
(d) the person utters a document falsely represented to have an official character.”
21. As I pointed out in that judgment, there can be little doubt but that Mr. McCartan has harassed Ms. Sullivan by “persistently following, watching, pestering, besetting or communicating with her” within the meaning of s. 10(1) of the Act of 1997, not least when she made it perfectly clear to him that such conduct was to stop. While Mr. McCartan was perfectly entitled to assert a demand for payment on behalf of the Boylan contractors, he was not entitled to make demands which by reason of their frequency were calculated – in the words of s. 11(1) of the Act of 1997 – “to subject the debtor or a member of the family of the debtor to alarm, distress or humiliation”. The demands made here were clearly intended to alarm and humiliate Ms. Sullivan. This, indeed, was the entire object of the exercise. Here it may be observed that the act of parking a van with the display sign “licensed debt collector” directly outside her house coupled with the threat to start ringing on the doors of her neighbours speaks for itself.
22. I went on to hold that the third defendant’s conduct had involved a breach of her constitutional rights to the protection of the person (Article 40.3.2) and the inviolability of the dwelling (Article 40.5):-
“The fact, moreover, that Mr. McCartan unblushingly continued with his practice of harassing the plaintiff even after the Gardaí had spoken to him points to the objective necessity for judicial intervention if the plaintiff’s right to secure the protection of her person (Article 40.3.2) and her dwelling (Article 40.5) is to be effective and not merely illusory.
…In the present case it requires little imagination to visualise the acute mental distress which Ms. Sullivan suffered as a result of this this outrageous conduct. The citizen’s right to the security of his or her person necessarily implies that the subjection by unlawful means of any person to what would objectively be regarded as acute mental distress must be regarded as amounting in itself to a breach of Article 40.3.2.
Nor could she find that repose from the cares of world presupposed by Article 40.5 – again to adopt the words of Hardiman J. in O’Brien – in the comfort of her own dwelling. The Irish language text of Article 40.5 (“Is slán do gach saoránach a ionad cónaithe….”) captures and expresses the essence of the English language word (“inviolability”) by stressing the concepts of safety and security of the dwelling. Here again all of this was compromised by the actions of Mr. McCartan. One might ask: who in such circumstances would feel safe in their house if, prior to entering or exiting their own private dwelling, they were effectively forced to run the gauntlet of passing what amounts to a picket bearing unpleasant messages by a menacing stranger, especially where these messages were designed to intimidate and humiliate?”
23. Here the calculated and persistent pattern of Mr. McCartan’s conduct may be emphasised. All of us may be upset by occasional rudeness, brusqueness or even angry words uttered in the heat of the moment and, of course, none of us are ourselves without sin in that regard as well. Such upset must be accepted as part of the give and take of everyday life, even if we do not like it when it occurs. What was objectionable about Mr. McCartan’s conduct – and that which brought it to the point of constitutional transgression – was its persistent, premeditated, unyielding and oppressive character.
The remedies for this unlawful conduct
24. In the light of these findings, it now falls to this Court to devise appropriate remedies in order to vindicate Ms. Sullivan’s constitutional rights which have been so outrageously violated by Mr. McCartan’s quite deplorable conduct. Article 40.3.2 and Article 40.5 are, of course, self-executing provisions which apply to both State actors and private citizens alike. There is absolutely no doubt but that a plaintiff whose constitutional rights have been infringed in this fashion can, in principle, at least, sue for breach of these rights: see, e.g., Meskell v. Córas Iompair Eireann [1973] I.R. 121, per Walsh J., Hanrahan v. Merck, Sharpe & Dohme Ltd. [1988] I.R. 629, per Henchy J. and Grant v. Roche Products Ltd. [2008] IESC 35, [2008] 4 IR 679 per Hardiman J.
25. It is true that in Hanrahan Henchy J. envisaged that this would be done only where the existing tort law was “basically ineffective” to protect constitutional rights. But it is far from clear that the existing law of torts sufficiently or adequately protects the constitutional interests of the plaintiff in the present case. It is true that, as might be expected, there are features of tort law which to some degree cover some of the interests which the plaintiff here seeks to vindicate. The principal nominate torts which might serve for this purpose are, of course, an action in private nuisance and the rule in Wilkinson v. Downton [1897] 2 QB 57. We may consider each of these torts in turn.
The law of nuisance
26. It would be tempting to attempt to shoehorn the plaintiff’s claim within the established boundaries of the law of nuisance. But here it must be recalled that the law of nuisance complements ownership of land and the scope of that tort requires to be understood in that historical context. As Professor Newark explained in his classic article, “The Boundaries of Nuisance” (1949) 65 L.Q.R. 480, 488-489:-
“In true cases of nuisance the interest of the plaintiff which is invaded is not the interest of bodily security but the interest of liberty to exercise rights over land in the amplest manner. A sulphurous chimney in a residential area is not a nuisance because it makes householders cough and splutter but because it prevents them taking their ease in their gardens. It is for this reason that the plaintiff in an action for nuisance must show some title to realty.” (emphasis added)
27. This passage (and perhaps especially the words which I have taken the liberty of emphasising) sums up the conceptual reason why the law of nuisance would be “basically ineffective” in the Hanrahan sense to protect the interests safeguarded by Article 40.5. Nuisance is designed to protect ownership of land, whereas Article 40.5 protects the rights of the residents of a dwelling to security, protection against all-comers and privacy which are all necessary features of the inviolability of the dwelling. These are rights which are enjoyed by all who reside in the dwelling and not simply by those who have legal title to that property. It might be said that whereas nuisance protects the proprietary interests of those with title to the dwelling, Article 40.5 is fundamentally directed at protecting the privacy interests of those who reside in a dwelling against the world at large. Nuisance, in other words, is an established tort relating to land, whereas Article 40.5 is concerned with the protection of the person as it relates to the protection of the security and privacy interests of those resident in a particular dwelling, even if they have no proprietary rights in respect of that dwelling.
28. This is borne out by developments in the United Kingdom within the last twenty years or so, starting with the decision of the English Court of Appeal in Khorasandjian v. Bush [1993] QB 727. In this case an 18 year old young woman had formed a romantic relationship with an older man. When that relationship ended, the older man pestered and harassed her in a most intolerable fashion. In the Court of Appeal one of the issues was whether the courts had jurisdiction to grant an injunction restraining the defendant from endeavouring to contact her by telephoning her at her parent’s home where she resided. A majority of the Court held that it had such a jurisdiction, but it is clear that the reasoning in that case – whatever about the actual result – did not survive the subsequent decision of the House of Lords in Hunter v. Canary Wharf Ltd. [1997] UKHL 14, [1997] AC 655.
29. In Hunter Lord Goff summarised thus the issues in Khorasandjian ([1997] AC 655, 690-691):-
“An injunction was granted restraining the defendant from various forms of activity directed at the plaintiff, and this included an order restraining him from “harassing, pestering or communicating with” the plaintiff. The question before the Court of Appeal was whether the judge had jurisdiction to grant such an injunction, in relation to telephone calls made to the plaintiff at her parents’ home. The home was the property of the plaintiff’s mother, and it was recognised that her mother could complain of persistent and unwanted telephone calls made to her; but it was submitted that the plaintiff, as a mere licensee in her mother’s house, could not invoke the tort of private nuisance to complain of unwanted and harassing telephone calls made to her in her mother’s home. The majority of the Court of Appeal (Peter Gibson J. dissenting) rejected this submission, relying on the decision of the Appellate Division of the Alberta Supreme Court in Motherwell v. Motherwell (1976) 73 D.L.R. (3d) 62. In that case, the Appellate Division not only recognised that the legal owner of property could obtain an injunction, on the ground of private nuisance, to restrain persistent harassment by unwanted telephone calls to his home, but also that the same remedy was open to his wife who had no interest in the property. In the Court of Appeal Peter Gibson J. dissented on the ground that it was wrong in principle that a mere licensee or someone without any interest in, or right to occupy, the relevant land should be able to sue in private nuisance.”
30. In a powerful judgment Lord Goff then proceeded to show how Motherwell v. Motherwell was based on a misunderstanding of earlier English cases regarding the entitlement of a mere licensee to sue in private nuisance. He then said ([1997] AC 655, 691-692):-
“This conclusion was very largely based on the decision of the Court of Appeal in Foster v. Warblington U.D.C. [1906] 1 K.B. 648, which Clement J.A. understood to establish a distinction between “one who is ‘merely present'” and “occupancy of a substantial nature”, and that in the latter case the occupier was entitled to sue in private nuisance. However Foster does not in my opinion provide authority for the proposition that a person in the position of a mere licensee, such as a wife or husband in her or his spouse’s house, is entitled to sue in that action. This misunderstanding must, I fear, undermine the authority of Motherwell on this point; and in so far as the decision of the Court of Appeal in Khorasandjian v. Bush is founded upon Motherwell it is likewise undermined.
But I must go further. If a plaintiff, such as the daughter of the householder in Khorasandjian v. Bush, is harassed by abusive telephone calls, the gravamen of the complaint lies in the harassment which is just as much an abuse, or indeed an invasion of her privacy, whether she is pestered in this way in her mother’s or her husband’s house, or she is staying with a friend, or is at her place of work, or even in her car with a mobile phone. In truth, what the Court of Appeal appears to have been doing was to exploit the law of private nuisance in order to create by the back door a tort of harassment which was only partially effective in that it was artificially limited to harassment which takes place in her home. I myself do not consider that this is a satisfactory manner in which to develop the law… In any event, a tort of harassment has now received statutory recognition: see the Protection from Harassment Act 1997. We are therefore no longer troubled with the question whether the common law should be developed to provide such a remedy.
It follows that, on the authorities as they stand, an action in private nuisance will only lie at the suit of a person who has a right to the land affected. Ordinarily, such a person can only sue if he has the right to exclusive possession of the land, such as a freeholder or tenant in possession, or even a licensee with exclusive possession. Exceptionally…. this category may include a person in actual possession who has no right to be there; and in any event a reversioner can sue in so far his reversionary interest is affected. But a mere licensee on the land has no right to sue.”
The rule in Wilkinson v. Downton
31. Much the same can also be said with regard to Wilkinson v. Downton. In that case the defendant falsely told the plaintiff as a practical joke that her husband had been injured in an accident involving a horse-drawn vehicle and that he was lying prostrate on the ground with his legs broken and that he had summoned her to fetch him. While the plaintiff’s husband returned safely by train from the races at Harlow that evening, the effects on the plaintiff were nonetheless dramatic. She became violently ill, her hair turned white and she seems to have suffered a severe psychiatric illness as a result.
32. The plaintiff sued for damages in an action on the case. Wright J. held the defendant liable on the ground that ([1897] 2 QB 57,58-59):-
“he had wilfully done an act calculated to cause physical harm to the plaintiff, that is to say, to infringe her legal right to personal safety and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification for the act.”
33. Quite apart from the fact that, as McMahon and Binchy, Law of Torts (Dublin, 2000) observe at para. 22.28 the “precise scope of the tort is somewhat uncertain”, the rule in Wilkinson v. Downton protects only some – but by no means all – of the interests safeguarded by Article 40.3.2. This is indeed illustrated by the facts of the present case.
34. An essential element of the tort in Wilkinson v. Downton is that the words were spoken falsely and were calculated to cause physical harm. One might, of course, say that in one sense Mr. McCartan spoke falsely in asserting that monies were due. Critically, however, he believed this to be true and, in any event, it may well be that when their dispute is finally resolved Ms. Sullivan may possibly find herself having to pay a particular sum to the Boylan contractors. But even if he had spoken the truth, it would not in the least have excused his behaviour or avoided an infringement of Article 40.3.2 and Article 40.5.
35. One might equally contend that the actions of the Mr. McCartan were calculated to physical harm to Ms. Sullivan and that they did in fact do so. It would nevertheless be artificial to extend the rule in Wilkinson v. Downton in this fashion. In the latter case the injuria was the acute physical harm which the plaintiff had suffered. It is true that in the present case Ms. Sullivan lost weight and in the end was prescribed a mild sedative to assist her to have sleeping pattern restored.
36. But there the comparisons end, as unlike Wilkinson v. Downton, the claim here is not really for physical injury at all. It is rather for the acute distress caused by the outrageous invasion of her personal space which is the very essence of the inviolability guarantee in Article 40.5. This guarantee is complemented by the protection of the person in Article 40.3.2, the effect of which, if I may venture to repeat what I said in Kinsella v. Governor of Mountjoy Prison [2011] IEHC 235, is that:-
“By solemnly committing the State to protecting the person, Article 40.3.2 protects not simply the integrity of the human body, but also the integrity of the human mind and personality.”
I might further repeat what I said on this point in Sullivan (No.1):
“In the present case it requires little imagination to visualise the acute mental distress which Ms. Sullivan suffered as a result of this outrageous conduct. The citizen’s right to the security of his or her person necessarily implies that the subjection by unlawful means of any person to what would objectively be regarded as acute mental distress must be regarded as amounting in itself to a breach of Article 40.3.2.”
37. Of course, the ancient Roman jurist would have had no difficulty at all in recognising what occurred in the present case as actionable iniuria, a tort which “protected the personality or personhood”: see Birks, “Harassment and Hubris” (1997) 32 Irish Jurist 1, 6. Reflecting this Roman inheritance, most continental civil codes would also readily permit an actio iniuriarum in respect of conduct of this kind.
In some civil law jurisdictions traditional tort law on this subject has, moreover, been supplemented and augmented by the judicial invocation of relevant constitutional guarantees. This has been particularly true in Germany where the Basic Law’s guarantees in terms of human dignity and the protection of the person are in terms very similar to our own constitutional guarantees: see, e.g., Zweigert and Kötz, An Introduction to Comparative Law (Oxford, 1992) at 729-730.
38. All of this is merely to say that the common law might well yet develop unaided to match its civilian counterparts so that in time that the law of nuisance and the rule in Wilkinson v. Downton would be regarded as just distinct sub-rules of a more general tort which protected human dignity and the person. As it happens, save in part for the fact that a statutory tort of harassment was created in the United Kingdom by the Protection from Harassment Act 1997, there might well have been English developments along these lines in the intervening period.
39. Indeed, in his concurring judgment in Hunter, Lord Hoffman may be thought to have contemplated that such might well occur ([1997] AC 655, 707):
“The perceived gap in Khorasandjian v. Bush [1993] QB 727 was the absence of a tort of intentional harassment causing distress without actual bodily or psychiatric illness. This limitation is thought to arise out of cases like Wilkinson v. Downton [1897] 2 QB 57 and Janvier v. Sweeney [1919] 2 K.B. 316. The law of harassment has now been put on a statutory basis (see the Protection from Harassment Act 1997) and it is unnecessary to consider how the common law might have developed. But as at present advised, I see no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence: see Hicks v. Chief Constable of the South Yorkshire Police [1992] 2 All ER 65. The policy considerations are quite different. I do not therefore say that Khorasandjian v. Bush [1993] QB 727 was wrongly decided. But it must be seen as a case on intentional harassment, not nuisance.”
40. This view was shared by Professor Birks in his masterly essay on the topic, “Harassment and Hubris”. As the original essay had been written before the decision of the House of Lords in Hunter and the enactment (in the UK) of the Protection from Harassment Act 1997, he subsequently argued in a postscript to that essay:
“One of the things which the lecture says is that the case of Khorasandijian v. Bush was stretching the limits of the tort of nuisance to make it do some of the work of a tort of harassment, and it argues that the resources lay at hand to do that work more directly and more comprehensively. The new statute, introducing civil and criminal redress, took the pressure off the tort of nuisance, allowing the House of Lords to say in Hunter v. Canary Wharf Limited that Khorasandijian had indeed overstretched the tort of nuisance and was to that extent wrong.”
41. These views were also echoed by Professor Glazebrook who argued (“Wilkinson v. Downton: A Centenary Postscript” (1997) 32 Irish Jurist 46, 48):
“So, if Wilkinson v. Downton is authority for anything, it is for the proposition that it is a tort to cause another anxiety, worry or distress when this is done intentionally, unjustifiably and inexcusably. It is not necessary, as some often suppose, that the anxiety, worry and distress should have resulted in illness. Illness is not part of the cause of action any more than physical injury is part of the cause of action in trespass to the person….”
42. Nevertheless, Lord Hoffmann himself subsequently seemed to rule out the development of such liability in Wainright v. Home Office [2004] 2 AC 406 (a case involving the strip searching of visitors to a prison) when he said ([2004] 2 AC 406, 426) that Wilkinson v. Downton “does not provide a remedy for distress which does not amount to recognised psychiatric injury.”
43. But just because the common law might have so developed or might yet so develop at some stage in the future does not take from the fact that the existing law of torts is still basically ineffective to protect the plaintiff in a case of this kind. It is true that – just as with the UK – our law of harassment has been placed on a statutory footing (s. 10 of the 1997 Act), but in this jurisdiction – unlike the UK Act – this is confined to the criminalisation of such conduct and does not address the question of remedies in tort. The fact that there is no statutory right to recover damages for this wrong simply underscores the basic ineffectiveness of traditional tort law fully to vindicate the constitutional rights to the protection of the person and the inviolability of the dwelling.
44. In the light of these conclusions it is not necessary for me to effect a re-shaping of existing common law rules. It follows, therefore, that for all of the above reasons the plaintiff can nevertheless sue and recover damages in respect of the violation of her constitutional rights as guaranteed by Article 40.3.2 and Article 40.5 given the basic ineffectiveness (in the Hanrahan sense) of the existing common law rules to protect the important interests relating to the protection of the person and the security of the dwelling which are safeguarded by these constitutional provisions. Even if the common law has not (yet) developed a general principle of tortious liability by reference to which the person is to be protected, that it is irrelevant given that Article 40.3.2 of the Constitution articulates such a general principle in clear and express terms. I am accordingly obliged as a result to fashion remedies which will uphold that constitutional right.
The appropriate level of damages
45. It is not easy to calculate the appropriate level of damages in unusual cases of this kind. In Raducan v. Minister for Justice [2011] IEHC 224, [2012] 1 I.L.R.M. 419 I awarded €7,500 to the Moldovian plaintiff who had been falsely detained by immigration officials as a result of a bureaucratic error following her arrival in Dublin airport on a fight from Bucharest. This meant that the plaintiff was unlawfully detained at a detention centre for three days. While the error was bona fide and the plaintiff herself very fairly acknowledged the fact that she was well treated while in prison, the sum was designed to compensate her for the loss of liberty for three days.
46. In the present case the interference with the plaintiff’s freedom was nothing as far-reaching as in Raducan. Nevertheless, whereas the deprivation of liberty in that case was the result of a bona fide mistake contrast, the defendant’s conduct here has been outrageous, contumelious and malicious. The offending conduct, moreover, lasted for a three week period as compared with the three days in Raducan.
47. In Herrity v. Associated Newspapers Ltd. [2008] IEHC 249, [2009] 1 I.R. 326 the defendant newspaper published detailed transcripts of the plaintiff’s private telephone conversations which had apparently been obtained by her estranged husband. The transcripts showed that the plaintiff had a romantic relationship with a Roman Catholic priest and the details of these transcripts were then published by the defendant newspaper to the plaintiff’s immense distress.
48. Dunne J. held that the defendant had thereby violated the plaintiff’s constitutional right to privacy. Addressing herself to the question of damages Dunne J. concluded ([2009] 1 I.R. 326, 347):
“Bearing in mind the facts and circumstances of this case, I am assessing ordinary and aggravated compensatory damages in the sum of €60,000 for the conscious and deliberate and unjustified breach of the plaintiff’s right to privacy and the undoubted and significant distress caused to the plaintiff as a result of that breach. The blatant use of unlawfully obtained transcripts of telephone conversations is such that it seems to me that it could not be condoned in any way whatsoever. The behaviour of the defendant in making use of such material is, in my view, nothing short of outrageous. It will be seldom that a court will award punitive or exemplary damages. However, bearing in mind the comments of Finlay C.J. in [Conway v. Irish National Teachers’ Organisation [1991] 2 I.R. 305], it seems to me that this is one of the rare occasions when the court’s disapproval of the defendant’s conduct in all the circumstances of the case should be marked by awarding such damages. In all the circumstances of this case it seems to me that the appropriate sum to award in respect of punitive damages for the conduct of the defendant in making use of transcripts of telephone conversations obtained unlawfully is the sum of €30,000.
Accordingly, there will be a decree in favour of the plaintiff in the sum of €90,000.”
49. Of course, the invasion of privacy in Herrity was particularly outrageous, not least given that it was committed by a powerful newspaper for commercial gain. This private and intimate information was thereby communicated to a wide audience and, of course, this did not happen in the present case. It must furthermore be acknowledged that Mr. McCartan’s conduct stopped following a court order and to that extent Ms. Sullivan’s rights have already been vindicated by judicial decision. Yet the outrageous conduct of the defendant cannot be ignored, nor are the grave breaches of the plaintiff’s constitutional rights to be lightly overlooked.
50. In the circumstances, I consider that the present case is somewhat closer to Raducan in terms of the effects on the plaintiff’s life and welfare, even if the breaches of constitutional rights in the present case were more sustained and had a longer duration. In these circumstances I will award the plaintiff the sum of €15,000 by way of general damages.
Whether exemplary damages should be awarded
51. In Conway v. Irish National Teachers’ Organisation [1991] 2 I.R. 305, 317 Finlay C.J. envisaged that exemplary damages could be awarded in addition to compensatory damages where it was appropriate “to mark the court’s particular disapproval of the defendant’s conduct in all the circumstances of the case.” Given all that I have said in both the first judgment and in this judgment regarding the oppressive, arrogant and contumelious behaviour of Mr. McCartan, just as in Herrity, it is entirely appropriate that exemplary damages should be awarded. Here I propose to follow the example of Dunne J. in Herrity and to award the plaintiff by way of exemplary damages 50% of the sum awarded as compensatory damages, i.e., the sum of €7,500.
Conclusions
52. For the reasons stated, therefore, I propose to award the plaintiff the sum of €15,000 in respect of general damages, with €7,500 by way of exemplary damages. I will thus award her the sum of €22,500 for breaches of her constitutional rights as against the third defendant.
M O’C v The KLH
[2006] I.E.H.C. 199 Judgment of Ms. Justice Dunne delivered on the 22nd day of June 2006
The first named defendant by notice of motion dated 8th June, 2006, seeks an order setting aside the notice of trial by a judge and jury herein dated 14th March, 2006. The notice of motion herein is grounded upon an affidavit of Caroline Keane solicitor on behalf of the first named defendant.
The basis upon which it is sought to strike out the notice of trial herein is that the matters at issue in these proceedings are not such as should proceed before a jury. As set out in the affidavit of Caroline Keane, it is claimed that the plaintiff’s claim herein is pursuant to contract and that insofar as the right to a jury is based on a claim for assault by the second named defendant it is not a matter that should proceed by way of trial by jury. Some correspondence passed between the solicitors for the first named defendant and the plaintiff in regard to this issue which reached no conclusion on the issue but I do not think it is necessary to refer to that correspondence.
A replying affidavit was sworn by the solicitor acting for the plaintiff. Save that the solicitor for the plaintiff Patrick O’Riordan complains of the delay in bringing this application there is nothing else of relevance or of assistance contained in the affidavit to which reference need be made.
Mr. Callanan SC on behalf of the first named defendant referred to s. 1(1) of the Courts Act, 1988. It provides as follows:
1. (i) Notwithstanding s. 94 of the Courts of Justice Act, 1924, or any other provisions made by or under statute, or any rule of law, an action in the High Court
(a) claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty, whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of any such contract or any such provision,
(b) under s. 48 of the Civil Liability Act, 1961 or
(c) under s. 18 (inserted by the Air Navigation and Transport Act, 1965) of the Air Navigation and Transport Act 1936, or a question of fact or an issue arising in such an action, shall not be tried with a jury.
Section 1(1) therefore abolished the right to a jury in actions for damages for personal injuries caused by negligence, nuisance or breach of duty. A limited saver was provided by subs. 3 which provides as follows:
1 (3) Subsection 1 of this section does not apply in relation to –
(a) an action where the damage is claimed consist only of damages for false imprisonment or intention of trespass to the person or both,
(b) an action where the damages claimed consist of damages for false imprisonment or intentional trespass to the person or both and damages (where claimed in addition, or as an alternative, to the other damages claimed) for another cause of action in respect of the same act or omission, unless it appears to the court on the application of any party, made not later than seven days after the giving notice of trial or at such later time as the court shall allow, or on its own motion at the trial, that, having regard to the evidence likely to be given at the trial in support of the claim, it is not reasonable to claim damages for false imprisonment or intentional trespass to the person or both as the case may be, in respect of that act or omission, …
The action herein is not one which comes within the scope of s. 1(3) (a). At issue between the parties herein is the question of whether the action herein comes within the scope of s. 1(3) (b). Mr. Callanan SC in his submissions stated that the statement of claim herein contained a multiplicity of claims including breach of contract, negligence, breaches of employment law, inter alia. The matters complained of range over not just one incident or one type of incident but consist of claims in respect of other matters as well. Accordingly, a jury would be dealing with a number of separate incidents not just flowing from incidents of sexual assault or assault simpliciter. Accordingly, he submitted that the statement of claim herein ranged too widely from the exception provided by s. 1 (3) (b).
It may be useful to consider the statement of claim herein. Paragraph 5 of the statement of claim sets out in detail the alleged express and or implied terms of the plaintiff’s contract of employment. Without going through all of those in detail it would be helpful to refer to the first alleged term namely:
“That the first named defendant, its servants or agent would not subject the plaintiff to sexual assault, sexual harassment, intimidation, victimisation, bullying, harassment, unreasonable and arbitrary treatment.”
Para. 6 of the statement of claim outlines details of an alleged sexual assault on the plaintiff by the second named defendant, a co-worker of the plaintiff employed by the first named defendant. It is alleged subsequently that the second named defendant was acting in the course of his duties at the time of the alleged assault and that consequently the first named defendant is vicariously liable for the matter complained of. I think I should also quote paras. 8 and 9 respectively of the statement of claim in full.
“8 Further or in the alternative the first named defendant in failing to take any action against the second named defendant and in pre-judging the complaint made by the plaintiff against the second named defendant, subsequently acquiesced in the second named defendant’s behaviour and accordingly is estopped from denying responsibility for same.
9 Wrongfully and in breach of the contractual terms set out above, commencing in December, 1998, and continuing until 2001, when the plaintiff was forced to resign from her position with the first named defendant, the plaintiff was subjected to ongoing harassment, victimisation, intimidation and isolation by the defendants and each of them and/or their respective servants or agents. Furthermore and in further breach of the terms set out above the first named defendant, its servants or agents systematically ignored complaints made by the plaintiff and exposed her to an ongoing risk of injury, loss and damage by reason of their deliberate refusal to deal with same.”
Thereafter lengthy particulars are furnished as to the matters complained of by the plaintiff. The plaintiff goes on to plead that as a result of the matters complained of she has suffered severe personal injuries, loss and damage and further particulars are then given of the alleged personal injuries, loss and damage. The statement of claim goes on to plead that the said personal injuries, loss and damage were caused by the negligence and breach of duty of the first named defendant, its servants or agents and again particulars are given in regard to that.
Paragraph 12 of the statement of claim relates to the manner in which the first named defendant is alleged to have dealt with complaints made by the plaintiff in respect of the first named defendant and in relation to a loss of statements made by the plaintiff in relation to the said incidents. Again that aspect of the plaintiff’s claim is referred to for the purpose of seeking aggravated damages or exemplary damages.
Ms. Donnelly SC appeared on behalf of the plaintiff herein. She argued that the proceedings herein had been mischaracterised by Mr. Callanan. This was not a breach of contract case as he suggested. On the contrary it was an assault case. She referred to the decision of the Supreme Court in the case of Sheridan v. Kelly & McDonnell (Unreported, Supreme Court, 6th April, 2006). That case concerned an allegation of assault including sexual assault against a Christian Brother at a school in which the plaintiff was a student. In that case the plaintiff served a notice of trial for judge and jury. The second named defendant served a notice of motion to have the case transferred to the personal injuries list to be tried by a judge sitting alone. In the High Court, Kearns J. made an order granting the reliefs sought because the plaintiff had joined another cause of action with his claim for damages for “intentional trespass to the person.” Ms. O’Donnell placed particular emphasis on a passage from the judgment of Fennelly J. at p. 4 thereof in which it was stated as follows:
“Mr. O’Donoghue argued that the damages were not, however, claimed ‘in respect of the same act or omission’ as the damages in respect of the assault. To consider this proposition, it is relevant to recall that the statement of claim, as summarised above, commences by alleging that the first named defendant committed sexual assaults on the plaintiff; then alleges that the plaintiff suffered personal injury by reason of those assaults and then that the second named defendant was vicariously liable for those assaults. The personal injuries particularised in the statement of claim are alleged to have been suffered ‘as a consequence of the matters complained of herein..’. Mr. O’Donoghue placed reliance on certain particulars of negligence alleged against the second named defendant apparently going somewhat beyond the simple allegation of vicarious liability. For example, it is pleaded, as mentioned above, that the second named defendant ‘failed to have in place the procedures or measures appropriate for the regulation and supervision of [its] members…’”
I do not think that any of these matters take this case outside the scope of subsection (3) (b). It is clear that the core of the plaintiff’s claim is that he was sexually assaulted by the first named defendant. Everything alleged can be traced back to that key allegation. Insofar as the claim is simply based on alleged vicarious liability, there is full correspondence between the damages alleged to flow from the acts of the two defendants. However, the subsection allows the plaintiff in certain cases and provided he claims damages as a result of one of the two specified causes of action, namely “false imprisonment, or intentional trespass to the person,” or both also to seek jury trial where he pleads that he has suffered damages caused by, for example, negligence. The subsection requires however that these two causes of action be linked by a claim that the damages arose “in respect of the same act or omission.” The focus is on the damages and the relevant act or omission which causes them. The same act may give rise to a claim under different legal headings. Acts giving rise to a breach of contract may also, depending on the factual context, constitute negligence or trespass. The subsection does not require that the damages be identical. They may be “claimed in addition, or as an alternative, to the other damages claimed….””
In the circumstances it was held that the claim came within s. 1(3) (b) of the Act of 1988. On the basis of that authority, Ms. Donnelly submitted that the focus was on the damages that flowed from the acts complained of. She said that there had been in this case a series of intentional acts of trespass.
It will be seen from the passage above quoted from the judgment of Fennelly J. in the Sheridan case that the facts of the present case go far beyond what was considered by the Supreme Court in that case. Clearly a plaintiff can seek a jury trial provided damages are claimed for either false imprisonment or intentional trespass to the person or both where he also pleads that damages have been caused by negligence or indeed, breach of contract. However it is clear from that case that if more than one cause of actio7n is claimed, the claim for damages must arise in respect of the same act or omission. As was stated by Fennelly J. therein
“the focus is on the damages and the relevant act or omission which causes them.”
One of the difficulties that emerged in the course of argument in this case was how to categorise the matters complained of by the plaintiff that occurred between 1998 and 2001. The plaintiff has sought damages in respect of incidents complained of during that period. Whilst there may be a separate cause of action in respect of the complaints made by the plaintiff during that period, any damages which flow from the matters complained of during that period clearly could not be said to flow from the alleged sexual assault or indeed the subsequent physical assault alleged to have taken place. Ms. Donnelly referred to the claim for damages for the intentional and/or reckless infliction of emotional upset and mental distress, harassment, victimisation, and argued that they amount in practical terms to intentional trespass to the person of themselves and thus in respect of those incidents they constitute separate causes of action for which the plaintiff is entitled to have a jury trial. These matters were more particularly described in para. 9 of the statement of claim and in the particulars furnished in that paragraph. In support of her argument in this regard she referred to McMahon and Binchy on the Law of Torts (3rd Ed.) at para. 22.28 where the learned authors stated:
“Where a person intentionally or recklessly inflicts emotional suffering on another, he may be guilty of a tort. The precise scope of the tort is somewhat uncertain.”
The authors in support of that contention referred to a decision Wilkinson v. Downton [1897] 2 QB 57. In that case the defendant as a practical joke told the plaintiff that her husband had been injured in a road accident, that he was lying on the ground with both legs broken and that she was to go to fetch him. The plaintiff suffered a violent shock resulting in severe injures. At para. 22. 29 the authors go on to describe the manner in which the court held for the plaintiff :
“The action did not fit easily into any established categories, but as the court
“obviously had no love for the defendant; and as in many another hard case, the enormity of the outrage overthrew the settled rule of law.”
Liability was imposed on the basis that the defendant had:
“Wilfully done an act calculated to cause physical harm to the plaintiff, that is to say, to infringe her legal right to personal safety, and have in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. The wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.”
Ms. Donnelly then referred to a decision of the House of Lords in the case of Wainright v. Home Office [2003] 3 WLR 1137. That was a case in which a mother and son were stripped searched for drugs on a prison visit. The search was not conducted according to prison rules and the claimants were humiliated and distressed. The second claimant developed post traumatic stress syndrome. They claimed damages for trespass and in addition damages for battery. The trial judge held that trespass to the person consisting of wilfully causing a person to do something to himself which infringed his right to privacy had been committed against both claimants and further that trespass to the person consisting of wilfully causing a person to do something calculated to cause harm to him, namely, infringing his legal right to personal safety, had been committed against the second claimant as had battery. Damages were awarded. The Court of Appeal allowed the Home Office Appeal against the finding of trespass dismissed the first claimant’s claim and reduced the award of damages to the second claimant. On appeal by the claimants the House of Lords held that there was no common law tort of invasion of privacy; that insofar as there might be a tort of intention to cause harm under which damages for distress which did not amount to recognised psychiatric injury might be recoverable the necessary intention was not established on the facts of the case. The House of Lords in that case distinguished the case of Wilkinson v. Downton. At para. 41 Hoffman L.J. stated
“commentators and counsel have nevertheless been unwilling to allow Wilkinson v. Downton to disappear beneath the surface of the law of negligence. Although, in cases of actual psychiatric injury, there is no point in arguing about whether the injury was in some sense intentional if negligence will do just as well, it has been suggested (as the claimants submit in this case) that damages for distress falling short of psychiatric injury can be recovered if there was an intention to cause it. This submission was squarely put to the court of appeal in Wong v. Parkside Health NHS Trust [2003] 3 All ER 932 and rejected. Hale L.J. said that before the passing of the Protection from Harassment Act, 1997, there was no tort of intentional harassment which gave a remedy for anything less than physical or psychiatric injury. That leaves Wilkinson v. Downton with no leading role in the modern law.”
Hoffman L.J. went on to say at para. 44:
“I do not resile from the proposition that the policy considerations which limit the heads of recoverable damages in negligence do not apply equally to torts of intention. If someone actually intends to cause harm by a wrongful act and does so, there is ordinarily no reason why he should not have to pay compensation. But I think that if you adopt such a principle, you have to be very careful about what you mean by intend. In Wilkinson v. Downton, Wright J. wanted to water down the concept of intention as much as possible. He clearly thought, as the Court of Appeal did afterwards in Janvier v. Sweeney [1919] 2 K.B. 316, that the plaintiff should succeed whether the conduct of the defendant was intentional or negligent. But the Victorian Railway Commissioners case, 13 A.C. 222, prevented him from saying so. So he devised a concept of imputed intention which sailed as close to negligence as he felt he could go.
If on the other hand one is going to draw a principled distinction which justifies abandoning the rule that damages from mere distress are not recoverable, imputed intention will not do. The defendant must actually have acted in a way which he knew to be unjustifiable and intended to cause harm or at least acted without caring whether he caused harm or not. …
Iin my opinion, therefore, the claimants can build nothing on Wilkinson v. Downton [1897] 2 QB 57. It does not provide a remedy for distress which does not amount to recognised psychiatric injury and so far as there may be a tort of intention under which such damage is recoverable, the necessary intention was not established. I am also in complete agreement with Buxton LJ [2002] QB 1334, 1355 to 1356, paras. 67-72, that Wilkinson v. Downton had nothing to do with trespass to the person.”
In support of her argument, Ms. Donnelly also referred to the provisions of the Non-Fatal Offences Against the Person Act, 1997 which creates a criminal offence of harassment. Accordingly she argued that the matters complained of by the plaintiff herein at paragraph 9 of the statement of claim and in respect of which damages are claimed for ongoing harassment, victimisation, intimidation and isolation come within the definition of intentional trespass to the person.
Mr. Beatty responded on behalf of the first named defendant. He disagreed with the contention that the matters relied on by Ms.Donnelly, namely harassment victimisation etc., constitute intentional trespass to the person. He pointed out that there was no authority to support that contention. He added that the scheme of the section was such as to exclude from the scope of the Act actions where assault and battery had been pleaded in order to have a jury trial in what was an action for damages for personal injuries caused by negligence. In the present case a number of heads of damages were claimed in respect of a number of causes of action. He argued that this was clearly not what was intended to be permitted by the exception contained in subs. 3.
Having regard to the Supreme Court decision in the case of Sheridan v Kelly and McDonnell referred to above, it is clear to me that insofar as the claim herein is for damages for a sexual assault together with assault simpliciter, it would be open to a plaintiff in such circumstances to seek damages under the heading of breach of contract and negligence provided that that claim for damages arose out of the same act or omission. In this case the claims made by the plaintiff go far beyond that. There are a number of separate causes of action in respect of separate incidents and an ongoing pattern of behaviour. As such I do not think that the subsequent matters complained of by the plaintiff could be said to be within the scope of s. 1(3) (b).
A further argument was made by Ms. Donnelly to the effect that the matters complained of between 1998 and 2001 which are severally described as victimisation, isolation; harassment and so on could come within the definition of intentional trespass to the person. Not only is there no authority to support that contention, her argument is premised on the slim foundation provided by the decision in the case of Wilkinson v. Downton. I find the comments of Hoffman LJ to the effect that Wilkinson v. Downton has nothing to do with trespass to the person to be a persuasive authority. If one looks briefly at the particulars given by the plaintiff at paragraph 10 of the statement of claim herein as to the effect of the matters complained of in paragraph 9 of the statement of claim it may illustrate the extent of the problem I have in accepting that the matters complained of amount to intentional trespass of the person:
“The plaintiff was greatly distressed and upset by the various incidences of sexual assault, intimidation, harassment and victimisation to which she was subjected during her employment with the first named defendant. The plaintiff felt greatly isolated as a result of the failure of any person in the first named defendant to address adequately or otherwise the various complaints made by her. The plaintiff was affected with feelings of guilt arising out of the incidents referred to above and could not understand why no action had been taken on foot of her complaints. The plaintiff ultimately attended Ms. V B, psychotherapist in March, 2002 and related to her that for the period referred to above her quality of life and day to day living deteriorated significantly.”
The plaintiff then set out further particulars of the symptoms she alleges she suffered from during that time.
It seems to me to be impossible to reach the conclusion contended for by Ms. Donnelly that the matters complained of by the plaintiff amounting to intimidation, harassment and victimisation can come within a definition of intentional trespass to the person. I am not of the view that on their own or considered together perhaps under the heading of harassment, they could be considered as a tort as opposed to a heading of damages in negligence or breach of contract but it is not necessary to come to a final view on this issue.
In the circumstances I think that the notice of trial herein should be set aside.
Irish Municipal Public and Civil Trade Union v Ryanair Ltd
[2006] I.E.H.C. 118Judgment of Miss Justice Laffoy delivered on 6th April, 2006.
These proceedings, as counsel for the plaintiff put it, are part of a wider tableau involving the first plaintiff (the Union), which is a registered trade union with a negotiating licence, and the second to sixty-fourth plaintiffs (the Employees), who are commercial pilots employed by the defendant and are members of the Union, on the one hand, and the defendant, on the other hand, concerning, broadly speaking, the policy of the defendant not to engage in collective bargaining with any representative association or trade union on behalf of pilots. The proceedings were initiated by plenary summons which issued on 14th July, 2005. This application, on foot of a notice of motion which issued on 4th August, 2005, seeks orders against the Union and the Employees striking out the proceedings. Both O. 19, r. 28 of the Rules of the Superior Courts, 1986 and the inherent jurisdiction of the court are invoked. The grounds relied on are that the proceedings are unsustainable, frivolous and vexatious, disclose no cause of action against the defendant, and are an abuse of process. As regards the Union, there is a further ground that it has no locus standi to maintain the claims. By direction of the court, the plaintiff’s statement of claim was delivered prior to the hearing of the application.
Both sides furnished comprehensive written submissions to the court outlining, inter alia, the jurisprudence on the circumstances in which the court will strike out proceedings at this stage. There was little divergence between the parties on the applicable principles of law, which are well established. Where the parties diverged, it seems to me, was in identifying the substantive issues raised on the plaintiffs’ claim.
The factual basis of the plaintiffs’ claim, as pleaded, is that, in November, 2004, the Union invited the defendant to enter into collective bargaining concerning, inter alia, the movement of pilots from aircraft of one type (Boeing 737-200) to another type (Boeing 737-800) and the training required for such movement, but the defendant declined the invitation. Subsequently, on various dates, the defendant wrote to pilots employed by it offering them conversion training at a cost to the defendant of €15,000. Each letter threatened the addressee with dismissal on the ground of redundancy should he or she fail to accept the offer within a given period. Further –
(a) each letter included a condition that, if the defendant was compelled to engage in collective bargaining with any pilot association or trade union within five years of commencement of the conversion training, then the addressee would be liable to repay the full training costs to the defendant;
(b) some of the letters included a condition that, upon acceptance of the offer, the addressee was required to confirm that he had no claims against the defendant under the Industrial Relations Act, 2004 and to confirm that any claims made were withdrawn; and
(c) some of the letters included an alternative offer whereby the addressee might pay the cost of conversion training in the amount of €15,000, thereby avoiding dismissal on the ground of redundancy and having to accept the conditions set out at (a) and (b).
I have noted that counsel for the defendant took issue with some of the language used by the plaintiffs in pleading the facts, for example, the use of the word “threatened”. Further, he asserted that what was alleged at (c) above was not a fair analysis of the relevant letters. The plaintiffs acknowledged that the offers in issue were made not only to the Employees, but also to pilots employed by the defendant who are members of the Union but are not party to these proceedings and pilots employed by the defendant who are not members of the Union.
The civil wrongs on the part of the defendant which the plaintiffs allege on the basis of those facts are: breach of the plaintiffs’ constitutional right to freedom of association; breach of the plaintiffs’ rights under the European Convention on Human Rights (the Convention); and commission of the torts of conspiracy, inducement of breach of contract, and intentional interference with the plaintiffs’ contractual and commercial relations or the plaintiffs’ economic and commercial interests by the defendant. It is pleaded that the plaintiffs have suffered loss, damage, inconvenience and expense in consequence of those wrongs.
The primary relief claimed by the plaintiffs is a declaration that the defendant’s actions “in offering financial inducements to, and/or threatening to impose penalties upon, its employees with the object or effect of inducing the said employees to refrain from carrying on collective bargaining through a trade union, are unlawful and in breach of the constitutional and legal rights” of the plaintiffs. Following on from that, the plaintiffs claim an injunction restraining the defendant from acting in that manner. The plaintiffs claim damages for unjust attack on the plaintiffs’ constitutional rights and also for the alleged tortious activity. The plaintiffs also claim, in the alternative, declarations that the law is incompatible with the State’s obligations under the Convention, if the law fails either to render unlawful, or to provide an adequate remedy to prevent, the actions which the plaintiffs seek to impugn.
The principal ground on which the defendant contends that the plaintiffs’ claim as outlined is not sustainable and must fail is an assertion that it does not disclose the infringement by the defendant of any legal right of any of the plaintiffs. In particular, while the defendant recognises that the Employees, as citizens, have, by virtue of Article 40.6.1(iii) of the Constitution a constitutional right to form associations and unions, it was submitted that the established jurisprudence is that that provision does not oblige an employer to negotiate with an association or union: Abbott & Whelan v. IT&GWU & Ors., the High Court (McWilliam J.), unreported, 2nd December, 1980; Dublin Colleges of Academic Staff Association & Ors. v. City of Dublin VEC & Ors., the High Court (Hamilton J.), unreported, 31st July, 1981; and Association of General Practitioners Ltd. v. The Minister for Health [1995] 1 I.R. 382. Counsel for the defendant asserted that Convention does not confer any greater rights on an employee than the Constitution, relying on the decision of the European Court of Human Rights (ECHR)in Wilson v. United Kingdom [2002] 35 EHRR 523.
The plaintiffs’ answer to those propositions was to agree that there is no constitutional imperative that the defendant negotiate with the Employees through the Union and to state that the plaintiffs are not seeking to establish that there is in these proceedings. However, counsel for the plaintiffs disagreed with the proposition that the Convention, as applied in Wilson v. United Kingdom, does not guarantee the rights which the plaintiffs contend for in these proceedings, that is to say, protection against an employer offering financial inducements to its employees and threatening to impose penalties upon such employees, or both, with the object or effect of inducing the employees to refrain from carrying on collective bargaining through a trade union. It is on the interpretation, and the application to the issues in the instant case, of the decision of the ECHR in Wilson v. United Kingdom that the parties diverge. As that decision is the kernel of the plaintiffs’ case it is necessary to consider it in some depth.
In Wilson the ECHR was concerned with a number of different factual scenarios, but for present purposes it is sufficient to outline the facts of Mr. Wilson’s application. He was a journalist with the Daily Mail and a member of the National Union of Journalists. In 1989 he received a letter from his employer informing him that the employer had given notice to the NUJ that it did not intend to negotiate a new collective bargaining agreement or recognise it as a negotiating body in the future. Instead, salaries would be reviewed annually on an individual basis. Mr. Wilson was informed that if he signed a new contract before 1st January, 1990, he would be awarded a 4.5% wage increase backdated. He refused to sign a new contract because he objected to its provisions prohibiting trade union activity during working hours and removing his right to be represented by the union and the rights of the union to negotiate with management and be consulted on and agree changes to terms and conditions of employment. In subsequent years, Mr. Wilson’s salary increased, but it was never raised to the same level as that of employees who had accepted personal contracts. After 1990 the employer continued to deal with the NUJ on health and safety issues, but did not recognise the union for any other purpose. Mr. Wilson applied to the Industrial Tribunal complaining that the requirement to sign the personal contract and lose union rights, or accept a lower pay rise, was contrary to a statutory provision in the United Kingdom. He was successful before the Industrial Tribunal, unsuccessful on an appeal to the Employment Appeal Tribunal, and successful on a further appeal to the Court of Appeal. Ultimately, the decision of the Court of Appeal was reversed by the House of Lords, following which the application to the Industrial Tribunal was withdrawn on the basis that it could not succeed.
At the relevant time, in the United Kingdom, collective bargaining was a wholly voluntary process and there was no legislation in place which inhibited the freedom of employers to recognise or de-recognise trade unions for the purposes of collective bargaining.
The applicants alleged violations of several articles of the Convention. However, for present purposes, only Article 11 is relevant. It provides, in part, as follows:
“1. Everyone has the right to freedom of peaceful assembly and freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society … for the protection of the rights and freedoms of others. …”
Counsel for the defendant relied on the statement of general principles set out by the ECHR in paras. 41 and 42 of the judgment. In those paragraphs the Court stated as follows:
“41. The Court observes at the outset that although the essential object of Article 11 is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected, there may in addition be positive obligations to secure the effective enjoyment of these rights. In the present case, the matters about which the applicants complain – principally, the employer’s de-recognition of the unions for collective-bargaining purposes and offers of more favourable conditions of employment to employees agreeing not to be represented by the unions – did not involve direct intervention by the State. The responsibility of the United Kingdom would, however, be engaged if these matters resulted in a failure on its part to secure under domestic law the rights set forth in Article 11 of the Convention
42. The Court reiterates that Article 11.1 presents trade union freedom as one form or a special aspect of freedom of association … . The words ‘for the protection of his interests’ in Article 11.1 are not redundant, and the Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must permit and make possible. A trade union must thus be free to strive for the protection of its members’ interests, and the individual members have a right, in order to protect their interests, that the trade union should be heard. Article 11 does not, however, secure any particular treatment of trade unions or their members and leaves each State a free choice of the means to be used to secure the right to be heard …”
Counsel for the defendant laid particular emphasis on what the court said about collective bargaining, when considering the application of the general principles to the cases before it. In para. 44 the Court stated:
“However, the Court has consistently held that although collective bargaining may be one of the ways by which trade unions may be enabled to protect their members’ interests, it is not indispensable for the effective enjoyment of trade union freedom. Compulsory collective bargaining would impose on members an obligation to conduct negotiations with trade unions. The court has not yet been prepared to hold that the freedom of a trade union to make its voice heard extends to imposing on an employer an obligation to recognise a trade union. The union and its members must however be free, in one way or another, to seek to persuade the employer to listen to what it has to say on behalf of its members. In view of the sensitive character of the social and political issues involved in achieving a proper balance between the competing interests and the wide degree of divergence between the domestic systems in this field, the Contracting States enjoy a wide margin of appreciation as to how trade union freedom may be secured …”
Counsel for the defendant stated the position of the defendant as being that the defendant is prepared to listen to the Union but will not negotiate with the Union. He submitted that the ECHR has held that an employee has no right under the Convention to force his employer to negotiate through a trade union. Therefore, there is a fatal flaw in the plaintiffs’ case, in that the defendant is not infringing any right of the plaintiffs, so that the whole underpinning of the case falls away. The defendant also submitted that the Convention rights asserted by the plaintiffs, insofar as they exist, impose an obligation on the State, not on the defendant, and that calling them in aid in these proceedings is misconceived.
It is necessary to digress at this point to consider the relevant statute law in this jurisdiction. Section 2 of the Industrial Relations (Amendment) Act, 2001 (the Act of 2001) as amended by the Industrial Relations (Miscellaneous Provisions) Act, 2004 (the Act of 2004) provides as follows:
“(1) Notwithstanding anything contained in the Industrial Relations Acts, 1946 to 1990, at the request of a trade union or excepted body, the Court may investigate a trade dispute where the Court is satisfied that –
(a) it is not the practice of the employer to engage in collective bargaining negotiations in respect of the grade, group or category of workers who are party to the trade dispute and the internal dispute resolution procedures (if any) normally used by the parties have failed to resolve the dispute, …”
The “Court”, in s. 2(1) means the Labour Court. The defendant contends that the existence of this provisions fulfils the State’s obligations because it affords access to the Labour Court to resolve a dispute where the employer does not engage in collective bargaining directly with its employees. The defendant’s position is that it does so engage.
Returning to the decision of the ECHR in the Wilson case, counsel for the plaintiffs focused on paras. 47 and 48 of the judgment which he pointed out set out the basis on which the applicants succeeded against the United Kingdom. To put those paragraphs in context, it is necessary to consider paras. 45 and 46. In para. 45 the Court observed that there were other measures available to a trade union to further its members’ interests, for example, strike action. The essence of a voluntary system of collective bargaining is that it must be possible for a trade union, which is not recognised by an employer, to take steps including, if necessary, organising industrial action, with a view to persuading the employer to enter into collective bargaining with it on the issues which the union believes are important to its members. The Court continued in para. 46 as follows:
“46. Furthermore, it is of the essence of the right to join a trade union for the protection of their interests that employees should be free to instruct or permit the union to make representations to their employer or to take action in support of their interests on their behalf. If workers are prevented from so doing, their freedom to belong to a trade union, for the protection of their interests, becomes illusory. It is the role of the State to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employers.”
In paras. 47 and 48 the Court stated as follows:
“47. In the present case, it was open to the employers to seek to pre-empt any protest on the part of the unions or their members against the imposition of limits on voluntary collective bargaining, by offering those employees who acquiesced in the termination of collective bargaining substantial pay rises, which were not provided to those who refused to sign contracts accepting the end of union representation. The corollary of this was that United Kingdom law permitted employers to treat less favourably employees who were not prepared to renounce a freedom that was an essential feature of union membership. Such conduct constituted a disincentive or restraint on the use by employees of union membership to protect their interests. However, as the House of Lords’ judgment made clear, domestic law did not prohibit the employer from offering an inducement to employees who relinquish the right to union representation, even if the aim and outcome of the exercise was to bring an end to collective bargaining and thus substantially reduce the authority of the union, as long as the employer did not act with the purpose of preventing or deterring the individual employee simply from being a member of a trade union.
48. Under United Kingdom law at the relevant time it was, therefore, possible for an employer effectively to undermine or frustrate a trade union’s ability to strive for the protection of its members’ interests. … [The Court] considers that by permitting employers to use financial incentives to induce employees to surrender important union rights, the respondent has failed in its positive obligation to secure the enjoyment of the rights under article 11 of the Convention. This failure amounted to a violation of article 11, as regards both the applicant trade unions and the individual applicants.”
Counsel for the plaintiffs submitted that the factual circumstances in the instant case are exactly analogous to the circumstances which the ECHR found to be a breach of article 11 of the Convention in the Wilson case. So what the plaintiffs are asserting, and the wording of the primary declaratory relief which they seek reflects this, is an entitlement to enforce the type of right enforced by the ECHR in the Wilson case. It was submitted that it is at least arguable that the plaintiffs are entitled to do so. However, the plaintiffs’ argument goes further. It embraces the effect of the European Convention on Human Rights Act, 2003 (the Act of 2003). Section 2 of that Act provides that, in interpreting and applying any statutory provision or rule of law, which includes common law, a court shall, insofar as is possible, do so in a manner compatible with the State’s obligations under the Convention provisions. If the course of conduct on the part of the defendant, which the plaintiffs seek to impugn, is contrary to the Convention, the plaintiffs state that Irish law must be construed so as to outlaw that course of conduct. Section 4 of the Act of 2003 requires that judicial notice be taken of the Convention provisions and of judgments of the ECHR. Counsel for the plaintiffs stated that the plaintiffs propose to argue that the constitutional right to form associations and unions must now be extended to encompass the rights and protections afforded by the ECHR in the Wilson case. Further, although it has not done so already, in relation to the alternative relief seeking declarations of incompatibility, the plaintiffs propose giving notice of the proceedings to the Attorney General in accordance with s. 6 of the Act of 2003. Counsel for the plaintiffs recognised that the substantive arguments which the plaintiffs propose to advance are novel; indeed counsel described them as being at “the cutting edge of Convention jurisprudence”.
In replying to the plaintiffs’ submissions, counsel for the defendant pointed to the difference between the state of the law in the United Kingdom at the time of the events under consideration in the ECHR and the current state of the law in this jurisdiction. He submitted that what the State must do is to ensure that the concept of collective bargaining is not lost and he suggested that that is what the Acts of 2001 and 2004 do. However, as will appear from what I will say later, the application of s. 2 of the Act of 2001, as amended, to the issues between the parties is in dispute in other proceedings between the parties. He also submitted that, while paras. 47 and 48 of the judgment in the Wilson case may seem helpful to the plaintiff on a superficial basis, this is to misunderstand the principles laid down by the ECHR. He submitted that the Wilson judgment does not establish any right on which the plaintiffs can found their case.
It is well settled that the jurisdiction which the defendant has invoked on this application is to be used sparingly and only in clear cases. In relation to the core issue in the plaintiffs’ case, whether they are entitled to a declaration that the defendant’s conduct is unlawful and in breach of their constitutional and legal rights in reliance on the decision of the ECHR in the Wilson case and the changes wrought in domestic law by the Act of 2003, the outcome of this application depends on whether the court is satisfied that the plaintiffs’ case on this issue must fail. In addressing that question, I think it is prudent to bear in mind the observations of Keane J., as he then was, in Irish Permanent Building Society v. Caldwell [1979] I.L.R.M. 273, where, arguing that the plaintiff had no locus standi to maintain the action, the defendants sought to have the plaintiff’s claim dismissed under O. 19, r. 28. Keane J. stated at p. 276:
“The question I have to decide is as to whether the proceedings should be struck out in limine at this stage. It has been said on high authority that the procedure sought to be invoked in the present case should not be applied ‘to an action involving serious investigation of ancient law and questions of general importance’: per Cozens-Hardy M.R. in Dyson v. Attorney General [1911] 1 K.B. 410 at 414. The issues raised by the present proceedings involve difficult questions as to the relationship of the present Constitution to pre-existing law concerning the assertion of public rights by a person other than the Attorney General … I am not satisfied that, on an application of this nature, the High Court should finally determine the difficult and complex question of law involved.”
The instant case certainly involves the investigation of questions of general importance in the context of recent changes in domestic law, which raise issues as to the impact of the State’s international obligations on its domestic law. Given that context, in my view, it is impossible to conclude that the plaintiffs’ claim must fail. Apart from that, and notwithstanding the comprehensiveness and thoroughness of the submissions made on behalf of the parties, I am not satisfied that the novel and difficult questions of law raised should be determined on an application of this nature.
While that conclusion effectively deals with some of the other points raised by the defendant, for the sake of completeness, I would make the following further observations.
First, in relation to the core issue, it cannot be said with certainty that the Union lacks locus standi, because, if the plaintiffs’ arguments based on the decision of the ECHR in the Wilson case are sustainable, it is certainly arguable that the Union has standing to enforce the protection recognised in that decision in the domestic courts. Moreover, it is implicit in s. 6 of the Act of 2003 that the issue of a declaration of incompatibility can be litigated in inter partes litigation.
Secondly, insofar as the plaintiffs’ claim is founded on economic torts, the defendant made a number of specific points. In relation to the claim for damages for conspiracy, it was submitted that an actionable conspiracy has not been pleaded by the plaintiffs in the statement of claim. That is so. But counsel for the plaintiffs stated that the conspiracy alleged is between the defendant and its executives. He submitted that there is authority for the proposition that where a statement of a claim admits of amendment which might save the action, the action should not be dismissed (Sun Fat Chan v. Osserus Limited [1992] 1 I.R. 425). A point was also taken in relation to the claim for damages for inducement of breach of contract, it being asserted that the relationship between the Union and its members was not a contractual relationship. No authority was cited for that proposition and I am not satisfied that it is correct. In relation to the other economic torts, counsel for the defendant referred the court to the observations of Murphy J. in Bula Limited v. Tara Mines Limited (No. 2) [1987] I.R. 95 (at p. 100 et seq.) in relation to what he referred to as “a category of innominate tort which may be referred to an unlawful interference with economic interests”, his view being that to seek such relief was “to press the law to the limit of its existing frontiers if not indeed to new ones”. In relation to the generality of the economic torts, as I understand the argument advanced on behalf of the plaintiffs, it is that, whatever the impact of the decision of the ECHR in the Wilson case and the enactment of the Act of 2003 is, it bears on the plaintiffs’ legal rights at common law as well as their rights under the Constitution and under statute. Therefore, in my view, the claims based on common law must come under the umbrella of the conclusion that it is not clear that the plaintiffs’ claim must fail.
I have already alluded to the fact that there are separate proceedings, initiated by the defendant, in existence in relation to the rights and obligations of the parties under the Act of 2001, as amended by the Act of 2004, which have arisen as follows:
(1) As is pleaded in the statement of claim in these proceedings, on 22nd November, 2004 the Union referred the dispute between the defendant and the members of the Union employed by the defendant to the Labour Court under the Act of 2001. In the defendant’s grounding affidavit it is averred that it does not accept that there was a trade dispute between it and the Union or that the Union is entitled to intermeddle in its affairs. The defendant maintains that the Labour Court has no jurisdiction to carry out an investigation under the Act of 2001, as amended. Following a “purported” preliminary hearing the Labour Court decided that it did have jurisdiction. That decision is the subject of judicial review proceedings, which were decided in favour of the plaintiffs in this Court, that decision now being under appeal to the Supreme Court.
(2) The statement of claim also discloses that by applications variously dated, the Union, on behalf and with the consent of all of the Employees and also on behalf and with the consent of fifteen other members of the Union who are not plaintiffs in these proceedings, referred victimisation claims to the Labour Relations Commission under the Act of 2004. In the defendants’ grounding affidavit, it is averred that the defendant rejects the allegations of victimisation as being unfounded and without merit and also maintains that the Rights Commissioner has no jurisdiction to carry out the investigation requested by the Union. After a “purported” preliminary hearing, the Rights Commissioner decided that he or she did have jurisdiction and that decision is the subject of judicial review proceedings which are pending in this Court.
It is the contention of the defendant that the prosecution of these proceedings by the plaintiffs, in addition to the pursuit of their claims under the Act of 2001 and the Act of 2004, which are the subject of judicial review applications which are pending, is an abuse of process. The defendant contends that the issues sought to be raised in these proceedings are the same issues as have been raised by the plaintiffs before the Labour Court and the Labour Relations Commission. Further, it contends that, in prosecuting these proceedings, the plaintiffs are attempting to hold the defendant to ransom.
As the two recent decisions of the Supreme Court cited by the defendant (Carroll v. Ryan & Ors. [2003] 1 IR 309; and A.A. v. The Medical Council & Ors. [2003] 4 IR 302) illustrate, repeated actions concerning the same subject matter may constitute an abuse of process and what is sometimes referred to as the rule in Henderson v. Henderson (1843) 3 Hare 100 is part of Irish law. The rule is that the bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse, if the court is satisfied, the onus of proof being on the party alleging abuse, that the claim or defence should have been raised in earlier proceedings, if it was to be raised at all.
The plaintiffs’ answer was that these proceedings are not a duplication of the proceedings before the Labour Court or the Labour Relations Commission. They made the point that, as the jurisdiction of each body is strongly contested by the defendant in the judicial review proceedings, the claims before those bodies may not proceed if the defendant is ultimately successful. That point, in my view, highlights a certain inconsistency on the part of the defendant, which was also apparent in the reliance of the defendant on the existence of the Act of 2001 and the Act of 2004 as distinguishing the circumstances of the dispute between the parties from the situation under consideration in the Wilson case. The plaintiffs also disputed that the issues in these proceedings are the same as the issues which will be determined by the other bodies. For instance, it was submitted that the task of the Labour Court is to examine the overall circumstances and to decide whether the course of action taken by the defendant was “reasonable”. The outcome will be a determination as to the resolution of the trade dispute between the parties. It does not have power to, and will not, pronounce on the legality or otherwise of the defendant’s actions nor will it be able to grant reliefs by way of declaration injunction or damages, to redress any illegality. The plaintiffs also made the point that, as a precondition to initiating proceedings against the State before the ECHR, they have to exhaust all domestic remedies. I agree with counsel for the defendant that, as a matter of logic, this factor cannot prevent proceedings which should otherwise be struck out from being struck out.
Having regard to what the plaintiffs are trying to achieve in these proceedings and what they will be able to achieve if, following the determination of the pending judicial review applications, they are able to pursue the claims before the Labour Court and the Labour Relations Commission, I have come to the conclusion that the plaintiffs are not misusing or abusing the process of the court by prosecuting these proceedings, in addition to pursuing the claims before the Labour Court and the Labour Relations Commission. These proceedings raise fundamental issues against a background of a significant change in the law since the coming into operation of the Act of 2003. In my view, they cannot be characterised as either vexatious or frivolous or as an abuse of process.
Accordingly, the defendant’s application is dismissed.