High Court of Ireland Decisions

Redmond v. Minister for the Environment & Ors [2004] IEHC 24 (13 February 2004)

 


THE HIGH COURT

1997 No. 4318P

BETWEEN/

THOMAS REDMOND

PLAINTIFF

AND

THE MINISTER FOR THE ENVIRONMENT, IRELAND

AND THE ATTORNEY GENERAL

DEFENDANTS

Judgment of Mr. Justice Herbert delivered on the 13^th day of February, 2004.

I am unable to accept the argument advanced on behalf of the Respondents in this Issue that this Court should either always decline or should at least be very slow and then only in the most extreme circumstances, to make an award of damages against the legislative arm of the State for the infringement in an Act of the Oireachtas of a right guaranteed by the Constitution. Such a restraint, it was said, is a necessary consequence of the separation of powers contained in the Constitution and of the deference which the great institutions of State should owe to each other. It was further submitted that the prospect of such an award of damages would inevitably inhibit and delay the National Parliament in its vital work of enacting legislation for the proper government of the State, a task often performed under exacting time constraints.

It was held by the Supreme Court in the case of T.D., & Ors. v. The Minister for Education & Ors. [2001] 4 IR 259, that the doctrine of separation of powers required that none of the three institutions of government be paramount. In my judgment, it is essential in a constitutional democracy such as this State, where a rule or convention of parliamentary sovereignty has no place, that the courts should have the power and be prepared wherever necessary to, vindicate by, "all permitted and necessary redress," (to borrow the phrase of Henchy, J., in the case of Murphy v. The Attorney General [1982] I.R. 241 at 313), including where justice so requires by an award of damages, the constitutional rights of anyone, even where the transgression on those rights is in an Act of the National Parliament passed into law by the votes of the elected representatives of the People and signed by the President. This does not, I believe, amount to unwarranted judicial activism trespassing on the legislative function of the Oireachtas. No evidence was advanced at the hearing of this Issue and I am not prepared to assume that this particular power and, indeed duty of the courts, would in any way inhibit or interfere with the proper functioning of the legislative arm of the State within its own unique sphere of activity under the Constitution.

From the decision of the Supreme Court in the cases of, The State (Quinn) v. Ryan [1965] I.R. 70; Byrne v. Ireland and the Attorney General [1972] I.R. 241, and Murphy v. The Attorney General [1982] I.R. 241, and decisions in other cases to which I was referred during the hearing of this Issue but which I consider it unnecessary to cite here, I am satisfied that this Court does have full power to award damages, - ordinary compensatory damages or aggravated or increased compensatory damages and even punitive or exemplary damages, (see Conway v. Irish National Teachers' Organisation & Ors. [1991] 2 I.R. 305), - against the legislative arm of the State for breach of a constitutional right by an Act of the Oireachtas or by a provision of such an Act. However, I do not think that it is reasonably possible or even desirable to attempt to formulate any principles of general application as to the circumstances in which the Court might so award damages or as to the type or amount of those damages. In this respect I adopt what was held by Henchy, J., in the case of Murphy v. The Attorney General [1982] I.R. 241 at 315, where he stated, when speaking of such redress and of the sometimes 'transcendent considerations' which may render any or some particular forms of redress unavailable i.e., damages or restitution, - "in any event, I think experience has shown that such constitutional problems are best brought to solution, step by step, precedent after precedent, and when set against the concrete facts of a specific case."

In my judgment in this case, delivered on the 31^st day of July, 2001, I held that the deposit requirement imposed by s. 47 of the Electoral Act, 1992, for candidacy in elections for membership of Dáil Éireann and by s. 13 of the European Parliament Election Act, 1997, for candidacy in elections for membership of the European Parliament, was, in each case, unconstitutional. I did not, however, find that any alternative or other conditions whatsoever which might be imposed as a condition of candidacy would also be unconstitutional. Following upon this decision the Oireachtas enacted the Electoral (Amendment) Act, 2002, (Number 4 of 2002), which came into operation on the 25^th day of March, 2002. This Act provided for a compulsory system of nomination of any prospective candidate who did not have a certificate of political affiliation. In cases of election to membership of Dáil Éireann, the assent of 30 registered Dáil electors in the particular constituency, (excluding the candidate and any proposer), was required. In the case of elections to membership of the European Parliament, the assent of 60 registered European electors in the particular constituency, (excluding the candidate and any proposer), was required.

Having regard to the evidence offered during the course of this case, such legislation could scarcely be properly described as controversial or unexpected. The evidence of the distinguished experts in the disciplines of Political Science and Social and Economic Science who gave evidence in this case, including that of Professor Richard Sinnott of University College Dublin, who was called in evidence on behalf of the plaintiff, was to the effect that access to candidacy for election to membership of the principal national legislative assembly, at least in all European and other accepted democratic systems, was subject to some qualifying requirement and that this was desirable to prevent abuse of the electoral system.. The evidence of all the experts was that a system of nomination was probably the most widely used and the most democratic means of protecting the electoral system from being abused.

No evidence was given by the plaintiff at the hearing of this Issue or at the previous hearing that he was willing to or could put himself in a position to comply with a system of nomination by assent. I concluded having heard the plaintiff in evidence that the plaintiff was resolutely and adamantly opposed to any form of condition whatsoever. It was his opinion that all forms of condition for candidacy were unconstitutional and that every citizen, not otherwise precluded by the provisions of the Constitution itself, enjoyed an immediate right, which could not be subjected to any form of qualification whatsoever, to become a candidate for election to either Dáil Éireann or the European Parliament and in that capacity of putting his or her particular political philosophy and programme for government before the electorate. However, on the weight of the evidence, the Court cannot disregard the probability, amounting almost to a certainty, that the legislative arm of the State, would not countenance an entirely open system of nomination for election to membership of Dáil Éireann or the European Parliament, absent a ruling by this Court that any form of condition for such nomination would be unconstitutional. In the events which occurred, the plaintiff could not have become a candidate for election to membership of Dáil Éireann or of the European Parliament without complying with the provisions of s. 1 or s. 2 of the Electoral (Amendment) Act, 2002. An unsuccessful challenge to the provisions of this Act was taken in the case of Thomas King & Ors. v. The Minister for the Environment, Ireland and the Attorney General, (judgment of Kearns, J., unreported, delivered the 19^th December, 2003).

I believe it to be the proper inference to be drawn from the facts that exactly similar events would not alone probably but almost certainly have occurred had Mr. Redmond sought the intervention of the court on the occasion of any of his previous unsuccessful attempts to become a candidate at elections for membership of Dáil Éireann or the European Parliament in 1992 and 1994. In my judgment he therefore cannot establish, as a matter of probability, that but for the impugned condition he would have had a chance of being elected to membership of Dáil Éireann or the European Parliament or at least have had a chance or putting his political opinions and his legislative proposals before the electorate in the character of a candidate. In my judgment this is a case of injury without loss. However, I am satisfied that this infringement of the plaintiff's constitutional right is actionable without proof of actual loss. I am also satisfied that there is no basis for an award of punitive or exemplary damages in this case.

In the case of Conway and Others v. The Irish National Teachers Organisation and Others [1991] 2 I.R. 305 at 320, Finlay C.J., with whose judgment Griffin and McCarthy, J.J., agreed, held that every wrong which constitutes the breach of a constitutional right does not automatically attract exemplary damages. In the instant case I am satisfied that there is no basis for a finding by this Court of any wilful and conscious wrongdoing by the legislative arm of the State in knowing disregard of the constitutional rights of the plaintiff. While the enactment into Law of the impugned statutory provisions was deliberate and in that sense intentional, I am satisfied that the resulting breach of the plaintiff's constitutional right was not intended but was a wholly undesired and altogether inadvertent consequence of the legislation.

I am quite satisfied that the sole intention of the Oireachtas in maintaining the deposit requirement for Dáil Éireann and European Parliament Elections was to protect the electoral system from abuse. I am satisfied that the sole purpose of the Oireachtas in increasing the amount of the deposit was to reflect changes in the value of money over time, i.e. the amount of the deposit in elections to Dáil Éireann remained at the sum of £100 (former currency) from 1923 to 1992. It was accepted by all the expert witnesses who gave evidence to this Court that the deposit, whether for election to membership of Dáil Éireann or the European Parliament was not generally excessive or obviously discriminatory. Unfortunately, on the evidence it did have the effect of discriminating against citizens of the State, such as the plaintiff, whose misfortune it was to exist in unusually improvised circumstances. Despite the evidence of Professor Nolan that the number of "poor households" in the State in 1992 and 1994 was 15% of the population and in 1997 was 10% of the population, there was no evidence that the Oireachtas wilfully, consciously and knowingly disregarded the possible effect of the deposit requirement on the ability of such citizens to stand for election to membership of Dáil Éireann or the European Parliament. The impugned sections were not specific to the plaintiff or to any group or category or citizens but applied generally to all citizens of the State. The deposit requirement could not be regarded in my view as a form of limiting access fee or penalty because it was returnable in certain circumstances. The deposit requirement was not a novel feature as it had existed in Irish Electoral Law, unchallenged, since the Representation of the People Act, 1918. I do not accept the argument that the suggestion, even in such an authoritive text on Irish Constitutional Law as Kelly, [(1994), Third Edition, editors Hogan and Whyte, Introductory Section page C.X.] that the deposit requirement might be unconstitutional would render the continuation of that requirement by the Oireachtas unreasonable or irrational. Finally, there is no evidence that the impugned legislation occasioned the plaintiff any pecuniary loss or damage.

I therefore propose to award nominal damages to the plaintiff. These damages are not and it is important that they should not be considered to be in any sense derisory or contemptuous. In the case of The Mediana [1900] AC 113 at 116, Lord Halsbury L.C., said:

" 'nominal damages' is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right … "

In the case of Kearney v. The Minister for Justice, Ireland and the Attorney General [1986] I.R. 116, Costello J., (as he then was) awarded the sum of £25 in the then currency to the plaintiff for an unjustified infringement of his right to communicate under Article 40 Section 3, subsection 1, of the Constitution. In that case certain letters which had been passed under the Prison Rules had not been delivered to the addressee. I will award Mr. Redmond nominal damages in the sum of €130.

The plaintiff's claim was for damages for loss of a chance of being elected either to membership of Dáil Éireann or the European Parliament or alternatively for loss of a chance to put his political opinions and legislative programme before the electorate as such a candidate. I find on the evidence of the expert witnesses, especially Professor Sinnott and Professor Laver, that the plaintiff, seeking election for the first time, standing as an independent candidate without previous political connections, experience or exposure at any level, without being associated with any popular cause whether national or local and lacking any degree of prominence in business sports or social affairs, would almost certainly fail to be elected either to membership of Dáil Éireann or the European Parliament. In fact the chance of his being elected to membership of either body was on the evidence so negligible that it could not reasonably be said that the plaintiff had lost a reasonable chance and had thereby sustained loss.

In the alternative the plaintiff claimed damages for loss of a chance to present his political ideas and proposals to the electorate as a candidate for membership of Dáil Éireann or of the European Parliament. However, neither at the hearing of this issue or at the previous hearing was any evidence offered that the plaintiff had made any plans, arrangements or preparations whatsoever with a view to presenting any such ideas or proposals to the electorate. At the occasion on which he gave evidence to this Court he said that his electoral programme would be to highlight the problems of poor people and the unemployed. However, no evidence was given of the preparation or even of the formulation of a campaign strategy of even the most basic kind to carry this programme to the electorate. No evidence was given of any area maps or electoral registers having been obtained or of banners, posters, handouts or even campaign notes or speeches having been sourced, ordered obtained or prepared. No evidence was given of even the most primitive form of public address system having been reserved, purchased, hired or borrowed. No evidence was given of any public address locations having been chosen, house to house call areas targeted, helpers obtained or transport arranged. While some of these matters might reasonably not be put in hand until after a nomination had been accepted, others would have to be arranged in advance if the plaintiff had bona fide intended to put his political ideas and proposals before the electorate other than by casually accosting individual presumed voters.

In my judgment there was no evidence that the plaintiff on any of the occasions in 1992, 1994 and 1997 when he unsuccessfully endeavoured to have his name entered on the list of candidates for election to membership of Dáil Éireann or the European Parliament had made any plan or given any real consideration to what he would do if by some chance his application should succeed. I am satisfied on the balance of probabilities that on those occasions he had not made any real plans or given any real consideration to putting his political proposals and ideas before the electorate. The plaintiff stated in evidence, that he was aware from 1991 that a deposit would be required if he wished to stand for election.

The evidence given by the plaintiff on the previous hearing, - he did not give evidence on this Issue -, and which I accept, is that in 1993 he wrote, edited and published a 127 page booklet entitled "The Rules of Natural Justice". I found that this booklet set out the plaintiff's own social, moral and political opinions and his proposals for reform, including constitutional reform. I do not know how many copies of this booklet were printed for the sum of £600 (former currency) or thereabouts, paid by the plaintiff's daughter for printing and publishing. While the trouble taken in publishing this booklet shows that the plaintiff has very sincerely held political opinions and ideas, it does not establish as a matter of probability that he lost a reasonable chance of putting those opinions and ideas before the electorate as a result of the breach of his constitutional right.

Loss of a chance means a chance of profit, material gain or some other "temporal advantage", i.e. frustration of a business venture; loss of an opportunity to advance or enhance an acting on sports career. In my judgment loss of a chance of putting political opinions or ideas before the public would in itself be too vague and too incapable, as distinct from merely difficult, of being estimated in money to constitute a cause of action in tort, and therefore by analogy for breach of a constitutional right.

Other cases referred to in argument:

In the Matter of the Electoral (Amendment) Bill, 1983 (1984) I.R. 268.

An Blascaoid Mór Teoranta & Others .v. The Commissioners of Public Works in Ireland and Others [28^th June, 2000] Budd, J.

Kennedy & Arnold .v. Ireland and the Attorney General (1987) I.R. 587

Gulyns & Borchardt .v. Minister for Justice, Equality and Law Reform and Others [25 June 2001] Carroll, J.

Ashby .v. White & Others, Trinity Term, 2 Annae Reginae 938.

Sinnott .v. Minister for Education and Others (2001) 2 IR 545.

Attorney General of Quebec .v. Guimond 138 D.L.R. (4^th) 647.

Meskell .v. Coras Iompair Éireann (1973) I.R. 121.

Pine Valley Developments Ltd. and Another .v. Minister for the Environment & Others (1987) I.R. 23.

Moynihan .v. Greensmyth (1977) I.R. 55.

Crowley & Another .v. Ireland and Others (1980) I.R. 102.