Neutral Citation Number: [2006] IEHC 190 THE HIGH COURT
[2005 No. 198S]
BETWEEN/
SENAN HISTON
PLAINTIFF
AND
SHANNON FOYNES PORT COMPANY
DEFENDANT
Judgment of Ms. Justice Finlay Geoghegan delivered the 15th day of June, 2006.
Background to motion
The plaintiff is the former harbour master of the Foynes Port Company. The Harbours (Amendment) Act, 2000 amalgamated the former harbours of Foynes Port Company and Shannon Estuary Port Company. The defendant is the harbour authority for the new amalgamated harbours. One office of harbour master of the amalgamated harbours was created. This was advertised and the former harbour master of the Shannon Estuary Port Company was the successful applicant. Pursuant to the provisions of the Harbours (Amendment) Act, 2000, the plaintiff transferred into the employment of the defendant. His subsequent position within the defendant was then governed by s. 43(4)(c) of the Harbours Act, 1996, as inserted by s. 1 of the Harbours (Amendment) Act, 2000, which provides:“Where the chief executive or the harbour master of a transferor company transfers into the employment of the transferee company, then nothing in paragraph (a) or in the provisions applied by that section shall be construed as requiring their appointment as chief executive or harbour master, respectively, of the transferee company but this paragraph shall not otherwise be construed as affecting the scales of pay, conditions of service and terms of office of the persons concerned.”
A dispute then ensued between the plaintiff and the chief executive of the defendant which culminated in the defendant purporting to dismiss the plaintiff on the 21st September, 2001.
The plaintiff commenced plenary proceedings (2001 No. 14243P) on the 24th September, 2001, against the defendant essentially challenging the validity of that purported dismissal and seeking declarations, injunctions and other consequential relief.
In the High Court, by order of the 20th November, 2003, Smyth J. dismissed all of the plaintiff’s claims save a claim in relation to arrears of salary up to the 21st September, 2001, and a claim in relation to pension entitlements. Judgment by Smyth J. was delivered on Tuesday, the 15th July, 2003, and a transcript of same is available.
The plaintiff appealed so much of the judgment and order of the High Court as dismissed the plaintiff’s claims. The defendant cross-appealed from that part of the judgment and order which granted reliefs to the plaintiff. It is not clear to me whether the defendant’s appeal proceeded and nothing turns on that for the purposes of this motion or judgment.
On the plaintiff’s appeal the Supreme Court, on the 13th January, 2005, made the following order:“IT WAS ORDERED AND ADJUDGED that the said Appeal be allowed and that so much of the said Judgment and Order of the High Court as dismissed part of the Plaintiff’s case be set aside and in lieu thereof the Court DOTH DECLARE that the Plaintiff has not been validly removed from office in the employment of the Defendant.”
A single judgment was delivered by Geoghegan J. (with whom Fennelly and Kearns JJ. agreed). In that judgment Geoghegan J., having referred to the particular reliefs sought by the plaintiff, stated at p. 6:“However, having regard to the way the case was argued both in the High Court and in this Court, I have come to the conclusion that the real issue is whether the appellant is still in office in the Company or not. It is that issue which I intend to address.”
One of the arguments put forward on behalf of the plaintiff was that, pursuant to the relevant statutory provisions, he could not be removed from office without the consent of the Minister for the Marine and that no such consent was sought or obtained. On that issue Geoghegan J. concluded at p. 14:“Having regard to the view which I have taken on the interpretation of section 39 of the 1996 Act, it necessarily follows that notwithstanding that the appellant ceased to be a harbour master he continued to have officer status and continued to be in a position from which he could not be dismissed without the sanction of the Minister for the Marine. It seems clear, therefore, that he has never been validly removed and is still in office.”
At the conclusion of the judgment at p. 21 he further stated:“I would allow the appeal in the sense that I would set aside the order of the High Court and substitute for it a declaration that the appellant has not been validly removed from office in the employment of the respondent. I would not grant any other relief.”
The matter was listed again before the Supreme Court on the 13th January, 2005. Primarily it would appear to deal with the issue of costs. Whilst there is some dispute between the parties as to precisely what took place on that day, it appears common case that counsel for the plaintiff tried to raise, in addition to costs, the entitlement of the plaintiff to pay after the date of purported termination of employment. However, following submissions on behalf of the defendant, the Court indicated that they were not expressing any view on the plaintiff’s entitlement to such pay and that this could be pursued in new proceedings.
The present proceedings are summary proceedings commenced by the plaintiff on the 15th February, 2005. In the special endorsement of claim it is pleaded:1. At all material times the Plaintiff is and was an officer in the employment of the Defendant.
2. Arrears of salary are due and owing to the Plaintiff by the Defendant in the sum of in or about €376,458-57 in respect of the period 22nd September, 2001, to 16th December, 2004, inclusive, full particulars of which have been furnished to the Defendant.
3. The Plaintiff has requested payment of the said sum but the Defendant has failed, refused and neglected to pay the same.
And the plaintiff’s claim is for:Judgment in the sum of €376,458.57 being a debt due and owing to the Plaintiff by the Defendant;
Interest pursuant to the Courts Act, 1981;
And the cost of the proceedings;
I was informed by counsel in the course of the hearing that the reason the plaintiff’s claim is limited to the period up to the 16th December, 2005, is that in respect of the period subsequent to the Supreme Court judgment the defendant has recommenced paying to the plaintiff his salary.
The affidavit of the plaintiff seeking liberty to enter final judgment is short and simply states that he is and was at all material times an officer in the employment with the defendant and that there are arrears of salary due in respect of the amount and dates already set out above.
A replying affidavit to the application for liberty to enter judgment was sworn on behalf of the defendant by its Chief Executive, Mr. Byrne. Having set out a history he stated at para. 6:“I say and believe and am advised by Counsel that the position in this case is as follows:-
(a) While the Plaintiff succeeded in setting aside the Order and Judgment of the High court, as I have recorded aforesaid, the Supreme Court made no pronouncement one way or the other in relation to any alleged entitlement on the Plaintiff’s part to arrears of salary from the date of his dismissal although this is the basis for the Plaintiff’s present claim before this Honourable Court. Moreover, when the Plaintiff’s Counsel sought directions as to the Plaintiff’s entitlement to arrears of salary when the matter came before the Supreme Court for mention on the 13th of January 2005, the Supreme Court made it clear that this was not a matter for adjudication by them. I beg to refer to the Defendants Solicitors note of the exchanges on this occasion upon which pinned together and marked with the letter “B”, I have endorsed my name prior to the swearing hereof. I say further and am advised by Counsel that the (sic) predicated on the judgment of Mr. Justice Smyth and in particular his express finding that the Plaintiff was 75% responsible for his dismissal.
(b) Furthermore, it is my belief that the Judgment of the Supreme Court does not assist the Plaintiff in any respect in relation to his alleged claim for arrears of salary having regard to his conduct as chronicled in the Judgment of Mr. Justice Smyth. However even if I am incorrect in his assertion, I believe that this matter should be sent forward for Plenary hearing so that the Plaintiff’s alleged entitlements, if any, can be definitely ascertained. I would repeat that the Supreme Court’s attitude towards the Plaintiff’s alleged claim for arrears of salary is exemplified by the exchanges which took place on the 13th of January 2005 while I am advised by Counsel that the refusal of the Court to accede to the application made by Counsel for the Plaintiff for the discharge of arrears of remuneration by the Defendant is the strongest possible indicator of the views of that Court to the Plaintiff’s alleged entitlements.
(c) I say and believe and am so advised that the Defendant has a full bona fide defence to the Plaintiff’s alleged claim herein.”
The application for liberty to enter a final judgment came on before MacMenamin J. in the High Court on the 17th February, 2006. It appears that on such application counsel characterised the defence sought to be made as one of contributory negligence. An issue then arose as to whether, as a matter of law, contributory negligence was capable of being a defence to the plaintiff’s claim in the summary proceedings. MacMenamin J. directed the trial of that question as a preliminary issue. A notice of motion was then issued seeking the determination of more than one issue. When the matter commenced before me it was agreed that the issue which was to be determined as a preliminary issue pursuant to the order of MacMenamin J. was:“As a matter of law, is contributory negligence capable of being a defence to the plaintiff’s claim?”
At the commencement of submissions it appeared that there was some dispute as to what was the nature of the contributory negligence being alleged by or on behalf of the defendant. Accordingly, I directed that the defendant should set out the particulars of contributory negligence which they submitted were, as a matter of law, capable of being a defence to the plaintiff’s claim in the summary proceedings. The defendant delivered particulars on the next morning, the 26th April, 2006, which commences with the following:“The plaintiff’s several acts and omissions as particularised hereunder contributed to the Defendant’s breach of statute. This breach of statute was impugned in the judgment of the Supreme Court. Since the Plaintiff’s loss of salary derived from the termination of his appointment, his alleged entitlement to arrears of salary is inextricably bound up with his removal from office. In the premises, the Defendant relies on the several matters set out hereunder as evidencing the Plaintiff’s contributory negligence which said matters are recorded inter alia - ”
The defendant then cited certain correspondence, the contents of the judgment of Smyth J., the judgment of the Supreme Court and the pleadings in the earlier proceedings and then listed specific matters in sixteen paragraphs. Counsel accepted that the more general matters referred to were not appropriate and that the defendant should be confined to relying upon the matters referred to in paras. 1 to 16. It was then agreed that the issue which was to be determined on the hearing of the preliminary issue should be:“As a matter of law, is contributory negligence as alleged in paragraphs 1 to 16 of the defendant’s particulars dated 26th April, 2006 capable of being a defence to the plaintiff’s claim.”
Paragraphs 1 to 15 inclusive of the particulars set out allegedly negligent behaviour (some of which is stated to be so found by Smyth J. in his judgment) in the period prior to the plaintiff’s purported dismissal on the 21st September, 2001. Paragraph 16 is an allegation of a failure to mitigate after the “date of his removal from office to the conclusion of his proceedings in the Supreme Court”.
The defendant in its submissions before me sought to continue to rely on certain findings in the judgment of Smyth J. and in particular a finding at p. 20 of the judgment in the following terms:“The Plaintiff’s conduct amounted to a repudiatory breach of a kind that amounted to such total non-performance that the Defendant was entitled to terminate it. Even if I am wrong in the views hereinbefore expressed and the issue were one of negligence, I do not conceive of any circumstance on the evidence before me that the Plaintiff could not be held to be ever less than 50% guilty of contributory negligence and, in my judgment, could not even be said to liable (sic) for any less than 75% of contributory negligence for the fate that befell him.”
Insofar as the above are findings, they form part of the justification for the dismissal of the plaintiff’s claim by Smyth J. and, as such, have been set aside pursuant to the order of the Supreme Court of the 13th January, 2005. However, having regard to my conclusions as set out below nothing would appear to turn on this.
Defence of contributory negligence
Contributory negligence is governed by s. 34(1) of the Civil Liability Act, 1961. This provides:“34. —(1) Where, in any action brought by one person in respect of a wrong committed by any other person, it is proved that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff or of one for whose acts he is responsible (in this Part called contributory negligence) and partly by the wrong of the defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees fault of the plaintiff and defendant: provided that—
…”
The essence of the plaintiff’s submission is that s. 34(1) does not apply to the plaintiff’s claim in these proceedings. The plaintiff’s claim is a claim for salary due and owing to him in respect of a period for which he was an officer of the defendant (as so declared by the Supreme Court) and for which he has not received his salary which he asserts is an incidence or benefit of the office. It is submitted that the plaintiff is not making any claim in these proceedings in respect of damage suffered by him in respect of a wrong alleged to have been committed by the defendant.
Counsel were unable to find any existing authority precisely on point. The submission made on behalf of the plaintiff that s. 34(1) is confined to claims made in respect of damage allegedly suffered by a plaintiff by reason of alleged wrongs (i.e. a tort, breach of contract or breach of trust in accordance with s. 2 of the Act of 1961) is correct. It is of the essence of s. 34(1) that the damage allegedly suffered by the plaintiff is caused partly by the negligence or want of care of the plaintiff and partly by the wrong of the defendant. This presupposes that the claim must be on in respect of damage allegedly suffered by the plaintiff by reason of an alleged wrong (as defined) of the defendant.
The present claim of the plaintiff is brought on a summary summons and is a claim for a debt allegedly due by the defendant to the plaintiff. The plaintiff is not making any claim for damages in respect of loss or damage suffered by him by reason of an alleged wrong (i.e. tort, breach of contract or breach of trust) of the defendant. In so proceeding, the plaintiff may have limited his claim but it appears to me to follow that in making such claim against the defendant he has excluded the application of s. 34 of the Act of 1961 to the claim made.
Counsel for the defendant sought to rely on a number of authorities and in particular referred the Court to the decision of Gavin Duffy J. in Cox v. Electricity Supply Board (No. 3) [1944] I.R. 81, McCord v. Electricity Supply Board [1980] I.L.R.M. 153 and Myles v. Wakefield Metropolitan District Council [1987] AC 539. It does not appear to me that any of these judgments assist the respondent in relation to the only issue which has to be determined on this preliminary issue.
I was also referred by counsel for both parties to the decision of the Supreme Court in Carr v. City of Limerick V.E.C. [2000] E.L.R.57 and in particular to an extract from the judgment of the former Chief Justice, Finlay C.J., at p. 77. Again, it does not appear to me to assist on the single issue before me.
Counsel for the defendant laid particular emphasis on the decision in McCord v. E.S.B. As appears from p. 155 in the judgment of O’Higgins C.J., the claim of the plaintiff in those proceedings was a claim for damages for breach of contract and hence the reference to contributory negligence of the plaintiff is unsurprising having regard to the terms of s. 34(1) of the Act of 1961.
Accordingly, I would answer the agreed question to be determined as a preliminary issue as follows:
Contributory negligence, as alleged in paras. 1 to 16 of the defendant’s particulars dated the 26th April, 2006, is not, as a matter of law capable of being a defence to the plaintiff’s claim herein.
I wish to add an observation in relation to the particulars of failure to mitigate in not seeking alternative employment at para. 16 of the particulars delivered by the defendant. Section 34(2)(b) of the Act of 1961 provides:“A negligent or careless failure to mitigate damage shall be deemed to be contributory negligence in respect of the amount by which such damage exceeds the damage which would otherwise have occurred.”
It is presumably by reason of this sub-section that the defendant included as a particular of contributory negligence the failure to mitigate by not seeking alternative employment. This decision only pertains to the absence of a defence of contributory negligence under s. 34 of the Act of 1961. On this motion, I am not determining either the entitlement of the defendant at this stage in the proceedings to seek to raise any other objection to the plaintiff’s application for liberty to enter a final judgment or its entitlement to raise any other defence to the plaintiff’s claim for the debt alleged to be due to him.
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