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Cite as: [2006] IEHC 267

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Neutral Citation Number: [2006] IEHC 267

THE HIGH COURT

2000 No. 122 98 P

BETWEEN/

DENISE DELARGY

PLAINTIFF

AND

THE MINISTER FOR THE ENVIRONMENT AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

AND BY ORDER

THE MOTOR INSURERS BUREAU OF IRELAND

DEFENDANTS

Supplemental Judgment of Mr. Justice Roderick Murphy dated the 10^th day of August, 2005.

1. Principal judgment

By judgment dated 18^th March, 2005, the court declared, as prayed for in paragraph (3) of the prayer to the amended statement of claim delivered 31^st August, 2002, that Article 6 of the Road Traffic (Compulsory Insurance) Regulation, 1962 (the Regulation) was invalid and that the Minister for the Environment and Local Government, the first named defendant herein, had acted ultra vires the powers conferred on him by the Oireachtas.

As is clear from the judgment, the reason for the declaration was that the Minister had arbitrarily restricted cover by the inclusion by sub-article (2) of a person being conveyed by a cycle from the definition of passenger. Accordingly, the declaration should refer to Article 6(2) and not to Article 6 as sought by the plaintiff.

2. Present application

By agreement between the parties the court was asked to consider the appropriate form of ancillary relief.

Mr. Patrick Connolly, S.C., on behalf of the Bureau, the fourth named defendant, submitted that the judgment was clear in respect of the position of the Bureau. At p. 10 of the judgment it was stated:

"At the time of the accident there was no requirement to have cover for pillion passengers. Accordingly, the MIBI had and has no obligation under the agreement to meet the judgment which had been recovered by the plaintiff in respect of her injuries."

The judgment concluded that the MIBI had no duty to indemnify.

The court had refused the application, in para. (9) of the statement of claim in respect of a declaration that the plaintiff was entitled to claim as against the MIBI in respect of the liability of (the driver) to the plaintiff on foot of (the judgment obtained).

Mr. Connolly submitted that there was confusion as to what should have been the statutory provisions at any given time and what obligations the Bureau had. The Bureau was a voluntary undertaking whose obligation was co-terminous with the obligation to ensure. It was concerned with funding rather than with compensation for which it required a degree of certainty. Over forty years had passed since the 1964 agreement which was the applicable agreement.

The Bureau did not indemnify the State against any invalidity in law.

It was a statutory requirement that all insurers subscribe to the Bureau as a prerequisite of conducting insurance business in the State.

The Bureau could not re-negotiate the contractual risk undertaken by them for the relevant period.

Mr. Michael Collins, S.C., on behalf of the plaintiff submitted that the plaintiff had a judgment and had obtained a declaration as against the Minister.

The plaintiff had been excluded from cover by virtue of a Regulation which was now declared invalid.

The court was referred to Hogan & Morgan: Administrative Law at 816, which refers to breach of statutory duty in the context of government liability.

He referred to Meskil v. C.I.E. [1973] I.R. 121 and to Budd J.'s judgment in An Blascaod Mór Teoranta v. Commissioners for Public Works and to Duff v. Minister for Agriculture and Food [1997] 2 I.R. 22 where a mistake of law entitled the plaintiff to damages as against the Minister in respect of milk quotas.

Mr. James Connolly, S.C., on behalf of the State parties, submitted that the grounds in An Blascaod Mór was that of discrimination, while that in Duff was the legitimate expectation, neither of which applied in the present case.

There was no duty on the Minister to make provision for the plaintiff. The Statutory Instrument did not impose an obligation on the Minister. The Minister conferred rights on those who were not previously covered. There was no Ministerial scheme to be administered as there was in Duff.

There was no breach of statutory duty.

3. Decision of the Court

The court confirms that the Motor Insurance Bureau of Ireland had and has no obligation in relation to the plaintiff's claim. The terms of the agreement related to their obligations at the time. Moreover, the Bureau does not indemnify the State against any invalidity in the law.

The court has already made a declaration in relation to Article 6(2) of the 1962 Regulations.

The question arises as to the consequences of the Minister acting ultra vires the powers conferred on him by the Oireachtas in relation to the exclusion of cover for pillion passengers. There is no direct relationship between the power of the court to annul an administrative act and liability to pay damages or monetary compensation. When a court annuls an administrative act on procedural grounds, that decision is deemed to be ultra vires and void ab initio. However, it does not follow that a declaration of invalidity of an administrative decision in and of itself gives rise to a cause of action and damages.

In certain circumstances, such as the commission of a tort, a breach of statutory duty or the infringement of a personal constitutional right or a breach of a plaintiff's legitimate expectation, is a plaintiff entitled to damages as a result of an invalid administrative act.

The question of tort does not arise in the present case, whether misfeasance of public office or a commission of a recognised tort.

The Minister had a statutory duty to make regulations. Section 65(1) of the 1961 Act defines "excepted persons" as including:

"(a) any person claiming in respect of injury to person to himself sustained while he was in or on a mechanically propelled vehicle to which the relevant document relates, other than a mechanically propelled vehicle of a class specified for the purposes of this paragraph by the Minister by regulations."

The Minister specified the class of mechanically propelled vehicle in Article 6 of the Regulation. Sub-article 6(2) arbitrarily restricted and excluded cover to a category of otherwise insurable passengers. The court has held that it was difficult to see by what principle or policy such exclusion was made.

To have acted in such an arbitrary manner was a breach of duty.

In Pine Valley Developments Limited v. Minister for the Environment [1987] I.R. 23, the Supreme Court held that there was no action for breach of statutory duty lying against the Minister who had granted planning permission which was subsequently found to be invalid. Finlay C.J. held, at 36:

"The Minister in making his purported decision to grant outline planning permission was exercising a decision-making function vested in him for the discharge of a public purpose or duty. The statutory duty thus arising must, however, in law, be clearly distinguished from duties imposed by statute on persons or bodies for the specific protection of the rights of individuals which were deemed to be absolute and breach of which may lead to an action for damages."

However, in O'Neill v. Clare County Council [1983] I.L.R.M. 141, a planning authority was liable in damages in respect of their refusal to grant permission and in Bakht v. Medical Council [1990] 1 I.R. 515, a plaintiff was awarded damages in respect of loss of earnings by reason of the wrongful failure of the Medical Council to adopt rules. In Emerald Meats v. Minister for Agriculture and Food [1997] 2 I.L.R.M. 275, the Minister was liable in damages for a breach of statutory duty imposed by an E.C. Regulation.

In Moyne v. London Port and Harbour Commissioners [1986] I.R. 299, the defendants were found to be in breach of their statutory duties to keep certain harbours open. That breach gave rise to an action for damages at the suit of members of the public living in the locality.

While the distinction between the duty to the public only not giving rise to a cause of action and the duty to a specific class of persons might very well have been fatal to the plaintiff's case by reason of the nature of the Regulations specifying certain classes of vehicles, the effect of sub-article (2) was to exclude a defined category of persons, which included the plaintiff, from having the benefit of the mandatory requirement to have cover.

The declaration of invalidity was based on the provisions of Article 40.3 and Article 40.1 of the Constitution whereby the State guarantees by its laws to respect, and insofar as practicable, by its laws to defend and vindicate the personal rights of the citizen and that all citizens should be held equal before the law.

The court, however, in making the declarations sought was of the view that the plaintiff's constitutional rights had not been protected.

In the circumstance the plaintiff is entitled to a remedy as against the Minister.

Approved: Murphy J.