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Kelly v. Minister for Agriculture, Food and Forestry [2001] IEHC 86 (1st May, 2001)
THE
HIGH COURT
1996´No.
3877P
BETWEEN
LAURENCE
KELLY
PLAINTIFF
AND
THE
MINISTER FOR AGRICULTURE, FOOD AND FORESTRY, IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS
JUDGMENT
of Mr. Justice Paul Butler delivered on the 1st day of May, 2001.
1. By
Order of Mr. Justice Johnson made herein on the 4th December, 2000 directions
were made for the trial of preliminary issues of law herein. Pursuant to Order
25 Rule 1 and/or Order 34 Rule 2 of the Rules of the Superior Courts a trial of
the following preliminary issues of law raised by the Defendants has been
ordered:-
- Whether
on the facts pleaded the Defendants owed to the Plaintiff a duty of care at
common law;
- Whether
on the facts pleaded the Defendants owed the Plaintiff a duty of care by virtue
of the Constitution of Ireland;
- Whether
if the Defendants did owe to the Plaintiff a duty of care at common law and/or
by virtue of the Constitution of Ireland, on the facts pleaded the Defendants
were in breach of the alleged duty of care;
- Whether
on the facts pleaded, if the Defendants did owe to the Plaintiff the alleged or
any duty of care at common law and/or by virtue of the Constitution of Ireland
and if the Defendants were in breach of the said duty of care, the said breach
caused or contributed to the alleged or any loss or damage allegedly occasioned
by the Plaintiff;
- Whether
on the facts pleaded the Defendants can have any liability to the Plaintiff by
reason of the prosecution brought against the Plaintiff by the Director of
Public Prosecutions, by reason of the return of the Plaintiff for trial by a
judge of the District Court and by reason of the trial of the Plaintiff in the
Circuit Court;
- Whether
on the facts pleaded the Defendants are vicariously liable in respect of the
alleged negligence and breach of duty on the part of officials of the first
named Defendant on the premises of Anglo Irish Beef Processors at Rathkeale,
County Limerick;
- Whether
on the basis of the facts pleaded the statement of claim discloses any or any
reasonable or sustainable cause of action in law by reason of the fact that the
Plaintiff has not pleaded the tort of malicious prosecutions;
- Whether
the alleged breaches by the Defendants of Council Regulation 729/70 (as
amended) and decision 75/1 as alleged at paragraph 17 of the amended Statement
of Claim confer any cause of action on the Plaintiff as against the Defendants;
- Whether
the provisions of European law pleaded at paragraph 17 of the amended Statement
of Claim are directly effective so as to confer rights on the Plaintiff which
may be enforceable against the Defendants in these proceedings;
- Whether
in the absence of any damage by the Plaintiff as a result of the alleged
breaches by the Defendants of the provisions of European law pleaded at
paragraph 17 of the amended Statement of Claim, the said paragraph discloses
any or any reasonable or sustainable cause of action in law in favour of the
Plaintiffs against the Defendants.
2. It
is pleaded on behalf of the Plaintiff, and accepted on behalf of the
Defendants, that,
for
the purposes of this application
,
the Court must accept the factual matters outlined in the Statement of Claim
herein.
3. The
facts, as pleaded, have been fairly outlined by both sides in their respective
submissions. They are outlined on behalf of the Plaintiff as follows:-
- “At
all material times the Plaintiff was a factory supervisor and employed as a
line supervisor in the boning hall of Anglo Irish Beef Processors factory at
Rathkeale, County Limerick.
- The
Plaintiff pleads that the Defendant was appointed as intervention agent for
beef within the jurisdiction.
- It
is pleaded that the Defendant entered into a course of dealing with A.I.B.P.
Limited whereby A.I.B.P. Limited agreed to sell and the Defendants agreed to
purchase intervention beef produced at the company’s premises at
Rathkeale, County Limerick; the said factory being licensed by the Minister as
an authorised centre for the deboning of intervention beef.
- The
Defendant appointed officers to act on its behalf in the administration of the
terms of the scheme for deboning of intervention beef on the premises.
- Documentation
was required to be prepared and submitted to the first Defendant within three
days of deboning of intervention of beef namely:
(i) The
purchase agreement on meat for deboning which had to be signed by a duly
authorised officer of the company and duly authorised officer of the first
named Defendant
(ii) Boneless
beef purchase record and certification receipt
(iii)
Deboning yield record
(iv)
Deboning yield summary
(v)
Boneless beef transfer form and
(vi)
Boneless beef transport record
a. The
said documentation and the execution thereof provided the basis upon which the
first Defendant authorised payment for intervention beef and the boning charges
relating to same.
a. Other
documentation was used by employees of the company with the consent of the
Defendant in lieu of the prescribed documentation.
b. The
prescribed documents were submitted to the first Defendant by the officers for
payment of intervention beef and deboning charges as being an accurate
production record of the deboning of intervention beef at the factory premises.
a. The
Plaintiff acted as boning hall supervisor on behalf of A.I.B.P. Limited and was
duly instructed that he was to desist from signing any of the documentation
from April 1990 on.
b. Between
July 1990 and October 1991 wrongful description and quantification of
intervention beef into prescribed documentation took place.
a. The
prescribed documentation was completed and signed by officers and servants or
agents of the first Defendant in the presence of an authorised officer, servant
or agent of the company.
b. The
signature of the Plaintiff appeared on the forms which recorded the particulars
of the deboning of intervention beef for the relevant period.
a. The
signature appearing on the forms was not the signature of the Plaintiff as the
Plaintiff did not sign any of the forms either as an officer, servant or agent
of the company or as witness to the signature of officers of the first
Defendant, the Minister for Agriculture.
b. The
signature of the Plaintiff was placed upon the prescribed documentation by an
officer, servant or agent of the first Defendant who was acting in concert with
other officers, servants or agents of the first Defendant and was done without
the knowledge or consent of the Plaintiff whether express, implied or otherwise.
a. The
Plaintiff’s apparent signature on the prescribed documentation
facilitated the preparation of incorrect records of the deboning of
intervention beef throughout the relevant period.
a. In
October 1991 the Plaintiff first became aware of the wrongful use of his
signature upon the said documentation when he was informed of the same by an
officer, servant or agent of the first Defendant.
b. The
Plaintiff was subsequently arrested, taken into custody and subjected to a
criminal prosecution on charges of conspiracy to defraud the first Defendant.
a. The
Plaintiff was returned for trial by the District Court on the 2nd of November,
1994. He pleaded not guilty to the charges. The trial took place at the
Dublin Circuit Court in April and May of 1995. He was acquitted, by direction
of the trial Judge.
b. The
Plaintiff has suffered ridicule, loss, damage, inconvenience and expense as
outlined in the Statement of Claim.”
4. In
short, it is alleged that, as a result of the wrongful acts of the servants or
agents of the first Defendant, namely the forging of the Plaintiff’s
signature, the Plaintiff was subjected (at least) to arrest, detention and
prosecution and all that followed there from. It is not alleged that the
Plaintiff was maliciously prosecuted.
DETERMINATION
(i)
DUTY
OF CARE
5. It
is agreed that the question of a duty of care should be considered by reference
to the principles established by the Supreme Court in
Ward
-v- McMaster
(1988) I.R. 337 in which McCarthy J, cited with approval the following dicta of
Lord Wilberforce in
Anns
-v- Merton London Borough
(1978) AC 728 at 751
“The
position has now been reached that in order to establish that a duty of care
arises in a particular situation, it is not necessary to bring the facts of
that situation within those of previous situations where a duty of care has
been held to exist. Rather, the question has to be approached in two stages.
First one has to ask whether, as between the alleged wrongdoer and the person
who has suffered damage, there is a sufficient relationship of proximity or
neighbourhood such that, in the reasonable contemplation of the former,
carelessness on his part may be likely to cause damage to the latter - in which
case a prima facie duty of care arises. Secondly, if the first question is
answered affirmatively, it is necessary to consider whether there are any
conditions which ought to negative or to reduce or limit the scope of the duty
or class of persons to whom it is owed or the damages to which a breach of it
may give rise...”
.
6. McCarthy
J, went on to state that the following was the appropriate test for determining
whether
a duty of care arose in a particular situation, namely:-
“Whilst
Costello J, essentially rested his conclusion on the ‘fair and
reasonable’ test, I prefer to express the duty as arising from the
proximity of the parties, the foreseeability of the damage and the absence of
any compelling exemption based upon public policy. I do not, in any fashion,
seek to exclude the latter consideration although I confess that such a
consideration must be a very powerful one if it is to be used to deny an
injured party his right to redress of the person or body that injured him”
.
7. Clearly
there is sufficient proximity between the parties in that it is alleged and,
solely for the purpose of this application, must be accepted that the
Plaintiff’s signature was placed upon prescribed documentation by an
officer or a servant or agent of the first Defendant without the
Plaintiff’s knowledge or consent. Clearly this could cause damage to the
Plaintiff.
8. It
is argued, on behalf of the Defendants, that it would be contrary to public
policy to impose a duty of care generally to act in such a way that no criminal
prosecution could ever be initiated for the reasonable and probable cause
against a person who claims damages in respect of it. I do not accept this
argument. This case has nothing to do with wrongful or malicious prosecution.
(ii) THE
CONSTITUTION
9. This
question only arises in the event of the answer to the first question being in
the negative. I feel, however, that I should touch upon it in the event that
the Supreme Court finds that I am wrong in my other findings. It is submitted,
on behalf of the Plaintiff, that the Plaintiff has suffered a wrong and if he
is not entitled to avail of the common law he has a remedy under the
Constitution.
10. On
the case as pleaded the Plaintiff has, at the very least, suffered an
interference to his right to liberty. Again, on the case as pleaded, the same
was caused not by the actions of the Garda authorities in arresting him or by
the Director of Public Prosecutions in prosecuting him but as a result of the
alleged wrongful act of the first Defendant, his servants or agents.
11. Henchy
J, in the course of his Judgment in
Hanrahan
-v- Merck Sharp & Dohme
(1988) ILRM 629 at p. 636 said as follows:-
“So
far as I am aware, the constitutional provisions relied on have never been used
in the courts to shape the form of any existing tort or to change the normal
onus of proof. The implementation of those constitutional rights is primarily
a matter for the State and the courts are entitled to intervene only when there
has been a failure to implement or, where the implementation relied on is
plainly inadequate, to effectuate the constitutional guarantee in question. In
many torts for example, negligence, defamation, trespass to the person or
property a Plaintiff may give evidence of what he claims to be a breach of
constitutional right, but he may fail in the action because of what is usually
a matter of onus of proof or because of some other legal or technical defence.
A person may of course in the absence of a common law or statutory cause of
action, sue directly for breach of constitutional right but where he founds his
action on existing tort he is normally confined to the limitations of that
tort. It may be different if it could be shown that the tort in question is
basically ineffective to protect his constitutional right.”
12. If
it were the case that the alleged damage suffered by the Plaintiff in this case
could not be redressed in tort, he would have a cause of action for breach of
his Constitutional rights.
(iii)
BREACH
OF DUTY
13. While
it will clearly be open to the court ultimately to decide that there was no
breach of duty, if the facts as pleaded are established there was a clear
breach of duty.
(iv) LOSS
OR DAMAGE
14. It
is alleged that the wrongful use of the Plaintiff’s signature led to his
arrest and prosecution. If that is so one thing led to the other and the
breach of duty of care by the Defendants caused or contributed to the alleged
loss or damage suffered by the Plaintiff.
(v) THE
PROSECUTION
15. It
is neither pleaded nor alleged that the Defendants have any liability to the
Plaintiff by reason of the prosecution brought against the Plaintiff, his
return for trial or his trial.
(vi) VICARIOUS
LIABILITY
16. It
was not seriously contended on behalf of the Defendants that they were not
vicariously liable in respect of the alleged negligence and breach of duty on
the part of officials of the first named Defendant. I hold that they are
vicariously liable.
(vii) MALICIOUS
PROSECUTION
17. I
have held that on the basis of the facts as pleaded the Statement of Claim does
disclose a cause of action even though the Plaintiff has not pleaded the tort
of malicious prosecution.
(viii)
(ix) and (x)
ISSUES OF EUROPEAN LAW
18. It
was conceded on behalf of the Plaintiff that it would be difficult to establish
a separate cause of action under this heading and I am, therefore, making no
finding thereon.
19. Finally,
I should observe that, although the Defendants have made written submissions in
relation to the Plaintiff’s claim in liable and fraud, the same does not
fall for determination at this stage in accordance with Judge Johnson’s
Order.
© 2001 Irish High Court
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