BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
High Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Digital Rights Ireland Ltd -v- Minister for Communication & Ors [2010] IEHC 221 (05 May 2010) URL: http://www.bailii.org/ie/cases/IEHC/2010/H221.html Cite as: [2010] 3 IR 251, [2010] IEHC 221 |
||
[New search] [Help]
|
Judgment Title: Digital Rights Ireland Ltd -v- Minister for Communication & Ors Composition of Court: Judgment by: McKechnie J. Status of Judgment: Approved |
Neutral Citation Number: [2010] IEHC 221 THE HIGH COURT 2006 3785 P DIGITAL RIGHTS IRELAND LIMITED Plaintiff -and-
THE MINISTER FOR COMMUNICATION, MARINE AND NATURAL RESOURCES, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE COMMISSIONER OF AN GARDA SIOCHÁNA, IRELAND AND THE ATTORNEY GENERAL Defendants -and-
THE HUMAN RIGHTS COMMISSION Notice Party JUDGMENT of Mr. Justice William M. McKechnie delivered on the 5th day of May 2010 1. The Plaintiff is a limited liability company, limited by guarantee, incorporated under the Companies Acts 1963-2003, on the 4th November 2005, and has its registered office at 1 Caiseal na Rí, Cashel, Co. Tipperary. It has as one of its objects, in its Memorandum of Association, the promotion and protection of civil and human rights, particularly those arising in the context of modern communication technologies.
2. The First and Second Named Defendants are Ministers of Government and corporations sole and have their principal offices at 29/31 Adelaide Road and St. Stephen’s Green in the City of Dublin, respectively.
3. The Third Name Defendant (“The Garda Commissioner”) is the person charged with responsibility for the Garda Síochána and has his principal offices at Garda HQ Phoenix Park in the City of Dublin. He is entrusted with a purported power under section 63(1) of the Criminal Justice (Terrorist Offences) Act 2005 to issue a Direction or Directions to telecommunications services providers.
4. The Fourth Named Defendant is Ireland and the Fifth Named Defendant is the law officer of the State designated by the Constitution of Ireland and is sued in his representative capacity.
5. The Notice Party, joined as such in these proceedings, is a statutory body corporate established by section 4 of the Human Rights Commission Act 2000. It is so joined pursuant to section 8(h) of the aforesaid Act and appears as amicus curiae in the above entitled proceedings.
6. This judgment relates to the following three matters, the first two moved by the Defendants and the third by the Plaintiff, all of which were heard by way of preliminary issues:
ii) Whether security for costs should be granted against the Plaintiff; iii) Whether a reference to the Court of Justice (“CoJ”) under Article 267 of the Treaty on the Functioning of the European Union (“TFEU”) (formerly Article 234 of the Treaty establishing the European Communities (“TEC”)) should be made. Background:
8. By letter dated 19th December 2002 the Data Protection Commissioner advised the Department of Communications, Marine and Natural Resources that the above-mentioned direction was ultra vires, constitutionally invalid and was in breach of the Data Protection Acts 1988/2003 and S.I. 192 of 2002; with the grounds therefor being that as the objectives sought by the direction amounted to a derogation from the then existing data protection legislative scheme, the same could only be enacted through primary legislation. The Data Protection Commissioner advised the Defendants that failing a satisfactory response he would issue judicial review proceedings to challenge the validity of any direction(s) the Minister purported to make under the Postal Telecommunications Services Act 1983.
9. Some of the concerns of the Data Protection Commissioner were addressed in Part 7 of the Criminal Justice (Terrorist Offences) Act 2005 (“CJ(TO)A 2005”), which made provision for the retention of traffic and location data, relating to communications transmitted by fixed line or mobile telephone, and access to such data retained for law enforcement and security purposes.
10. The Plaintiff alleges that on a date or dates unknown, following the coming into force of the above Act of 2005, the Garda Commissioner issued a direction under the provisions thereof to telecommunications service providers to retain data.
11. The European legal framework in place at the time was governed by Directive 95/46/EC (‘on the protection of individuals with regard to the processing of personal data and on the free movement of such data’) and Directive 97/66/EC (‘concerning the processing of personal data and the protection of privacy in the telecommunications sector’), later repealed by Directive 2002/58/EC (‘concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications)’). These Directives aimed to harmonise the position of Member States:
12. On 6th May 2006 Directive 2006/24/EC (‘on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC’) was published. Article 1 of Directive 2006/24/EC states:
2. This Directive shall apply to traffic and location data on both legal entities and natural persons and to the related data necessary to identify the subscriber or registration user. It shall not apply to the content of electronic communications, including information consulted using an electronic communications network.”
13. In this case the Plaintiff alleges that the Defendants have wrongfully exercised control over data, in that they have illegally processed and stored data relating to the Plaintiff, its members, and other mobile phone users contrary to: (i) statute, (ii) EC law, and (iii) the Constitution, in particular having regard to the Plaintiff’s asserted rights to privacy, to travel and to communicate (Arts. 40.3.1˚, 40.3.2˚ and 40.6.1˚), and (iv) the European Convention on Human Rights (“ECHR”), in particular the right to private life, to family life, and to privileged communication (Arts. 6(1), 8 and 10). These allegations involve a claim that s. 63(1) of the CJ(TO)A 2005 is invalid on the within grounds and further that Directive 2006/24/EC is contrary to the Charter of Fundamental Rights (“CFR”) and the ECHR.
14. The synopsis last given is simply that: the proceedings as shown by the pleadings are detailed and complex. For present purposes I would adopt as useful the following summary of the remedies sought by the Plaintiff:
ii) Declarations to the effect that s. 63(1) of the CJ(TO)A 2005 is null and void for breach of the Constitution and/or EU law, and/or is incompatible with Ireland’s obligations under the ECHR; iii) A Declaration that the State has failed in its obligation to give effect to EU law; iv) A Declaration that Directive 2006/24/EC is null and void for breach of the EC Treaty and/or on the grounds that it was adopted without any legal basis; v) Reliefs including injunctive reliefs directed towards the lawfulness of the April 2002 communication by the Minister for Public Enterprise; vi) If necessary, a Declaration that s. 110 of the Postal and Telecommunications Services Act 1983, as amended, is repugnant to the Constitution; vii) Injunctions restraining the Defendants from acting under or giving effect to the impugned instruments including the EC Directive; viii) An Order pursuant to Art. 267 TFEU referring the following questions to the CoJ for a preliminary ruling: • Whether Directive 2006/24/EC is valid notwithstanding:
b) Article 3a TEU and 21 TFEU (formerly Articles 10 and 18 TEC) c) Articles 7, 8, 11 and 41 of the CFR d) Article 5 TEU (formerly Article 5 TEC) (the principle of proportionality) ix) Damages; x) Such other consequential reliefs and costs. Locus Standi: Submissions:-
16. The Defendants object to the extent of the rights claimed by the Plaintiff since the latter is a non-natural legal entity: in particular they deny it has the required standing to assert certain of the personal rights which it seems to rely upon. Further, whilst the Plaintiff describes itself as a non-governmental organisation (“NGO”), it has no formal status or recognition as such, either under domestic or international law. Nor does it have a significant track record of any substance, having been incorporated no earlier than the 4th November 2005.
17. The Defendants argue that for the courts to entertain a constitutional challenge, it must be demonstrated that the litigant’s rights have either been infringed or directly threatened. In relation to the rights claimed on behalf of others, the Plaintiff is in a different position since it is not a natural person. The doctrine of incorporation prevents a company from asserting rights on behalf of its members, except insofar as they are co-extensive with its own. A company therefore cannot assert rights which only its members would have; they must do that themselves. Furthermore, the Plaintiff cannot assert the putative rights of others, regardless of whom they may be, as firstly such would be a claim to ius tertii, contrary to the Supreme Court decision in Cahill v. Sutton [1980] I.R. 269, and secondly the position of the other people, namely in this case members of the Plaintiff company and “other users of mobile phones”, is nihil ad rem (see Norris v. Attorney General [1984] IR 36 at 58). In addition it is claimed that a company cannot have a right to private life or privacy, a right to family life, a right to travel (and to confidentiality of travel) and a right to communicate; the Plaintiff having no physical manifestation.
18. Even if the Plaintiff does have some rights, those rights are limited. Whether commercial expression by non-media companies is protected under Article 40.6.1˚ is, the Defendants assert, unclear (Attorney General v. Paperlink [1984] ILRM 373 cited). With regards to a company’s right to privacy, the Defendants draw attention to Caldwell v. Mahon [2007] 3 IR 542, where Hanna J. held that although a right to privacy exists in connection with the conduct of business affairs, such a right must be considered as being at “the outer reaches of and the furthest remove from the core personal right to privacy”.
19. The Defendants therefore contend that, in circumstances where the right is asserted over the fact and attendant circumstances of communication, as opposed to the content therein, the Plaintiff company has only the most limited right to privacy; certainly the purchase of a single mobile phone by the Plaintiff just over two months prior to the institution of these proceedings, cannot operate to confer standing upon it.
20. Further, the Defendants say, there is an over abundance of potential litigants who would have full standing to advance all aspects of the Plaintiff’s claim; any natural person who uses a mobile phone, any person criminally charged against whom the D.P.P. proposes to offer retained telecommunications data as evidence, the Human Rights Commission, the Data Protection Commissioner – and this is to name but a few. This is not a situation where the persons potentially prejudiced would be unable to assert their rights, as with the unborn in S.P.U.C. v. Coogan [1989] I.R. 743. Instead it is a situation more akin to those at issue in L’Henryenet v. Ireland [1983] I.R. 193 where a fisherman was precluded from challenging the constitutionality of the Fisheries Acts on the basis that there was no question of the owner of the vessel in question not being in a position to assert his own constitutional rights.
21. Nor are there circumstances in this case which would merit a relaxation of the normal rules on standing. Such were considered in Construction Industry Federation v. Dublin City Council [2005] 2 IR 496, where the Supreme Court concluded, according to the Defendants, that there were two broad principles in this regard. Firstly, standing might be conceded to a person not directly affected in circumstances where administrative error (or maladministration) would otherwise go unchallenged, and secondly, a representative litigant should not be granted standing in circumstances where the interest it seeks to assert is that of its members and its members are themselves in a position to litigate.
22. This is not a case, either, involving the breach of a constitutional norm; that is a right which is constitutionally mandated, for example the administration of justice in public, the safeguarding of the institution of marriage, or the prohibition on the endowment by the State of any religion. The maintenance of these benefits all citizens equally and generally, such that one potential bona fide litigant is unlikely to be better qualified than any other. Nor is a public interest asserted, merely a collection of individual rights.
23. Finally, the Plaintiff cannot confer standing upon itself by virtue of its Memorandum of Association (S.P.U.C. v. Coogan [1989] I.R. 734 at 742).
24. Before embarking on a recitation of its position with regards to locus standi, it is convenient to deal with a submission made by the Plaintiff to the effect that this issue should not be determined as a preliminary one; instead it should take its normal place within the body of the action and await the Courts decision on all of the issues raised. I respectfully disagree with this assertion: I am satisfied that it is correct in this case to deal with locus standi as a preliminary issue. It is vital to the running of any case that the areas of dispute are laid out clearly. The issue of whether or not a Plaintiff has locus standi is fundamental, firstly to its existence as a plaintiff, and secondly to the range of arguments which may be advanced by it. Thus matters which a Plaintiff has no standing to bring are no longer relevant. If a Plaintiff should be found to lack standing in respect of all his claims, he will have no case at all. It is in the interests of all concerned, in particular with regards to costs and time, that this determination should be made as early as possible in the litigation, so that all future preparation and argument may be made without the need to consider matters which are, in actuality, extraneous and/or irrelevant. It is of course acknowledged that the Court may not always usefully adopt this approach, as there may well be cases where the critical framework can only be established at trial and after procedural steps, such as discovery etc. have been engaged upon. In this case however, I am satisfied that there has been sufficient engagement to properly inform a decision as to the standing of the Plaintiff vis-à-vis the various rights asserted by it.
25. By way of substantive reply, the Plaintiff asserts that this is a case where there should be a justified relaxation of the rules of standing. It notes the comments of Henchy J. in the Supreme Court in Cahill v. Sutton [1980] I.R. 269 at 285, that:
26. Drawing parallels with the liberal approach to locus standi in Crotty v. An Taoiseach [1987] 1 I.R. 713, the Plaintiff says that it is clear that the impugned provisions, which relate to the retention of data in respect of mobile phone, internet and e-mail communication of all persons who use such services, affect virtually every citizen and entity in the State, including the Plaintiff. In support of this contention the decision of the European Court of Human Rights (“ECtHR”) in Copland v. the United Kingdom (Case 62617/00, 3rd April 2007) [2007] ECHR 253, was cited, in which it was held that the collection and storage of such personal data amounted to an interference with Art. 8 rights (ECHR). A more liberal approach should therefore be allowed, in the Court’s discretion, to the issue of standing.
27. In response to the argument that as a company the Plaintiff should not be allowed to assert such broad interests, reference is made to S.P.U.C. v. Coogan [1989] 1 I.R. 734 and to Blessington Heritage Trust Limited v. Wicklow County Council and Others [1999] 4 IR 571. In the latter case, McGuinness J. held that a limited company had locus standi to bring proceedings challenging a planning decision. The Plaintiff also drew attention to the Supreme Court’s comments on locus standi in Lancefort Limited v. An Bord Pleanála and Others (No. 2) [1999] 2 IR 270 at 308. Keane J. in that case went on to conclude that a company could have locus standi to bring proceedings even if it was unable to point to any proprietary or economic interest in the impugned decision, and that a company may not be denied standing merely because it was not in existence at the time of the relevant decision.
28. In further submissions it is said that where the subject matter of the litigation involves questions of Community law, although in general procedural rules will be governed by national law, it must be borne in mind that there is an overriding obligation on the national court to uphold Community law, and national procedural rules should not operate in such a way as to undermine a claimant’s right to effective judicial protection. As noted by Keane J. in Lancefort v. An Bord Pleanála (No. 2) [1999] 2 IR 270 at 312:
Standing and Interest:- 29. In considering this issue, it should be noted that with regards to the alleged infringements of the Plaintiff’s rights, it is only necessary for the Court, in the context of deciding locus standi, to determine that a limited company may avail of such rights. It is not necessary for the Court to determine the extent or breadth of those rights. It is therefore sufficient for the Plaintiff to show that those rights are affordable to companies including it, and that the actions of the Defendants could affect them; if it can it will have locus standi to litigate as to whether those rights have in fact been infringed. Despite what follows, the context in which the discussion takes place should not be forgotten.
30. The seminal case in this regard is the decision of the Supreme Court in Cahill v. Sutton [1980] I.R. 269. Henchy J. proffered that:
31. Both the High Court and Supreme Court considered the extent of this principle in Crotty v. An Taoiseach [1987] IR 713. In that case a challenge was brought in relation to the constitutionality of enacting the provisions of the Single European Act without a referendum. Issue was taken with the standing of the plaintiff as he was unable to show that he would be more affected by the statute than any other citizen who could bring the action. In the High Court, Barrington J. considered that:
Corporate Standing:-
33. This question was considered in S.P.U.C. v. Coogan [1989] 1 I.R. 734. Referring to his decision in A.G. (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593, Finlay C.J. quoted from p. 623 of that judgment as follows:
34. Whilst Walsh J. in the same case emphasised the nature and importance of the right in question (the right to life of the unborn), his comments in my view have a broader application, especially when considered in light of the rights claimed, in the case at hand. He stated at p. 743 of the report:
35. Whilst Coogan did not involve a constitutional challenge to any particular piece of legislation, there is no reason, in my view, as to why it would not equally apply to such a case. Therefore it would thus seem to me that, in principle, a company should not be prevented from bringing proceedings to protect the rights of others where, without otherwise being disentitled, it has a bona fide concern and interest, taking into account the nature of the right which it seeks to protect or invoke.
36. Some ten years after S.P.U.C. v. Coogan was decided, this issue was again addressed by the Supreme Court in Lancefort Ltd. v. An Bord Pleanála & Ors. (No. 2) [1999] 2 IR 270. At pp. 286-289 of the report, Denham J. said:
37. Dealing specifically with the standing of a company, Denham J., in the same case, at p. 292 of the report stated that:
‘It seems to me that if I were to deny standing to Greenpeace, those it represents might not have an effective way to bring the issues before the court. There would have to be an application either by an individual employee of BNFL or a near neighbour. In this case it is unlikely that either would be able to command the expertise which is at the disposal of Greenpeace. Consequently, a less well informed challenge might be mounted which would stretch unnecessarily the court’s resources and which would not afford the court the assistance it requires in order to do justice between the parties.’”
38. This having been established, the company should be considered in light of the public interest:
The common law on locus standi has been developed to aid the administration of justice. The crank, vexatious litigant and stranger is excluded from the courts. The applicant does not belong to any of these categories. The principles of locus standi have been extended by the courts in some cases to situations where concerned citizens have sought to protect the public interest. The analogy of those cases, where the constitutionality of laws was queried, should be applied in this case. The track laid by S.P.U.C. v. Coogan [1989] I.R. 734, Crotty v. An Taoiseach [1987] IR 713 and McGimpsey v. Ireland [1988] I.R. 567 and environmental actions such as Chambers v. An Bord Pleanála [1992] 1 I.R. 134 and R. v. Pollution Inspectorate; ex p. Greenpeace (No. 2) [1994] 4 All ER 329, is firm and the cases provide appropriate precedents. This approach is just, aids the administration of justice, would not permit the crank, meddlesome or vexatious litigant thrive, and yet enables the bona fide litigant for the public interest establish the necessary locus standi in the particular area of environmental law where the issues are often community rather than individual related. The administration of justice should not exclude such parties from the courts. Whether or not they succeed in their action is quite another matter - but they should not be excluded from the courts to litigate the issue.”
39. McGuinness J. in Blessington Heritage Trust Ltd. v. Wicklow County Council & Ors [1999] 4 IR 571 at 595, considering the extent to which companies incorporated for the protection of rights could be afforded standing, noted that:
40. The Defendants sought to rely on the Supreme Court decision in Construction Industry Federation v. Dublin City Council [2005] 2 IR 496 as an example of where standing has been refused. The plaintiff in that case was an unincorporated association representing the interest of parties involved in the construction industry. The Court considered the English decision of R. v. Inland Revenue Commissioners, ex parte Federation of Self-Employed Businesses Ltd. [1982] 2 All E.R. 93, citing the ratio of the case as expressed in the headnote that:
41. In my opinion this case is entirely distinguishable from the one at hand, indeed the Supreme Court stated that “consideration of this question must depend largely on the circumstances of the individual case”. The plaintiff in C.I.F. was not a company, but an unincorporated association. It was an action for judicial review, rather than a constitutional challenge. As pleaded it raised hypothetical questions, whereas if the action had been taken by any of its members, a firm, definite and concrete framework would have been established. In fact each such case would have been particular to that plaintiff, as separate variables would apply. It was also clear that the plaintiff would in no way be affected personally by the impugned provisions, as its interest was identified wholly with those of its members. The plaintiff was also seeking an order for mandamus, rather than certiorari, which may have been a factor. In the present case it is clear that the plaintiff has an interest in this matter separate and distinct from its members. Although there may be some overlap between the company’s and its members’ interests, this in no way precludes the company from relying on an interest it holds in its own right.
42. Nonetheless, the concept that a person, otherwise not prejudiced by the impugned action, may be found to have a sufficient interest was considered in Cahill v. Sutton [1980] I.R. 269 at 285-286, where Henchy J. stated:
43. A more flexible approach may also be necessary where questions of European law are raised. The CoJ noted as far back as 1963 that:
44. The continuing development by the CoJ of the principles of effective protection of rights derived from Community law in national courts can be seen in a number of cases; the first being Marguerite Johnston v. Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651. The Court in Verholen & Ors. v. Sociale Verzekeringsbank Amsterdam [1991] ECR I-3757 noted at para. 24:
Under the principle of cooperation laid down in Article 10 EC, it is for the Member States to ensure judicial protection of an individual’s rights under Community law. … It is also to be noted that, in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law. … Although the EC Treaty has made it possible in a number of instances for private persons to bring a direct action, where appropriate, before the Community Court, it was not intended to create new remedies in the national courts to ensure the observance of Community law other than those already laid down by national law. … It would be otherwise only if it were apparent from the overall scheme of the national legal system in question that no legal remedy existed which made it possible to ensure, even indirectly, respect for an individual’s rights under Community law. … Thus, while it is, in principle, for national law to determine an individual’s standing and legal interest in bringing proceedings, Community law nevertheless requires that the national legislation does not undermine the right to effective judicial protection. … In that regard, the detailed procedural rules governing actions for safeguarding an individual’s rights under Community law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness)… Moreover, it is for the national courts to interpret the procedural rules governing actions brought before them, such as the requirement for there to be a specific legal relationship between the applicant and the State, in such a way as to enable those rules, wherever possible, to be implemented in such a manner as to contribute to the attainment of the objective, referred to at paragraph 37 above, of ensuring effective judicial protection of an individual’s rights under Community law.” 45. In summary, the Court held that the principle of effective judicial protection is a general principle of Community law, which flowed from the common traditions of the Member States, and the Member States must ensure judicial protection of an individuals rights under Community law. National procedural rules must therefore not undermine this right to effective judicial protection.
46. It is therefore clear that where issues of EU law arise in litigation, the Courts may be required to take a more liberal approach to the issue of standing so that a person’s rights thereunder are not unduly hampered or frustrated. The rules on standing should be interpreted in a way which avoid making it “virtually impossible”, or “excessively difficult”, or which impedes or makes “unduly difficult”, the capacity of a litigant to challenge EU measures of general application under Art. 267 TFEU (see also Van Schijnel v. SPF [1995] ECR I-4705, para. 17; Amministrazione delle Finanze v. San Giogio [1983] ECR 3595, para. 14). That is not to say that where questions of EU law are raised and a preliminary reference requested, the Court is automatically precluded from refusing a plaintiff standing. However, as was the case with regards to the power to grant interim relief in The Queen v. Secretary of State for Transport, ex parte Factortame Ltd & Ors. [1990] ECR I-2433, if the Court would be otherwise minded to allow standing in relation to the questions raised, but for a strict application of the national rules on locus standi, the Court should nonetheless grant standing where to do otherwise would render the plaintiff’s Community rights effectively unenforceable.
47. In relation to the foregoing I respectfully agree with the view of Gilligan J. in The Irish Penal Reform Trust Ltd. & Ors. v. The Governor of Mountjoy Prison & Ors. [2005] IEHC 305, that:
48. As can therefore be seen from the above case law, a plaintiff may be granted locus standi where, having regard to the rights in question, it can show either that it has a bona fide concern or interest in the provisions seeking to be impugned, or else that the rights which it seeks to protect are of general importance to society as a whole; this provided the Plaintiff is not a crank, meddlesome or a vexacious litigant. I should say that this latter point was not seriously argued, and I am firmly of the opinion that the Plaintiff herein is not such a litigant.
49. I would emphasise, however, that the Court should keep in mind the tension, on the one hand, between the public interest, as represented by public bodies established by the State, and, on the other, the right of access to the Court to litigate issues relating to whether the public interest is being protected (per Denham J. in Lancefort (No. 2)). Ultimately, the Court has a duty to prevent the unconstitutional abuse of public power, be it through legislation or otherwise. Thus where it is clear that a particular public act could adversely affect the constitutional, European, or Convention rights of a Plaintiff, or indeed society as a whole, a more relaxed approach to standing may be called for in order for the Court to uphold that duty, and vindicate those rights.
The Rights of a Company:- 50. It is obvious that if a plaintiff can show actual or potential infringement of a constitutional right, it must have locus standi. In this context it is therefore necessary to consider which rights, if any, a company, and therefore the Plaintiff herein, may have. If it is possible that these rights may be infringed by the actions of the Defendants, the Plaintiff has standing to challenge such. However, which constitutional and/or Convention rights can be afforded to corporate persons?
51. Some personal rights are clearly inapplicable to a company. Keane J. commented in the High Court in Iarnród Éireann v. Ireland [1996] 3 I.R. 321 that:
52. Nonetheless it is necessary to examine the nature of the rights claimed by the Plaintiff in the present case. Broadly speaking, the Plaintiff claims that the retention of digital data infringes several rights, in particular:
ii) the right to family life; iii) the right to communicate, and the corollary right to privileged communication; iv) the right to travel, and the attendant right to travel confidentially.
Privacy:- 53. As noted, rights of privacy may be derived from a number of sources. In an Irish context, it is well established that a person has a constitutional right to privacy (Kennedy v. Ireland [1987] I.R. 587). Privacy in business transactions was considered by Hanna J. in Caldwell v. Mahon [2007] 3 IR 542 at 548. Reviewing the previous case law “in the context of business transactions conducted through limited liability companies”, Hanna J. was of the opinion that Haughey v. Moriarty [1999] 3 IR 1 was of limited value when “seen against the background of seeking a discovery order of a citizen’s personal bank account.” Nor did he gain much assistance from Hanahoe v. Hussey [1998] 3 IR 69, noting in particular that although it involved a raid on a solicitor’s office, such was lawful, and further, not only did the firm sue, but so did the solicitors personally:
54. Ultimately Hanna J. was reluctant to hold that no such right existed, and indeed saw no reason why it should not, but:
55. However, it is still open to question whether an independent right of privacy exists for the benefit of the company, as distinct from its members. It must be remembered that limited liability companies are legal creations; they are therefore afforded certain privileges, but also have imposed on them certain responsibilities and limitations, e.g., inter alia, filing accounts, director’s and shareholder’s meetings, details of directors, and being amenable to enquiries and investigation under the relevant company legislation. These are, to a greater or lesser extent, all matters open to the public. A private citizen would clearly not be obliged to conduct his business subject to such requirements. Some commentators have suggested that in an Irish constitutional context, the right to privacy is concerned with securing individual autonomy. Such autonomy considerations could not apply to a corporate actor (see O’Neill, “The Constitutional Rights of Companies (2007), Ch. 15).
56. Despite such concerns, I am satisfied, as Hanna J. was, that there must exist a right to privacy in respect of business transactions carried out by corporate bodies. However, this right, given the legal and factual nature of such artificial persons, will inevitably be narrower than that applicable to natural persons. No serious suggestion could be made that regulations which sought annual returns or required the keeping of proper books and accounts would be invalidly interfering with a company’s right to privacy. In contrast, a requirement to divulge trade secrets may be quite a different matter. In general, I am satisfied that such a right to privacy must extend to companies as legal entities, separate and distinct from their members as natural persons. Such entities are an integral part of modern day business. It is therefore paramount that the interests of such legal persons are protected in the Courts. Much of the case law considering a company’s right to privacy is considered in the context of the invasion of its premises, however this is not the only way in which a company’s privacy might be invaded. As I have said, access may be sought to confidential information or research, or to information or documents generated as part of delicate business negotiations. Commerce and industry could not survive if such access was unregulated. It is therefore clear to me that in principle some right of privacy must exist at least over some areas of a company’s activity. Having so decided, it is not necssary to determine where precisely on the spectrum such rights may fall.
57. In European law such a right is readily apparent from Arts. 7 and 8 CFR and Article 8 ECHR. For the sake of clarity it is worthwhile setting out these provisions. Article 7 CFR, headed “Respect for private and family life” provides:
2. Such data must be processed fairly for specified purposes on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. …”
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 58. In Hoechst AG v. Commission [1989] ECR 2859, and two companion cases (Dow Benelux NV v. Commission [1989] ECR 3137 and Dow Chemical Iberica SA v. Commission [1989] ECR 3165) the Court of Justice held that corporate privacy protection was a fundamental principle of Community law. However, referring to Art. 8 ECHR, the Court noted that this should not be taken as being a right to inviolability of business premises:
59. Subsequently, however, this issue was considered by the European Court of Human Rights (“ECtHR”) in Niemietz v. Germany (1992) 16 EHRR 97. In that case the ECtHR ruled explicitly that the right to respect for private life in Art. 8 ECHR did extend to business premises since:
60. The ECtHR, in Société Colas Est and Others v. France [2002] III-421, reiterated this point, noting that:
61. These cases were later acknowledged by the CoJ in, inter alia, Roquette Frères SA v. Commission [2002] ECR I-9011, which noted that it was now clear from the jurisprudence of the ECtHR that the protections afforded to the family home under Article 8 may apply to business premises, although potentially subject to a greater level of legitimate interference.
62. Despite being supportive of some level of privacy right for corporate persons, it should be noted that the above European case law was primarily concerned with privacy in the context of premises and search and seizures. Whether such rights could therefore be said to extend to the collection of call data is, as a result, open to question. However, I am satisfied that there is recognised in both Irish and European law a right to privacy in business. Admittedly, such a right may be subject to a high level of justified interference, compared with the equivalent rights of natural persons; however for present purposes it is unnecessary to enter into discussion as to the legitimate scope of such rights; it is enough that they exist, and that they may have been infringed. In any event, it is clear that privacy with regards to personal data is explicitly within the contemplation of Art. 8 CFR. I can see no reason why such a right, although possibly more limited, may not apply to companies. Indeed such information may be commercially sensitive. The company would therefore have a great interest in protecting such data. I would thus allow the Plaintiff locus standi to raise issues relating to interference with its rights of privacy, whatever they might ultimately be found to be.
Family and Marital Privacy:- 63. As has been noted, corporate persons, by virtue of their nature, may not be capable of holding certain rights. Although not in the context of companies, by analogy I would note the comments of Henchy J. in Norris v. A.G. [1984] IR 36 at 68, where he found that the plaintiff did not have locus standi since:
64. It is therefore clear that it could not be possible for a corporate person to claim a right to marital privacy; such is obviously absurd, since it is unable to marry, reproduce or have children; it cannot form a family. I cannot therefore see how the Plaintiff could have a sufficient concern and interest in these matters. I would therefore refuse the Plaintiff standing in this regard.
Communication:- 65. That persons have a right to communicate would seem implicit in rights of free speech and freedom of association under Art. 40.6.1˚ of the Consitution (see e.g. the comments of Barrington J. in The Irish Times v. Ireland [1998] 1 IR 359 at 405; and Attorney General v. Paperlink Ltd. [1984] ILRM 373). However, in the current context it is clear that the alleged breaches of any right to communication are not claimed to be such that the right of the company to communicate is being restricted, rather it is a breach of what has been described as a right to confidential communication.
66. With regards to natural persons such a right has been considered in the context of phone tapping and other communications interception, e.g. e-mail monitoring. In this context, Hamilton P. noted, in Kennedy v. Ireland [1987] I.R. 487 at 593, that there had in that case been:
67. Such a right to communicate must, I feel, be inextricably linked to notions of privacy. As noted such a right to privacy is not absolute. In particular, it may need to be balanced against the duty of the State to investigate and detect serious crime. Nonetheless, there has been much consideration of the status of evidence collected through such methods. Finlay C.J. in D.P.P. v. Kenny [1990] 2 I.R. 110 at 134 noted that:
68. Considering physical surveillance undertaken by the Gardaí in relation to certain drug deals, the Court of Criminal Appeal in People (D.P.P.) v. Byrne [2003] 4 I.R. 423 noted that it had “no doubt and no reason to doubt that this was a perfectly proper operation set up on foot of reasonable information and all this was demonstrated by the result.” Nonetheless it is clear that where surveillance is undertaken it must be justified and generally should be targeted. Finlay C.J. in Kane v. Governor of Mountjoy Prison [1988] I.R. 757 at 769 noted that:
69. Although Kenny and Byrne could be said to relate to physical surveillance, I can see no logical reason why the Court’s comment could not apply mutati mutandis to electronic surveillance. A person has a right not to be unjustifiably surveilled; such is therefore a general right to confidential communication. Given my comments in relation to privacy generally supra, I can see no reason why such a right would not equally apply to corporate persons.
70. Under Art. 8 ECHR “everyone has the right to respect for … his correspondence.” Of course this right may be interfered with, but such must be in accordance with Art. 8(2). As with the Irish jurisprudence, the ECtHR stresses that where surveillance is provided for it must be the subject of “adequate and effective guarantees against abuse” (Malone v. United Kingdom [1984] 7 EHRR 14). The ECtHR in the case of Klass v. Germany (1979-80) 2 EHRR 214 noted that:
71. It is therefore clear that the interception of telephone conversations without lawful justification or surveillance is in general illegal (see Kennedy v. Ireland [1987] I.R. 587). Although the collection of what might be called “physical” surveillance, is obviously useful, so too may the data associated with telecommunications messages. These data can potentially yield a wealth of information about the user, including, inter alia, who has been called, the duration of conversations, and where calls were made from. Of course technically it is the phone number which is identified, and not the caller; thus I may give you my phone to use; similarly with regards to the “called” phone. The ECtHR considered the question of whether the collection of such data would amount to an interference with Art. 8 ECHR in the case of Copland v. United Kingdom (Case 62617/00, 3rd April 2007) [2007] ECHR 253. The Court rejected the argument by the UK that the fact that there was no actual listening in on the conversations meant that there was no infringement of the claimant’s rights. At paragraph 43 of its judgment the Court recalls that:
Accordingly, the Court considers that the collection and storage of personal information relating to the applicant’s telephone, as well as her e-mail and internet usage, without her knowledge, amounted to an interference with her right to respect for her private life and correspondence within the meaning of Article 8.” 72. Thus in the context of this application it would appear to me that the storage of communications data, even without use, may be an interference with a person’s rights under Art. 8 ECHR. Therefore I would reject any assertion by the Defendants that it would be necessary for this information to be used before any challenge could be mounted to its collection. It is clear that the retention of such data, prima facie, may be an interference with the Plaintiff’s rights to privacy. In this regard I would draw support from Art. 8 FCR which provides for the protection of personal data. Consequently I would therefore allow the Plaintiff locus standi in this regard. However, I would stress, that is not to say that such interference is not legitimately justified or that the Plaintiff would be ultimately successful in its action; that is, and must be, a matter for the full hearing.
Travel:- 73. The Plaintiff also claims that the actions of the Defendants are an infringement of its rights to travel and, in particular, its right to confidential travel. In State (M) v. Attorney General [1979] I.R. 73 the Court outlined what it perceived to be a citizens right to travel. Having considered Ryan v. Attorney General [1965] IR 294, a seminal case with regards to unenumerated rights, Finlay P. noted:
74. It is important to note that the Court in considering the right to travel saw it as analogous to a right to a passport. Even if such were in doubt, it would therefore appear that the right to travel is a person’s right which can only be enjoyed by natural persons; a corporation requires no passport. I can see of no real sense in which a company could “travel” in the manner as mentioned. It is true that it may be present in many jurisdictions, but that is not the same thing as travel. At most the movement of companies to and from countries is a matter of establishment. To talk realistically of companies travelling is nonsensical. I would therefore, on similar grounds as with rights of family and martial privacy, conclude that the Plaintiff cannot avail of this right, and thus does not have locus standi to raise it on its own behalf.
75. I should of course briefly also acknowledge the right to travel within the European Union, derived from, inter alia, Arts. 20 and 21 TFEU (formely Arts. 17 and 18 TEU), and confirmed in subsequent case law (see e.g. Baumbast and R. v. Secretary of State for the Home Department [2002] ECR I-7091; Zhu and Chen v. Secretary of State for the Home Department [2004] ECR I-9925; Trojani v. CPAS [2004] ECR I-7573). This right too is not absolute and may be restricted in certain circumstances.
76. In any event, it is not physical travel which is being impeded, it is the confidential nature of the travel which is alleged to be infringed. Unlike a right to communicate, a right to travel will inevitably be more circumscribed. The right to confidential travel must necessarily be split as between national and international travel.
77. With regards to the latter, as Finlay P. noted in State (M) v. Attorney General it must in any event be reliant on international agreements. Pragmatically, States must have an interest, or the capacity to have such an interest, in those who enter their borders. It is therefore not easy to conceive of how a right to confidential international travel could operate in practice. Nonetheless, even should such a right exist it would necessarily be extremely limited.
78. There may be greater force in the argument that there is a right to confidential travel within the State, however I have no doubt that, as with surveillance, such a right might be circumscribed, inter alia, in the interests of preventing crime. In any event, I am satisfied that neither of these rights may be invoked by the Plaintiff since, as stated, it is incorporeal and therefore lacks the ability to travel in the sense which is implicit in the right as recognised.
Actio Popularis:- 79. Despite the foregoing, it may nevertheless be possible for the Plaintiff to litigate matters which do not, or cannot, affect it personally and specially in limited circumstances. The seminal case in this regard is Crotty v. An Taoiseach [1987] 1 I.R. 713, which is referred to in detail at para. 31 supra. It is sufficient to recap that Mr. Crotty’s inability to point to any prejudice specific to him personally, as distinct from him as a member of the public, did not deprive him of the necessary standing.
80. However, as noted above, different considerations may apply to limited companies. One of the primary concerns of rules relating to locus standi is to prevent those litigants who are meddlesome, frivolous or vexatious from unduly burdening the Court, and those parties whom are sued. Therefore, cases should be brought primarily by persons who have a particular interest in the subject matter. In striving to achieve this outcome, the Courts have available the deterrent to impose cost orders against the former group, which may include companies with limited liability. However, there can be concern if such litigants are in fact merely straw-men, or straw-companies, behind which the true litigants hide so as to evade any order for costs which might ultimately be made against them. In those circumstances the Court must examine the nature of the company and its purpose, lifting the veil if required, together with the surrounding circumstances of the case, and the rights which it seeks to vindicate.
81. The Supreme Court in S.P.U.C. v. Coogan [1989] 1 I.R. 734 recognised the right of the plaintiff company to litigate to prevent a breach of the Constitution where it had a bona fide concern and interest, with Finlay C.J. noting that:
82. Similarly, Walsh J. therein noted at p. 744 of the report that:
83. In Blessington Heritage Trust Limited v. Wicklow County Council and Others [1999] 4 IR 571, McGuinness J. considered the position of a limited company which sought to challenge a grant of planning permission:
84. In Lancefort Limited v. An Bord Pleanála and Others (No. 2) [1999] 2 IR 270 at 308, Keane J. felt that:
In the latter area, the courts have dwelt on occasions on the dangers of giving free rein to cranks and busybodies. But it is to be borne in mind that the citizen who is subsequently seen to have performed a valuable service in, for example, bringing proceedings to challenge the constitutionality of legislation, while exposing himself or herself to an order for costs, may at the outset be regarded by many of his or her fellow citizens as a meddlesome busybody. The need for a reasonably generous approach to the question of standing is particularly obvious in cases where the challenge relates to an enactment of the Oireachtas or an act of the executive which is such a nature as to affect all the citizens equally: see, for example, Crotty v. An Taoiseach [1987] IR 713. But it is also the case that severely restrictive approach to locus standi where the decision of a public body is challenged would defeat the public interest in ensuring that such bodies obey the law.” (Emphasis added)
85. Keane J. went on to conclude that a company could have locus standi to bring proceedings even if it was unable to point to any proprietary or economic interest in the impugned decision. He also concluded that a company may not be denied standing merely because it was not in existence at the time of the relevant decision, and that the law:
86. Given that the comments made in both Blessington and Lancefort (No. 2) related to planning decisions, it must be the case that they apply with equal, if not greater, force in circumstances where the impugned actions involve constitutional rights and acts of the Oireachtas; indeed it can be seen from the underlined passage above that Keane J. in Lancefort (No. 2) was firmly of the view that a more generous approach to locus standi is merited in such circumstances. I would respectfully agree. So too may the fact that European Union law is at issue be a consideration – in particular, I would note, the rules as to locus standi should not unduly impede possible references to the CoJ; they should not be so restrictive as to effectively deny a plaintiff redress before the Court.
87. However, as was noted in S.P.U.C. v. Coogan the nature of the rights which the Plaintiff seeks to vindicate must, nonetheless, be taken into account. I would also reiterate the comments of Gilligan J. in The Irish Penal Reform Trust Ltd. & Ors. v. The Governor of Mountjoy Prison & Ors. [2005] IEHC 305 (see para. 40 supra.), where he said:
Conclusions on Locus Standi:- 88. Ultimately as Gilligan J. noted in The Irish Penal Reform Trust Ltd.:
89. The Plaintiff is the owner of a mobile phone, and as such can be affected by issues relating to privacy and communications in relation thereto. Such privacy in the carrying out of business transactions, etc., is important for any company. Indeed these rights are not merely important to businesses, but, it must be thought, of great importance to the public at large. There is thus a significant element of public interest concern with regards to the retention of personal telecommunications data, and how this could affect persons’ right of privacy and communication. Further, as will be considered in relation to security for costs, from a pragmatic point of view, were the Plaintiff debarred from continuing these proceedings it is unlikely that any given mobile communications user, although specifically affected by the impugned legislation, would bring the case; given the costs that would be associated with any such challenge. It is therefore clear that the impugned legislation does in fact have the potential to be, in the words of Finlay C.J. in S.P.U.C. v. Coogan [1989] 1 I.R. 743 of “importance to the whole nature of our society”.
90. I would also add that that the Human Rights Commission has been joined as amicus curiae. It would seem to support the Plaintiff’s contention that this case raises matters of fundamental public importance regarding persons’ human rights. As an independent organisation which has no vested interest in the outcome of this matter, and which was established by statute to, inter alia, “keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights”, the fact that it sought to be included in this matter as a notice party, principally so that should the matter come before the European Courts it would be able to make submissions, to some extent affirms the position taken by the Plaintiff, namely its bona fide interest and concern in seeking to litigate the matter, and supports the proposition that this is a matter of fundamental public importance.
91. In coming to my conclusions, and in light of the case law considered above, I have taken into account:
ii) This case raises important constitutional questions; iii) The impugned provisions affect almost all of the population; iv) It would be an effective way to bring the action – individual owners of mobile phones would be unlikely to litigate the matter; v) The Plaintiff’s right of access to the Court, and the Court’s duty to uphold the Constitution and ensure that suspect actions are scrutinised; vi) The public good which is being sought to be protected. 92. Therefore, for the reasons given above, I grant locus standi to the Plaintiff in relation to alleged infringements, potential or otherwise, of rights to privacy and communication, and having regard to all of the circumstances of the case, including the nature of the Plaintiff company, the Plaintiff should be able to litigate these matters fully; that is both with regards to the infringement of the Plaintiff’s rights as a legal person, and also with regards to natural persons. As stated, the level of interference between these two persons may not be the same. Natural persons may be afforded greater protection of these rights than companies. It would therefore seem to me, pragmatically speaking, that it would be sensible to allow the Plaintiff to advance these arguments in full. Were the Plaintiff only allowed to advance its arguments on the grounds that it would infringe a company’s rights it could leave open the question of whether natural persons’ rights were nevertheless infringed. It must be in the interests of justice and Court time, that such be litigated in circumstances where the Plaintiff is not in reality put at any disadvantage in pleading on behalf of citizens in general.
93. I would reiterate that it is clear that the Plaintiff has, purely in its personal capacity, locus standi with regards to infringements of its rights to privacy and communication. This I would hold even if there were no other greater interests in the matter. However, given that the impugned legislation could have a possible effect on virtually all persons, I would also grant the Plaintiff locus standi to litigate these matters generally as what might be termed an actio popularis.
Security for Costs:
95. The Defendants state that it is not contested that were they successful in these proceedings the Plaintiff would be unable to discharge their costs. The Plaintiff, which is limited by guarantee, has only eight subscribers, each of whom has acknowledged a liability to contribute to the assets of the company in an amount limited to the sum of €1. Further, the accounts of the Plaintiff, from the most recent accounts, as presented to the Court, for period ended 31st December 2006, show that it had a gross income of €1,606 and administrative expenses of €6,421 resulting in a loss that year of €4,815. The sole asset of the company is cash totalling €435, against a total of €5,250 due to creditors, resulting in a deficit of €4,815.
96. The Defendants assert that they have a bona fide defence in that they deny retention of any mobile telecommunications data related to the Plaintiff, they deny the irrationality, unreasonableness and procedural defects claimed in respect of the directions alleged, and deny any alleged breaches of constitutional or Convention rights. Further, the Defendants invoke the common good, in particular considerations of public policy and public order, and the obligation under the Constitution to ensure that the authority of the State is not undermined. In the alternative, such restrictions as may exist are necessary in a democratic society in the interests of national security, public safety, the economic well-being of the country, the prevention of disorder or crime and the protection of the rights and freedoms of others.
97. The Defendants further content that, on the basis of a bona fide defence, once the Court is satisfied as to the Plaintiff’s financial incapacity, the burden shifts to Plaintiff to show that there are “special circumstances” which justify a refusal by the Court to order security for costs. The Defendants deny that such exist in this case.
98. Although not accepting that the onus lies upon it, instead stating that the burden is on the Defendants to persuade the Court that an order should be made, the Plaintiff argues that the Court should exercise its discretion and refuse the order so sought. In this regard it points to the nature of the proceedings, concerning as they do the validity of acts done and measures designed to ensure that data is retained in respect of mobile phone, internet and e-mail communications of all persons who use such services, and thereafter is available for access and use by State Authorities, which in essence the Defendants are in these proceedings. It argues, therefore, that this is a matter of such gravity and importance as to transcend the interests of the parties before the Court and that clarification is required in the interests of the common good.
99. The Plaintiff also claims that, as with the issue of locus standi, national procedural rules should not frustrate a remedy under European law. Thus, given the fact that this case is seeking a Reference to the CoJ on matters relating to the validity of national and Community laws, the Court should be slow to order security for costs where that in itself would have the effect of preventing such a Reference.
100. Ultimately both parties accept that the question of ordering security for costs under section 390 of the Companies Act 1963 (“the 1963 Act”) is a matter of Court discretion, with the Defendants relying on the impecuniousness of the Plaintiff and their raising of a bona fide defence, whereas the Plaintiff heavily asserts the overriding public interest in allowing this case to proceed.
101. I would firstly say in this regard that s. 390 of the 1963 Act does not place an obligation on the Court to grant security for costs merely because the plaintiff company is impecunious and the defendant asserts a bona fide defence. Kingsmill Moore J., considering s. 278 of the Companies Act 1908 which is in almost identical terms as s. 390 of the 1963 Act, in Peppard and Co. Ltd. v. Bogoff [1962] I.R. 180 at 188, made it clear that:
102. It now falls to consider what “circumstances” may be “special” so as to entitle an impecunious plaintiff company to proceed without having to give security for costs.
103. Although pleaded in the parties’ submissions, no argument was advanced during the hearing in relation to the delay of the Defendants in bringing this application. Nonetheless I would briefly comment in this regard. I would agree with Kingsmill Moore J. in Peppard & Co. v. Bogoff (ibid.) that delay, unless it is inordinate and culpable, does not weigh greatly against the defendant in an application for security for costs (S.E.E. Company Ltd. v. Pubic Lighting Services [1987] ILRM 255 and Beauross Ltd. v. Kennedy (Unreported, High Court, Morris J., 18th October 1995) considered); although of course in some circumstances delay can be a significant factor in refusing such an application (see for example Dublin International Arena Limited v. Campus Stadium Ireland Developments Ltd. [2008] 1 ILRM 496). I feel that the former is the case here, and although it may be of some relevance, my decision is not based on any findings in relation to delay, given that it was not properly advanced at the hearing.
104. One of the recognised “special circumstances” which a Court may take into account in refusing an order for security for costs is that the case involves questions of fundamental public importance. Morris J. in Lancefort Ltd. v. An Bord Pleanála & Ors [1998] 2 IR 511 at 516 in this regard notes:
‘The second mandatory condition, as it were, laid down in the judgment [in Midland Bank Ltd. v. Crossley-Cooke][sic.] is that the Court should not ordinarily entertain an application for security for costs if it is satisfied that the question at issue in the case is a question of law of public importance…’”
105. The above decision of Morris J. was considered by Laffoy J. in Villiage Residents Association Ltd. v. An Bord Pleanála (No. 2) [2000] 2 IR 321 at 333 where she stated:
106. It has been advanced, in a similar way as was advanced in relation to locus standi (see para. 28 supra.), that the European element of this case should weigh against the granting of security for costs in circumstances where the granting of such would deny the applicant effective redress. I agree with the Plaintiff that this is a factor which I should take into account. However, I also concur with and note the statement of Denham J., in Dublin International Arena Limited v. Campus Stadium Ireland Developments Ltd. [2008] 1 ILRM 496 at paragraph 24, that the involvement of EC Directives “[does] not preclude an application for security for costs.” It is therefore a relevant factor, to the extent that security for costs should not unduly restrict access to judicial remedy, but it could not in my opinion, in and of itself, constitute a “special circumstance”, such that it would be determinative of the matter without more.
107. Finally, with regards to the onus of proof, I would endorse the views of Finlay C.J. in Jack O’Toole Ltd. v. McEoin Kelly Associates [1986] I.R. 277 where at 283 he held that:
108. Although the Court Lancefort Ltd. v. An Bord Pleanála [1999] 2 IR 270 considered that the granting of security for costs might be a way of redressing any imbalance between the parties where a company seeks to litigate rights, I do not consider that this should be the case here. Having regard to the foregoing, I am satisfied, as stated with regards to locus standi, that the matters pleaded in this case do raise issues of significant public importance, which are of “such gravity and importance as to transcend the interests of the parties” and “it is in the interests of the common good that the law be clarified so as to enable it to be administered not only in the instant case but in future cases.” Given the rapid advance of current technology it is of great importance to define the legitimate legal limits of modern surveillance techniques used by governments, in particular with regard to telecommunications data retention; without sufficient legal safeguards the potential for abuse and unwarranted invasion of privacy is obvious. Its effect on persons, without their knowledge or consent, also raises important questions indicative of a prima facie interference with all citizens’ rights to privacy and communication (Copland v. United Kingdom considered). That is not to say that this is the case here, but the potential is in my opinion so great that a closer scrutiny of the relevant legislation is certainly merited with regards to its potential interference with important and fundamental rights of persons, both natural and legal. I would therefore refuse the Defendants’ application for security for costs on the above grounds.
Article 267 of TFEU Reference:
110. The Plaintiff notes that there is a complete discretion, under Article 267(2), for a judge to refer a question when he considers that a decision on it is necessary to enable it to give judgment. However in this case the Plaintiff also seeks to ground its application under Article 267(3), which states:
111. Attention is drawn to the exceptions to the requirement to make a Reference. These are that, firstly, the matter is not required in order for the national court to rule on the matter case (see Weinand Meilickev. ADV/ORGA F.A. Meyer AG [1992] ECR I-4871; Corsica Ferries Italia Slr v. Corpo dei Piloti del Porto di Genova [1994] ECR I-1783; Monin Automobiles-Maison de Deux-Roues [1994] ECR I-195). Secondly the Community law issue is governed by previous authority (see CILFIT; Da Costa en Schaake NV v. Nederlandse Belastingadministratie [1963] ECR 31; Foglia v. Novello II [1981] ECR 3045). Thirdly the application of Community law is so obvious as to leave no doubt to the national court (see CILFIT v. The Minister for Health [1982] ECR 3415). In the Plaintiff’s opinion none of these operate in this case. A useful summary in relation to references to the CoJ can be found in Kelly v National University of Ireland [2008] IEHC 464.
112. The Defendants admit that, in relation to the Article 267 Reference, it is a matter of discretion for the Court, but argues that at this point a Reference would be premature. They say that, in circumstances where the Plaintiff has elected to bring proceedings by way of plenary action, and must therefore provide evidence, including viva voce evidence, to be examined in open court, and where this has yet to be done, there is therefore as of now, no way of evaluating what the final evidential framework will be. What evidence exists is, by definition, one-sided. In this regard reliance is placed upon Irish Creamery Milk Suppliers Association v. Ireland (Joined Cases 36 and 71/80) [1981] ECR 735, where the CoJ stated at paragraph 6 that:
113. In relation the Article 267 Reference, I am satisfied that there is sufficient information before me to make such a Reference to the CoJ. I do not think that the application is premature; it is possible to define the context of the Reference (Irish Creamery Milk Suppliers Association v. Ireland [1981] ECR 735 considered). This is not a case which requires significant viva voce evidence to properly define the context or issues in the case. It is a challenge to specific legislative provisions which speak for themselves. I am also satisfied that the Reference is required since I am unable to rule on the validity of Community law (see Foto-Frost v. Hamptzollant Lübeck-Ost (Case 314/85) [1987] ECR 4199). I would therefore grant the application for a Reference under Article 267 TFEU.
114. With regards to the questions to be referred I do not propose to deal with those at this juncture. Instead I would invite the parties to submit suggestions, either individually or in the form of agreed questions between them, as to the content and wording of the questions to be referred, taking into account my findings in this decision.
Conclusion:
ii) I refuse the Defendants’ motion for security for costs; iii) I grant the Plaintiff’s motion for a Reference to the Court of Justice under Article 267 TFEU. |
