LG101

Introduction to Law

Sources of Irish Law and Introduction to the Irish Legal System

The Irish Court System

The Irish Judiciary and their independence
See P. 118 Byrne & McCutcheon

The Constitution

Interpretation

Constitutional Rights

Natural Law/abortion and the constitution

(Chap 15 3rd Ed. Byrne & McCutcheon)

The Doctorine of Precedent

Appellate Jurisdiction of Irish Courts

Damages
(3rd Ed. is Chap 10 p 301)

Free Legal Aid
(3rd Ed. Chap 9 p 291-300)

The European Union
(3rd Ed. Chap 16 p 291-300)

The Interpretation of Legislation

CIVIL LEGAL AID

SEE 'The Irish Legal System' Byrne & McCutcheon

(3rd Ed. is Chap 9 p 291-300)

Governed by The Civil Legal Aid Act 1995.

Run by the Legal Aid Board.

Run locally by Community Law Centres.

The 1995 Act establishes 2 tests:

1. The Merits Test

s. 24 of the 1995 Act

a person shall not be granted legal aid unless a reasonably prudent person who could afford to engage such services would be likely to do so and where a solicitor or barrister would be likely to advise such a person to obtain such services at his own expense.

2. The Means Test

The person applying for legal aid must either be dependent on social welfare or have an annual income below the specified threshold. In 1995 that limit was £7,350.

s. 28(2) imposes 5 specific requirements:

(a) The person must be financially eligible (limit £7,350)

(b) There must be reasonable grounds for taking the proceedings

(c) The person must be reasonably likely to be successful

(d) That these legal proceedings are the best method of achieving the result sought by the plaintiff.

(e) The overall cost to the Legal Aid Board

Factors (c) and (e) will not be taken into consideration if the case is a family law case concerning the welfare of a child.

Some court proceedings are excluded from Legal Aid:

• Defamation

• Conveyancing

• Small claims

• Licensing

The rule in civil proceedings is that “costs follow the event”

This means that the loser pays the winners costs as well as his own.

A winner does not have to deduct the cost of paying his legal representatives form his award of damages.

DAMAGES

SEE 'The Irish Legal System' Byrne & McCutcheon

(3rd Ed. is Chap 10 p 301)

The most important judicial remedy.

The principle is that the successful plaintiff be put back in the position they were in before the wrong occurred.

A plaintiff should not make a profit from litigation.

Damages should compensate only

Eg Wall v. Hegarty pl sued his uncle's solicitor for £15,000.

But Sometimes damages can never completely compensate but are the next best thing. Donoghue v. Stevenson [1932] H.L.

There are 2 types of damages in most personal injury claims:

1. Special Damages

Are for out of pocket expenses such as medical expenses, loss of earnings, damage to motor vehicle, taxis to hospital, new clothes, new crash helmet.

They can be past (up until the day of the trial) or future (losses that will be incurred from the day of the trial onwards.)

The court will award a once off amount. There will be no staged awards every year until the injury gets better.

How can the court award an amount for damage that hasn't happened yet?

Answer……

Factors to be taken into account in assessing loss of earnings?

Age, salary, ……………

2. General Damages

These cover things other than pecuniary (financial) loss.

There are 3 types

(a) pain & suffering

Thinking you are going to die in the crash, the ongoing fear when you drive, the whiplash injury to your neck,

(b) loss of amenities

can't walk the dog, swim, play the violin, loss of libido.

(c) Reduced life expectancy

Punitive Damages

These are an exception to the rule that damages are not intended to punish the defendant but to compensate the plaintiff only.

Punitive damages are extra damages awarded against a defendant to punish them.

They may be intended to punish a defendant who consciously and deliberately violated the rights of the plaintiff.

See Kennedy v. Ireland [1987] I.R. 587

They may also be awarded where the court feels that they defendant will still make a profit even after the plaintiff has been compensated.]

Eg News of the World Libel action

Another name for punitive dames is exemplary damages.

The European Union

Chap 16 B & McCutcheon (3rd Ed.) page 655

1951 The ECSC Treaty

(6 countries)

1957 The EEC Treaty

called the Treaty of Rome

(created the common market)

The aims of the common market were:

Free movement of goods

-to abolish quotas between m/s

-to abolish customs duties between m/s

-to abolish restrictions on the movement of goods between m/s

-to have a common customs tariff with 3rd countries

-free movement of workers between m/s

-CAP common agricultural policy

• Denmark, Ireland & UK joined

• Greece joined

1986 The Single European Act

(created the single market, an updated version of the common market)

(Spain & Portugal joined)

• The Maastricht Treaty

(called the Treaty of the European Union TEU)

covered subjects other than economics

countries agreed to move towards EMU (economic and monetary union) i.e. a single currency (the euro)

• Finland, Sweden & Austria joined

(now are 15 E.U. member states)

1997 The Treaty of Amsterdam

(amended the Maastricht Treaty)

2001 Treaty of Nice

(rejected narrowly in Ireland)

Norway has voted twice in a referendum not to join the E.U.

Czech Rep, Slovakia, Poland, Hungary, Slovenia, Estonia, Latvia, Lithuania, Turkey, Malta, Cyprus have expressed interest in joining. Agreement's of association.

We joined in 1972

Ireland has a Dualist legal system

1. The Govt signed the treaty

2. Also An act of the Oireachtas was passed to incorporate the Treaty of Rome (EC Treaty) into Irish Law.

SOURCES OF EUROPEAN LAW

Primary--------------------The Treaties

Secondary----------------Regulations

Directives

Decisions

Recommendations and opinions

The Treaties

The primary legislation is the Treaties themselves. Eg the Treaty of Rome, The Maastrict Treaty, The Amsterdam Treaty. They must be signed by the member state and ratified by the parliament of the member state. In Ireland we must also have a referendum.

As a result of the Supreme Court case Crotty v. An Taoiseach we in Ireland must, because of our constitution, have a referendum every time the Government wishes to sign up to an international treaty which gives law making power to a body other than the Oireachtas.

Important case (p 673 B & McC)

As a result of this case, the law of the European Union takes precedence over national law. Therefore if there is a conflict between the two; E.U law should be given priority. Any provision of Irish law which conflicts with any of the articles of the treaties is invalid.

Some countries (like Ireland and The Netherlands) have expressly provided in their constitution that E.U. law takes priority.

Secondary Legislation.

Regulations are directly applicable which means they are binding on each member state without any further action required on the part of the member state. Once made they become part of Irish Law. They have immediate binding force. Each one is given a registration number along with the year it was passed.

E.g. Reg 1612/68 on the Freedom of Movement.

They have general application which means they are binding on all m/s.

See p 705 B & McC 3rd

NB

Directives are more common. They harmonise the laws of each of the member states. They are not directly applicable. Each member-state is supposed to implement the directive using its own national law. They usually set out an objective to be achieved within a time limit (e.g. 3 years) and leave it up to each member state as to how to achieve it. Ireland and the UK have different legal systems to the rest of Europe. In Ireland we do not need to go through the 5 stages of the Oireachtas to create a new Act every time we wish to implement an E.U. directive. The relevant minister simply issues a Statutory Instrument (or SI).

Directives may be directly effective however!!

Francovich v. Italian Republic

Failure to implement directive 80/987/EEC on protection of employees on employer insolvency

In Ireland

McDermott & Cotter v. Min for Social Welfare

79/7/EEC on equal treatment of men & women

If the directive is one which confers rights on individuals, then it will become law in Ireland (directly effective) once the time-limit expires even if it is not implemented by the Irish Government.

E.g. Murphy v. Bord Telecom 1989 ILRM 53

____________________________

Decisions are binding but only on the m/s to whom they are addressed. E.g. the decision to approve the Irish government's £175m state aid to Aer Lingus in 1993.

They are very useful in the field of competition law where the E.U. decides that 2 large companies should not be allowed merge because it would distort competition.

Recommendations and opinions are not binding. E.g. of recommendation was the Comm's reprimand to Ireland on its last budget and tax cuts.

The ECJ and CFI also make law the same way Irish courts do. I.e. Case law. 2 early cases are Van Gend en Loos & Da Costa.

There are 4 main European Community Institutions

The Commission

The Council

The European Parliament

The European Court of Justice

Introduction to Law

Sample Examination Papers

Section	Do	Marks	(Max Time)
Section A	Must do Q. 1	40 marks	(48mins)
Section B	Either Q. 2 or Q. 3	30 marks	(36mins)
Section C	Either Q. 4 or Q. 5	30 marks	(36mins)

Sample Paper I

Section A (40 points)

Attempt Question One

Question One

Pat the Postman suffered severe back injuries while delivering post one day. The problem was that the houses on a new estate had their letterboxes fixed at a very low level. This meant that he had to bend deeply each time. He complained about this to his fellow postmen who agreed with him. They talked to the union solicitor who advised them that they could sue An Post for negligence. Three postmen took up this advice. Pat the Postman sued An Post for damages totalling £32,000.00; Fred the Postman sued An Post for damages totalling £23,000.00; Peter the Postman sued for £5,000.00.

Explain in which court or courts Pat, Fred and Peter must initiate their action against An Post.

They all lose their case and decide to appeal the decision. Pat and Fred want to appeal the case de novo. Explain whether they can do so. Explain in what court Peter can appeal on a point of law.

Advise the three postmen about the possibility of obtaining free legal aid. Explain whether there are alternatives if they fail to obtain free legal aid.

Explain what is meant with:

• General damages

• Special damages

Punitive damages

The Appellate Jurisdiction of the Irish Courts

Read: Chap 7 Byrne & McCutcheon (3rd Ed) page 227

Hierarchy Supreme Court

High Court

Circuit Court

District Court (inc small claims court)

Constitution Art. 34.4.3

The SC has jurisdiction to hear all appeals form the HCt subject to exceptions in legislation

In general there are 2 forms of appeal

-`de novo' appeal

-appeal on a point of law

A. `de novo' appeal

Is a full hearing as if the earlier one never happened. (e.g. DCt >>Cir Ct)

“a second bite of the cherry”

both the plaintiff and the defendant and their witnesses must go into the witness box, give their evidence under oath and be cross-examined again.

The appeal Ct is limited to the jurisdiction of the lower court (called the court of first instance) e.g. Dct civil _____ criminal____or _____.

B. Appeal on a point of law

Limited appeal

All facts not rehashed

Transcript of previous hearing used for factual evidence

No new witnesses.

No new evidence (exception: DPP v. Meleady &Grogan)

Appeal judge will not go behind findings of fact by the trial judge. Trial Judge will have benefit of assessing demeanour of witness.

(Exception: secondary findings of fact = incorrect deduction from a fact)

CIVIL APPELLATE JURISDICTION

District Court appeal options (£0-£5k)

De novo to Cir Ct

Case stated to High Ct (appeal on a point of law)

2 types
Is when a trial judge submits a question of law to a higher Ct to be decided. Case then remitted back to DCt for disposal)

Then Final appeal to SC on a point of law

Art 177 Reference to ECJ

Circuit Court appeal options

appeal de novo to High Ct (then further appeal to Supreme Ct on point of law)

Case-stated to Supreme Ct on a point of law

Art 177 Reference

High Court appeal options

appeal on a point of law only to the Supreme Court.

There is no de novo appeal

May appeal quantum

Art 177 Reference

An Irish Court fomuulates a question of E.U. law and submits it to the ECJ for an answer. The ECJ decides the issie and then remits it back to the national court so as it can dispose of the case.

These references become binding precedents for judges in other E.U. states faced with the same legal points.

2 types of references

--manditory

--discretionary

THE CONSTITUTION AND ITS INTERPRETATION

Chap 15 B & McCutcheon p 545

The Free State Constitution 1922

It referred to the British Crown `The Goverenor General'See p 545 footnote

Anglo Irish Treaty

Civil War 1922 constitution accepted partition

Sinn Fein ..Cumann na nGaedheal ..Fine Gael

Bunreacht (basic law) na hEireann (of Ireland)1937

It created a Republic

Refers to the president

New FF govt had a referendum

`law & manifesto'

LAW

- language

- Name of the State

- institutions of state,

- separation of powers

legislative branch - the Oireachtas (Dail & Seanad),

executive branch- The Government

judicial branch - The courts Supreme & High

-the state -claim on 6 counties now based on consensus.

- Fundamental rights (influenced US Bill of rights)

e.g. men7 women can vote in Dail elections

courts must sit in public no retrospective criminal laws

trail by jury in serious criminal cases

equality

no titles of nobility

liberty

parents right to educate their own child

right to own public property

CONSTITUTIONAL JUDICIAL REVIEW

The HC & SC given the power IN Art 34.3.2 to declare any legislation repugnant to the constitution.

Aspirational - a united Ireland

- special status of women

- the special importance of the family unit

NB UNENUMERATED RIGHTS

ARTICLE 40.3

40.3.1 The state guarantees in its laws to respect and as far as practicable by its laws to defend and vindicate the personal rights of the citizen.

40.3.2 The state shall in particular by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.

Ryan v. AG [1965] IR 294

>Health Act (Fluoridation of Water Supplies) Act 1960

>Plaintiff's right to bodily integrity

>>>>Art 40.3 contains a guarantee to protect bodily integrity even though it is not actually mentioned.

Other unenumerated rights which the courts say exist

The right to marital privacy … McGee v. AG [1974] IR 284

The right to individual privacy Kennedy v. Ireland [1987] IR 587

The right to procreate Murray v. Ireland [1991] ILRM 465

The rights of a single G v. AN Bord Uchtala [1980] IR 32

mother concerning her child

Byrne v. Ireland [1972] IR 241

LOCUS STANDI (standing)

In order for an individual to challenge the constitutional validity of a piece of legislation he must be directly affected by it.

E.g. Norris v. AG

McGee v. AG

Legislation struck down in the past

Blake v. AG [1982] Rent Restrictions Act 1946-60

King v. AG [1981] `loitering with intent'in Vagrancy Act 1824

NB AG v. X [1992] 1 IR 1

SC decided 40.3.3 of the constitution permitted abortions when the life of the mother was in immediate danger.

NB In re the regulation of Information of Information (Services ouside the state for the Termination of Pregnancies) Bill 1995 [1995] 1 IR 1 the SC found was not repugnant to their interpretation of Art 40.3.3

NB In re Ward of Court [1995] 2 ILRM 40: the SC allowed the withdrawal of a gastronomy tube from a woman who had been in a rear PVS for over 20 years.

PRINCIPLES OF CONSTITUTIONAL INTERPRETATION

Methods the courts use to see what the words of the constitution mean for an indv

P 606 Byrne & McCutcheon

The Literal Approach

sticks to the actual text of the constitution and goes no further.

The ordinary natural meaning of the words

Inspector of Taxes v. Kiernan

pigs were not cattle

DPP v. O'Shea [1982]

appeals from Cen CCt to SC

2 judges

The Historical Approach

DPP v. O'Shea

appeals from Cen CCt to SC …3 judges majority

McGee v.AG HC

Keefe P in HC (reversed in SC) s. 17 Crim Law Amend 1935 .. no right to marital privacy ..intention of public in 1937

De Burca v. Attorney General [1976] IR 284

Juries Act 1927 .. landowners only

The Purposive/Harmonious Approach

Interpreting a phrase in a way which is line with the general scheme of the constitution

Aka the schematic approach

Means the constitution is consistent

E.g. Tormey v. AG [1985]

Meaning of Art 34.3.1

(the HC has full & original jurisdiction to hear all cases civil & criminal)

Courts Act 1981 had to go to Cir C Ct

SC said Art 34.3.1 should not be read literally because to do so would be absurd. The High Courts jurisdiction was full in other ways. Judicial reviw.

Natural Law Theory

idea that some law is derived from God and is not dependent on man

reflects the catholic ethos in Ireland

idea that man cannot interfere with natural law

man made law is called positive law.

Thomas Acquinas. The Catholic Church

Abortion

How much is natural law taken into account in Ireland

Utilitarianism

Idea that law should try to benefit society overall

The common good

Rejects the idea of a higher law

Law should not interfere with the activities of a private individual as long as no one is harmed

The Liberal Agenda

The right to choose

The right to die

Decriminalisation of homosexual acts

SOME IMPORTANT DECISIONS

McGee v. AG [1974]

Norris v. AG [1984]

AG v. X [1992]

In Re The Regulation of Information Bill 1995

In Re a Ward of Court [1995]

THE APPOINTMENT AND INDEPENDENCE OF JUDGES

APPOINTMENT

See P. 118 Byrne & McCutcheon

1994 Harry Whelahan Affair see p. 116 B&McC

The Judicial Appointments Advisory Board

Court & Court Officers Act 1995, 10 persons

High & Supreme == Barristers and lower judges

District & Circuit == Solicitors & Barristers

INDEPENDENCE 5 points

1. Independent from govt & parliament

Art 34.5.1 oath: ` without, fear, favour, affection or ill-will'

2. Independent in the performance of tasks …Art 35.2

No judge can be also a TD or senator

3. Nemo iudex in causa sua

can't be a judge in your own cause

Dublin Wellwoman Centre v. Ireland [1995] ILRM 408 …Carroll J. the test of objective bias rather than subjective bias.

Pinochet Case

AG v. X [1992] 1 I.R. 1… O'Hanlon J's public comment on the decision of the SC that Art. 40.3.3 appeared to authorise abortion in certain limited circumstances.

4. Audi alteram partem

The Sheedy Affair … Hugh O' Flaherty ., Cyril Kelly . Michael Quinlan

5. Tenure until retirement 70, 65

remuneration 47, 57, 77, 83

immunity from suit (being sued)

ban on appearing in court after retirement- equal or lower

SOLICITORS AND BARRISTERS

Solicitors

Have an office

Contact with the public

Handle clients money

Do conveyancing (transfer of ownership of a house)

Do wills

Give general advice

Do not tend to specialise greatly

May form partnerships

Speak in District Court

Full right of audience

Barristers

Self employed sole traders

May not form partnerships

Speak mostly in Circuit & higher courts

Prepare a case for court

Argue a case in court

Senior Counsel SC's & Junior Counsel BL's

Give written advice to solicitors (opinions)

May specialise in one area

Law Society

Solicitors Acts 1954-94

Kings Inns

Bar Council

Self regulating

Immunity from suit

Other law officers

Read Chap 3 of Byrne & McCUtcheon (3rd Ed)

Source 3: E.U. Law

There are 15 member states of the E.U.

Ire. GB. France. Lux Ger. Neth's. Aus. Swe. Greece. Spain. Portugal. Belg. Italy. Den. Finland.

The E.U. generates a huge amount of law mainly on economic and social matters such as competition between business, free movement of goods, free movement of workers within the E.U.. E.U. law can be enforced both in national courts and in the European Court of Justice. If E.U. law conflicts with national law, E.U. law prevails. It is supreme.

There are 3 law-making Institutions of the E.U.:-

The Council

Is made up of 15 members, one Government Minister from each state. It will not always be the same Minister voting. E.g. the Minister for Agriculture will attend to vote on matters of agricultural policy. It is the most powerful institution of the E.U. and the one closest to individual member states as it is made up of ministers from each member state. The Council votes by qualified majority (QMV), which means the bigger states have more votes than the smaller ones. Certain decisions require unanimity.

The Commission

Is the civil service of the E.U. It acts in the interests of the E.U. as a whole and is the institution most independent of the wishes of individual states. Each state has at least one commissioner. Some have 2. The Commission has the power of legislative initiative which means it alone proposes new law. It is the driving force behind the E.U. However the Council must approve every new law. If a state does not obey E.U. law the Commission will take it to The European Court of Justice. E.g. Comm. V. Italy. It may also impose large fines for failure to obey decisions of the Court. There are 20 commissioners, each nominated by a m/s. The Comm is divided into 23 departments called DG's or Directorate Generals.

The European Parliament

It Is the least powerful of the 3 institutions. (but the most democratic) Its 626 members (called MEP's) are elected directly by citizens of the E.U. in local European elections. Its most important function is that it must approve the nominated Commissioners “en bloc” or as a whole. The council must either co-operate, consult or co-decide with the parl. In making E.U. law.

E.U. legislation is divided into primary and secondary legislation.

The primary legislation is the Treaties. Eg the Treaty of Rome, The Maastrict Treaty, The Amsterdam Treaty. The must be signed by the member state and ratified by the parliament of the member state.

All the rest are secondary legislation.

Regulations are directly applicable which means they are binding on each member state without any further action required on the part of the member state.

Directives are not directly applicable. They usually set out an objective to be achieved within a time limit and leave it up to each member state as to how to achieve it. Each member-state is supposed to implement the directive using its own national law. In Ireland we do not need to go through the 5 stages to create a new Act every time we wish to implement an E.U. directive. The relevant minister simply issues a Statutory Instrument (or SI).

Decisions are binding but only on the m/s to whom they are addressed. E.g. the decision to approve the Irish government's £175m state aid to Aer Lingus in 1993.

Recommendations and opinions are not binding. E.g. of recommendation was the Comm's reprimand to Ireland on its last budget and tax cuts.

The ECJ and CFI also make law the same way Irish courts do. I.e. Case law. 2 early cases are Van Gend en Loos & Da Costa.

_____________________

Source of Law no. 4

Case Law_____________

The laying down of decisions by judges in individual cases.

Those decisions are then called a precedent and should be followed.

Hierarchy of Courts

Judges make law

Stare decisis stand by the decision

Ratio decidendi

Obiter Dictum in passing

Distinguishing a precedent

Binding auth v. persuasive auth.

Constitutional interpretation

Constitutional Judicial Review e.g. Attorney General v. X 40.3.3

Re A Ward of Court unenumerated right

Source 5: The Common Law

History of Eng &Wales

Different to civil law system

E.g. doctrine of consideration

E.g. damages

Source 6: Equity

An ameliorating jurisdiction.

E.g. doctrine of part performance

E.g. injunction

Other sources are

-international law e.g. Geneva Convention, Dublin Convention

-custom*

-canon law *

-academic commentary & writing

Hierarchy of laws?

1. EC law

2. Constitutional Law

3. Primary leg

4. Secondary leg

Sources of law is dealt with well in Chap 2 Byrne & Mc Cutcheon's `The Irish Legal System' (2nd Ed)

Different Types of Law

Schematically we can draw the following picture:

Sources of Law

Constitution

- fundamental rights, abortion right to die

-establishes organs of state , courts, president, parliament,

-general framework on which our legal system is based

-constitutional interpretation

-divorce

-death penalty

-referendum , The Nice treaty

Legislation

Primary legislation

-Called Acts or Statutes

-Bills go thru 5 stages of parliment to become law

-must not conflict with the constitution

Secondary legislation

Also called subordinate or delegated legislation.

Is when parliament has delegated the power to make law in certain circumstances to a person or body

E.g. A minister or Dublin Corp. or Law Society

EU Law

Treaties e.g. Maastrict Treaty, Treaty of Amsterdam (Nice)

Regulations …are directly applicable to member states

Directives …need to be implemented by Ireland

Decisions … binding on the m/s they are addressed to

Opinions …not binding

Case Law/Doctrine of precedent

(Stare Decisis means let the decision stand

Ratio Decidendi means the reason for deciding

obiter dicta means in passing)

Historical sources

Common Law

Equity

22

Van Gend en Loos v. Nederlandse Belastingenadministratie [1963] ECR

The ECJ held that a Dutch company could sue in a Dutch court using European law. The Dutch authorities were charged a higher duty on imported chemicals than ones produced in The Netherlands.

SUMMARY OF TOPICS