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The country’s top judge has warned that Ireland needs to ensure “a common law voice” remains heard in the formulation of EU legislation in the post-Brexit era.

The Chief Justice, Mr Justice Frank Clarke, said Ireland was now the only fully common law country in the EU following the UK’s exit, while the two member states with a mixed common and civil law system – Cyprus and Malta – are considerably smaller jurisdictions.

In a keynote speech at Trinity College Dublin on Tuesday night on the future of the common law system in Ireland post-Brexit, Mr Justice Clarke said fitting EU measures into a common law system can sometimes be difficult.

“One of the real challenges for the common law in Ireland post-Brexit is that a large voice at European legislative and judicial tables will no longer be there,” he remarked.

“Putting forward the case for tweaking measures to make it easier for them to fit into a common law system is a role which will now fall largely on Ireland although we will, doubtless, have some support from our colleagues in Cyprus and Malta.”

Mr Justice Clarke said he thought those challenges posed a risk for the common law in Ireland.

While he accepted there was no widespread demand from within the EU or its institutions to attempt to change Ireland’s legal system against our will, the Chief Justice said his main concern was that measures adopted by the EU could have unintended consequences.

Having a common law voice presence at the EU table was important to minimise the risk of EU legislation causing such unanticipated problems when transposed into the law of a common law jurisdiction, the Chief Justice said.

He noted quite considerable difficulties had been encountered in the past in attempting to adapt the procedures in common law countries to certain types of European legislation which he suspected would continue in the future.

Mr Justice Clarke said unintended consequences could potentially make it more difficult for Ireland to maintain its common law system by accident rather than by design.

While the problems were not insurmountable, Mr Justice Clarke said the issue would require “significant vigilance.”.

However, he said addressing the issue would require greater resources being put into discussions at European level on proposed legislation.

In the past, Mr Justice Clarke said there were many occasions where Ireland had been content to allow UK officials to take the lead role on common law issues unless there was a specific Irish angle to a question.

He said it had to be acknowledged that the UK, as a significant player within the EU, had made a material difference on the development of EU legislation.

The Chief Justice claimed there would also be a need for Ireland to intervene more in proceedings before the Court of Justice of the European Union where there was a common law angle to be addressed.

irishtimes.com

A young boy who was bitten on the face by a dog has secured a €78,519 settlement of his High Court action.

Mr Justice Garrett Simons said the settlement for James Holden over the “unfortunate incident” near his home was “generous” and he was happy to approve it.

Treatment for the boy has gone well and the incident did not hugely disrupt his life.

James has been left with a “relatively minor” scar arising from the incident which had also had a psychological impact in that it made him understandably wary of dogs, the judge added.

Through his mother Melissa Holden, James sued over the incident which occurred on July 3, 2018, when the boy, then aged 10, bent down to pet a dog while playing with friends near his home at The Grove, Pheasant’s Run, Clonee, Dublin.

It was claimed the dog suddenly and without warning leaped up and bit the boy on the face.

James suffered cuts to his right forehead and temple areas.

While his wounds were described as having healed well, he has been left with a scar on the right temple area measuring some 4.5cm. 

Liability was admitted by the owners of the property where the incident occurred.

When the case came before Mr Justice Simons yesterday, John Nolan BL, for James, said he was recommending approval for a settlement offer of €78,519, comprising €75,000 general damages and €3,519 special damages.

Irish Independent

A judge ordered a wedding videographer to give a full refund of €1,000 to a recently married couple after they told a court the quality of their wedding video was “very poor”.

At Ennis District Court, Judge Patrick Durcan issued a decree in favour of John and Sabrina McDonnell against videographer, click link below for full story.

Irish Independent

DUBLIN City Council have taken legal action over two prominent street art murals – including one celebrating the life of David Attenborough.

The murals, by artist collective Subset, were allegedly allowed by residents, however, they did not have permission of the city’s planning department which issued warnings and enforcement notices to have the paintings removed.

The council’s prosecution came before Judge Anthony Halpin at Dublin District Court today. It was adjourned until March 24 next to set a hearing date and for compliance with an order for disclosure of evidence to the defence.

The Attenborough mural, which was painted last year on the side of a property in Portobello, was unveiled on the BBC documentary maker’s 93rd birthday.

It was on the gable wall of a house on South Circular Road facing onto Longwood Avenue, in Dublin 8.

The City Council had ordered for it to be removed because no planning permission was obtained for the “unauthorised development”.

It also made the same order and commenced a prosecution in relation to another Subset street art mural, dubbed Horseboy, located just off Church Street, in Dublin 7.

The original photo of Horseboy was taken on Smithfield Square by Australian Photographer James Horan and Subset recreated the picture on the gable end of a rented property. A petition calling for it be allowed stay attracted over 2,500 signatures in two days.  

In each case council planning enforcement officers who examined the artwork held they were developments that were not exempt from requiring planning permission.

This resulted in the enforcement notices – under Section 154 of the Planning and Developments Acts 2000 – for the removal of the artwork.

Subset have had a number of artworks removed from Dublin city walls, including the Stormzy mural in 2017.

Irish Independent

Three children who allegedly became ill and had to move out of their family home as a result of disturbance from a nearby wind farm have secured a total €225,000 as settlement of their High Court damages claims.

The settlements were made to Laura (15), David (17) and Jack (10) Kelleher, without admission of liability.

It was claimed they, along with their parents, had to leave their family home at Gowlane North, Donoughmore, Co Cork, in late 2016, several months after a 10-turbine wind farm went into operation.

They claimed the noise, vibrations and shadow flicker from the turbines, just over 700 metres from their family farm, resulted in them suffering various illnesses.

These included nosebleeds, ear aches, skin rashes, swollen and painful hands, loss of power in their limbs, sleep disturbance and headaches.

Through their father, Valentine Kelleher, the three children sued Green Energy Supply Ltd, which owns and operates a wind turbine installation known as Knockduff Wind Farm in Co Cork.

The actions were also against company director Michael Murnane of Gortyleahy, Macroom, who is the owner of Green Energy Supply.

The defendants had denied all the claims. The case yesterday came before Ms Justice Leonie Reynolds, who was told by John Rogers SC, for the Kellehers, the case had been settled.   

Counsel said as well as liability not being admitted, medical evidence submitted in support of the Kellehers’ claim was fully contested. In their action, the Kellehers sought damages for alleged nuisance and personal injury which they claimed was due to the defendants’ failure to take sufficient precautions to avoid noise, vibration and shadow flicker from the wind farm.

It was further alleged the defendants failed to operate the wind farm in a manner to avoid causing unreasonable levels of noise, vibrations and shadow flicker. They claimed the defendants did not pay any heed to the complaints.

They claimed the wind farm was operated in a manner that did not respect their constitutional family, personal and property rights.

They claimed they started experiencing health problems in and around their family farm from May 2016 and had to move out November 2016.

After spending some time in a hotel, the family has relocated to a property at Ballyglass, Grenagh, Co Cork, 12km away from their farm. They claimed their symptoms eased after they moved away, but returned if they spent any time on the family farm.

The defendants, in denying the claims, said the wind farm was operated in a lawful manner. Mr Rogers said the settlement arose following mediation between the parties conducted by retired Judge Paul Gilligan.

Laura, whose ailments were more severe compared with her brothers, will receive €125,000. David and Jack will receive €50,000 each.

Other separate but related claims brought by other members of the Kelleher family for alleged nuisance remain outstanding, but he was hopeful that they would be resolved.

Those cases were adjourned to next month.

Irish Independent

A woman who fell on a bus as it moved off at almost zero miles an hour from a stop has lost a €60,000 personal injuries claim for damages against Bus Éireann.

Judge John O’Connor heard in the Circuit Civil Court yesterday that guidance counsellor Jacqueline Howard (64), of Station Road, Duleek, Co Meath, had walked the full length of the bus to a favourite seat and had not been holding on to any safety rail at the time of her fall.

Barrister Kevin Callan, who appeared for Bus Éireann, pleaded in a full defence to Ms Howard’s claim that she had been the author of her own misfortune on the basis of having failed to take any reasonable care for her own safety.

Ms Howard told the court she joined the bus at Duleek on February 8, 2017, and walked to a favourite seat at the back where she always sat.

She claimed the bus jerked suddenly on moving off, throwing her on to the floor.

“I didn’t have time to reach for a hand rail, it happened so suddenly,” she told Judge O’Connor. “I was thrown on the floor and my rib cage and back struck the edge of a plinth on the floor.”

She told her counsel she suffered severe pain following the incident and later had to have an injection into her back. At times the pain was such that she was unable to do anything for herself and felt her fall had exacerbated issues she previously suffered from a back injury.

Judge O’Connor said that while Ms Howard was a particularly nice and genuine person who had suffered a fall, he had to look in detail at a Court of Appeal judgment that was handed down by Mr Justice Michael Peart.  

In that particular 12-year-old incident involving Dublin Bus, the Court of Appeal had held that the defendant had a duty to take reasonable care for the safety of a passenger, but stressed the need of passengers to avail of clearly visible hand rails.

Judge O’Connor said a bus driver was entitled to assume – unless a passenger was impaired in some way, which could place upon him a greater duty of care than usual – that the average able-bodied adult would take reasonable care for their own safety by using safety rails.

He said that in the circumstances of the incident before his court, and in accordance with the ruling of the Court of Appeal, he had to dismiss Ms Howard’s claim.

Irish Independent

A woman who attended a mobile BreastCheck clinic for a mammogram when she had a concern about a lump on her breast has sued in the High Court claiming alleged misdiagnosis.

Mother of two Siobhan Freeney claims her mammogram taken in June 2015 was read incorrectly.

She was told in a letter from BreastCheck a few days later her mammogram was clear.

She alleges the mammogram should have been read as highly suspicious for cancer and she should have been referred for further assessment.

Six months later, Ms Freeney was diagnosed with cancer in her right breast.

She claims her cancer should have been diagnosed earlier when she had a mammogram in the mobile clinic when it came to her local town Gorey, Co Wexford.,

As a result of the alleged delay in her diagnosis. Ms Freeney claims the opportunity to detect the cancer at an early stage was missed, her counsel Jeremy Maher SC told the court.

Mr Maher SC said it is their case there was an alleged delay in the diagnosis of Ms Freeney’s breast cancer.       

Counsel said it was not diagnosed until December 2015.

It is their contention it ought to have been diagnosed six months earlier when Ms Freeney attended the mobile clinic.

At the mobile clinic, counsel said, Ms Freeney was not referred for further assessment as they contend she ought to have been.

If she had, he said it was their case a triple assessment including a clinical assessment mammogram and ultra sound would have taken place and identified the cancer.

Ms Freeney (59) of Clonattin, Gorey, has sued the HSE.

She has claimed there was a failure to failure to advise, treat and care for her in a proper skillful, diligent and careful manner.

There was an alleged failure to use reasonable care skill and judgment when reviewing her mammogram taken on June 17, 2015.

She has further claimed there was an a failure to identify that features in her mammogram of her right breast taken that June were suspicious of cancer.

All the claims are denied.

Had her cancer been detected in June 2015, her counsel said Ms Freeney would have required a mastectomy.

But he said the cancer would have been smaller and she would not have required radiotherapy and chemotherapy.

He said their case was the mammogram taken in the mobile clinic was incorrectly reported as indicating no evidence of cancer.

Experts for their side he said will say that if Ms Freeney had been referred on for further assessment the cancer would have been identified.

The opportunity to detect the cancer at an early stage was missed, Mr Maher said.

The case before Ms Justice Niamh Hyland continues.

Irish Independent

A SCHOOL secretary has been given the chance to avoid hefty fines and conviction for 520 unpaid trips on the M50.

Six motorists were hit with court fines totalling €56,000 after failing to turn up to face charges for repeatedly dodging M50 tolls.

Some 22 motorists had been summonsed to appear at Dublin District Court, and prosecutions against seven of them went ahead.

Six motorists failed to show up but were given hefty fines, ranging between €5,000 and €15,000, in their absence and ordered to pay €350 in prosecution costs.

Meanwhile, school secretary Jessica Brewer, of Latchford Close, Clonee, Dublin, had the highest number of unpaid tolls of the defendants listed, 520 over a three-year period.

She came to court and wept as she told Judge Anthony Halpin it happened because she was unwell last year and feared a recorded conviction could jeopardise career plans. Like all defendants in the list, she was prosecuted on five sample counts.

After listening to her story, the judge said: “You can’t get feathers off a frog’s back,” adding she did not have the money.

He ordered her to pay €500 to the motorway operator and a further €100 toward prosecution costs. He adjourned the case until July, when the case will be struck out with no record if she has paid by then.

The court heard she had paid for 39 trips each costing €3.10 but another 520 were unpaid.

She admitted she had been the driver and was responsible but she has since set up a toll tag and is now paying when she uses the motorway.

Irish Independent

Mother’s €60,000 claim that security staff trapped her in doorway dismissed.

A mother of three who alleged she had been assaulted by security men repossessing her family’s business for a bank has lost a €60,000 damages claim for personal injuries against a security company.

Judge Sarah Berkeley also awarded costs against Bernadette McLoughlin (35) after telling her she had attempted to force her way into a shopping mall at Mary Street, Dublin when she found it had been taken over on behalf of a receiver.

Ms McLoughlin, with an address at Dodderbrook Park, Ballycullen, Dublin 24 alleged she had suffered psychological injuries as well as bruising and pain after her left arm was trapped in an entrance door for half an hour by security staff.

She claimed they would neither let her in nor out once her arm had become lodged between the door and a wall.

Ms McLoughlin told barrister Paul O’Neill, counsel for KTech Security, of Cookstown, Tallaght, she had known of a possession order having been made against her mother, who owned the premises.

She said she had received a call from a tenant who had been locked out once the City Sheriff had moved in.

Ms McLoughlin denied she had been part of a threatening and menacing crowd outside the mall on January 12, 2016 and said she had only wished to assist tenants recover equipment.

She said security men had trapped her between the door and the wall and would not release her.

Mr O’Neill, who appeared with O’Riordan Solicitors for KTech, said security staff would tell the Circuit Civil Court that she had held on to a security rail at the entrance and had refused to move out of the partly closed doorway.

Jamie McLoughlin, her brother, said the family were aware a High Court order for possession had been delivered to the City Sheriff but no one had known when it would be executed. He said repayments had not been made on a mortgage for 16 years and he had used rents from tenants to defray other bills.

Judge Berkeley said she accepted the evidence of Garda Sergeant Fintan Corcoran who had visited the scene and had told the court Ms McLoughlin could have walked free at any time.

Gda Sgt Corcoran had to counsel her for 10 minutes before she agreed to move out of the position she had been standing in.

He had specifically told the court there had been plenty of room either side of her arm in order to allow her release.

“When told she wasn’t going to get access she manoeuvred her way into a position in the doorway and I don’t accept she was caught and unable to get out,” Judge Berkeley said.

She said she did not accept that the defendant had done anything that had caused bruising to Ms McLoughlin’s arm.

Security staff had done everything they could not to let her in and not to harm her either.

Retired City Sheriff James Barry told the court it would have been very dangerous for him to have given any notice of the date of taking possession.

There were seven security personnel as well as two bailiffs with him in the premises at the time.

Irish Independent

Boy who fell through skylight on hotel lawn settles for €75,000.

A 12-year-old boy who as a toddler fell through a skylight in a hotel grounds and broke his arm has settled his High Court action for €75,000.

Rory Veighey McCabe, who was just over two years old at the time, was playing on a grassed area at the Moyvalley Hotel, Co Kildare, when he dropped 10 feet through the skylight which was embedded in the ground.

The skylight was one of a number in a lawn area to provide light to a tunnel used by staff to access the hotel kitchens from the outside of the hotel.

Rory, who was attending a wedding with his family at the hotel, was playing with other children on the grass while the wedding speeches were taking place.

Through his mother Nicola Veighey, of Kilcock, Co Kildare, he sued the Moyvalley Hotel and Leisure Company, owners of the hotel, as a result of the accident on June 22, 2010.

Rory was attending the wedding reception at the hotel with his parents.

The wedding dinner took place in the main ballroom and a corridor led to the grassed area.

Shortly after Rory began playing with the other children, he fell through a skylight to the tunnel floor.

It was claimed the accessible lawn area was allowed to have an unsecured skylight and that this constituted a trip hazard.

There was also, it was claimed, a failure to warn the public and the parents of the boy of the existence of the skylight and a failure to remove a hazard from an area open to visitors.

Rory’s counsel, John Kennedy SC, told the court liability was not at issue in the case.

The toddler, he said, was not knocked out but suffered cuts and also broke his right arm.

He also lost three of his baby teeth as a result of the accident.

Approving the settlement, Mr Justice Kevin Cross said the fall was very severe and the young boy was fortunate not to have suffered a brain injury.

The judge said Rory had had a very nasty fall but he had probably forgotten all about it now.

Mr Justice Cross said it was a very good settlement and he wished the boy well for the future.

Irish Independent