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Sligo solicitor has major victory against Minister in landmark legal case

Sligo Weekender - Wednesday January 04 2012 - Gerry McLaughlin

Sligo solicitor Seamus Monaghan has won costs in a landmark legal case he took against Justice Minister Alan Shatter over delay in getting a Naturalisation certificate for a client.

The President of the High Court has awarded costs against the Minister for Justice after a legal action brought by Seamus Monaghan and Co, Teeling Street over "unexplained delay" in issuing a decision on an Iranian man¹s application for a certificate of naturalisation.

 The man eventually secured the certificate of naturalisation on the eve of the hearing of his High Court proceedings challenging the almost four-year delay.

 Mr Justice Nicholas Kearnssaid he could see no evidence to support the Minister¹s claims there was a system in place for dealing with such applications.

The judge made the comments in a judgment awarding costs to Dana Salman, who waited three years and nine months for a decision from the Minister, of his judicial review proceedings over the delay.
In a submission to the High Court Mr Monaghan described the delay as "egregious".
Mr Salman made his application on February 2nd, 2008, but was given no explanation why the application was taking so long to process and why it was taking much longer than the average time period (26 months), the judge said.

In his defence the Minister unsuccessfully argued that the applicant had no "justiciable right or entitlement" to a certificate of naturalisation.

The Minister claimed the matter was an executive decision to be made by the Minister for Justice.
The Minister also claimed in correspondence that for the High Court to intervene in the exercise of such an executive power would be breach between the separation of powers between the Executive Government and the courts.

The Justice Minister also claimed he had put a reasonable system for dealing with applications without any substantiating evidence.

Speaking afterwards Mr Seamus Monaghan said;

"This is a massively important decision for all other judicial review cases (and immigration cases) in Ireland, and sets down important legal principles and boundaries as to how the Government including Alan Shatter, Minister for Justice Equality & Law Reform is legally obliged to deal with persons individual legal rights".

Iranian man wins citizenship in High Court battle

Sligo Champion - Wednesday January 04 2012

AN IRANIAN NATIONAL living in Sligo since 2005 will soon become an Irish citizen after winning a legal battle with the Minister for Justice that lasted for almost four years.

Father of two Dana Salman fled Iran in 2005, arriving in Dublin in February of that year before making his way to Sligo shortly afterwards.

A Kurd, Mr. Salman was granted refugee status and he subsequently made an application for Irish citizenship in February 2008 but a decision on the matter wasn't made by the Minister for Justice inside the normal waiting period of about 26 months.

Mr. Salman subsequently brought a case to the High Court through his solicitor Mr. Seamus Monaghan with Minister Alan Shatter granting a certificate of naturalisation on the eve of the hearing. Now, Mr. Salman is looking forward to partaking in one of he new citizenship ceremonies to be held in Dublin early this year.

However, during the four year wait, Mr. Salman said he had applied to join the Defence Forces but was told his application couldn't be processed because no decision had been made on his citizenship application.

"I was very disappointed with that. Now, I am over thirty years of age and I cannot apply so I have missed out on the opportunity of joining the Irish army," Mr. Salman told The Sligo Champion.

He also stopped travelling outside of Ireland as he was frequently detained for extended periods at immigration control.

He wrote several letters to the Minister for Justice but got nowhere and instructed his solicitor in May 2010 who also queried the delay. Proceedings were issued in the High Court in June last and were set down for hearing at the end of November.

Citizenship was granted but the case proceeded before the High Court to determine costs and Mr. Justice Kearns ruled in Mr. Salman's favour.

The Judge said the Minister never indicated to Mr. Salman what was causing the delay in processing the application and refused to explain why the period of delay extended far past the average time period put forward by the Department.

"Had the application for judicial review in this particular case proceeded, the applicant would have been entitled to relief on the basis of the respondent's unexplained delay," said the Judge.

Mr. Salman hails from North Western Iran and still has two sisters living there along with his mother. His father died in 2005 while another sister lives in Iraq. Being Kurdish, he said, they were treated like second class citizens and he was forced to flee.

When he came to Sligo he established a translating business and he is fluent in English, Persian, Arabic and Kurdish. He currently resides in the Garavogue area and has two daughters, Havah (5) and Daria who will be three next April.

The case taken by Salman has important implications for all other judicial review cases and immigration matters in Ireland and sets down significant legal principles, said Mr. Monaghan.

Costs awarded against Minister over 'delayed' naturalisation

Irish Times Sat 17 Dec 2011  
The President of the High Court has awarded costs against the Minister for Justice of a legal action brought over “unexplained delay” in issuing a decision on an Iranian man’s application for a certificate of naturalisation.
The man eventually secured the certificate of naturalisation on the eve of the hearing of his High Court proceedings challenging the almost four-year delay.
Mr Justice Nicholas Kearns said yesterday he could see no evidence to support the Minister’s claims there was a system in place for dealing with such applications. The judge made the comments in a judgment awarding costs to Dana Salman, who waited three years and nine months for a decision from the Minister, of his judicial review proceedings over the delay.
Mr Salman made his application on February 2nd, 2008, but was given no explanation why the application was taking so long to process and why it was taking much longer than the average time period (26 months), the judge said.
© 2011 The Irish Times

This is a massively important decision for all other judicial review cases (and immigration cases) in Ireland, and sets down important legal principles and boundaries as to how the Government including Alan Shatter, Minister for Justice Equality & Law Reform is legally obliged to deal with persons individual legal rights.

Alan Shatter, Minister for Justice & Equality argued unsuccessfully, as the President of the High Court rejected all these arguments, that:

1.      The Minister argued that the Applicant has no “justiciable right or entitlement” to a certificate of naturalisation.  The Minister argued that the issue at stake is an "executive decision" to be made by the Minister for Justice.   The High Court rejected this argument. 
2.      The Minister argued that for the High Court to intervene in the exercise of such an executive power would be a breach of the separation of powers between the Executive Government and the Courts.  The High Court rejected this argument.
3.      The Minister argued that although no factual basis is put forward in evidence, the Minister suggested in the statement of opposition that the Minister has put in place a reasonable system for dealing with applications. Accordingly the time lapse was justified.  The High Court rejected this argument.

Brazilian assault

Sligo - Wednesday 20 November 2012 

A BRAZILIAN national is facing trial on an assault charge arising from an incident in a nightclub.  Before Sligo District Court was Fabio Silva, Doorly Park who is charged with assault causing harm to Gary McMamaman at the Velvet Rooms, Kempton Parade on September 2nd last.  Garda Paul Connolly gave evidence of arresting Silva (26) at Grattan Street.  Inspector Paul Kilcoyne said a medical report revealed that the victim received an injury under his left eye caused by a glass.  Eighteen stitches were inserted in the six centimetre wound.  Mr. Seamus Monaghan, solicitor said the defendant was living in Sligo for six years and was a manager in a local shop.  He had intended returning home to Brazil for a number of months.  Judge Kevin Kilrane said he would deal with the case in the district court if the DPP instructs that the case be heard there.  Silva was remanded on bail to February 20th next and he was ordered to surrender his passport.

How did unused car start?
Sligo - 13 November 2012
A DRIVER who didn't have insurance was bringing a friend who injured his face to hospital when she was stopped by Gardaí.  Before Sligo District Court was Margurite Reddington, Ballina Road, Swinford, Co Mayo who admitted not having insurance on May 3 last at O'Connell Street, Sligo.  Defending solicitor Seamus Monaghan said that Reddington had to cancel her insurance that January as she couldn't afford it.  On the day a friend injured his face and she was bringing him to hospital. The defendant told Judge Kevin Kilrane that she hadn't been using the car between January and May.  The judge asked how the car had started after being idle five months.  He fined Reddington €300.  

Dangerous driving - didn't stop at roundabout

Sligo - 27 November 2012

A DRIVER who drove through a roundabout in Strandhill without yielding was fined €50 for careless driving by Judge Kevin Kilrane at Sligo District Court. The fine was imposed on Mumini Bayo Folorunso, Globe House, whose driving at Killaspugbrone, Strandhill, on May 31st last almost resulted in a collision with a Garda patrol car.   Inspector Sean McGinty said that at 11.10 pm the patrol car had entered the roundabout when the defendant who was travelling up the Burma Road drove straight through.   "If the patrol car hadn't braked and come to a stop there would have been a collision," said the Inspector.   Folorunso continued to drive at speed into Sligo before being stopped. He did not have any previous convictions. Mr Seamus Monaghan, solicitor (defending), pleaded that the driver, who had been living in Sligo for five years, "should have looked over his right shoulder" as he approached the roundabout. Mr Monaghan said it had been a problem roundabout and that the County Council had recently erected bollards there.

Dangerous driving charges struck out - driver claimed he was hit by Garda - Allege to have been elbowed in the face

Sligo - Wednesday 23 October 2012

A DRIVER who was allegedly speeding and overtook along a continuous white line claimed at Sligo District Court that after he was stopped he was elbowed twice in the face by a Garda.  Before the court was Wesley Regan, (35) of Knockadalteen, Ballymote who was summoned for careless driving at Ballydrehid and dangerous driving at Knockadalteen and Ardnaglass on November 6th.  He was also summoned for having the incorrect style of number plate on his Mini Cooper.  Garda Kevin Donegan said he and Garda Tomas O'Griofa followed a Mini Cooper out the Sligo to Collooney dual carriageway after they observed it go past at speed as they were waiting at the traffic lights at Church Hill in an unmarked patrol car at 12.40 p.m.  Witness estimated the Mini travelled in excess of 140 kph before turning onto the Galway road at Collooney and on to the Ballymote road.   The Mini proceeded to overtake two jeeps along continuous white lines, narrowly missing an oncoming vehicle on the second occasion.   The Mini drove into the driveway of a house on the Sligo road in Ballymote.   Regan admitted he had been driving but he became irate.   Garda Donegan outlined how he and Garda O'Griofa were verbally abused by Regan.   In reply to Mr. Seamus Monaghan, solicitor, Garda Donegan said he didn't attempt to stop Regan before Ballymote as it was raining, visibility was poor and he didn't want to panic other drivers. In reply Seamus Monaghan, solicitor, produced met eireann weather reports to show it was not raining on the day, it was a sunny day, visibility was very good.   Seamus Monaghan, solicitor also submitted Garda protocols and guidelines had not been followed as the Gardia allegedly followed the vehicle for 18 km, without putting on their siren, flashing their lights, beeping their horn, or attempting to stop the vehicle.   Seamus Monaghan, solicitor also produced the Ordnance Survey townland maps from the year 1910 to show the alleged offences did not occur within the townlands of Knockadalteen and Ardnaglass.   Seamus Monaghan, solicitor also submitted the address of the accused on the Summons were incorrect, and applied for a direction.  Garda O'Griofa denied he had verbally abused the defendant when he sat in the back of the patrol car and denied that he had elbowed him twice in the face.   Regan said he had his five year old daughter with him and would not have travelled at 140 kph.   He estimated he was doing between 100 and 110 kph on the dual carriageway.   He overtook the jeeps on broken white lines and did not cause a near collision.   In the patrol car Regan said he leaned forward to show Garda O'Griofa his licence when he was elbowed in the chin.   Regan also claimed the Garda verbally abused him before elbowing him a second time in the face.   Judge Kevin Kilrane at Sligo Court was not happy with the prosecution case.  The charges of careless driving and the two charges of dangerous driving were dismissed.

Not guilty to Criminal Damage

Sligo - Wednesday May 23 2012

A POLISH MAN pleaded not guilty to causing criminal damage to a car by allegedly using an implement to scrape the passenger side of the vehicle when he appeared at Sligo Court.  Filip Tomanski, 8 Cois Inbhear, Markievicz Road, was remanded on bail to June 14th next in respect of a charge relating to an incident at Lyons Terrace on October 13th last.  He was represented by Mr. Seamus Monaghan, solicitor, who applied for statements in the case.

Apology for being drunk and disorderly

Sligo - Wednesday - 01 February 2012

Mr. Seamus Monaghan, solicitor, entered a plea on behalf of Stephen Harrigan's behalf.  The solicitor indicated the 21 year old man apologised for his behaviour and he was only fined €200 by Judge Kevin Kilrane at Sligo Court for being drunk at Pearse Road on April 2nd last. Stephen Harrigan, Yeats Drive, was said to have previous convictions and Judge Kilrane said this was the reason for the amount of the fine. 

Nightclub bouncers avoid jail for serious assault - community service orders imposed
Sligo - Wednesday 18 January 2012
FOUR DOORMEN on a Sligo nightclub have been ordered by a Circuit Court judge to do 50 hours of community service in lieu of five months in prison for assaulting an apprentice plumber on the street after he had tried to gain admission to the club.  The four were also each fined €250 and ordered to immediately pay over €2,000 (making a total of €8,000) to the victim, Gavin Maher.   Charged with the offences on January 23rd 2009 outside Envy Nightclub at Teeling Street, Sligo, were 42-year-old Frank Murphy, Apartment 8, Dooney Bar, Sligo; 25-yearold Marek Gregus, a native of Slovakia, with addresses of 35 Block B, Citygate Apartments, Sligo, and 2 West Gardens, Sligo; 40-year-old Paul Mullen, 10 St. Patrick's Terrace, Temple Street, Sligo; and 51-yearold Peter Johnson, Garvagh, Dromahair.  Sligo Circuit Court was told on Thursday last that Maher sustained injuries to his right and left shoulder, and to his lip and back. The accused, all of whom pleaded guilty at a previous court, had no previous convictions "at the time."   The court heard the defendants had intended to bring Maher to the garda station when the assault took place outside the doors of Envy Nightclub around 12.30 a.m. It continued up the street toward the garda station.   Maher had tried to gain admittance to the nightclub but was challenged by a bouncer looking for double identification. Maher took umbrage with this and verbally abused one of the bouncers. Another came and "sort of took over" and this individual said something like, "We will drop him off at the garda station." Maher was grabbed by the neck. He said he was picked up by the four men and that, at the time, he didn't know where they would bring him. Afterwards, he was sore all over and his nose was bleeding. He went to the garda station, then to the hospital, and returned to the garda station the next day.    Garda Mark Sweeney told how CCTV footage showed Frank Murphy and the three others grabbing Maher. It appeared Johnson struck Maher several times. The four men lifted Maher, brought him a little bit up the street, dropped him, and he was struck again.   In garda interviews, Murphy indicated Maher had been verbally abusing one of the door staff. Murphy confirmed he had Maher in a headlock but that he did not strike him or use excessive force. Gregus said he had been verbally abused by Maher, that he saw nobody hit Maher and he denied using or seeing excessive force. Mullen said he did not have Maher in a head lock. Johnson felt the situation was handled properly and that if it was to happen again, he would do the same thing. He lifted Maher by the leg but denied hitting him or seeing anyone strike him.

Charge of brothel keeping - 
Prostitute told to leave country

Sligo - Wednesday 03 August 2011

A 24 YEARS old woman charged with operating a brothel in Sligo was granted bail at Carrick-on-Shannon District Court on Friday last week in order to allow her leave the country.  Before the court was Daniela Patrascu, 9, The Weir Apartments, Stephen Street who admitted a charge of brothel keeping at the same address. Evidence of arrest, charge and caution was given by Garda Eamon McDonnell.  The court was told that an undercover Garda had entered the apartment after the defendant had advertised on a website.  Mr. Seamus Monaghan, solicitor (defending), pleaded that the defendant was a single mother with a three year old child. She had been living in Ireland for the past year and had been working in a fast food premises until January this year.  She was made unemployed and returned to Romania but came back to Ireland about four weeks ago. She did not have any previous convictions and was a pawn in a much larger enterprise, said Mr. Monaghan.  Judge Geoffrey Browne released the defendant on her own bail of €100 ordering her to leave the country before Thursday.

Theft charges struck out

Sligo - Wednesday 06 July 2011

A 30 year old mother stole 4 tops from Penneys had the charges struck out by Judge Kevin Kilrane at Sligo District Court.  Charged with taking the tops, valued at €28.00, on 14th June 2010 in Penneys, O’Connell Street, Sligo was Bridie Martin, 26 Gort Mhaoilir, Raheen, Athenry, Galway.  The goods were recovered.  Mr Seamus Monaghan Solicitor (defending), pleaded the Defendant was the mother of 8 children, she had no previous convictions for theft, she had recently given birth to a premature child that nearly died and it would have affected her behaviour.  Mr Monaghan pleaded for leniency.  The charges of theft were struck out by Judge Kevin Kilrane.

Drove without insurance on day he 'ran away with girl' - Wednesday 03 February 2010

A young man who was seventeen when he ran away with a girl on a day he was stopped by Gardai driving without insurance or a driving licence was involved in something that sounded like "a Romeo and Juliet story" said a solicitor at Sligo Court.   Mr. Seamus Monaghan described the behaviour of Patrick Maughan, Knoxville, Manorhamilton, as "naivety on his part."   Garda Karen Martin had stopped Maughan at Joe Banks Road on July 23rd last. She had spoken to him and demanded production of all his relevant documents. Maughan had undertaken to produce them at Kilkelly Garda Station but had failed to do so.   Mr. Monaghan confirmed that Maughan was seventeen years of age when he was stopped. His client had asked him to apologise to the court for his behaviour.   "He was in a relationship with a young girl and it sounds like a Romeo and Juliet story in that they ran away together on the day. He tells me he needs his licence to visit his granny who is sick," Mr. Monaghan added.  Judge Kilraine disqualified Maughan for six months and fined him €300 for driving without insurance and fined him a further €100 for having no driving licence.   Recognisances were fixed in the event of an appeal in his own cash bond of €500.

Criminal damage - Wednesday 11 December 2012

A man who scraped the side of his former landlord's car on his lunch break was ordered to pay €700 for the damage at Sligo District Court.  The court was told that landlord Jerome Reynolds of Ballinalee, County Longford was sitting in a car outside his property at Lyons' Terrace on October 13th 2011 around 1.05pm when he observed his former tenant, Filip Tomanski of Cois Inbhear, Markievicz Road walk past, take something from an inside pocket and proceed to scrape the side of his 2008 Mercedes which was parked about six metres away.   Mr. Reynolds got out of the car and followed Tomanski who had crossed the road but he wouldn't stop or admit to what he had done.   In reply to Mr. Seamus Monaghan, solicitor (defending), Mr. Reynolds agreed that the defendant had been a former tenant of his for 18 months and that he wrote a reference for him when he left.   There had been no issues with him apart from one over the electricity meter.   Witness could not see what was used to scrape the car.   Adeel Hussain told the court he was sitting in his car with Mr. Reynolds, his landlord, when he saw Tomanski scrape the car. He then walked off quickly. Garda P. J. Gallagher said he viewed the scrape at Sligo Garda Station at 2.20pm and would describe it as being recent.   He took a picture of the car which was handed in to court.   Tomanski, who was working in Sligo for six years, said he was on a half hour lunch break from a factory in Finisklin and the walk to and back from town was around 20 minutes.  He recalled passing Mr. Reynolds' car but denied scraping it.   Tomanski said he was a tenant of Mr. Reynolds up to four years ago.   The defendant told Inspector Sean McGinty that there had been no problem with the electricity but that Mr. Reynolds may have wanted "to renew his car out of my pocket".   Judge KIlrane said it had been a very extensive scrape and it could not have been there before without Mr. Reynolds noticing it.   When challenged about it the defendant must surely have thought about going back to see what he was being accused of but instead he walked off.   The Judge described as ridiculous the accusation that Mr. Reynolds was trying to gather money in order to change the car.   The matter was adjourned for sentencing to January 17th and he told Tomanski that if the €700 damage was paid by then this would affect significantly the order he would make on that date.

Probation for man who scraped landlord's car - Wednesday 22 January 2013

A MAN who scraped the side of his former landlord's car came up with €700 for the damage at Sligo District Court.  The case against Filip Tomanski of Cois Inbhear, Markievicz Road was adjourned from a previous sitting.  Landlord Jerome Reynolds of Ballinalee, County Longford was sitting in a car outside his property at Lyons' Terrace on October 13th 2011.  At around 1.05pm he observed Tomanski walk past, take something from an inside pocket and scrape the side of his 2008 Mercedes which was parked about six metres away.  Mr. Reynolds got out of the car and followed Tomanski who crossed the road but he wouldn't stop or admit to what he had done.   Tomanski was on a half hour lunch break from a factory in Finisklin.  He denied scraping the car but Judge Kevin Kilrane convicted him.  Judge Kilrane said it was difficult to know why the defendant scraped the car.  "People do things for all sorts of strange reasons," he said.  Mr. Seamus Monaghan, solicitor (defending), pleaded that Tomanski was in full time employment. He didn't have any previous convictions. Judge Kilrane said he felt Tomanski had learned his lesson.   The Probation Act was applied.

Woman guilty of knife possession - Wednesday 27 April 2011

A 41-YEAR-OLD woman who was described as having "fallen off the cliff" during a traumatic period in her life and committed a series of offences as a result, was ordered to carry out 200 hours of community service when she appeared before Judge Kevin Kilrane at Sligo District Court.  Before the Court was Emma Stanley, Sooey, Riverstown who admitted being in possession of a knife and being intoxicated at Molloway Hill on September 24th, with engaging in threatening, abusive and insulting behaviour and being intoxicated at O'Connell Street on November 5th and at Stephen Street Car Park on February 6th last and at Tobergal Lane on December 31st 2010.  Stanley was further charged with failing to comply with the direction of a Garda at the Garavogue Bar on February 6th and with engaging in threatening, abusive and insulting behaviour and with producing a knife during the course of a dispute at Connolly Street on October 30th 2010.  The defendant, who was represented by Mr. Seamus Monaghan, solicitor, was also charged with theft at Sooey Church on January 20th last.  Inspector Sean McGinty told the court that on September 24th Gardai came across the defendant lying on the footpath. She was highly intoxicated and was arrested. At the Garda Station, the defendant was found to have a knife in her jacket.  "She habitually carries a knife," said the Inspector.  On November 5th Gardai got a call about two people obstructing traffic.  The defendant, who was one of them, was very abusive to Gardai.  On December 31st Gardai were called to a cafe at Tobergal Lane where the defendant had been refused entry. She was highly intoxicated and was abusive to the Gardai and doorstaff. She continued to be verbally abusive to Gardai even when detained and spat at a Garda patrol jacket.  The defendant was also very drunk when observed at Stephen Street Car Park on February 6th. On October 30th at Connolly Street a man reported there had been an altercatiion with the defendant outside an apartment.  She had produced a knife and pointed it at the man in a threatening manner. The charge in relation to Sooey Church was the theft of a bottle of altar wine.  Mr. Monaghan pleaded that the defendant did not have any previous convictions and all of the offences had occurred during a four month period. She had been studying at Sligo IT but failed her exams and this had a severe impact. She began drinking heavily and this went out of control.  Her mother, who had been ill, passed away in January and this had also been very traumatic for the defendant.  "She just fell off the cliff during this period," said Mr. Monaghan. The defendant had now been sober for a number of weeks and was doing her best, he added.  Judge Kilrane ordered the defendant to carry out 200 hours of community service in lieu of a three months jail term.

Judge says he will require ‘good explanation’ from absent drink driver - Wednesday  27 April 2010

A case against a Fermanagh man charged with drunk driving in Sligo last December was adjourned to this Thursday at Sligo Court to enable him give evidence.

Peter Nelson, Foster Road, Belleek, Fermanagh, was summoned by Garda John McNulty for drunk driving on December 20th last at Rockwood Parade, Sligo

Judge Kilraine remanded the defendant on continuing bail to this Thursday, April 15th.

The case had been called a number of times during the court but was put back to see if the defendant appeared in court or if his solicitor, Mr. Seamus Monaghan, could make contact with him.

However, Mr. Monaghan said there was no response from the defendant’s mobile phone and, in the afternoon, Judge Kilraine said he was going ahead with the case.

Garda McNulty told the court that on December 20th last at 2:17 a.m. he observed a vehicle attempting to come out from a barrier at the top of Rockwood Parade onto Hyde Bridge.

Cross-examined by Mr. Monaghan, Garda McNulty said he did not see the vehicle move forward. He saw it only move backward.

Mr. Monaghan said the defendant would say the vehicle was not moving forward or backward but that he was sitting in the vehicle and was not driving. He believed the charge brought against him was not the correct charge and that if there was a charge it most likely would be drunk and in charge.

“He would say he was sitting in the vehicle with the lights on to keep warm,” said Mr. Monaghan, who added that the defendant was not present to rebut the charge, and he could not explain why he was not present.

Judge Kilraine adjourned the case for a week to enable the defendant give evidence.

The court heard the defendant’s alcohol reading in the case was 45 micrograms of alcohol per 100ml of breath.

Judge Kevin Kilraine said he would need an explanation, and a good explanation, why the defendant was not present, particularly as he had wanted the case dealt with expeditiously.

“On the evidence I have heard I would convict, so everything is at stake,” the Judge said.


'Probably' not good enough in drunk driving case - Wednesday  05 May 2010

A Fermanagh man who claimed he had the engine of a van running to keep the heat on while awaiting friends to collect him at Rockwood Parade and who insisted he had no intention of driving on a cold December night, had a charge of drunken driving dismissed by Judge Kevin Kilraine at Sligo Court.

"I have a doubt as to whether the vehicle moved. The Garda is probably right, but probably is not good enough," commented Judge Kilraine in dismissing the case against Peter Nelson, Foster Road, Belleek, Fermanagh.

Garda John McNulty had told a previous hearing that on December 20th last at Rockwood Parade he observed a vehicle attempting to come out from the barrier at the top of Rockwood Parade onto Hyde Bridge at 2.17a.m.

Under cross-examination by Mr. Seamus Monaghan, solicitor, for Nelson, Garda McNulty said he had not seen the vehicle move forward. He saw it only move backward.

The case was adjourned to allow Nelson to give evidence. Nelson was not present at the initial hearing and Judge Kilraine demanded an explanation as to why he was absent.

The court heard the defendant's alcohol reading in the case was 45 micrograms of alcohol per 100ml of breath.

Nelson stated at the outset that as a general rule he did not receive or make telephone calls. He lived a reclusive lifestyle as an artist living in a caravan in bogland several miles from Beleek and had a "social anxiety disorder".

At the earlier hearing, Mr. Monaghan had tried unsuccessfully to contact his client by telephone.

Cross-examined by Mr. Monaghan, Garda McNulty said he saw Nelson's vehicle reverse a distance on the night, but as it was facing towards him he did not see the reversing lights.

Peter Nelson stated that he had parked at Rockwood Parade for the night and intended to sleep in the back of the van. He had no intention of driving anywhere. It was not unusual for him to sleep in the vehicle and there were two or three sleeping bags in it.

Subsequent to the incident before the court, another Garda had found him asleep in the back of the van and had no problem with him.

Nelson explained that he had met with a friend in the Glasshouse Hotel on the opposite side of the bridge and had parked up on the ramp at the end of Rockwood Parade prior to meeting this person.

As an artist he was familiar with the Yeats Building, which he said was one of his landmarks in Sligo. He knew the area as a quiet location and intended parking up his van for the night, he repeated.

Nelson added that after leaving the Glasshouse, he had gone to the Leitrim Bar on The Mall, where he met a man from Dublin who had an address where there was supposed to be a party.

This man had telephoned some people who were due to collect them.

Nelson recalled that December 23rd last had been an extremely cold night and whilst waiting for the people to come to collect them they had decided to wait in his van. This was why the engine was running and the lights were on. They wanted to stay warm, he said.

He accepted that the key was in the ignition, but this was to keep the heater on. There was snow on the ground and with no place to stay on the night, he decided to remain in the van.

Nelson repeated that he never had any intention of driving. The handbrake was on and the Garda must have been mistaken if he said the vehicle moved, he added.

"It categorically did not move," Nelson maintained.

Asked why he had not told Garda McNulty this, he replied that when a breath sample was requested from him a certain panic had set in at that stage and he did not explain himself as he should have.

Cross-examined by Inspector Paul Kilcoyne, Nelson denied that he had driven up Rockwood Parade and then reversed when he realised that he could get no further.

He said he would have been well aware that there was no access route through the area.

Dismissing the case, Judge Kilraine said there was a conflict in the evidence and in an unresolved conflict the benefit must go to the defendant.

Incident in nightclub spilled on to the street - Wednesday 29 July 2009

An incident in a nightclub between two men over a girl spilled onto the street, a solicitor told Sligo Court while defending a man charged with intoxication, threatening, abusive and insulting behaviour, and refusing to give his name and address to gardai.

Martin Walsh, Cullane, Carraroe, Galway, was summoned for committing the offences on July 3rd last at John F. Kennedy Parade, Sligo.

Mr. Seamus Monaghan, Solr, defending, told the court there was a plea in the case.

Garda David Hannigan said that at about 3 a.m. gardai received a call to go to a nightclub. There were a number of highly charged, agitated males and the defendant was particularly aggressive. He was intoxicated and abusive to gardai. He refused to give his name and address and he was taken to Sligo Garda Station.

Garda Hannigan said that on CCTV he was observed outside the nightclub and in an unprovoked move he punched a male into the side of the head.

Garda Hannigan said he didn't know what happened inside the nightclub.

He agreed with Seamus Monaghan that the defendant later called to the garda station and apologised.

Seamus Monaghan explained that it was an incident that spilled over from the nightclub between two suitors over a girl and "it spilled onto the street." There was drink on board.
Seamus Monaghan told Judge McLoughlin that his client had never been in court before, he deeply regretted what happened and he put himself at the Judge's mercy.
Seamus Monaghan said the defendant had money in court and he asked Judge McLoughlin to deal with it in a way rather than imposing a conviction.

Judge McLoughlin remanded the defendant on continuing bail to December 3rd to give him an opportunity to pay 250 euro to the St. Vincent de Paul Society in lieu of a fine.

The Judge said that if he paid the amount and didn't come to garda attention in the meantime, he would apply the Probation Act.

Planning & Criminal Law: Council take house owners to court for failing to sign occupancy clauses - Wednesday June 10 2009

In what was described as the first kind of its case in the country, Sligo County Council took enforcement proceedings against two separate housing applicants for failing to enter into Section 47(seven year occupancy) agreements in respect of two houses at Dunfore, Ballinful.

Aisling and John O'Boyle were said to be both out of the country, one in the United States and one in the U.K. and their defending solicitor, Mr. Seamus Monaghan, said that there was legal opinion that the occupancy agreements were in fact invalid and against the European Court of Human Rights and the Constitutional rights of the individual.

Sligo County Council were represented by Mr. Brian Armstrong, solicitor.

At the outset, Mr. Armstrong explained that the issue was primarily a legal one.

He said that the Development Plan for County Sligo, in common with many other counties, contained a provision to prevent once off development in rural areas, rather the development of villages and towns and not such once off housing in and around the countryside.

This was the policy in the Development Plan and as a consequence, it was difficult for people to get planning permission for a once off house in a rural area.

The plan further recommended that there should be exceptions for the families of farming communities or sons or daughters of local residents.

Mr. Armstrong told Judge Denis McLoughlin how the County Council had received two planning applications in pretty much identical terms from the defendants and these had been submitted in August, 2004.

In support of these applications there were provided a letter from an uncle of the two defendants in which it was stated that he was giving them a site each. It was also stated that when the houses were built they would be occupied by them as their principle place of residence.

The County Council granted planning permission on December 18th, 2004 and this permission was subject to certain conditions.

One of these conditions, was that the house would be occupied as a place of residence by the applicants for at least seven years and within two months of occupancy, a written statement of confirmation was to be submitted to this effect.

These conditions were designed to enforce the policy in the Development Plan and it was a condition that the Section 47 agreement be entered into prior to commencement of the development, Mr. Armstrong continued.

He recalled that while the construction of each house commenced no Section 47 agreements were put in place, as should have been the case.

The houses were built and subsequently a complaint had been received from a member of the public. The two houses were also advertised for sale by a local auctioneer and the houses were not occupied.

This led to a warning letter being issued and a subsequent enforcement notice requiring the agreement to be put in place.

Mr. Armstrong said he was aware that Mr. Monaghan and others would say that these planning conditions were themselves objectionable and there was a school of thought they contravene Constitutional and Human Rights.

However, this was not a matter for the Court and it it were to be challenged it should be brought before the High Court, or alternatively after receiving such a condition the applications could have appealed to An Board Pleanala, but instead went ahead and built the houses.

Tommy McHugh, Senior Executive in the Planning Enforcement Section , told how a complaint had been received by the Council in respect of the houses on February 23rd, 2007.

He had examined them on March 12th and found two houses in the process of being constructed with signs up advertising them for sale.

A Section 47 agreement had not been put in place and the Council deducted that a new purchaser would not be the person who had applied for permission.

There was also a matter of outstanding development charges, but these had been paid by a firm of engineers on behalf of the applicants.

On May 8th, 2007, the enforcement notice was issued and to date a Section 47 agreement had not been put in place.

The houses are finished outside and ready to be finished inside, Mr. McHugh added.

In response to Mr. Monaghan, witness said as far as he could determine he would accept that the defendants complied with every other condition of planning other than the Section 47 agreement.

Mr. Monaghan maintained that the Council was "over zealous" in its approach to the matter and asked Mr. McHugh if he was aware of any similar prosecution for failure to sign a Section 47 agreement in the whole of Ireland.

Witness replied that he could not comment on this.

He repeated that he was unaware if any other local authority had taken such a prosecution.

"There's always a first time," Judge McLoughlin commented when Mr. Monaghan said it was his belief that it was the first time such an enforcement matter had come before the Court.

Assistant Staff Officer in the Planning Enforcement Section, Mark Harrigan, gave evidence of serving the enforcement notices, which were posted by registered post in the Castle Street post office.

Asked by Mr. Monaghan if he had made any attempt to determine if the parties involved were still in this country, he replied that this was not part of his remit. He would send out the notices to the addresses on the planning applications when they were submitted. To his knowledge there were no other addresses for the people involved.

Mr. Monaghan made a number of legal points to the Court and the first was in respect of service of enforcement notices. His clients were living outside the jurisdiction for a considerable length of time, he said.

He described the case as "very unusual" and said he thought it to be the first of its kind in Ireland.

He added that the applicants could not afford to finish off the developments and had complied with every other condition other than signing the Section 47 agreement.

They had moved to gain employment and were not living in Ireland.

Mr. Monaghan further argued that there were those in the legal profession who felt the occupancy clause was illegal and referred to a Law Society of Ireland report of 2004 in this regard. This report concluded that certain planning conditions were discriminatory.

It could also be subject to a judicial review by some applicant in the future.

He described the prosecution as "doubtful" and said his clients were of the view that the condition was illegal and void.

Judge McLoughlin said he did not have jurisdiction to determine if this was so, or not.

Mr. Armstrong in reply stressed that there was a facility where the County Council could grant consent in writing for other occupancy by agreement.

Judge McLoughlin said his impression was that the applicants had not dealt with the County Council at all. If their engineer had lodged the application, he would have received a copy of the conditions, irrespective if they were outside the country.

He adjourned the matter to July 7th to allow Mr. Monaghan take instructions and to see if the applicants would lodge Section 47 agreements.

Arbitration Law: Important High Court case we were involved in where Justice Frank Clark ruled on:

(a) the different tests used in domestic and international arbitrations in relation to the strict time limits for a party to apply to the High Court to set aside an Arbitrator's award; and 

(b) it is only appropriate for a court to interfere with an Arbitration award on the grounds of an error on the face of the award where that error is so fundamental that the court cannot stand aside and allow it to remain unchallenged.









  • JUDGMENT of Mr. Justice Clarke delivered the 31st July, 2009 
  • 1. Introduction
  • 1.1 This is yet another judgment in a long running dispute between the applicants (“Bradley Construction”) and the respondent (“S. & R. Motors”). On 14th December, 2007, I gave judgment in proceedings (Moohan and Another v. S. & R. Motors (Donegal) Limited (2007) IEHC 435) in which Bradley Construction sued for money said to be due on foot of a construction contract for S. & R. Motors relating to a Volkswagen car showroom at Drumlonagher in Donegal town. For the reasons set out in that judgment I allowed the claim made by Bradley Construction but placed a stay on a portion of that claim pending a referral to arbitration of certain issues concerning an allegation of defective work, delay and a minor issue concerning safety.
  • 1.2 Those issues, therefore, went to arbitration before the notice party (“the arbitrator”). Subsequent to the arbitrator making his award, S. & R. Motors challenged that award in proceedings before this court. For the reasons set out in a judgment in those proceedings delivered on 12th December, 2008 (S. & R. Motors (Donegal) Limited v. Moohan and Another, [2008] IEHC 383) I remitted back certain aspects of the award concerned to the arbitrator.
  • 1.3 In substance only two matters were remitted back. The first matter concerned the way in which the arbitrator had structured his award. The arbitrator found against S. & R. Motors in respect of its allegations relating to delay and the safety issue. The arbitrator found in favour of S. & R. Motors, to some extent, in relation to its allegations concerning defects and measured the amount found to be due in respect of those defects. While a challenge was mounted to the substance of some of the findings of the arbitrator I was not persuaded, for the reasons set out in the judgment to which I have referred, that any basis for such a challenge had been made out. However, the way in which the arbitrator had structured his award was to take into account the sums due by S. & R. Motors to Bradley Construction and reduce those sums by the amount found to represent the defects identified so as to award Bradley Construction the net balance.
  • 1.4 For the reasons set out in the judgment to which I have referred, I came to the view that it was not open to the arbitrator to make an award in respect of the sums undoubtedly due under the contract by S. & R. Motors to Bradley Construction because those sums had already been dealt with by the court. The matter was remitted back to the arbitrator to allow him to correct that matter. However, in addition, the award by the arbitrator of costs (which was, necessarily, influenced by the way in which he had structured his award) was also remitted back. In the course of the relevant judgment I drew attention to jurisprudence identified in cases such as Veolia Water UK plc and Ors v. Fingal County Council [2007] 2 I.R. 81 concerning the proper approach to costs.
  • 1.5 The matter was then reconsidered by the arbitrator who made a revised award (described by the arbitrator as a corrected award) in which full costs were given to S.& R. Motors on the basis that S.& R. Motors had succeeded in the arbitration, albeit for a sum significantly below the amount claimed and notwithstanding the fact that S. & R. Motors’ claim in respect of delay had not been allowed at all.
  • 1.6 This further challenge is brought by Bradley Construction against the corrected award made by the arbitrator arising out of the remittal back to which I have referred (“the corrected award”). The arbitrator, while served with these proceedings, did not participate.
  • 1.7 Against that background it is necessary to touch briefly on the issues which arise.
  • 2. The Issues
  • 2.1 In substance two issues arose at the hearing before me. The first concerned whether Bradley Construction are out of time to bring this challenge.
  • 2.2 The second issue concerned the substantive challenge to the corrected award so far as costs are concerned. In that context it is said that the corrected award in respect of costs contains an error on the face of the award such that the award should be set aside and/or remitted back to the arbitrator. It is appropriate to turn to the time in question first. 
  • 3. Is this application in time
  • 3.1 An initial question under this heading arose as to the appropriate characterisation of this arbitration in relation to whether it is properly described as an international arbitration governed by the Arbitration (International Commercial) Act, 1998 (“the 1998 Act”) or whether it is a purely domestic arbitration.
  • 3.2 The importance of the distinction stems from the adoption, by virtue of s. 4 of the 1998 Act, of the Model Law of the United Nations Commission on International Trade Law (“UNCITRAL Model Law”) into Ireland for the purposes of international arbitration.

    • “An application for setting aside may not be made after three months have elapsed from the date in which the party making that application has received the award or, if a request had been made under Article 33, from the date on which that request has been disposed by the Arbitral Tribunal.”

  • 3.4 Thus, it would appear that there is a strict three month limit contained in the UNCITRAL Model Law in respect of which no possibility for an extension of time exists. It is also important to note that, in accordance with the terms of Article 34(3) of the UNCITRAL Model Law, time begins to run when the party seeking to set aside “has received the award”.
  • 3.6 However, as noted by Kelly J., the position under the Rules of the Superior Courts permits an extension of time in an appropriate case. As to the criteria to be applied, Kelly J. adopted the test identified by Blayney J. in Bord Na Mona v. John Sisk and Son Limited, (The High Court, Unreported, Blayney J., 31st May, 1990). While noting that there is no rigid test because the only overall criteria is as to whether the interest of justice require that time should be enlarged, Blayney J. nonetheless quoted, as of assistance, the factors identified by Mustill J. in Commercial Arbitration (2nd Ed.) which Mustill J. co-authored with Boyd. The relevant list is to be found at p. 568 of that book and is as follows:-
    3.5 The time limits in respect of purely domestic arbitration challenges are to be found in Order 56(4)(e) of the Rules of the Superior Courts. That rule provides that an application to remit or set aside an award “shall be made within six weeks after the award has been made and published to the parties or within such further time as may be allowed by the court”. In Kelcar Developments Limited v. M.F. Irish Golf Design Limited, [2007] IEHC 468, Kelly J. adopted a passage from Russell on Arbitration in following terms as setting out correctly the position in this jurisdiction relating to when an arbitral award can be said to have been published to the parties:-
    3.3 Article 34(3) of the UNCITRAL Model Law provides as follows:-
    • “Publication to the parties of an award (as distinct from “publication” of it simply) entails both completion of the award so that the arbitrator has finally adjudicated and retains no power of altering it, and also notice to the parties that this has been done. It is immaterial, however, whether or not the parties are then made acquainted with the contents of the award or received copies of it.”
    • “1. The desirability of adhering to time limits prescribed by Rules of Court.
    • 2. The likelihood of prejudice to the party opposing the application if time is extended.
    • 3. The length of delay by the applicant.
    • 4. Whether the applicant has been guilty of unreasonable or culpable delay.
    • 5. Whether the applicant has a good arguable case on the merits.”

  • 3.7 Laffoy J. in Clancy and Anor v. Nevin (2008) IEHC 121, followed the test identified by Kelly J. in Kelcar both in respect of when time runs and the criteria for adjudicating on an application to enlarge time.
  • 3.8 Thus, the position in respect of purely domestic arbitration is that there is a six week time limit, with time beginning to run when the arbitrator communicates to the parties that his award is available (and not when the parties actually receive the award itself). However, that time is capable of being extended when the interests of justice require it. The factors identified by Mustill J., to which I have referred, are a useful guide to the factors which might well be taken into account on the facts of any individual case.
  • 3.9 The first issue of dispute between the parties under this heading concerned the question of when time might be said to begin to run in the case of an international arbitration governed by the UNCITRAL Model Law. It seems to me that the wording of the UNCITRAL Model Law is clear. It speaks of time beginning to run when the person challenging the award has “received the award”. It seems to me that the use of the term “received” in respect of an award means just that. The party has to physically receive the award. The language used in the UNCITRAL Model Law is in total distinction to the phrase used in the Rules of the Superior Courts which speaks of award being “published to the parties”, which, for the reasons analysed by Kelly J., occurs when the parties are told by an arbitrator that his or her award is available.
  • 3.10 It seems to me, therefore, that time does not begin to run in respect of the three month period specified in the UNCITRAL Model Law until the party concerned has actually received the relevant award. However, time begins to run in respect of the Rules of the Superior Courts (because of the different wording used in those Rules) when the parties are notified that the award concerned is available.
  • 3.11 On that basis it is clear that, so far as the UNCITRAL Model Law (if it applies) is concerned, this challenge is within time as it is common case that this challenge was commenced within three months of the time when the arbitrator’s award was actually received by the parties. On the other hand it is equally clear that the six week time limit provided for in the Rules of the Superior Courts was not met so that, if this be properly characterised as a domestic arbitration, this challenge can only proceed if it would be appropriate to extend time.
  • 3.12 There is a dispute between the parties as to whether the arbitration with which I am concerned is properly characterised as an international or a domestic one. However, it seems to me to be appropriate firstly to address the question of whether, if it is proper to characterise the arbitration as a domestic one, it would be appropriate to extend time. If this is a case where it would be appropriate to extend time then the question of whether the challenge is to a domestic or to an international arbitration does not arise because time would not be a barrier is either case.
  • 3.13 Having considered all the facts and having regard to the criteria to which I have referred it seems to me that this is a case in which it would be appropriate to extend time. There was a particular problem in relation to the parties obtaining the arbitrator’s corrected award in this case. When the matter generally was for mention before the court at a time just after the arbitrator had indicated that his corrected award was available, a question arose as to whether it was appropriate for the arbitrator to seek to charge fees in respect of the hearing necessitated by the referral back of issues to him and the making of the corrected award on foot that hearing. The arbitrator, quite properly, on being informed of that issue indicated that he did not wish to receive a fee in respect of those matters until the question of his entitlement to charge such a fee had been clarified by the court. Having considered the matter and heard the submissions of the parties I ultimately came to the view that there was no reason in principle why an arbitrator, to whom a matter had been referred back, should not be entitled to charge an appropriate fee for the additional work necessitated by the referral back in circumstances where the error which caused the referral back in the fist place was caused by the arbitrator accepting the argument of one party rather than the other on a point in question.
  • 3.14 In those circumstances there was an unusually long delay between the time when the arbitrator indicated that the corrected award was available and that award actually being received by the parties. In those circumstances it does not seem to me that it can be said that Bradley Construction was guilty of any unreasonable or culpable delay. Neither is there any evidence of any prejudice to S.& R. Motors. In those circumstances it seems to me that, if this arbitration is properly characterised as a domestic arbitration, while the challenge with which I am concerned is out of time, it would be an appropriate case in which to enlarge time. I should also note that one of the criteria identified in Kelcar was the merits of the case (i.e. whether the applicant concerned had a good arguable case). However, as the question of there being a time bar and the substantive issues were argued together, it seemed to me to be appropriate to consider the question of an enlargement of time independently of the merits as those merits would have to be considered in any event and there would have been no saving of time or costs by a separate decision on time enlargement based on a preliminary view of the argument of the “merits” question.
  • 3.15 In those circumstances it is not necessary, for the reasons which I have set out, to determine whether this arbitration is properly characterised as international or domestic as the proceedings are not barred by time limits in either event.
  • 3.16 In those circumstances it is next necessary to turn to the substance of the challenge. I propose dealing briefly (for there was no contention on the matter) with the test to be applied. 
  • 4. The Test
  • 4.1 It is clear from decisions such as Limerick County Council v. Uniform Construction [2005] IEHC 347 and Uniform Construction Limited v. Cappawhite Contractors Limited [2007] IEHC 295, that it is only appropriate for a court to interfere with an arbitral award on the grounds of an error on the face of the award where that error is so fundamental that the court cannot stand aside and allow it to remain unchallenged.
  • 4.2. That is the test which I propose to apply in this case. On that basis it is next appropriate to turn to the nature of the challenge raised by Bradley Construction. 
  • 5. The Challenge
  • 5.1 Bradley Construction’s point it relatively straightforward. It is said that it is clear from the face of the award that the arbitrator did not have proper regard to relevant legal principles applicable to the award of costs. For the reasons which I set out in my judgment of the 12th December, 2008, in the previous arbitral challenge between these parties, it is clear that an arbitrator has a discretion in relation to costs but that, in exercising that discretion, the arbitrator concerned must apply the same principles as are applied by the courts (see para. 4.6. of the judgment). It follows that an award in respect of costs can be remitted back to an arbitrator for reconsideration where it is clear that appropriate principles have not been followed.
  • 5.2 However, in addition, having regard to the general jurisprudence in respect of remittal to which I have referred and having regard to the fact that an arbitrator does enjoy a discretion in relation to costs, it is clear that an award in respect of costs can only be remitted back where the way in which the arbitrator deals with costs is so clearly contrary to proper principles that the award in respect of costs cannot be allowed to stand.
  • 5.3 In substance Bradley Construction draws attention to the fact that there were three main issues before the arbitrator. One concerned defects, a second concerned delay, and a third (albeit a minor) issue concerned a safety file. It is said, correctly, that it was only in respect of the defects’ aspect of the claim that the arbitrator found in favour of S. & R Motors. On that basis it is said that the award of full costs to S. & R. Motors, in circumstances where it failed on a significant aspect of its claim (that based on delay) and another minor aspect (that based on the safety file), is in clear breach of appropriate principles and justifies a remittal of the costs issue to the arbitrator.
  • 5.4 In addition, counsel for Bradley Construction drew attention to the fact that amongst the costs which an unsuccessful party to an arbitration process must bear are the costs of the arbitrator him or herself. Thus, the costs of an arbitration are somewhat different from a court case. Counsel drew attention to the fact that it is possible that the costs attributable to the arbitrator him or herself will be increased by the arbitrator having to consider and rule on issues raised by an otherwise successful party. Thus, the possibility that the costs of the arbitrator (as opposed to the costs of the parties) may have been increased by the raising of unmeritorious issues also, it is said, needs to be considered.
  • 5.5 I now propose to consider the merits of that challenge.
  • 6. Application to Facts of this Case 
  • 6.1 I should first say that I agree with the submission made by counsel for Bradley Construction to the effect that amongst the matters that an arbitrator needs to consider in the awards of costs is the fact that the costs that will be awarded will include the costs of the arbitrator, him or herself. The arbitrator will best know the extent to which the arbitrator’s own costs have been increased by having to consider additional unmeritorious issues raised an otherwise successful party. However, it is a factor to be taken into account.
  • 6.2 There certainly is a case to be made for the suggestion that the arbitrator in this case could have approached the question of costs in the proceedings before him on a different basis. As pointed out in Veolia, the starting point in any consideration of an order for costs has to be that costs, prima facie, followed the event. It is clear that the event in this case was an award in favour of S. & R. Motors. Without going to arbitration, S. & R. Motors would not have received any reduction in the amount due to Bradley Construction. S. & R. Motors had to go to arbitration to achieve what was achieved. There was no Calderbank letter or other similar device by which a formal offer to make an allowance in favour of S. & R. Motors in the sum awarded or a greater sum had been put on the table in advance of the hearing. Therefore, in awarding costs to S. & R. Motors, the arbitrator was simply following the rule that costs follow the event.
  • 6.3 It would also appear that the arbitrator was of the view that the hearing before him was not materially lengthened by the fact that the delay issue was raised (albeit unsuccessfully). In my view the arbitrator is best placed to form a judgment on that question. It would only be in a case where there was very clear evidence that a conclusion of that type reached by an arbitrator was wrong that a court could possibly intervene. It is important to note that it is unlikely that there will be a significant difference in the costs of a somewhat longer or somewhat shorter hearing provided that the hearing concerned can be completed within one day. The necessity for witnesses to be present remains. The necessity for legal teams to commit themselves to be present for the arbitration (and thus the fees which they are likely to legitimately charge) also remains and such fees are unlikely to be significantly greater just because the hearing takes somewhat longer while finishing within the day. In those circumstances it does not seem to me that the arbitrator was bound to attempt a “fine” analysis of the amount of time spent on one issue or the other.
  • 6.4 I am not, therefore, satisfied that there is any basis for going behind the view taken by the arbitrator that there was a single hearing which was not made, to any material extent, more expensive by the raising of the delay issue.
  • 6.5 In addition Bradley Construction did place reliance on the fact that it would have been necessary for Bradley Construction, in preparing for the hearing, to have devoted time, resources and, therefore, expense to preparing to defend the delay allegation. While that proposition is undoubtedly true in principle, it does not seem to me to be a sufficiently weighty factor that would have required (as opposed to have entitled) the arbitrator to deviate from the basic rule of costs following the event. It is far from sufficient for me to be satisfied that I might have made a different costs order myself. To apply such a test would be to usurp the discretion which is undoubtedly conferred on the arbitrator and to impose an “error on the face of the record” jurisdiction which would fall far short of the undoubtedly high standard that needs to met before an arbitral award can be set aside or remitted.
  • 6.6 While a case can be made, therefore, for the assertion that the arbitrator should have given some allowance to Bradley Construction for having to prepare a delay case which was ultimately unsuccessful, it does not seem to me that a failure to make such an allowance amounts to the type of error which is so fundamental that the arbitral award concerned cannot be allowed to stand.
  • 6.7 I am not, therefore, satisfied that a sufficient case has been made out to the effect that the arbitrator was guilty of the sort of error which allows the court to intervene. 
  • 7. Conclusions
  • 7.1 For the reasons which I have already sought to analyse I am not satisfied that these proceedings are out of time whether viewed as an international or a domestic arbitration.
  • 7.2 For the reasons which I have also sought to analyse I am not satisfied that Bradley Construction have made out a case to the effect that the arbitrator was guilty of any sufficient error such as would justify setting aside or remitting his corrected award in respect of costs.
  • 7.3 It follows that I must dismiss these proceedings.

Employment Law: Unfair Dismissal - Transfer of Undertakings - Redundancy Disputed - Unfair Selection for Redundancy

Former co-op employee claims unfair dismissal

The Sligo Champion - 7th November 2005

A co-operative began producing its own bottled water two months after an employee who came up with the same idea was made redundant, a sitting of the Employment Appeals Tribunal in Sligo was told.
Claiming unfair dismissal against Connacht Gold Co-Operative Limited Tubbercurry was James Mulholland, Kintogher, Sligo.
The claimant, who was seeking damages along with re-instatement, was represented by Mr. Seamus Monaghan, solicitor while Mr. Eamon Gallagher, solicitor appeared on behalf of the defendant.
The tribunal, which was chaired by Ms. Catherine Egan B.L., was told the claimant began his employment with Connacht Gold on March 3rd 1997 and it ended on August 31st 2004.
Michael Guilfoyle, General Manager of Connacht Gold, in evidence, said the claimant came to the company having previously been employed by Irish Fertilisers.
The claimant was employed in the area of animal feed sales and he was also to give advice to farmers.  Mr. Mulholland was seconded to  work in a farm monitoring programme which was run in conjunction with Teagasc.
He continued in this position until he left in August 2004.  In Spring of that year the programme had been reviewed and the board of Connacht Gold wished to have an alternative advisory service, said witness.
There was a switch to a system operated by a private company, S.W.S. in Cork which specialised in farm advice.  The arrangement with Teagasc was terminated.
Witness said the claimant was advised there was no role for him to continue working with Connacht Gold and he was advised to apply for a job with S.W.S.
"On the basis that there was no job for him we put in place a redundancy package and this was subsequently paid," said Mr. Guilfoyle.
The claimant's employment was officially ended on September 3rd 2004.
Mr. Mulholland was paid redundancy at a rate of four and a half weeks per year in addition to his statutory entitlement.
Witness said there had been a major programme of rationalisation going on at the time and a significant redundancy programme was in place across all divisions of the Co-Op.
There was no position for the claimant to fill at Connacht Gold at the moment, he said.
Mr. Monaghan told the Tribunal that it was the claimant's case that there was a transfer of undertaking from Connacht Gold to S.W.S. when it came on board.  The claimant's employment should have been transferred to the new company.
Advisory role
The outside contractor was taken on to carry on the role of the claimant and his redundancy was contrived, claimed Mr. Monaghan.
Mr. Guilfoyle said S.W.S. carried out very much an advisory role.  Since 2002, the claimant's job was farm advisory and that originally in 1997 there was a sales element.
Mr. Guilfoyle said he was not aware that prior to the claimant's departure he had carried out extensive research into the possibility of the Co-Op producing its own bottled water.
Witness said he never had one issue with the claimant and furnished him with a reference.
James Mulholland, in evidence, said he was employed by Connacht Gold as a sales representative with specific responsibility for increasing the sales of animal feed.
He also had a role as a technical advisor.   At the time there was a dairy development programme being run in conjunction with Teagasc.
The claimant said S.W.S. subsequently took over the advisory role and that there was no connection with the sales element of his job.
Five months before leaving his job, the claimant said he applied for the vacant position of C.E.O. of Connacht Gold and was told at interview that his proposal for bottled spring water was a superb idea.
He was unsuccessful but he met the new C.E.O., Aaron Forde to discuss the project.   Mr. Forde was critical of an article which the claimant had written for a Co-Operative newsletter, stating that he could not understand it.
The C.E.O. accepted a submission from the claimant on the bottled water project which was to be a joint venture with Connacht Gold.
The claimant recalled that he was sent a short letter from the C.E.O. stating that his model for the project was not appropriate.
Mr. Mulholland said he later sent the details of his market research to Ballina Dairies after they contacted him by e-mail.
Connacht Gold began its bottled water project two months after the claimant left his job.
The claimant said he had spent €12,000 to €15,000 on his idea in his own time and that his brand name, Uisce or Uisce Oga was subsequently used by Connacht Gold.
Mr. Mulholland said that on July 12th he was handed an advertisement placed by S.W.S. and was told to apply for a job there.
On July 14th he was informed by Mr. Guilfoyle that there was no longer a job for him at Connacht Gold and that his only option was redundancy.
"I was shocked.  The meeting lasted less than five minutes,"Mr. Mulholland said.
The claimant said he subsequently applied for a job with S.W.S. and went to an interview in Limerick but he was unsuccessful.
After several meetings with Mr. Guilfoyle the claimant said he was handed a redundancy cheque for €31,029 on September 9th but he believed this amount to be inaccurate.
In reply to Mr. Gallagher, Mr. Mulholland agreed that the source for the water was going to be his own.  He also agreed that this was a business venture.
"I didn't expect to be fired because of it.  I hoped to progress it within the society," said the claimant.
At the conclusion of the evidence, the Tribunal chairperson said they would reserve their position and that a decision would issue to both sides in a number of weeks.