The Gazette 1971

UNREPORTED IRISH CASES

Finance (1931) I.R. and Cork Co. Council v Com- missioners of Public Works (1945) I.R. were decided on the erroneous basis that the King was the per- sonnification of the State. But Article 2 of the 1922 Constitution had declared that all legislative, executive and judicial power in Ireland were derived from the People of Ireland. The basis of the English Crown prerogative was already quite inconsistent with that Art. as these prerogatives pertained essentially to the royal dignity. Whereas in England the Sovereign is prosecutor, under Art. 30 (3) of the Constitution, all crimes and offences shall be prosecuted in the name of the People. The Phrase "law practice and constitutional usage of Canada r" conferred on the King power to make treaties, dissolve Parliament, and accredit diplomats, yet he was but an executive organ of Saorstat Eireann. He was not the personnification of the State, and therefore the common law did not exist in Saorstat Eireann. (See in particular Gavan Duffy J. In Re P.C. an Arranging Debtor (1939) I.R. which Murnaghan J. would not consider). There is no basis for a claim that the State can do no wrong, and there is no basis for the theory that the State cannot be made vicariously liable for the wrong committed by its officers or servants. A wrong which arises from the failure to honour an obligation must be capable of a remedy, and in such a case, a con- test between the citizen, and the State is a justiciable controversy, unless expressly excluded by the Constitu- tion. Per Budd J. The nature of the State is not expressed in the Constitution, but has to be discovered indirectly in the various Articles. In Art 40 and following Articles, the State is definitely personnified and accepts obligations. In Commissioners of Public Works v Kavanagh (1962) I.R. O'Dalaigh J. stated that the word "person" was not limited to human persons, but included the con- cept of the State as a juristic person. Once the State is a juristic person, there would not seem to be any prima-facie reason why it should not be in the eyes of the law in the same position as any other legal person, and thus capable of being sued. The assertion of legal rights depends essentially upon the constitutional right of the citizen to have recourse to the Courts. The rights set out in Art. 40, Section 3 by which the State guaran- tees in its laws to respect, defend and vindicate the per- sonal life of the citizen, and vindicate the life, good name and property rights of every citizen, are personal rights given to citizens, and would be quite meaningless unless they were enforceable against the State; this applies also to the additional personal rights, which Kenny J. and the Supreme Court, in Ryan v A.G. (1965) I.R. held were also covered by this guarantee. The Constitution has thus conferred certain personal rights on the Citizens of the State, and, by mentioning specifically the Superior Courts in Art. 34 of the Con- stitution, has provided the means whereby they may be asserted and enforced. There is therefore a right of recourse to the High Court to assert them, as stated by O'Byrne J. in Buckley v A.G. (1950) I.R. and this right includes any justiciable controversy between a citizen and the State.

"IRELAND" CAN BE SUED SIMPLICITER— STATE IMMUNITY DOES NOT EXIST BYRNE v IRELAND On 30th July 1971, the Supreme Court allowed the appeal of the plaintiff from the judgment of Mur- naghan J. dated 17th October 1968, who had answered "No" to four questions propounded. The majority of the Court (O'Dalaigh C. J., O'Keeffe P., Walsh and Budd J. J.) reversed Murnaghan J. and Fitzgerald J. dissented. Walsh J. and Budd J. delivered separate judgments. The case related to the subsidence of a foot- path in Bray due to the negligence of the Department of Posts in laying installations, and the plaintiff made a claim for injuries. The Questions propounded were:— (1) Whether the High Court could exercise jurisdic- tion over Ireland (being the name of the State) having regard to the Claim (upheld by Murnaghan J.) that the judicial power granted by the Constitution did not of common right extend to actions against the sovereign authority Per Walsh J. The State is described in Art. 6 of the Constitution as "a sovereign independent democratic State"- (Mur- naghan J. had stated that the expressions "Ireland" or "The State" does not mean the body of people within the national territory if "Ireland" alone is sued, and it is difficult to decide whether the State or the national territory is sued.) The State is the creation of the People, and, in the last analysis, as the Constitution can only be amended by the people, the sovereign authority in Ireland is the People whereas in Britain, the King is the personnification of the State. (Despite Murnaghan J's limitations) the State is of course a juristic person capable of holding property—per Kingsmill Moore J. in Cornyn v G.G. (1950) I .R. (Murnaghan J. had rejected the contention that a right of action lies against the State on the wording of Art. 6 of the Constitution that Ireland was a fully sovereign State, which could not be subject to the judi- cial organ of the State. He wrongly construed the Con- stitution in the form of obligations imposed upon the State). The State however must act through its organs, and must remain vicariously liable for the failures of these organs in the discharge of their obligations save where expressly excluded by the Constitution. (See Art. 45). The suggestion that the State cannot be made amen- able for its wrongs arises from the feudal notion that "The King can do no wrong." The grant of a petition of right in regard to property was based on the pro- positions that the King had acted contrary to law, and the principle of tortious immunity was but a judge- made rule. The concept of State liability for the torts of its ser- vants is not a juristic problem (see wording of many Constitutions). Immunity from suit for wrong is not a necessary ingredient of State sovereignty, (although Mumaghan J. held so). Some cases, like Galway Co. Council v Minister for

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