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UNREPORTED IRISH CASES
"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
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.
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