76 / 462
g a z e t t e
april
1991
Donoghue
-v-
Stephenson,
Purtill's case
could be said to be
restorative rather than revolu-
tionary".
I refer to these parts of the
judgment to illustrate that from the
very early period in the Supreme
Court Mr. Justice Griffin's judg-
ments were the result of thorough
and careful research, and of
intellectual exercise at a high level.
Throughout his career on the
Supreme Court he maintained a
remarkable consistency in his
approach to legal issues, adjusted
to the changing facts of life such as
the level of damages. He was a just
judge and a lawyers' judge, but he
always, and possibly deliberately,
maintained a low profile in that he
never hit the headlines wi th any
startling pronouncements.
As an illustration of Mr. Justice
Gr i f f i n 's cons i s t ency in legal
matters, it is interesting to look at
t wo cases, one being
Bo/and-v- An
Taoiseach & Others
[1974] IR 338
and the other being his later
j udgment in
Crotty
-v- An
Taoiseach & Others
[1987] IR 713.
Bo/and's case
was a challenge to
the Sunningdale Agreement and a
claim for an injunction restraining
the Government from implement-
ing any part of what was set out in
the joint communiqué issued on the
making of the Agreement.
Crotty's
case
related to the action of the
Government in relation to the
Single European Act generally, and
particularly in relation to Title III of
the Treaty. In the
Boland case
Mr.
Justice Griffin delivered a very clear
judgment relating to the separation
of powers under the Constitution.
In both cases an issue arose as to
the right of the Court to restrain the
Government in the exercise of its
jurisdiction relating to foreign affairs.
Article 29.4.1 of the Constitution
provided that the executive power
of the State in connection with its
external relations has, in accordance
with Article 28, to be exercised by
or on the authority of the Govern-
ment. Article 29.5 provides that
every international agreement to
which the State becomes a party
shall be laid before Dail Eireann, and
provides that the State shall not be
bound by any international agree-
ment involving a charge upon public
funds unless the agreement has
been approved by Dail Eireann.
Article 29.6 provided that no inter-
national agreement shall be part of
the domestic law of the State save
as may be determined by the
Oireachtas. Article 6 provides that
all powers of Government, legislative,
executive and judicial, derive under
God, from the People, whose right it
is to designate the rulers of the State
and, in final appeal, to decide all
questions of national policy accord-
ing to the requirement of the com-
mon good. Article 6.2. provides that
those powers of Government are
"exerciseable only by or on the
authority of the organs of State
established by this Constitution".
In
Crotty's
case
t he same
principles were again laid down by
Chief Justice Finaly, and by Mr.
Justice Griffin. The majority of the
Supreme Court (Walsh, Henchy
and Hederman JJ). decided to the
contrary. In the course of his
majority judgment, Walsh J. said:
" The foreign policy organ of the
State cannot, within the terms
of the Constitution, agree to
impose upon itself, the State, or
the People, the contemplated
restrictions upon freedom of
action. To acquire the power to
do so would, in my opinion,
require recourse to the People
'whose right it is', in the words
of Article 6, 'in final appeal to
decide all questions of national
policy according to the require-
ments of the common good'. In
the last analysis it is the People
themselves who are the guard-
ians of the Constitution".
Henchy, J., in his separate
majority judgment, said:
" I t follows that the common
good of the Irish People is the
ultimate standard by which the
Constitutional validity of the
conduct of foreign affairs by the
Government is to be judged. In
this, and in a number of other
respects throughout the Con-
stitution, the central power of
the common good of the Irish
People is stressed as one of the
most fundamental character-
istics of Ireland as a sovereign,
independent, democratic State".
It is arguable that the majority
decision did not pay due respect to
Articles 29 and 6 of the Con-
stitution, particularly to Article 6.2
which provided that the powers of
Government are exerciseable
only
by
or on the authority of the organs
of State established by this Con-
stitution. On the view of the Chief
Justice and Mr. Justice Griffin
political matters were left in the
hands of politicians, and the Govern-
ment was responsible to Dail
Eireann. It may be that, as a result
of the Supreme Court decision in
Crotty's case,
the Government, in
entering into any foreign agreement
or treaty in the future, will always
have to look over its shoulder to see
whether the treaty or agreement
would be approved of by the Sup-
reme Court, or to be precise, by the
particular persons who happen at
the relevant time to be members of
the Supreme Court.
The issue of the quantum of
damages for personal injuries
resulting from negligence is a very
live issue. It has been the subject of
a number of leading cases in the
Supreme Court dealing with the
amount to be awarded for general
damages for pain and suffering, and
in dealing with compensation for
future loss of earnings and future
expenses consequent on incapacity
and injury. The Supreme Court has
endeavoured to f i nd general
principles which would guide judges
to consistency of assessment. It
may be that the recent substitution
of a judge for a jury in the High
Court will, by reason of the personal
reaction and sensitivity of individual
judges to similar circumstances, add
a new variant. This is an area in
which Mr. Justice Griffin has played
a very prominent role. He delivered
the majority judgment of the Court
in
Reddy -v- Bates
[1983] IR 141 in
July, 1983, and again the majority
judgment on the damages issue in
Cooke -v- Walsh
[1984] ILRM 208,
in March, 1984, reiterating and
applying the principles laid down in
Reddy -v- Bates.
He also delivered
the majority judgment in
Griffin -v-
Van Raaj[
1985] ILRM 582, in July,
1985, enunciating similar principles.
These judgments present a bal-
anced and commonsense approach
to a difficult subject.
When Mr. Justice Griffin retires he
will be judged by his own judgments.
The quality of these judgments was
high. They were the product of re-
search, care and preparation, and
independence of view. The judg-
ments also had the merit of con-
sistency in legal principle, which
nevertheless did not inhibit the
exercise of charity where required by
the justice of the case. In manner on
the bench he was always gentle, and
never overbearing. He will be missed.
Everyone who had the honour of
knowing him will wish him a long
and happy retirement.
T. KEVIN LISTON, S.C *
* T. Kevin Liston, S.C. is currently "Father of
the Irish Bar" and one of its preeminent
members over the last 50 years, it is an
added tribute to Mr. Justice Frank Griffin that
Kevin Liston should be the colleague-in-law
who presents this retrospect.
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