Introduction to the Irish Legal System PDF

Introduction to the Irish Legal System 1.0 The Irish Legal System Prior to the arrival of the Anglo-Normans in the 12th century, Ireland was governed by a system of tribal royal families where Brehon law was developed. This was a system of law based on custom. English law arrived in Ireland in 116...

Introduction to the Irish Legal System 1.0 The Irish Legal System Prior to the arrival of the Anglo-Normans in the 12th century, Ireland was governed by a system of tribal royal families where Brehon law was developed. This was a system of law based on custom. English law arrived in Ireland in 1169 with the invasion of the Anglo Normans. As centuries passed and the English system developed, the judges played a central role in the actual development of English law. They set out the basic rules of law or common law. These are the rules of law which exist today in Ireland and our system of law is known as common law. Sources of Irish Law  The Irish Constitution of 1937  The Common Law (also known as the Doctrine of Precedent)  Legislation (also known as Acts or Statutes)  European Law  Individual and Collective labour law  Custom 1) The Constitution The 1937 Constitution is a document which was drafted between 1935- 1937 by legal advisors to the government of Eamonn deValera. It is the basic law of the State and it provides for the principal structures of government: the Executive, the Oireachtas and the Judiciary. It has a higher status than statute law and any legislation not consistent with the Constitution is invalid. Article 46.2 provides that “Every proposal for an amendment of this Constitution shall be initiated in Dáil Éireann as a Bill, and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the people in accordance with the law for the time being in force relating to the Referendum”. The Constitution is composed of 50 Articles and they provide inter alia for the following; the right to be treated equally; the right to express freely one’s convictions and opinions; the right to assemble peacefully; the right to form associations and unions. Protects fundamental human rights. Some of these rights are expressly recognised and these are known as Enumerated Rights as they are expressly enumerated in the Constitution. Human rights expressly protected include the right to private property, the right to life, the right to a good name, the right to liberty, the right to freedom of expression, freedom of association and freedom of assembly. The Constitution also recognises what are known as Unenumerated Rights. These rights are not expressly provided for, but are interpreted by the Courts from Article 40.3.1° which says: "The State guarantees in its laws to respect, and, as far as practicable by its laws to defend and vindicate the personal rights of the citizen." From this article, the Courts have found Constitutional rights to marital privacy, the right to communicate, the right to marry, the right to fair procedures, the right to litigate (i.e. take a case to court) and many other rights. 2) Common Law Most of our law derives from decisions of judges and this judge made law is based on a rule known as the doctrine of binding judicial precedent. This means that a decision made by a court in a case involving a particular set of circumstances is binding on other courts in later cases, where the facts are the same or similar. Decisions of higher courts are binding on all lower courts. A decision of an earlier court at the same level of the system is binding on a later court unless that court has good reason not to follow it. The law is interpreted by judges, applied in the case before him/her and then the principles developed by the judges are binding on later judges - Judge Made Law. It is based on the Doctrine of Precedent (also known as the Rule of Stare Decisis) as each case is a precedent which is then binding in later cases. The principles and rules established by cases are the law and must be obeyed, until overruled. They may be overruled by: - Legislation - Another court. It must be at least a court of equal jurisdiction, but more usually will be a court of superior jurisdiction. The different courts in Ireland, from the bottom up, are: The District Court:  The Circuit Court: The High Court: The Court of Appeal: The Supreme Court: only deals with appeals from the High Court. 3) Legislation or Statute Law Article 15.2.1 of the Constitution provides that the “sole and exclusive power of making laws for the State is … vested in the Oireachtas.” Before a statute becomes law it is known as a Bill. It must be passed by the Dáil, the Seanad and signed by the President before it can become law. This type of legislation is known as primary legislation. A Bill is debated by the Houses of the Oireachtas and, when passed, becomes an Act and is binding on all citizens, unless it is declared by the Courts to be inconsistent with the Constitution or EU law. Subordinate or Secondary Legislation The Oireachtas may delegate to government ministers or local authorities certain law making functions. This usually occurs where detailed or technical legislation may be required. Delegated legislation is in the form of statutory instruments, Orders, Bye Laws, Regulations. 4 European Union Law Much of recent Irish Employment law comes from EU directives - e.g. employment equality legislation, Transfer of Undertakings, Worker participation in state companies. By the Treaty of Accession, Ireland became a member of the EU from January 1973. By accession to the Treaty of Rome (EEC Treaty) and other specialist Treaties, states have created a body of laws which bind their nationals and themselves. The primary law of the Community which is contained in the Treaties, takes precedence over domestic law. The secondary law of the EU is contained in Regulations, Directives and Decisions. A source of Irish law since Ireland joined the EEC (now the EU) in 1973. Primary source: The Treaty of Rome 1957 Art. 117: Recognises the "need to promote improved working conditions and an improved standard of living for workers" which will develop from the common market. Art. 118: Commission responsible for employment matters, labour law and working conditions, the right of association and collective bargaining between employers and workers. Art. 118A (inserted by the Single European Act): Allows health and safety directives to be passed by a qualified majority - e.g. Pregnancy Directive 1992. Art. 119: Recognises the principle of equal pay for equal work. Secondary sources: Regulations, Directives, Decisions, Opinions and Recommendations. 5) Individual and Collective labour law. - Individual labour/employment law deals with the relationships between the individual worker and the employer - e.g. unfair dismissal, employment equality etc. Primarily based on the common law notion of the Contract, but is increasingly regulated by legislation and EU directives. - Collective labour law deals with the relationships between trade unions and the employer - i.e. the law of industrial disputes, picketing, collective bargaining etc. Much less regulated by legislation, and very little EU involvement, but in Britain there is an increasing amount of legislation in the area. The main Irish act is the Industrial Relations Act 1990. The Constitution also plays an important role. 6 Custom Since the establishment of common law, custom has almost been eliminated as a source of law. Local customs i.e., customs peculiar to a particular locality, may be recognised as law. Criminal and Civil Law Law is classified in two ways: criminal law and civil law. Criminal law governs relations between the state and individuals, prohibiting activities that offend against society ranging from murder to road traffic offences. These offences are prosecuted by public agencies such as the Gardaí and the Director of Public Prosecutions. Civil law is concerned with individual relationships and there is generally no public interest. Civil law and criminal law can overlap and the same incident can give rise to both a criminal case and a civil one e.g. the OJ Simpson case in the US. The criminal trial was concerned with the prosecution of Simpson for the murder of his wife. The civil case involved the families of the victims suing Simpson for the tort of wrongful death. Remedies Legal Remedies When a person initiates legal action he does so with a view to the law providing him with a remedy to right the civil wrong he perceives has been done to him. If the plaintiff is seeking to enforce a statutory right i.e. a right which he has under legislation then the remedy is an order made pursuant to that legislation. An award of damages is an award of a sum of money designed to compensate an injured party in civil proceedings. Its purpose is to compensate, not to punish the party guilty of the civil wrong. Damages are the remedy available in tort and contract primarily. The basis for the award of damages is different in tort and contract cases. In tort cases the sum of money is designed to put the person in the position he was in, as far as money can, before the tort was committed. Son in a negligence action, where the plaintiff sustained personal injuries, the damages compensate for pain and suffering, loss of wages and any future loss, suffering or loss of wages. In contract actions an award of damages is designed to put the injured party in the position he would have been in had the contract been performed, including any reasonable foreseeable loss arising as a result of the defendant's breach of his contractual obligations. In common law, damages were the only remedy available. Equity, however introduced other legal remedies, the most important being injunctions and specific performance. Equitable Remedies Injunctions An injunction prevents the person, against whom it is granted, from interfering with the rights of the party to whom it is granted. Injunctions are granted in a wide variety of circumstance e.g. to a local resident to prevent a land developer from demolishing a listed building, to a business to prohibit picketing of its premises where there is no lawful trade dispute. The purpose of the injunction is to maintain the status quo until the behaviour complained of can be dealt with by way of a full hearing of the case. The application for an injunction is considered on the basis of the plaintiff making out a prima facie case on the balance of convenience between the parties, i.e. would the granting of the injunction and any subsequent wrong done by so granting it, outweigh the damage to the plaintiff if the injunction should not be granted? The plaintiff, seeking the injunction, must undertake to pay damages if at the full hearing of the case he does not succeed. There a different types of injunctions: · An Interim Injunction is granted in emergency situations with only one party, he plaintiff being heard; it lasts for a very short time · An Interlocutory Injunction is granted after the judge hears evidence on affidavit from both sides and lasts until the full hearing of the action or until it is discharged. · A Quia Timet Injunction is granted in anticipation of, but before an actual wrong has been done. Its purpose is preventative. · A Mandatory Injunction compels the defendant to do some positive act. · A Negative Injunction directs the defendant to refrain from doing some wrongful act. · A Perpetual Injunction is made after the full hearing of the action. Specific Performance This is an equitable remedy available in Contract Law. The judge has a discretion in making such an order. An order for specific performance directs the defendant to the contract to carry out the contract or complete the contract on the terms agreed. It would not be granted where damages would be a sufficient remedy or where the party seeking the order has unduly delayed in bringing the proceedings. Orders for specific performance are most frequently given in relation to the sale of land. Judicial Review Orders for Judicial review are available, where it is considered by the High Court or on appeal the Supreme Court, that an inferior court tribunal or any person exercising decision-making powers, affecting an individual has misused its power. Judicial Review provides a plaintiff with a speedy remedy where the judge is of the opinion that such an inferior court i.e. District, Circuit, Special Criminal Court or Tribunal has exceeded its powers. The High Court in exercising its judicial review jurisdiction does not consider the merits of the particular case - that is the function of a court of appeal - but rather how the lower court has exercised its powers i.e. did it go outside its powers. This is described as acting ultra vires. The High Court has available a range of orders for Judicial Review depending on the particular circumstances of the case. These are: (a) Certiorari - This is an order to quash the decision of a lower court or tribunal which as acted outside its powers (b) Mandamus - This order directs a tribunal to carry out a function which it is lawfully bound to do (c) Prohibition - This directs a tribunal not to exercise its powers until particular conditions have been met. The Irish courts The highest court in Ireland is the Supreme Court, the lowest is the District Court. Supreme Court · Reference of a Bill by the President. · Hearing of appeals from the High Court. *Court of Appeal (see explanation below) High Court · Constitutional cases. · Civil Jurisdiction to deal with Claims of €60K – Personal Injury; €75K Other or more.  Civil appeals from the Circuit Court · Criminal Jurisdiction (known as Central Criminal Court). · Serious Offences such as murder and rape. Circuit Court · Civil Jurisdictions. · Claims of between €15000 – (€60,000 Personal Injury) (€75000 Other) · Judicial Separations. · Criminal Jurisdiction (known as the Circuit Criminal Court).  · Serious Offences other than those reserved for the Central Criminal Court. District Court · Civil Jurisdiction. · Claims of up to €15000 · Criminal Jurisdiction. · Minor Offences such as road traffic offences. Special Criminal Court The Special Criminal Court is constitutionally established court under Article 38.3 This is not a permanent court in our criminal justice system. It only comes into operation in the particular circumstances clearly set out in Article 38.3 The Special Criminal Court deals with serious criminal offences but there is no jury. Instead the court sits with three judges, now invariably a High Court judge, a Circuit Court judge and a District Justice. There is provision in the Offences Against the State Act 1939 for military officers to sit on the Court but, in the current sittings of the Court, only judges have handled cases there. The Special Criminal Court has jurisdiction to try offences under the Offences Against the Sate Act 1939 or in the schedules to the O.A.S. all of which relate to membership of criminal activities associated with unlawful organisations. It also has jurisdiction to hear criminal non-scheduled offences channelled to it by the Director of Public Prosecutions where he is of the view that the ordinary courts are inadequate to secure the effective administration of justice in the circumstances of this particular case. APPEALS Appellate Civil Jurisdiction of the Courts District Court - Limited appellate jurisdiction Circuit Court - Hears appeals from cases from the District Court. Either party in the District Court has an automatic Right to appeal to the Circuit Court. This appeal is a complete re-hearing of the case. The Circuit Court judge who hears the appeal may affirm, vary or revise the  decision of the District Justice but is confined to making awards within the monetary jurisdictional limit of the District Court. High Court - The High Court hears appeals from cases originally heard in the Circuit Court. These appeals are a complete re-hearing of the case. They are heard by a High Court Judge only and at the conclusion of the appeal hearing he may affirm, vary or reverse the decision of the Circuit Court judge but he cannot exceed in his award the jurisdictional limits of the Circuit Court. Case Stated The High Court also has power to hear a case stated from the District court. This occurs where a point of law arises in a case in the District Court which requires to be clarified. The usual procedure is for the parties to the District Court Case to agree that there is this point of law and the District Justice certifies that this is so by signing a document requesting the High Court to decide the point of law. In the High Court, the district court parties will make submissions to the judge on the meaning of the point. The judge reaches a decision and this decision is communicated to the District Justice who then hears the remainder of the case in his court applying the interpretation of the point of law made by the High Court. *IRELAND’S NEW COURT OF APPEAL This summer saw the passing of legislation which will effect the most important reform to the organisation and structure of the Irish court system since the foundation of the State. The Court of Appeal Act 2014 (“the Act”), which was signed into law on 20 July 2014, provides for the establishment of a general Court of Appeal which will sit between the High and Supreme Courts. The Act is largely technical in nature in that its main purpose is to provide for the establishment of the new Court of Appeal and to accommodate it within the existing court structure. However, once fully established, the new Court will have a significant impact on the practical operation of the Irish court system, particularly in terms of reducing waiting periods and improving overall efficiency. BUSINESS OF THE COURT OF APPEAL In broad terms, the Court of Appeal will have the jurisdiction which prior to the Act was vested in the Supreme Court, the Court of Criminal Appeal and the Courts-Martial Appeal Court, the latter two courts having been abolished by the Act. As such, it will be the default court for all appeals from decisions of the High Court and its decision will be final (save in certain limited circumstances). BYPASSING THE COURT OF APPEAL It will be possible in exceptional circumstances to bypass the Court of Appeal and appeal a ruling of the High Court directly to the Supreme Court (“a Leapfrog Appeal”). Permission to bring a Leapfrog Appeal must first be obtained from the Supreme Court and will only be granted if the Supreme Court is satisfied that (i) the High Court decision involves a matter of general public importance; and/or (ii) the interests of justice require that the appeal be heard by the Supreme Court. Accordingly, the Supreme Court will determine the type of appeals it will hear, which will likely be cases which raise constitutional and legal issues of significant importance only. Going forward, parties wishing to appeal a decision of the igh Court will need to carefully consider whether the decision is one which warrants a Leapfrog Appeal or whether the more appropriate route is to go directly to the Court of Appeal. APPEALING A DECISION OF THE COURT OF APPEAL Decisions of the Court of Appeal will in the ordinary course be final. However, permission to bring a further appeal may be sought from the Supreme Court. The Supreme Court will only grant such permission if is satisfied that (i) the decision of the Court of Appeal involves a matter of general public importance; and/or (ii) the interests of justice require that a further appeal be heard by it. APPLICATIONS FOR PERMISSION TO APPEAL TO THE SUPREME COURT The Supreme Court will decide applications for permission to appeal by reference to the papers before it and without an oral hearing. However, it has the power to direct an oral hearing where the circumstances so require Supreme Court The Supreme Court hears appeals from cases heard originally in the High Court. This appeal is confined to appeals on points of law, and is based on the transcript of the evidence and the hearing in the High Court. The point of law may involve a question concerning liability or it may involve a question in relation to the amount of damages awarded. Where a point of law rises, in the course of a case being heard in the Circuit Court, the case stated procedure may be used in the same manner as if this occurs in the District Court but sent to the Supreme Court for its decision. When the High court hears a case sated from the District Court this may be appealed by either party to the Supreme Court but only with the consent of the High Court.