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Lofinmakin v The Minister for Justice Equality and Law Reform and Others The Irish Supreme Court passed judgment on the appeal from the high court regarding the case Lofinmakin v The Minister for Justice Equality and Law Reform [2011] IEHC 38 on On Wednesday 20th November 2013 in the presence of a five-person Court in the persons of Denham CJ, Murray, Fennelly, McKechnie and McMenamin JJ. The questions raised presented by the court were pertaining if the High Court was correct to find that Article 24 of the Charter of Fundamental Rights of the European Union (children’s right to personal and regular contact with both parents) had no application to the impugned decision to order the deportation of the parent of two Irish citizens, and secondly that if whether the applicant was obliged to state reasons why the impugned decision was irrational, unreasonable and disproportionate.

Case Summary
Akintola Lofinmakin is a Nigerian national who is the father of two children (Orelu Oluwabunmi Semilore Jedidiah Lofinmakin and Ebun-Oluwa Motunola Peace Ore-Oluwa Lofinmakin) who are both Irish citizens. From 1996 on, he lived and worked in Germany for over ten years before moving to Ireland. His wife Rachel Yinka Amonusi, also a Nigerian national, she moved to Ireland in December 1999. She resides here legally due to her children being Irish nationals. Their children were born within the State in May 2000 and in March 2003. Lofinmakin claims that he visited his wife frequently during the time that he resided in Germany. Akintola Lofinmakin entered the Irish State on the 2nd March 2007 on a temporary visa, when the children were aged seven years and four years respectively. Then, on 23rd May 2007, he applied to the Minister for an extension of that temporary visa permit; and was refused renewal by the Minister on the 30th May 2007. Lofinmakin then found residing in the Irish State illegally since that date. Taken into the record that Akintola Lofinmakin is not the spouse of an EU citizen or was he seeking refugee status. The Minister issued an order for Lofinmakin’s deportation on 20th August 2009. Which resulted in Akintola Lofinmakin applying to the High Court for an order of certiorari on 26 grounds, most of which were not substantiated by argument in the affidavit. Cooke J rejected all 26 grounds.

Cooke J later allowed Lofinmakin to lodge an appeal to the Supreme Court on those two matters. The high court represented by Cooke J refused to overturn the Minister’s decision, held that it was not sufficient that an applicant for judicial review state that a decision is irrational, unreasonable or unlawful and ask the courts to re-evaluate the decision and substitute its own decision for that of the original decision-maker: an applicant must substantiate their claim by identifying the particular error, omission or flaw.

Judge Cooke J also rejected Lofinmakin’s argument that the Minister’s decision breached Article 24 of the Charter of Fundamental Rights of the European Union (Charter). That article guarantees children the right to maintain a personal relationship and regular contact with both parents. The High Court held that, as Lofinmakin had no legitimate expectation of a right to residence within the State before entry in 2007, the Minister’s decision was not a disproportionate interference with the rights guaranteed by Article 24 of the Charter.

The grounds of appeal relate to a deportation order which has been revoked. The validity of the deportation order is no longer a deemed issue by the court, as it has been revoked. If there were a deportation order was to be presented at any time in the future, there would be additional issues of law to those that framed and to support the basis of the High Court decision. Consequently, it is not a situation where, based on the High Court judgment, it could be a test case. Also, in those circumstances, it is neither necessary nor appropriate to consider the test to be applied by the High Court in reviewing the validity of the order.

Goode Concrete v CRH Plc
These appeals arise as part of protracted contentious and difficult litigation involving the concrete business in Ireland. The plaintiffs/appellants (“Goode”) allege anti competitive behaviour against the defendants/respondents. The first and second named defendants/respondents (collectively “CRH”) together with the third named defendants/respondents (“Kilsaran”) are alleged to have engaged in such activity to the detriment of Goode. It is of some relevance to note that similar accusations are made against both CRH and Kilsaran (together with other defendants) in connected proceedings brought by Framus Ltd and Others which have been the subject of a recent decision of this court in the context of the ability of certain of the plaintiffs in those proceedings to continue with an appeal to this court while in liquidation

Case Summary
The Supreme Court has overturned rulings made by a High Court judge in proceedings by Goode Concrete against cement giant CRH on the grounds of alleged real bias arising from the judge holding CRH shares valued at some €135,000.

Chief Justice Susan Denham said, if judges themselves hold shares in a company involved in litigation before them, as opposed to shares held in a pension plan or unit over which they have no control, they should “generally” not hear the action.

The Supreme Court quashed three High Court judgments relating to a dispute between Good Concrete and CRH plc (CRH) because there was real bias arising out of the trial judge’s ownership of shares in CRH.

Goode Concrete went to Court, making all manner of allegations against the defendants. Central among them is that since at least late-2007 CRH/Roadstone and Kilsaran have tendered, offered for sale and sold concrete at below-cost prices in Dublin. Goode Concrete claims that the pricing practices of the defendants can only be explained on the basis that there has been a breach of competition law, specifically by way of (i) collusive tendering in breach of s.4 of the Competition Act 2002/Art. 101 TFEU, (ii) agreements or concerted practices in breach of s.4/Art. 101 TFEU and (iii) abuse of a collective dominant position in breach of s.5 of the Competition Act 2002/Art. 102 TFEU. The defendants deny the various allegations made. Indeed, CRH maintains that this case springs not from a concern as to abuses of competition law but ultimately from the fact that Goode Concrete tried to get CRH to buy its entire business, and then some of its assets, and when CRH declined to buy either, these proceedings commenced. Where the truth lies between the parties as regards all of the preceding will fall to be decided at some future stage. For now, the Court is concerned solely with four motions for discovery that have issued between the parties (one against CRH/Roadstone, two against Goode Concrete, and one against Kilsaran). Standing adjourned at this time are a couple of motions for security for costs which have issued against Goode Concrete.

Goode Concrete claimed that the trial judge should have been automatically disqualified from hearing the case because of his pecuniary interest in CRH and any exception to this could not apply because of the extent of the shareholding.

Notably, the trial judge had disclosed in open Court that he had a “vague feeling that a minimal number of CRH shares feature somewhere in my pension fund” when the case first came before him.

CRH, therefore, argued that Goode Concrete was at all times aware of the trial judge’s shareholding in CRH and chose not to object, thereby waiving its rights to complain.

Goode Concrete submitted that given the nature of the declaration, and the fact that it would not be unusual for a person to hold a minimal number of shares of a public company in a pension fund, it had no difficulty with the trial judge hearing the matter. Goode Concrete submitted that it became apparent later that the full extent of the financial interests held by the trial judge had not been revealed as an additional purchase of shares in CRH had been made by the trial judge after he took up the case.

The Appeal was issued some two years after the High Court judgments were handed down, far exceeding the required timeframe for appealing.

In allowing the Appeal, the Supreme Court stated that it is the responsibility of the judge to make inquiries into any shareholding relating to a case before him and inform the parties so that the issue of disqualifying himself can be considered. If a judge holds shares (as opposed to shares held in a pension plan), then, in general, he or she should disqualify themselves from hearing the action.

In this case, the full facts were not before the Court and were neither known to Judge Cooke nor the parties in November 2010 when the judge raised the CRH shareholding, she said. No inquiry was made when the issue was raised.

It is the judge’s responsibility, not that of parties, to make the necessary inquiries into their shareholdings in a company in litigation before them, and to inform the parties, so “an informed assessment” may be made whether a judge should recuse themselves.

Because the “fundamental issues”, being the administration of justice and alleged real bias, are “so important”, she had not addressed the issue of how the shareholding ultimately came before the Court, the judge added.

Mr Justice John MacMenamin, concurring, stressed the Court’s judgments were not to be seen in any way as a reflection on the integrity of Judge Cooke who “has served with distinction” in the Irish and European courts. The appropriate Court for an application to set aside a judgment on the grounds of objective bias was the High Court, he added.

Dissenting, Mr Justice Adrian Hardiman said he believed Judge Cooke behaved with “absolute propriety“ and the allegation of objective bias was “a contrivance” designed to get rid of three adverse decisions against Goode.

While the law and practice on objective bias needs “firm restatement”, this was not the case to do that as Judge Cooke had behaved adequately following the law as it was at the appropriate time.

Godsil v Ireland
Ms Jillian Godsil has been active in the campaigning on the economic and social issue and in areas which involves personal debt, and insolvency. She petitioned the Supreme Court, asking them to cover her the costs of her election in then-upcoming European parliamentary elections. After discovering the existence of a requirement which undermines the eligibility and validity to run an election such as an undischarged state of bankruptcy.

Inter partes litigation for those unaided is, or can be, costly: indeed, it carries with it that risk. It is therefore essential in furtherance of the high constitutional right of adequate access to the courts on the one hand and the high constitutional right to defend oneself, having been brought there, on the other hand, that our legal system makes provision for cost orders. This is also essential as a safeguarding tool so as to regulate litigation and the conduct and process thereof, by ensuring that it is carried on fairly, reasonably and in proportion to the matters in issue. Whilst the importance of such orders is therefore clearly self-evident, nevertheless, some observations in that regard, even at a general level, are still worth noting.

Thus this leads to her seeking to have the relevant provisions of the electoral statutes stood down. High Court challenge which was withdrawn when the Government changed the law so that people with this status of insolvency could run in both national and European elections. A three-judge Supreme Court unanimously ruled she is entitled to her full High Court costs. She was also awarded her costs in the Supreme Court.

Following the withdrawal of her action when the law was changed the previous year, the President of the High Court, Mr Justice Nicholas Kearns, said she was only entitled to the administrative outlay costs, including stamp duty on filing documents.

The Court acknowledged that the reduced fee was due to the procedural nature of the applications, that there was no complex factual background and the deponents were all qualified lawyers who may not be the case in alternative proceedings.

Giving the Supreme Court’s decision awarding her all her costs, Mr Justice William McKechnie said Ms Godsil had been “directly instrumental” in bringing about a change in the law relating to bankruptcy which had stood since 1923. While such a result was not without precedent, it must surely be unusual, he said.

He could not see why “costs should not follow the event”, a standard phrase in law which means the loser pays the costs.

Given the facts of this case, and the absence of any disqualifying conduct or factors, he could not find anything which “either injustice or logic would justify anything less than a full cost order in this regard”.

It was not necessary to address Ms Godsil’s argument that she should get costs because the case was brought in the public interest.

Ms Godsil’s home in Wicklow was repossessed in 2013, and she applied to be declared bankrupt in 17th February 2014 but found this disbarred her from running in the European elections, although not in the locals. She polled 9,179 first preferences in the Ireland South European constituency and 193 in the Baltinglass local election area.

December 2008, During the hearing the Court was informed that the DPP had entered a nolle prosequi in respect of those charges, and therefore the essential relief claimed, namely an order of prohibition regarding the trial, did not require determination: in effect, that issue had become moot. There was no disagreement as to the correctness of this designation: the only issue remaining was, therefore, the question of costs.

The jurisprudence regarding this topic has evolved tremendously more by reference to the exceptions rather than the rule itself.

With the discussion in Courts of this issue under several titles and headings, such as the conduct of the parties concerned.

“test cases” that is, where the decision is expected to have significant “knock-on” effects, in particular for other existing cases but also on future conduct and a variety of other proceedings said to involve public interest challenges.

let it be recalled that the essential aim of these proceedings was to achieve a situation whereby the appellant would not be barred or be in a rendered in a state with a damaged reputation, solely on the basis of her un-discharged bankruptcy status, from being nominated for or running in the European Parliamentary Elections of 2014. She asserted a legal right to do so in defiance of the statutory provisions above referred to which, ex facia and in a way permitting of no argument, prevented her from so doing.

Mavior v Zerko Ltd
The High Court gave Ulster Bank, Dublin approval to serve Sean Dunne with bankruptcy proceedings over a €164m judgment, but at the time, there was speculation that the move might have been related to an ongoing legal battle between Gayle Dunne and Ulster Bank over an outstanding bill for hotel repairs and renovation. Gayle’s company, Mavior, is suing a company established by Ulster Bank called Zerko Limited for €1m in respect of repairs and refurbishment of her husband’s Ballsbridge hotels after the severe flooding in late 2011. Zerko Limited is refusing to pay.

A preliminary issue has been before the courts for some time, and that is whether Mavior which is an unlimited company which does not file public accounts, is capable of funding its legal case and Zerko demanded security for costs, in other words, for a sum of money to be paid into court to cover Zerko’s costs if it won. Gayle’s Mavior was resisting the demand. Last year, the High Court held that poverty should not be a barrier to a company taking legal action and dismissed Zerko’s demand. Zerko appealed to the Supreme Court and this week; the Supreme Court supported the High Court judgment when it, too, ruled that Mavior does not have to provide security of costs in this case.

The judgment was passed on 13th March 2013 it included the court of Judges Denham, Clarke and MacMenamin with the main focus on whether Gayle’s Mavior was eligible to be treated as a  “nominal plaintiff”, And may have led the judges to overturn the High Court decision and impose an order for costs in advance of the full hearing which if the status of an ordinary plaintiff was established. A “nominal plaintiff” is a plaintiff who is acting on behalf of another party, but in this case, the judges did not accept that Mavior was such a plaintiff.

Hence, Zerko faces a full hearing at the High Court over the matter at the root of the case, which was the unpaid €1m debt she was in. Moreover, should Zerko win, it faces an uncertain prospect of getting its costs. So, a small victory for Gayle Dunne but she still has to pursue the €1m unpaid bill.