
— April – May 2013
in damages to Mr Shortt.
The decision stands out as a rare case where
the Supreme Court actually raised a High Court
award, from €.m - an increase of almost
per cent.
Last December, Hardiman took another swipe
at a state authority, affirming the decision of the
High Court to quash a decision of the Minister
of Justice to refuse a certificate of nationality to
a baby boy, Faisal Sulaiman. He put it bluntly: “I
simply do not understand why so great an effort
has been made over so long a period to deprive
a small boy of citizenship. If there is a point to
the pain and anxiety caused to the child’s family,
the expense to which they have been put and the
taxpayers money that has been spent, it entirely
eludes me”.
In the earlier decision of ‘Lobe v Minister
of Justice’ he adopted a different stance. He
concluded that the state could force the family
concerned to leave the state provided that the
Minister of Justice was satisfied that the interests
of the common good justified an interference with
what is clearly a constitutional right.
Being born in Ireland, the child plaintiff had
automatic citizenship. What was at issue was the
capacity of that child to ‘anchor’ the remainder
of his family to the state.
He quoted with approval from the
judgment of Seamus Henchy in ‘The People v O
Shea’.
“It may be said of the Constitution, more than
of any other legal instrument that ‘the letter
killeth, but the spirit giveth life’ No single con-
stitutional provision ( especially one designed
to safeguard personal, liberty or social order )
may be isolated or construed with undeviating
literalness”.
In the Equality Authority v Portmarnock Golf
Club case, the key point at issue was whether
Portmarnock, which did not allow (full) member-
ship to women, was a “discriminating club” within
the meaning of Section of the Equal Status Act,
thereby attracting sanctions such as the loss of a
licence to sell alcohol.
Ruling with the majority in the Club’s favour,
Hardiman indulged in some provocative bait-
ing of feminists, including quotes from an Irish
Times article entitled ‘Wanted : Single Sex zones
for our sanity’. He cited the example of the ICA,
founded in “to bring women together in
fellowship”.
“There are said to be only two all men golf
clubs in Ireland, but almost any directory pro-
vides pages of women’s associations”.
Hardiman thought Portmarnock more a club
for men than a club for golf.
NUI Galway academic, Donncha O Connell,
was moved in Village Magazine to describe the
judgment as being “laced with the rhetorical flour-
ishes of a once great advocate”. By contrast, Judge
Fennelly in his dissenting judgment, applied the
‘ordinary and plain meaning’ of Sections and
of the Act, concluding that Portmarnock did not
cater only to the needs of men playing golf ,and
therefore could be held to have discriminated
against women players in the application of its
rules.
Some will have drawn parallels with
Hardiman’s comments at the annual Law Society
Justice Media Awards some years ago when he
equated journalists to “cowgirls”. The Supreme
Court judge was later challenged on some of his
remarks by a woman reporter. Quoting the musi-
cal Oklahoma, the judge said “the farmer and the
cowman should be friends” - the farmer being
lawyers and the cowman, reporters. His beef
was largely the well-directed one that media
coverage of court cases was “inadequate and
uninformative”.
Hardiman has ruled in many landmark
commercial cases heard by the Court since his
appointment in .
In March , the Supreme Court allowed
an appeal brought by the ‘reclusive’ property
developer, Paddy McKillen, against an attempt
on the part of the National Asset Management
Agency (NAMA) to take over €.bn of his loans
from Bank of Ireland.
The High Court had found for NAMA in what
was seen as a pretty definitive ruling. McKillen
had deployed the services of the leading US econ-
omist, Joseph Stiglitz.
In Hardiman’s view, the effect of such a loan
transfer would be to extinguish the borrower’s
equity of redemption, leaving NAMA in the
position where it did not have to account for the
excess of value in the assets over the debt.
Hardiman concluded that NAMA would, in
effect, be exercising a right of foreclosure, some-
thing not seen since the early th century.
He contrasted the NAMA business plan,
and its seven-to-ten-year life, with the strategy
deployed by McKillen - to hold prime assets over
a long term.
In his view, McKillen was entitled to a hear-
ing before such a handover of loans was put into
effect.
Hardiman noted that all the McKillen loans
were performing, providing a “significant stream
of income over and above his (McKillen’s ) obliga-
tions to the banks”.
There was a real concern that NAMA would in
taking a short-term view, maximising its return,
could have a ‘devastating effect’ on McKillen: “in
Ireland and other common law jurisdictions, the
scope of the requirement of fair procedures has
expanded considerably”.
“At the very minimum”, McKillen “had a right
to a fair hearing by an unbiased body”.
In the case brought by Comcast (joined by
Persona Digital Telephony and by Sigma Wireless
Networks, the other unsuccessful bidders),
an unsuccessful bidder for the mobile phone
licence won in against the galaxy that is
the Minister for Public Enterprise, Michael Lowry,
Esat, Denis O Brien, and Ireland and the Attorney
General, the Supreme Court was asked to rule on
a motion by the state to have the proceedings
struck out on the grounds of delay.
Hardiman was having none of it. He noted
that Comcast had indeed issued its original ple-
nary summons as far back as October ,
alleging breach of statutory duty, misfeasance
in public office, breach of the Prevention of
Corruption Act, , fraud, deceit, etc.
“These submissions (by the State ) are wholly
lacking in reality. The corruption alleged was cov-
ert, devious & concealed”.
He mocked the notion that the same limita-
tion period applied in a ‘simple running down
action’ to a “case of such complexity with the
subject matter allegedly characterised by con-
cealment and deceit”.
The way has been opened to litigation that is
likely to put the taxpayer and, potentially, private
business interests associated with the licence-
holders on the hazard for huge sums.
But the Court felt it must keep open the route
to justice, as Hardiman the libertarian was only
happy to make clear.
This distrust of the state and its agents is never
deeper when it comes to Tribunals of Inquiry. One
of his last acts as a senior counsel was to secure a
victory for the late Liam Lawlor over the Flood-
Mahon Tribunal in .
In July , Hardiman let loose, describing
how “appalled” he was by the length and cost of
the Tribunals, when commenting on an attempt
politics
Hardiman let loose,
describing how appalled he
was by the length and cost of
the Tribunals