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Ireland's political and cultural magazine
— April – May 2013
F
EW forelocks these days are tugged when
top politicians, professionals or church-
men pass by. The recurring theme of the
age is one of loss of respect for the lofty.
Yet, for a number of reasons, the judgments
issued by our higher courts apparently continue
to command popular respect.
True, many consider our judges to be overpaid
and part of a remote elite, presiding over a flawed
justice system, yet there is a pretty general accept-
ance that the individuals occupying high judicial
positions are people of substance.
Scant popular sympathy is on hand for those
who display contempt towards the courts.
In part, this may stem from a recognition that
our judges have played a major role in papering
over the cracks left by a dithering legislature
unwilling to implement reforms that could cost
them in the ballot box. Irish judges are viewed as
incorruptible, notwithstanding an unfortunate
recent case, that of former Judge Perrin.
Their work rate is viewed as being high.
Above the District Court level, judges have, by
and large, avoided the temptation of wading into
controversy.
More recently, the senior courts have been
forced to cope with the fallout from the wave of
insolvencies.
Judges have however, sought to iron out the
flaws in the current system, often using creative
means.
Overseas, the US Supreme court has, in the
past, served as a beacon.
In the s, Earl Warren presided over
a Supreme Court that helped to transform
American life.
In , in ‘Brown v US Board of Education’,
the Court outlawed segregation in the school sys-
tem and it later sanctioned an overhaul of the
country’s State legislatures in a move designed
to stamp out political gerrymandering.
The Irish Supreme Court, at times, has been
highly creative.
For strong believers in the right to individ-
ual freedom, the dissenting judgment of the late
Mr Justice Niall McCarthy in ‘Norris v Attorney
General’ stands out.
McCarthy in favouring the application to have
laws banning homosexual acts declared unconsti-
tutional, questioned how bans contained in Acts
dating back to and could be deemed
to be consistent with constitutional guarantees
of freedom of expression.
He cited the US Supreme Court judge, Louis
Brandeis, to the effect that “the right to privacy
is the right to be left alone”.
McCarthy had a long, distinguished career as
a barrister and was unusual in that he stepped
straight from private practice onto the Supreme
Court. He was popular and witty.
Adrian Hardiman also moved straight from
practice at the Bar onto the highest court in the
land.
As a counsel, he stood out by dint of his elo-
quence and the sheer size and breadth of his legal
practice. A brilliant advocate, colleagues recall
The Supreme Court’s
scourge of the state,
tribunals and political
correctness.
Edmund Burke and Antonin Scalia meet
Friedrich Hayek
Adrian
Hardiman
kyran fitzgerald
Politically promiscuous, he
was a strong backer of the
Progressive Democrats,
having previously been both
a member of Fine Gael and,
later, a Fianna Fáil candidate
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PROFILE
that as a junior counsel, he was involved in so
many cases that it was the Senior Counsel who
was ‘holding the fort’, awaiting the arrival of the
star advocate.
As a senior counsel he acted for the former
MEP, Social Welfare Minister and Democratic Left
leader, Proinsias de Rossa, in a libel action taken
against the Sunday Independent and its column-
ist, Eamon Dunphy.
In July , a jury awarded de Rossa
£, in damages after it decided that the
journalist had wrongly alleged that de Rossa was
involved in, or tolerated, serious paramilitary
activity, among other things.
The size of the award was upheld by the
Supreme Court on appeal by a majority of four
to one - the latter, Ms Justice Susan Denham,
now Chief Justice, favoured cutting the size of
the award in half. She also called for a direction
on the quantum of an award to be given to a jury
- a view rejected by the then Chief Justice, Liam
Hamilton.
The Court decison was later appealed to the
European Court of Human Rights.
Hardiman was, in those days, a bundle of
energy.
Politically promiscuous, he was a strong
backer of the Progressive Democrats, having
previously been both a member of Fine Gael and,
later, a Fianna Fáil candidate.
He served as legal advisor to the PDs’ first
leader, Des O’Malley, and found himself
embroiled in controversy over remarks made -
in the informal atmosphere of the Shelbourne
Bar- relating to the Beef Tribunal by a colleague,
Gerry Danaher, then acting as legal advisor to
Taoiseach Albert Reynolds.
Educated by the Jesuits at Belvedere College,
his father was a school teacher. His family back-
ground was respectable, but not particularly
privileged.
He arrived in UCD determined to make his
mark.
A lot of sweat went into manufacturing his
seemingly effortless brilliance as an orator. He
later recalled that he arrived to make his maiden
speech at the College Literary and Historical
Society “clutching three thousand words of fren-
zied handwriting in a sweaty fist”.
Possessed of a baritone voice that belied his
modest frame, Hardiman became a star debater,
befriending future legal colleagues such as
Michael McDowell, fellow Jesuit boy, and Mary
Finlay, now a High Court judge.
Many students viewed the L & H crowd as pre-
tentious twits, but the debating society proved to
be a good training ground for life in the lucrative
legal ‘killing fields’.
Hardiman, while honing his advocacy skills,
and testing his larynx to near destruction, met
his future wife, Yvonne Murphy.
They married early, settling in a flat in Merrion
Square before moving to a property in Palmerston
Park, Rathmines.
Yvonne later moved from a career in social
services, journalism and political advice to
became a barrister on the north west circuit and
latterly a Circuit Court judge.
In -, Judge Murphy chaired the
Commission of Investigation into child abuse by
the Catholic clergy in the diocese of Dublin, pro-
ducing a well-regarded, searing, report.
The youthful Adrian favoured a formal style of
dress as part of a young fogey reaction against the
anorak-and-denim dress-code of the era.
His opposition to the College Left was in part
born of a contrarianism, but it had deep libertar-
ian roots, gut feelings which persist today and are
apparent in many of his judgments.
At times, his contempt for state bodies and
for public officers erring from the path of justice
is visceral.
On occasions, his opposition to ‘political cor-
rectness’ can appear almost curmudgeonly, no
more so than in his decision in the case brought
by the Equality Authority against Portmarnock
Golf club.
What cannot be denied, however, is that his
judgments are eminently readable, and acces-
sible to most laymen. He avoids the nitpicking,
equivocation, and tortured reasoning, that
characterise so much of today’s judicial output.
Hardiman is certainly clever and erudite: he can
recite reems of poetry and constitutional articles
and has given entertaining talks on James Joyce
and Flann O’Brien, well outside the curtelage of
the Four Courts.
Early in , after five years on the bench,
he ruled in proceedings initiated on behalf of a
Donegal businessman, Frank Shortt, who had
been framed by members of the Gardaí and
imprisoned for three years. Hardiman did not
mince his words. Mr Shortt had been “perjured
into prison” by policemen keen to advance their
careers at his expense, with consequences that
were “nothing less than life blighting”.
“That the perpetrators were wearing the uni-
form of the State aggravated the wrong giving the
affair a public as well as a private dimension”.
The judge sanctioned an award of over €.m
What cannot be denied,
however, is that his
judgments are eminently
readable, and accessible to
most laymen. Hardiman is
certainly clever and erudite
Hardiman’s nightmare
— 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
by the Director of Corporate Enforcement,
Paul Appleby, to secure the disqualification
of Tom and Mick Bailey as directors of Bovale
Developments.
In Hardiman’s view, the expense to individu-
als of participation in tribunals has been “nothing
less than grotesque”.
He has arguably been less willing to dwell
on some of the breakthroughs engineered by
the Tribunal system - in large part because, at
heart, he is a traditionalist, a believer in the
Common Law and in the basic tenets of the
Constitution.
His concerns about the treatment of people,
including ordinary witnesses, by Tribunals is well
grounded, however.
At times, these star chambers acquired a life
of their own, bestowing untold riches on some of
its long-serving staff, and counsel.
In July , speaking at the McGill summer
school in Donegal, close to his holiday home, he
stoutly defended de Valera’s creation, Bunreacht
na hÉireann, against reformers interested in sub-
stituting for it a document along the lines of the
Proclamation.
In his view, the demand for simplicity could
result in the loss of basic constitutional rights.
In some ways Hardiman resembles Antonin
Scalia of the US Supreme Court who is against
affirmative action and Federal interference with
the States. He too is charismatic, writes well and
dissents often. Scalia, however, is too religious
and patriotic to be a libertarian.
At heart, Adrian Hardiman lies in the tradi-
tion of Edmund Burke, the great th-century
polemicist - the only difference being that Burke
turned to conservatism and towards a pessimistic
outlook in recoil from the French Revolution and
its nasty after-effects. The young Hardiman never
dabbled in revolution in the first place.
He is a staunch believer in the separation of
powers and an independent judiciary untainted
by experimentation.
He is appalled by the Government’s moves
to cut the judicial pay and pensions bill, in part
because it would appear in his view to threaten
the status of the judges.
Of relations with the reforming Justice
Minister, Alan Shatter, the less said the better.
All of which suggests that while Mr Justice
Adrian Hardiman will no doubt produce many
more searching and stimulating judgments, he
will not be interested in challenging the deep
flaws of a legal system which permits fraudsters to
dampen down public comment on their activities
by adroit use of draconian libel laws and which
permits them to evade justice with the assistance
of highly-remunerateed legal consiglieri once
their dubious activities have been unearthed.
Because hallowed traditions have their cost.
Adrian Hardiman lay back in the ah bubbles in his PRIvate bathtub as he
was indeed entitled to barking Kipling’s If stentorianly and thought how evil
the State was A BATHtub He reflected, nay he adumBRATEd that the State
would never get its hands on Always emphasise the SYLLable They have
taken my pension they have taken the PDs, they have taken McDowell but
my home on the Park is my CAStle He thought he heard someone spitting
but realised on reflection it was himself Alan Shatter He thought of Edmund
Burke, Antonin Scalia The tribunals Legally sterile They couldn’t get his bath
or if he had his way almost anything or anyone Was he the better jurispru-
dent? He felt inDEED so The overbearing State Pension grabbers Antonin:
not a distinguished cognomen like Adrian Smug fawning and unctuous
Hardiman Thoughts drifted back to Belvo and the impersonations bold
urchins on the street used to do of his fine baritone To UCD sweating at the L & H All that larking about with Michael McDowell – the
FCA days when all he needed was his uniform an edition of the Irish Law Reports and the absence of girls to feel complete How things
had moved on Women How they got in the way If Portmarnock is entitled to succeed on this appeal brought by the Equality Authority
then so too would a womens’ club or a gay club or a travellers’ club, or an Ethiopians’ club with the same sort of rules ImmeMORial
He hoped he’d spelt women’s right He thought of the court reporters He’d cleverly quoted the musical Oklahoma – though even that
was probably beyond most of them “The farmer and the cowman should be friends” he’d said He sang it now and flushed He hoped no
one could hear him Last time he’d taken a bath they’d heard him down the street His declamatory baritone How one or two of his
select friends in the club had laughed The farmer being lawyers and the cowman reporters Later he’d spoken of women reporters as
cowgirls “Phwarr Phnoarr” he chortled contentedly Or was it furiously? He certainly wanted to seem comfortable in his skin He looked
down the bath at all that judicial skin and stuff Caressed a distinguished foot with a fine loofah Just when had he known that he was
distinguished he tried hard to think No it was more to muse Cogitated He tried again not to think of Susan Denham Media coverage
of court cases is inadequate and uninformative and much of this was down to reporters just being the wrong sex His loin tightened
Hardiman Golf he loved it RUGby No ladies need apply I WISH ladies and gentlemen to confess my great disappointment that even
the result and its significance is often distorted as the reporter or some editor focuses on some incidental but picturesque detail he pro-
NOUNCed with a RHETorical FLOURish. POLITical correctness gone mad A gaggle of university debating society women and some shiny
faced Ógra Fine Gaelers were whooping and hurrahing bassly in his head Their time would come he reflected They may go on them-
selves to forge distinguished legal careers Was it better to be described as distinguished or eminent Acclaimed esteemed or illustrious
Brilliant certainly He debated in his head whether Joyce or Lévinas had the less secular notion of epiphany He rehearsed an impromptu
anecdote about James Joyce Bertie Ahern and the ah premier of CHINA The learned Herr Doktor to whom I defer PROM iscuous with
the truth a REDUCTIO ad absurdum he POSTulated RHETorically Unsettled by all the fury and self-importance the bubbles had dis-
sipated In mute dissent He lunged at the bath chain with his foot MS
In the bath......April/May: Adrian Hardiman
