Menu
Ireland's political and cultural magazine
58 February/March 2024 February/March 2024 59
Refusal of ‘widow’s pension’
to surviving civil partner was
contrary to the Constitution
O’Mer v Miniser for Socil Proecion [2024]
IESC 1 (Supreme Cour, Hogn J, O’Donnell J,
Woulfe J, 22 Jnury 2024)
Supreme Court: (a) grants a declaration that
the statutory restriction on Widow’s,
Widower’s or Surviving Civil Partner’s
(Contributory) Pension (WCP) to widows,
widowers and surviving civil partners was
unconstitutional insofar as it did not extend to
a surviving co–habitant who was the father of
three children with a deceased partner; (b)
quashes a decision of the Minister for Social
Protection to refuse WCP to the applicant; but
(c) refuses to overturn a previous statement of
the Supreme Court that a family at Irish law
was founded on the institution of marriage, on
the grounds that it was not necessary for the
determination of the case and that there still
remained at law distinctions between marital
families and non-marital families.
Retrial ordered despite
directed acquittal after
exclusion of admission made
to psychologist
DPP v B.K. [2023] IESC 38 (Supreme Cour,
Murry J, 14 December 2023)
Supreme Court, in supplemental judgment,
orders the retrial of a woman accused of
sexual assault and neglect of her children,
where the court had previously determined
that the trial judge had erred in excluding
evidence of admissions made by the woman
to a clinical psychologist giving rise to a
directed acquittal, on the grounds that it was
in the public interest that such serious
o ences be prosecuted, and that no prejudice
would be su ered by her owing to any lapse of
time.
THE LAW…
Recent case law
Prosecution needed to
establish that there was no
other reasonably possible
source of HIV infection
Direcor of Public Prosecuions v R.K. [2023]
IESC 36 (Supreme Cour, O’Mlley J, 14
December 2023)
Supreme Court allows appeal from Court of
Appeal, and quashes conviction of man on a
charge of knowingly infecting two women with
HIV, on the grounds that: (a) the expert
evidence from the prosecution should have
been handled with more care in circumstances
where the expert had initiated the investigation
by Gardai, and had not given sufficient
evidence concerning the subtype of HIV
involved; and (b) the complainants had misled
the expert in relation to their previous sexual
history, in circumstances where it was
necessary for the prosecution to establish that
there wasP no other reasonably possible
source of infection.
Judicial appointments
legislation was not an
unconstitutional fetter on the
Government’s discretion
In re Aricle 26 nd he Judicil Appoinmens
Commission Bill 2022 [2023] IESC 34 (Supreme
Cour, Dunne J, 8 December 2023)
Supreme Court advises the President of Ireland
that pending legislation concerning
appointments to judicial o ce was in accordance
with the constitution, on the grounds, inter alia,
that: (a) the legislation did not require the
government to nominate a person who was
recommended by the proposed Judicial
Appointments Commission, and it was thus not
a fetter on the discretion of the executive; and
(b) the Oireachtas was constitutionally obliged
to legislate in respect for judicial eligibility, and
was thus entitled to regulate the circumstances
in which a candidate for judicial o ce was
recommended by the government.
…UNTO
ITSELF
THE LAW
58 February/March 2024 February/March 2024 59
THE LAW…
Recent case law
Fire fi ghter was not ‘working’
for his employer while on
standby
Wlsh v Kerry Couny Council [2023] IEHC 719
(High Cour (Generl), Brr J, 15 December
2023)
Court of Appeal dismisses an appeal on a
point of law from the Labour Court, and
a rms a determination that a fi re fi ghter’s
time spent on standby was not ‘working time’
as it did not objectively and signifi cantly
a ect his ability to manage his time, business
interests or social life.
Use of ‘expressions of doubt’
in tax returns had not been
suffi cient to avoid imposition
of penalties
Thornon v Revenue Commissioners [2023]
IECA 316 (Cour of Appel (civil), Allen J, 21
December 2023)
Court of Appeal dismisses appeal from High
Court, and a rms in respect of cases stated
from the Tax Appeals Commission, inter alia:
(a) that dividend purchase transactions
arising from a syndicate dealing with the
British Virgin Islands did not amount to a
‘trade’ in fi nancial instruments; (b) that
dividend income received by appellants was
not to be deemed not to have been received
by them, where they sought to establish
losses that could be set o against income
tax; and (c) that the use of ‘expressions of
doubt’ by some of the appellants in their tax
returns was not su cient to relieve them from
the imposition of penalties in respect of the
tax not paid, where the expressions did not
su ciently set out the doubt alleged to arise.
Claim against architects to
continue despite extensive
delay
Beggn v Deegn [2024] IECA 4 (Cour of
Appel (civil), Noonn J, 11 Jnury 2024)
Court of Appeal, in proceedings relating to
the alleged negligence of the defendants in
both the design and building of a house
which subsequently had structural defects,
dismisses the appeal and a rms the order of
the High Court refusing to dismiss the
proceedings on the grounds of delay, despite
fi nding that there had been both inordinate
and inexcusable delay on the part of the
plainti s, where the balance of justice lay in
favour of refusal dismissal, given that the
defendants failed to establish moderate
prejudice which would render it unfair for the
defendants to further defend the case.
Playground equipment had
been properly installed and
maintained
Hickey v Limerick Ciy Council [2024] IEHC
10 (High Cour (Generl), Bolger J, 11 Jnury
2024)
High Court dismisses claim for personal injury
arising from a fall from ‘monkey bars’ in a
playground, on the grounds that: (a) the
defendants had complied with their
obligations in the design, manufacture,
installation and inspection of the equipment;
and (b) evidence from an expert engineer that
the monkey bars included inherent risks were
reliant on authorities that were not properly
identifi ed to the court.
Pledge agreements
concerning 37 aircraft worth
US$2 billion were void
In re GTLK Europe DAC; Moroney v Join Sock
Compny Se Trnspor Lesing Compny
[2023] IEHC 743 (High Cour (Generl),
Mulchy J, 19 December 2023)
High Court, in the course of the winding up of
a company owning 37 aircraft worth over $2
billion, grants a declaration that ‘pledge
agreements’ to a connected company
concerning the aircraft were void, on the
grounds that: (a) the Irish courts had
jurisdiction to determine the enforceability of
the pledge agreements; (b) the pledge
agreements had not been registered as a
charge as required by legislation, and were
therefore void; (c) the pledge agreements had
not been authorised in accordance with the
shareholders’ agreement; and (d) the pledge
agreements amounted to a ‘fraudulent
transfer’ in that they were a purported
conveyance of property with the intention of
hindering creditors in the recovery of their
debts.
Reports prepared by Decisis Law Reports (Decisis.ie). Writers of reports: Mark Tottenham BL; Amy Walsh BL; Lawrence Morris BL
