Judgment of O’Donnell J. delivered the 28th day of January 2016
1 The matters which came before this Court on the 9th of December 2015, were in themselves relatively simple but concerned proceedings of considerable age and unusual factual and procedural complication. Mr. Rooney the plaintiff and appellant, has represented himself since the outset of these proceedings in 1987, but has in that time been able to qualify as a barrister in England, and be admitted to the Bar in Northern Ireland and subsequently in this jurisdiction. The appeals themselves concern two motions which would be familiar to the most junior lawyer. The first is perhaps the most basic and commonly encountered application brought in civil proceedings: a motion for judgment in default of defence (“the Motion for Judgment”). Rather ironically in the present context, the normal function of a motion for judgment in default of defence is to seek to ensure that proceedings continue to move towards a hearing at a reasonable pace. Hundreds of these motions are dealt with before the High Court each Monday, and rarely involve any contention, still less, appeals. The second matter is a motion which is also regularly encountered in these Courts, a motion to amend a Statement of Claim (“the Motion to Amend”). While sometimes such a motion can involve more argument than a standard motion for judgment in default of defence, nevertheless, it is normally dealt with by the application of familiar principles, and can be argued and disposed of quite quickly and involving few papers. In this case however, the hearing of both matters in this Court involved voluminous and almost impenetrable papers, lengthy preparation, and occupied considerable court, time although relatively little of that time was occupied by the substance of the motions themselves.
2 What makes these appeals remarkable however is that the proceedings themselves were commenced in 1987, and concerned events which occurred in 1983. The motion for judgment dates from 1990. The motion to amend the Statement of Claim, in the context of this case, is almost youthful having been commenced in 2001 and been determined in the High Court in 2010. It will be necessary to trace the very tangled path of these proceedings and some parallel proceedings in more detail, later in this judgment. But it is right to acknowledge that this lapse of time, whatever the explanations and excuses, is unacceptable. In 2013, the European Court of Human Rights (“ECtHR”) held that the delay in bringing the proceedings to a conclusion was itself a breach of Mr. Rooney’s Article 6 rights to have his case determined within a reasonable time. It is true that the substance of this case was disposed of in 1991 and that some aspects of the delay were understandable if not excusable. However, some aspects of the delay were caused by Mr. Rooney’s own actions, and by the multiplicity of proceedings he commenced, and by what proved to be a misplaced belief that a common sense solution could be found. It is also the case that on occasions judges went to considerable lengths to deal with the cases, and considerable latitude was extended to Mr Rooney. The fact remains however that the continued existence of these proceedings 28 years after they were first initiated is not justifiable, even in a system where the progress of litigation is controlled by the parties and not by the court itself. Insomuch as the delay has been contributed to or caused by the administration of justice within the courts, that is sincerely regrettable. Repeated court appearances impose a considerable stress not just on an individual member of the public, but also on those close to them. Litigation is not in itself an intrinsically desirable activity and repeated litigation is a curse which blights many lives, well beyond the central actor, and not limited to those on his own side of the case.
3 This case illustrates a number of truths which will be familiar to any person with experience of the law: the system of administration of justice is human; it is unavoidably imperfect; resources are limited; court time is expensive and scarce; errors can be made by even the most capable and well intentioned people; short cuts, to paraphrase Lord Scarman, can often be treacherous, exacting a heavy price in delay anxiety and expense; and once a case goes awry it is disproportionately difficult to right it and it often becomes prey to misunderstandings, misconceptions and misfortunes. It is often the case that a person who litigates on their own behalf has some sense of grievance about an issue which is neither fanciful nor necessarily completely ill founded; that rejection of a complaint, even if the correct and just outcome, can often generate obduracy and suspicion that the decision was made for reasons of prejudice; that litigants will often respond with misconceived applications and more intemperate allegations; that the inevitable rejection of such applications feeds an easily triggered sense of conspiracy, which often leads the litigant into conflict with the courts, and individual judges. Some litigants, and not just those who represent themselves, prefer the comfort of focusing exclusively on the debatable ruling or judicial comment reinforcing a sense of grievance rather than recognise the forest of problems in the overall case. The cycle continues and becomes almost a form of litigious perpetual motion.
4 Judicial decisions however conscientiously rendered, are, regrettably but inevitably, not always perfect justice. Courts, even final appellate courts reaching decisions after lengthy proceedings and refined argument, are not always right. Courts cannot achieve infallibility but they can provide a hearing, a reasoned decision and ultimately and most basically, finality. It is the right of all parties that proceedings should end. A right guaranteed by both the Constitution and the European Convention on Human Rights is to have a case determined, in the sense not just decided, but also brought to an end. Finality is an important part of the process. Cases, like any contest, can end neatly with satisfaction on all side, or messily with recrimination, but they must end. The end result may be criticised but it must be accepted.
The Origins of the Dispute
5 The roots of this dispute go back, I believe, to 1983. It is necessary to qualify any statement in relation to the facts of this case with two observations: First, from the very outset, the proceedings have been complicated by a proliferation of documents, proceedings, and multiple applications. Second, the papers which the Court had available to it on this appeal while voluminous, are still quite limited, and anything but comprehensive in the information they provide as to the multiple disputes between Mr. Rooney and these and other defendants. Some of the information must be gleaned from secondary accounts. Since many of the applications in this and related litigation have involved disputes about what was said and done on previous occasions in court, even that exercise is fraught with confusion, and sometimes contradictory accounts. I do not say this to criticise the presentation of papers to us by Mr. Rooney, who is representing himself and has limited resources, but rather to explain why my account of the background facts is somewhat tentative.
6 It appears that in 1983, Mr. Rooney’s herd was tested for bovine tuberculosis. That is a Class B disease under the Disease of Animals Act 1966 (“the 1966 Act”). It has been a serious problem in the agriculture sector in Ireland, and no one disputes the necessity of the State introducing comprehensive measures to detect the disease, and prevent or restrict its spread. As in many other areas of mass screening, the testing process employed is indicative of the presence of the disease rather than definitive. Scientific proof, was, at least at that time, only available post-mortem. If an animal reacted to the tuberculin test, it was a “reactor”, with significant consequences, both legal and practical, for the treatment of that animal, and the herd. In Mr. Rooney’s case, the process of testing reached the point that in an affidavit he said that 26 reactors were identified in a herd of 103 on a small holding. There is no doubt that this was a significant blow to a young man trying to make his way in the world. Mr. Rooney had complaints about the manner in which the testing was carried out and therefore the accuracy of the results. That is not an issue that this Court can resolve. I do not wish however, to suggest in any way, that his complaints may or may not have been justified. It is enough for present purposes to say that Mr. Rooney was genuinely aggrieved. This was the starting point for his many disputes with the Department of Agriculture which led him to investigate the law relating to animal testing. In particular it appears Mr. Rooney formed the view both that he was entitled as a matter of law (in this case the 1966 Act and/or the Constitution) to compensation both for the reactor cattle and for the impact on his farming business, and (whether as a matter of law or fact) that such amounts would be greater than was available under the complex range of measures which were then operated under the national scheme for the eradication of the disease.
The Regime in 1983 for the Detection and Control of Bovine Tuberculosis
7 The Act of 1966 is a general provision which deals with many species, and many diseases. However the incidence of bovine tuberculosis within the national herd has been a very widespread and persistent problem. Under s.20 the Act of 1966 provision was made for the testing of animals to detect the presence of any disease and for the isolation of animals. Regulations were made under the Act dealing with the specific case of bovine tuberculosis. At the relevant time these regulations were laid down by the Bovine Tuberculosis (Attestation of the State and General Provisions) Order 1978 (S.I. 256/78) (“the Order”). The Order specified the form of testing and the manner in which it should be carried out. It also provided for the consequences of a positive test. There was an obligation to isolate the reactor from the remainder of the herd to remain and to isolate the herd from adjoining holdings. The farm became a restricted holding and movement permits were required for the movement of any animals. In relation to the reactor affected, any movement permit would only be granted for the purposes of removing the animal for slaughter.
8 The Act provides for compensation when the Act is operated in a particular way. In respect of Class B diseases, such compensation provisions were triggered if, but only if, the Minister “took possession of’ an animal under section 20. Compensation then became payable under section 22. Section 58 made provision for a scheme of compensation. However, and presumably because of the widespread nature of the bovine tuberculosis problem, this mechanism was not normally adopted when dealing with affected herds. When a reactor was identified after testing, the Minister did not “take possession” of the herd or the affected animal. Instead the mechanism of the Order came into play: the holding became restricted and movement was restricted. By this process, farmers were effectively required to have reactors slaughtered. But the Minister never took possession of the reactor; instead the farmer remained the owner and sold the reactor at a ‘carcase price’ to a meat factory. There was in addition a scheme providing for grants to affected farmers which was not provided for in the Order. The amount of the grant was the subject of negotiation between farmers’ organisations and the Department of Agriculture, and took into account market values. A farmer whose herd was affected by bovine tuberculosis received money for the affected animal from two sources: the factory paying the carcase price and the non statutory scheme payment from the Department. This scheme was widely advertised, and the subject of active negotiation, but its legal basis was simply an administrative procedure which as was held in McKerrig v Minister for Agriculture [1989] I.L.R.M. 82 created a private contract between the Department and any affected farmer in an individual case. It is the operation of this non statutory scheme (and the non-operation of the statutory compensation provisions) which lie at the heart of Mr. Rooney’s long-running legal disputes with the Minister for Agriculture, the State and others.
9 The issues which came for the court on 9th December 2015 do not involve the resolution of any of the legal issues which might arise from this type of arrangement. A number of observations can however be made even at this point. First, the administration of a very substantial grant system on a purely administrative basis, and without either utilising or adapting the statutory scheme, was unusual and likely to lead to disputes. In McKerrig v Minister for Agriculture [1989] I.L.R.M. 82, O'Hanlon J. made some observations which are relevant to the present case :
“It all seems to be a remarkably informal way to spell out and organise a scheme on which, apparently, hundreds of millions of pounds have already been spent. One result of that element of informality is the present litigation, in which neither side can say with certainty whether the payments are made on an ex gratia or contractual basis and have to come to Court to seek an answer to that problem. Another extraordinary feature of the schemes which emerged in the course of the evidence is the fact that by the combination of the payment received from the meat factory for the animal sold for slaughter, and the grant payment, a diseased animal may be more profitable than a healthy one, so that the scheme can hold out an inducement to unscrupulous persons to propogate rather than to eradicate disease in their herds.”
Second, it was recorded in the judgment in Rooney No. 1, that it was said in argument that the reason the non-statutory scheme was set up was that given the very prevalence of bovine tuberculosis in the country, the establishment of the machinery for a compensation scheme under section 58 would itself been very costly and presumably inefficient. The system of requiring private sale of reactors and providing for a grant scheme was undoubtedly cheaper to administer, and perhaps more flexible and effective. Third, there does not appear evidence in the course of any of these proceedings to suggest that a greater amount would be paid to farmers if the reactor was acquired by the Minister and compensation paid under the Act. The very fact that the non-statutory scheme was the product of agreement with farming organisations suggests otherwise. Furthermore while the system of restriction and movement orders imposes some constraint on the property rights of the citizen it does not expropriate them, and, such restriction is at least in principle capable of being justified on grounds of the public policy interest in preventing the spread of disease. The method of payment to farmers via the non-statutory scheme supplementing the carcase value had been found to be consistent with the Constitution by Murphy J, in Grennan v. the Minister for Agriculture (Unreported, High Court 4th October 1995); a finding approved by Laffoy J. in Rooney No.2. (Unreported, High Court, 13th February, 2004). Finally there is a latent ambiguity in the concept of compensation in this type of situation, which has been touched on in the recent decision of this court in Rafferty v. the Minister of Agriculture [2014] I.E.S.C. 61. At times it appears to have been assumed by Mr. Rooney that if a legally enforceable entitlement to compensation arose (whether by statute or by reference to constitutional rights), such compensation would not be based on the value of the reactor once tested, but rather based on the assumption that the animal was disease-free. In many ways this is at the heart of much of the dispute here. Much depends on whether one approaches the non-statutory scheme as compensation for the loss of a healthy animal (which Mr. Rooney assumes) or rather as an ex gratia grant which serves the purpose of reducing the financial impact on the farmer of the fact that an animal or animals have been the subject of a positive test for a significant disease and thereby encouraging farmers to cooperate with the scheme.
The Commencement of Proceedings: 1987 No. 1120 Sp Ct 6
10 On the 19th of November 1987, Mr. Rooney issued a special summons. The proceedings at this point were against the Minister for Agriculture and Food, Minister for Finance, the Taoiseach, Ireland and the Attorney General. The endorsement of claim sought a ‘declaratory judgement or declaratory order from this Honourable Court that [Mr. Rooney] is legally and constitutionally entitled to compensation under and in accordance with the Disease of Animals Act 1966, and also under and in accordance with the Bovine Tuberculosis (Attestation of the State and General Provisions) Order 1978 (SI 256) of 1978. The plaintiff also asks this Honourable Court on making the declaratory order to grant the remedy or relief of exemplary damages or whatever relief that courts or the Honourable court thinks fit”. The special summons came before the High Court on the 21st of December 1987. Mr. Justice Barr directed that the matter proceed to plenary hearing which required the delivery of a Statement of Claim. On the 15th of January 1988, Mr. Rooney’s first Statement of Claim was delivered. A defence was delivered on the part of the State defendants on the 11th of March 1988. Mr. Rooney amended the Statement of Claim thereafter, on 18th May 1988 and 1st March 1989. On the 16th of October 1989, he sought and obtained an order from the then President of the High Court, Mr. Justice Hamilton, permitting him to withdraw the existing Statement of Claim and to substitute a new Statement of Claim. Accordingly, on the 6th of November 1989, a fresh Statement of Claim was filed in lieu of service. I will call this statement of claim the “November 1989 Statement of Claim”. This was a very lengthy document running to 13 pages, and included a claim not simply for the alleged difference between the amount he received and what he contended he was entitled to for the reactors which were slaughtered , but also very substantial damages alleged to be consequential, and also for exemplary damages. The proceedings now named as defendants a large number of additional bodies including the Ombudsman, ERAD, the Irish Farmers’ Association and a number of members of that association. It does not appear that any order was ever obtained joining these parties as defendants although nothing turns on this. The claim in the Statement of Claim repeated the relief sought in the special summons, but now also asked that a “special case” be tried in the following terms:
The Three Motions
11 On the 2nd of February 1990, the State defendants attempted to deliver their defence. However, Mr. Rooney had in compliance with the rules, written to the defendants extending the time for the delivery of a defence until the 25th of January 1990. When no defence had been delivered as of that point, he issued on the same day (the 25th of January 1990), the motion for judgment in default of defence, which was returnable for the 19th of February 1990. This is the motion for judgment which is the subject matter of the first part of these proceedings, and I will refer to it hereafter as simply “the motion for judgment”. In the meantime, a number of other parties to the proceedings, being the last named defendant, the Ombudsman, and the fifth, sixth and seventh named defendants who were the representatives of the Irish Farmers’ Association, brought separate motions to strike out the claims against them on the grounds that the November Statement of Claim disclosed no cause of action against them. All these matters came before Mr. Justice Barron in the High Court on the 19th of February 1990. There is no dispute that Barron J. acceded to both applications to strike out the portions of the claim against the respective defendants, that is the Ombudsman and the Irish Farmers’ Association parties, and refused the plaintiff’s motion for judgment on the grounds that a defence had been delivered by the time the motion came on.
12 The next step was that Mr. Rooney appealed these three orders to the Supreme Court, (Appeal No. 111 of 1990) and the case appeared to have come before the Supreme Court on the 12th of October 1990 (Griffin, Hederman and O’Flaherty JJ.). On that occasion however, the Supreme Court did not decide the appeal on the motions. Instead the court observed that the substance of Mr. Rooney’s claim was that he contended that there was no power to have a non-statutory or extra-statutory scheme. In his special summons he had sought the trial of a special case on this point, and accordingly the Supreme Court decided to adjourn the hearing of the appeal on the motions and ordered that that special case be tried. Two things should be noted at this point. First, Mr. Rooney told this Court that Mr. Justice Costello in the High Court had previously (on the 30th July 1990) refused to direct the hearing of a special case and that accordingly the head note to the reported decision of the Supreme Court was wrong in suggesting that Mr. Justice Costello had adjourned Mr. Rooney’s application for a special case. There is some secondary evidence of this in the papers, in that in separate proceedings there is a reference by Mr. Rooney to the terms of an order of Costello J. of 30 July 1990 (but not the order itself). However, this is not relevant to anything this Court has to decide, not least because Mr. Rooney clearly had sought the hearing of a special case, and was happy to have it determined in accordance with the Supreme Court order. Second, there seems little doubt, that the order of the Supreme Court of the 12th of October 1990, was made to accommodate Mr. Rooney in the hope of short circuiting proceedings that were clearly already becoming over elaborate. A lay litigant, particularly with limited resources, could find themselves caught in a procedural net, and the subject of motions and orders for costs, which might ultimately prevent the substance of the case getting to hearing. Here it seems the court sought to cut to the heart of the case and ensure that it was dealt with at an early stage and resolved one way or another. If Mr. Rooney succeeded, then he would get a remedy, and if he lost, then at least he would know the outcome promptly. There was nothing to be gained from Mr. Rooney’s point of view in pursuing the hearing of the appeals on the motions. They were only holding up the trial of the case. It was virtually certain that the court would have to uphold the order striking out the proceedings against the Irish Farmers’ Association parties and the Ombudsman, and the only question on the motion for judgment in default of defence, were the terms that the defendants would be permitted to deliver their defence, which might involve some consideration of costs, but since Mr. Rooney was a lay litigant, such expenses were minimal. Accordingly, the motions were a distraction from the case, and the order fixing the special case was in ease of Mr. Rooney. This step ensured that the issue of primary concern to Mr. Rooney was heard and determined. There is no indication if it was brought to the Supreme Court’s attention that Costello J. had refused an order fixing a special case (if indeed he did so) but even if so, the decision of the Supreme Court to direct a the hearing of a special case was at worst an informality since it was made without a formal appeal of the Costello J.'s order. Yet again however nothing turns on this aspect. Mr Rooney had been seeking the hearing of the special case, and both parties acted upon the Supreme Court and argued the special case both in the High and Supreme Courts.
The Trial of the Special Case
13 The special case came on for hearing in the High Court very shortly thereafter in January 1991, before Lavan J., who delivered a careful judgment and dismissed the claim. That decision was appealed to the Supreme Court. The appeal came on for hearing in November 1991, before a three person court, McCarthy, O’Flaherty and Egan JJ. On the 19th of December 1991, Mr. Justice O’Flaherty delivered a judgment with which the others members of the court agreed, dismissing the appeal on the special case. That judgment is reported at [1991] 2 I.R. 540. In essence, O’Flaherty J. held that the Minister was entitled to set up a non-statutory scheme. The Court could review the decision to establish such a scheme, but could only set it aside if the court was satisfied the decision was mala fides or involved an abuse of power. The Court doubted that it had the power to require the Minister to make an order under s.20 of the 1966 Act, but in any event, it certainly could not do so in the absence of proof of mala fides or an abuse of power. It was not necessary for the court to inquire whether there was any constitutional requirement to provide compensation for herd owners who have diseased animals, since even if the Minister was obliged to do so, he had done so by the terms of the non-statutory scheme which had as O’Flaherty J. put it “in effect provided for this”.
14 I have obtained the order made by the Supreme Court in respect of the special case. The key portion of the order provides:
The facts that costs were not awarded against Mr. Rooney even though he clearly failed on the appeal, is in my view of some significance. It certainly can hardly be characterised as hostility or unfairness to him, and was in fact a substantial indulgence.
The Adjourned Motions
15 Judgement having been delivered on the main issue the court then turned to deal with the motions which had been adjourned from the 12th of October 1990 and pending the determination of the special case. As might have been anticipated the decision of the court on the special case meant that these were matters of little controversy other than on the question of costs. The court dismissed the appeals against the orders striking out the claims against (1) the Ombudsman, and (2) Donal McDaid, Patrick Delaney and the IFA, and did so with costs in favour of those parties. The order in that appeal: (111/1990) is as follows:
“The Motion on the part of the Plaintiff pursuant to Notice of Appeal dated the 14th day of March 1990 by way of Appeal from (inter alia) two Orders of the High Court (Mr. Justice Barron) both made on the 19th day of February 1990 whereby this action was dismissed as against (1) the Defendants Donal McDaid Patrick Delaney and the Irish Farmers’ Association and (2) the Defendant the Ombudsman and for an Order seeing aside the said Orders and referring the relevant Motions back to the High Court on the grounds and as set forth in the said Notice of Appeal coming on for hearing before this Court this day
Whereupon and on reading the said Notice of Appeal the said Orders of the High Court (perfected on the 21st day of February 1990) the Affidavits and documents referred to in the said Orders and the report of the learned Trial Judge and on hearing the Plaintiff in person and the respective Counsel for the said Defendants
IT IS ORDERED AND ADJUDGED that the said Appeal be dismissed and that the said Orders of the High Court stand affirmed accordingly
And on the application of Counsel for the Defendants Donal McDaid Patrick Delaney and the Irish Farmers’ Association IT IS ORDERED that the Plaintiff do pay to them the costs of this Appeal when taxed and ascertained.”
16 It seems quite clear that this order only deals with the two motions brought by the respective defendants to have the proceedings struck out against them on the grounds that they were frivolous and vexatious and bound to fail. However, it appears that Mr. Rooney had access to a transcript of the oral proceedings on 19 December 1991 and was later able to refer the Supreme Court to it in proceedings which culminated in the judgment of Mr. Justice Finnegan (Unreported, Supreme Court, 9th March, 2010). I have not seen the transcript but that judgment sets out the relevant exchange. McCarthy J. who was presiding was recorded as saying:
“In the circumstances no grounds have been advanced by the plaintiff in regard to the substantial nature of these appeals as to whether or not the Ombudsman and the three defendants for the Irish Farmers’ Association should be dismissed out of the action and having established that the orders made by Mr. Justice Barron were the correct orders I will dismiss these appeals accordingly.”
O’Flaherty J. and Egan J. were recorded as agreeing. It is then stated that counsel for the State said:
“There is an appeal outstanding.”
This is clearly a reference to the motion for judgment in default of defence. McCarthy J. replied:
“I think effectively it would be better to let it stand.”
It seems clear therefore that the Court did not make a final order disposing the appeal on the motion for judgment. This is the genesis of the first issue which this Court has to deal with.
Observations on the Motion for Judgment
17 Looked at from this remove, it seems at least possible to me that this was not an error or oversight on the part of the Court (as Finnegan J. later suggested), but a well-intentioned attempt, if misguided and certainly unsuccessful as matters turned out, to allow the proceedings to expire naturally, without the further aggravation that could be caused by further hearings and orders for costs. In the light of the court’s determination of the special issue, there was no possible answer to the application brought by the defendants to strike out the claims made against them. The motion for the judgment was also redundant because the High Court and the Supreme Court had now determined the substance of the controversy between the plaintiffs and the defendant. It is true that Mr. Rooney might have argued that technically he had been entitled to bring the motion, and therefore should recover costs, even if there could be no question of entering judgment against the State defendants. However, Mr. Rooney was representing himself, and therefore at most could have recovered expenses and would not have been entitled to a professional fee, if the matter had been pressed to its logical conclusion. On the other hand, it would then be difficult to argue that all matters should not be pressed to their logical conclusion and an order for costs made on the substantive appeal in favour of the Minister and the matter returned to the High Court for an application to enter judgment in favour of the State parties with consequential costs. Certainly given the fact that Mr. Rooney had been unsuccessful on the main appeal, the overall cost outcome on 19th December 1991 was favourable to him.
18 All of this is however necessarily speculative. Nothing happened in relation to the uncompleted motion for a very long time. Eventually in 2009 the matter came before the Supreme Court again, and Finnegan J. delivered judgment on the 9th of March 2010, (Hardiman and Macken JJ. concurring). Having recorded his conclusion that the motion for judgment remained outstanding, he continued:
Once again, this determination was favourable to the plaintiff. Even though it seemed clear that no useful order could be obtained by the plaintiff at this point, nevertheless if he was insisting on a hearing of his entitlement to claim judgment in default of defence, then that should be permitted. It is pursuant to this determination and order that the motion for judgment aspect of this matter comes before this Court for determination. It is however regrettable that further delays occurred before it was heard. That may have been due, at least in part, to the fact that other proceedings were being agitated at the same time.
The Next Steps in the Substantive Proceedings, 1987: No 1120 Sp
19 In the immediate aftermath of the decision of the Supreme Court on the 19th of December 1991, the parties did not take any step to bring the matter back before the High Court to have any final order made in the proceedings. It does seem clear that on the pleadings as they stood as of that point, there was nothing of substance left to be determined. While there was a claim for damages, that claim was clearly contingent and consequential on the core issue which had already been extracted and determined by the decision of O’Flaherty J. for the Supreme Court on the 19th of December 1991, and whether Mr. Rooney agreed with it or not, that much certainly had been determined.
20 Mr. Rooney did not apply to have the motion for judgement appeal dealt with. Instead he pursued a number of other issues. It appears that Mr. Rooney brought an application to the Supreme Court to have the two appeals— 111/1990 (the procedural appeals including the motion for judgment and the striking out rulings), and 224/1991 (the decision on the special case)) reheard by a court of five. There could be no question of any such order being made, and in due course the application was dismissed. The plaintiff then sought to have an issue referred to the European Court of Justice. It appears that on the 27th of July 1992, Costello J. in the High Court refused this order. Again, the order is not in the papers supplied to this Court but the matter is referred to in a number of the chronologies submitted by Mr. Rooney. If Costello J. did refuse to make a reference - and I am prepared to accept that he did - then he was entirely correct to do so, as at that stage it could not be said that on the pleadings as they stood that any issue of European law was raised. Thereafter, in 1994, it appears that Morris P. made no order on a motion brought by Mr. Rooney for directions whether his action had been fully determined by the delivery of the judgment of the Supreme Court on the special case proceedings. Again, there is no record of this order among the papers, but I am prepared to accept the reference in Mr. Rooney’s chronology for present purposes. It is not clear what argument was made on this motion by either party, but the fact that the application was brought by Mr. Rooney does give some indication of Mr. Rooney’s thinking as of that point as to what, if anything, was left in the proceedings 1987 No. 1120 Sp. Court 6.
Commencement of Rooney No 2: The 1995 Proceedings
21 There followed a reasonably lengthy period during which nothing occurred in relation to the 1987 proceedings. In fact, and unfortunately, it appears that in 1994 a further issue arose in relation to Mr. Rooney’s herd. When after testing it appeared that one animal may have been a reactor, Mr. Rooney refused to move the reactor in accordance with the regulations, and insisted that he was entitled to compensation under the 1966 Act. This, as was subsequently pointed out, was directly contrary to the outcome of the decision in Rooney No 1. Whatever arguments he might wish to make about the correctness or comprehensiveness of the 1987 proceedings, it certainly had decided that he was not entitled to compensation under the 1966 Act. That decision was final. Nevertheless there followed a very distressing stand off when the health of the cattle was put at risk. Eventually Mr. Rooney commenced proceedings in 1995 against the State parties which has been referred to as “Rooney No. 2”. That was a comprehensive challenge to the non-statutory scheme and involved oral evidence and a ten day hearing but which only came to trial ten years later in 2004. I will return to the detail of those proceedings later at the appropriate point in this account.
22 Six years after the incident with his herd which gave rise to the Rooney No. 2 proceedings, the plaintiff once again applied in July 2000 to the Supreme Court to set aside the order of the Supreme Court in the proceedings 111/1990 (the three procedural motions) and 224/1991 (special case determination). That was heard by the Supreme Court on a two day period on the 4th and 5th of July 2000. This was now the second time (at least) Mr. Rooney had sought to set aside the determination of the Supreme Court on the 19th December 1991. On the 23rd of October 2000, the Supreme Court delivered a judgment rejecting the application.
The Motion to Amend the Statement of Claim is issued: January 2001. An ‘Isaac Wunder’ Order is made in Supreme Court.
23 Having failed to have the decision of the Supreme Court set aside Mr. Rooney brought a motion in January 2001 to amend the November 1989 Statement of Claim. (Jumping ahead somewhat for the purposes of identification, this was the motion which was eventually heard in the High Court in 2010, and the appeal from the High Court decision is the second issue in the present application.) This was now ten years since the Supreme Court had delivered judgment on the special case.
However, that motion was not proceeded with at the time. Instead on the 12th March 2001, Mr. Rooney brought an application to the Supreme Court seeking to have the decision of the Supreme Court on appeals 111/1991 and 224/1991 set aside on the grounds apparently that he contended that the Supreme Court had been in error in directing the trial of a special case on the plaintiff’s action when the facts were disputed. This was a challenge to the order of the 12th of October 1990 made by Griffin, Hederman and O’Flaherty JJ., and was clearly yet a further, and even more futile attempt, to undermine the judgment of the Supreme Court on the special case issue. The order of 12th October 1990, was clearly a final order. Moreover it granted relief which Mr. Rooney had sought, and was acted on by him, the other parties, the High and Supreme Courts. No purpose could be served by entertaining the application to seek to set aside an order directing the hearing of a special case which had been heard, determined and appealed, all more than a decade previously. Moreover , only the previous year the Supreme Court had refused to set aside the decision in the special case The Supreme Court in due course dismissed the application on the 5th of October 2001 and made an order restraining Mr. Rooney from “taking any further step in these proceedings other than in relation to the taxation of costs whether in the High Court or this Court except with the leave of this Court such leave to be sought by application in writing made to the registrar of this Court”. This is an order popularly known as an Isaac Wunder order. The courts only make such orders with considerable reluctance. The order in this case only related to the current proceedings, and only restrained Mr. Rooney from taking a further step in the proceedings without leave of the Court. Thereafter, perhaps as a result of this order, things went quiet in the 1987 proceedings, and Mr. Rooney seems to have turned his attention and energies to the 1995 proceedings.
The High Court hears Rooney No 2, the 1995 proceedings.
24 In 2004 Mr. Rooney’s claim in relation to the events of 1993-1996 came on for hearing before the High Court. Evidence was called and there was a full hearing of the claim. The proceedings were at hearing for ten days. On the 13th of July 2004, Ms Justice Laffoy delivered a 59 page judgment which dismissed the plaintiff’s claims. While the hearing before this Court on 9 December 2015 with which this judgement is concerned with only involves matters in the 1987 proceedings, a number of the matters in the 1995 proceedings are relevant to these present proceedings. In the first place, the Statement of Claim in Rooney No. 2 is helpfully recorded in the judgment of Laffoy J. It shows that the claim as formulated was closely connected to the 1987 proceedings. He sought to include the Statement of Claim in Rooney No.1 in the 1995 proceedings, along with a further set of proceedings (the 1993 proceedings). The Statement of Claim provided as follows:
“1. The Plaintiff is a Farmer. The first, second and third Defendants are actively involved in the government through the workings of the government or in the offering of legal advice to the government.
2. The statement of claim delivered on the 6th day of November, 1989 by John Rooney in Rooney v. The Minister for Agriculture and Food [1987] No. 1120 Sp. Ct. 6 is included in this statement of claim (copy duly signed, annexed to same).
3. Statement of claim delivered on the 2nd day of March, 1993 by John Rooney in Rooney v. The Minister for Agriculture and Food 1993 No. 706P is included in this statement of claim (copy duly signed, annexed to same).
4. That the Bovine TB Eradication Scheme is being operated, contrary to Bunreacht na hÉireann, contrary to the law of the European Union and Directives 64/432/EEC (as amended); 77/391/EEC, contrary to the European Convention for the Protection of Human Rights and Fundamental Freedoms and, mal fides is specifically alleged.
5. That the Bovine TB Eradication Scheme as operated under the Bovine Tuberculosis (Attestation of the State and General Provisions) Order, 1989, is being operated contrary to the objectives of the Diseases of Animals Act, 1966 (a consolidating Act) and further that the Bovine Tuberculosis (Attestation of the State and General Provisions) Order, 1989, is ultra vires the Disease of Animals Act, 1966 and, that mala fides is specifically alleged.
6. The Plaintiff's cattle herd has been unlawfully restricted from the 7th day of April, 1993 and, mala fides is specifically alleged.
7. That the Defendants, their servants or agents have maliciously interfered with and damaged the Plaintiff's farming business causing loss and damage and further that the Plaintiff has been deprived of the peaceful enjoyment of his possessions contrary to Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
8. That the Defendants, their servants or agents have breached the Plaintiff's constitutional right to privacy in their manner of dealing with and passing of private and confidential sensitive constitutional communications dated 8th March, 1994.
9. That the Defendants, their servants or agents have damaged the Plaintiff's reputation causing loss and damage.
10. That the Defendants, their servants or agents have trespassed upon the Plaintiff's property and chattels causing loss and damage.
AND THE PLAINTIFF CLAIMS
(1) For loss and damages suffered at the hands of the Defendants, their servants or agents.
(2) Damages for Defendants, their servants or agents breaching of the Rule of Law.
(3) Costs: being time and monies expended in preparing for litigation.”
25 A number of points may be made about this Statement of Claim. First, the 1987 proceedings referred to are Rooney No.1, and the proceedings with which this Court is concerned on these applications. The judgment of Laffoy J. records that Mr. Rooney informed the Court that the 1993 proceedings referred to in paragraph 3 were no longer in existence. It is also important that the plaintiff’s claim however formulated, was one for damages. Finally, it was specifically pleaded and claimed in general terms that the scheme was contrary to the Constitution and contrary to the law of the European Union and specifically Directive 64/432/EEC and 77/391/EEC. No particulars were sought of these pleas, and accordingly the argument was not restricted in any narrow way. Indeed, as Finnegan J. later observed in his judgment on the appeal delivered on the 18th of November 2010, the argument ranged over issues which had been determined in Rooney No. 1. As he stated:
“In what can only be regarded as a significant concession to the appellant the learned trail judge dealt with matters which were clearly res judicata.”
26 Laffoy J. herself observed at page 41 of her judgment that the defendants had met the case by endeavouring to deal with all the submissions made by the plaintiff:
