Section 3 of the 2003 Act Flashcards
Section 3
Allows a litigant to claim damages in the Irish courts for a breach of the Convention by organs of the state.
What is the relevance of Section 1 to Section 3?
Sets out important definitions
Organ of the state = any tribunal or other body which is set up by law or through which any of the legislative, executive or judicial functions of the State are exercised
DOES NOT INCLUDE the President, the Oireachtas or the Courts
Is Section 3 qualified?
Yes
It is “subject to any statutory provision or rule of law”
If an organ in the state HAS to act in a certain way because of a statutory provision or rule of law, then you can’t claim damages under this section
What does Section 3 say?
(1) every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions
(2) A person who has suffered injury, loss or damage may, IF THERE IS NO OTHER REMEDY, seek damages
(3) the amount receivable observes the normal limit of that Court
(Circuit or High)
(5) The contravention cannot have arisen more than 1 year before the start of proceedings, but can be extended
- this limit is extremely short, no case law on what circumstances the Court will extend the time limit
Thus, what 3 conditions must be met for a claim brought under section 3 to be successful?
- The Court must be satisfied that an organ of State actually breached the statutory duty created by s 3(1)
- Breach must have resulted in loss, injury or damage
- No other remedy can be available - i.e. there is no remedy available in tort, contract or breach of Constitutional right
(but can be more than cause of action, Court decides which is the most appropriate head of recovery)
Does Section 3 have retrospective effect?
No
It is not possible for a claimant to seek damages for alleged breaches of s 3(1) which occurred prior to December 31st 2003
At first there was some room for legal argument
Lelimo v. Minister for Justice [2004]
But now, it is definitive that you cannot take a claim for a breach which occurred before 31st December 2003
Dublin City Council v. Fennell [2005]
This is the case even if there was a continuing violation which continued until after 31st December 2003 - the Oireachtas intended for the Act to have prospective effect only
Byrne v. An Taoiseach [2011]: Monaghan bombing
What are the remedies available under Section 3?
There is no clear answer here - the case law is mixed on a definitive answer.
- Damages
- Orders of certiorari in judicial review proceedings
- Interlocutory Injunctions
Remedy 1: Damages
Undoubtable
O’Donnell v. South Dublin County Council [2007]
- only remedy for s 3 is damages
- Traveller children suffering from Hurler’s syndrome, only remedy damages so Court used value of a new caravan (€58,000)
Pullen v. Dublin City Council (No 2) [2009]
- Irvine J:
only remedies available are damages
OR
a declaration of incompatibility with or without an ex gratia payment
Remedy 2: Orders of Certiorari
Combination of Convention and Constitutional rights have been used to ground orders of certiorari in judicial review proceedings
Dimbo v. Minister for Justice [2008]
O’Donnell v. South Dublin County Council [2008]
Edwards J did not consider himself limited to damages because the proceedings had been brought by way of judicial review
Remedy 3: Injunctions
Byrne v. Dublin City Council [2009]
High Court concluded that it would be open to the Court to grant a perpetual injunction restraining the respondent from possessing the applicant’s home if that action would be a violation of her Convention rights.
Interlocutory Injunction granted
What are the obstacles to achieving your claim under section 3?
- Not able to establish breach of duty – perhaps because statute meant that the body had to act in that way
- No injury, loss or damage
- Alternative remedies exist
- You are outside the time limit for bringing claims (1 year)
- Your claim relates to things that happened before the 2003 Act entered into force on 31st December 2003.
Section 3A
Article 5(5) of the ECHR requires that States provide for an enforceable right to compensation for a person whose detention is found to be in breach of Article 5(1) as a result of a judicial error .
SO:
Section 3A allows for a person to seek compensation after obtaining a finding in Superior Court proceedings that they have been unlawfully deprived of their liberty as a result of a judicial act.
Does the judicial act have to be mala fides?
No
Judicial act can also be one that was taken in good faith, but in excess of jurisdiction.
In what Court can proceedings under Section 3A be brought?
Is there a time limit to bring the case?
The Circuit Court - damages are limited according to how much the litigant would have received in the ECtHR
1 year time limit - but extension possible
