The Gazette 1991

g a z e t t e

april

1991

entering into any foreign agreement or treaty in the future, will always have to look over its shoulder to see whether the treaty or agreement would be approved of by the Sup- reme Court, or to be precise, by the particular persons who happen at the relevant time to be members of the Supreme Court. The issue of the quantum of damages for personal injuries resulting from negligence is a very live issue. It has been the subject of a number of leading cases in the Supreme Court dealing with the amount to be awarded for general damages for pain and suffering, and in dealing with compensation for future loss of earnings and future expenses consequent on incapacity and injury. The Supreme Court has endeavoured to f i nd general principles which would guide judges to consistency of assessment. It may be that the recent substitution of a judge for a jury in the High Court will, by reason of the personal reaction and sensitivity of individual judges to similar circumstances, add a new variant. This is an area in which Mr. Justice Griffin has played a very prominent role. He delivered the majority judgment of the Court in Reddy -v- Bates [1983] IR 141 in July, 1983, and again the majority judgment on the damages issue in Cooke -v- Walsh [1984] ILRM 208, in March, 1984, reiterating and applying the principles laid down in Reddy -v- Bates. He also delivered the majority judgment in Griffin -v- Van Raaj[ 1985] ILRM 582, in July, 1985, enunciating similar principles. These judgments present a bal- anced and commonsense approach to a difficult subject. When Mr. Justice Griffin retires he will be judged by his own judgments. The quality of these judgments was high. They were the product of re- search, care and preparation, and independence of view. The judg- ments also had the merit of con- sistency in legal principle, which nevertheless did not inhibit the exercise of charity where required by the justice of the case. In manner on the bench he was always gentle, and never overbearing. He will be missed. Everyone who had the honour of knowing him will wish him a long and happy retirement. T. KEVIN LISTON, S.C * * T. Kevin Liston, S.C. is currently "Father of the Irish Bar" and one of its preeminent members over the last 50 years, it is an added tribute to Mr. Justice Frank Griffin that Kevin Liston should be the colleague-in-law who presents this retrospect. •

Donoghue Stephenson, Purtill's case could be said to be restorative rather than revolu- tionary". I refer to these parts of the judgment to illustrate that from the very early period in the Supreme Court Mr. Justice Griffin's judg- ments were the result of thorough and careful research, and of intellectual exercise at a high level. Throughout his career on the Supreme Court he maintained a remarkable consistency in his approach to legal issues, adjusted to the changing facts of life such as the level of damages. He was a just judge and a lawyers' judge, but he always, and possibly deliberately, maintained a low profile in that he never hit the headlines wi th any startling pronouncements. As an illustration of Mr. Justice Gr i f f i n 's cons i s t ency in legal matters, it is interesting to look at t wo cases, one being Bo/and-v- An Taoiseach & Others [1974] IR 338 and the other being his later j udgment in Crotty -v- An Taoiseach & Others [1987] IR 713. Bo/and's case was a challenge to the Sunningdale Agreement and a claim for an injunction restraining the Government from implement- ing any part of what was set out in the joint communiqué issued on the making of the Agreement. Crotty's case related to the action of the Government in relation to the Single European Act generally, and particularly in relation to Title III of the Treaty. In the Boland case Mr. Justice Griffin delivered a very clear judgment relating to the separation of powers under the Constitution. In both cases an issue arose as to the right of the Court to restrain the Government in the exercise of its jurisdiction relating to foreign affairs. Article 29.4.1 of the Constitution provided that the executive power of the State in connection with its external relations has, in accordance with Article 28, to be exercised by or on the authority of the Govern- ment. Article 29.5 provides that every international agreement to which the State becomes a party shall be laid before Dail Eireann, and provides that the State shall not be bound by any international agree- ment involving a charge upon public funds unless the agreement has been approved by Dail Eireann. Article 29.6 provided that no inter- national agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas. Article 6 provides that -v-

all powers of Government, legislative, executive and judicial, derive under God, from the People, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy accord- ing to the requirement of the com- mon good. Article 6.2. provides that those powers of Government are "exerciseable only by or on the authority of the organs of State established by this Constitution". In Crotty's case t he same principles were again laid down by Chief Justice Finaly, and by Mr. Justice Griffin. The majority of the Supreme Court (Walsh, Henchy and Hederman JJ). decided to the contrary. In the course of his majority judgment, Walsh J. said: " The foreign policy organ of the State cannot, within the terms of the Constitution, agree to impose upon itself, the State, or the People, the contemplated restrictions upon freedom of action. To acquire the power to do so would, in my opinion, require recourse to the People 'whose right it is', in the words of Article 6, 'in final appeal to decide all questions of national policy according to the require- ments of the common good'. In the last analysis it is the People themselves who are the guard- ians of the Constitution". Henchy, J., in his separate majority judgment, said: " I t follows that the common good of the Irish People is the ultimate standard by which the Constitutional validity of the conduct of foreign affairs by the Government is to be judged. In this, and in a number of other respects throughout the Con- stitution, the central power of the common good of the Irish People is stressed as one of the most fundamental character- istics of Ireland as a sovereign, independent, democratic State". It is arguable that the majority decision did not pay due respect to Articles 29 and 6 of the Con- stitution, particularly to Article 6.2 which provided that the powers of Government are exerciseable only by or on the authority of the organs of State established by this Con- stitution. On the view of the Chief Justice and Mr. Justice Griffin political matters were left in the hands of politicians, and the Govern- ment was responsible to Dail Eireann. It may be that, as a result of the Supreme Court decision in Crotty's case, the Government, in

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