''Byrne v. Ireland'' (1972) was a case decided by the

Supreme Court of Ireland , image = Coat of arms of Ireland.svg , imagesize = 120px , alt = , caption = Coat of Arms of Ireland , image2 = Four Courts, Dublin 2014-09-13.jpg , imagesize2 = , alt2 ...

that is important because it abolished the immunity of the state in

tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...

, meaning that the state could be

sued - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...

for the actions of its servants. The case also determined that the

Attorney General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...

was the appropriate party to represent the state in these tort cases.

Facts of the case

The

plaintiff A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the p ...

(Miss Kathleen Byrne) was walking on a footpath outside her home in Co. Wicklow on September 18, 1965, when it subsided causing her an injury; a cable-laying team from the

Department of Posts and Telegraphs The Minister for Posts and Telegraphs ( ga, Aire Poist agus Telegrafa) was the holder of a position in the Government of Ireland (and, earlier, in the Executive Council of the Irish Free State). From 1924 until 1984 – when it was abolished � ...

had been working on the sidewalk. Byrne sued the "People of

Ireland Ireland ( ; ga, Éire ; Ulster Scots dialect, Ulster-Scots: ) is an island in the Atlantic Ocean, North Atlantic Ocean, in Northwestern Europe, north-western Europe. It is separated from Great Britain to its east by the North Channel (Grea ...

" and the Attorney General for

negligence Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...

breach of statutory duty A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...

and

nuisance Nuisance (from archaic ''nocence'', through Fr. ''noisance'', ''nuisance'', from Lat. ''nocere'', "to hurt") is a common law tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public (also "common") ...

as a result of the actions of the state's servants. After an intervention by the Chief State Solicitor, "Ireland" was substituted for the "People of Ireland" in the action. The case originally went to the High Court in 1968, which dismissed the plaintiff's case with Murnaghan J. holding that Article 5 of the

Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed. When ...

, where the

sovereignty Sovereignty is the defining authority within individual consciousness, social construct, or territory. Sovereignty entails hierarchy within the state, as well as external autonomy for states. In any state, sovereignty is assigned to the perso ...

of the state is asserted, precludes actions where the state would be a

defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisdic ...

. The case then proceeded on appeal to the

Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...

where it was considered in 1969 and the majority decision of the Supreme Court was delivered on 30 July 1971. The judge presiding in the High Court was Murnaghan J. and the Supreme Court justices were Walsh J., Budd J., Fitzgerald J., O'Keeffe, J. and Chief Justice O'Dalaigh. The Supreme Court found that the state was a

juristic person A juridical person is a non-human legal person that is not a single natural person but an organization recognized by law as a fictitious person such as a corporation, government agency, NGO or International (inter-governmental) Organization (such ...

and therefore could be sued, and was

vicariously liable Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, ''respondeat superior'', the responsibility of the superior for the acts of their subordinate or, in a broader sense, the resp ...

for the actions of its servants. Therefore, the Court found in favour of Byrne. Helen Whately of the office of the

Director of Public Prosecutions The Director of Public Prosecutions (DPP) is the office or official charged with the prosecution of criminal offences in several criminal jurisdictions around the world. The title is used mainly in jurisdictions that are or have been members o ...

summarized the court's findings:

The High Court

The plaintiff argued the following points: # The state is a juristic person # The acts of the state can only be carried out through its

agent Agent may refer to: Espionage, investigation, and law *, spies or intelligence officers * Law of agency, laws involving a person authorized to act on behalf of another ** Agent of record, a person with a contractual agreement with an insuranc ...

s # The state cannot be immune from laws internal to Ireland, and is not above the law # The state is subject to the constitution # The injuries suffered by the plaintiff resulted from the negligence of agents of the state. The judge specified that where Ireland is mentioned in the constitution, it is also used interchangeably with the state, and referred to the national territory, but not the people of Ireland. The judge laid out that while Ireland has the characteristic of juristic personality (based on judgments in ''Comyn v Attorney General'', and ''Commissioners of Public Works v. Kavanagh'') because it holds property, it does not mean that it is "a juristic person capable of acting in every regard, and in all respects, as if were a company or a corporation; or that it is capable of being sued in the Courts" (Murnaghan, J, 1972:250). The judgment in the ''Carolan v. Minister for Defence'' case was that there could be no vicarious liability owing to the Minister for Defence due to the negligence of his driver because they were fellow servants. The judge did address the issue of the Civil Liability Act (1961) which seemed to acknowledge that the state could be sued, but differentiated the point by asserting that one of the organs of the state (in this context, the Minister for Finance) could be sued without implying the loss of legal immunity to the state. Murnaghan J. did not leave the plaintiff without reference to a legal remedy open to her, which was to seek damages from the individuals involved in the case. In conclusion, the plaintiff's case was rejected by the judge as he submitted that the sovereignty of Ireland (re Article 5) provided state immunity. In her appeal to the Supreme Court, counsel for the plaintiff argued that the immunity enjoyed by the Crown did not survive the 1922 Constitution, and therefore the people (or the state) could not have inherited that

royal prerogative The royal prerogative is a body of customary authority, privilege and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign and which have become widely vested in th ...

The Supreme Court

The judgments came from Walsh J., Budd J. and (dissenting) Fitzgerald J. Walsh J. disagreed with the High Court judge's interpretation of Article 5 in the constitution to support the argument that the state enjoyed immunity, with the implicit understanding that the state is above the law. The judge went on to say that the Constitution establishes the role of the

Oireachtas The Oireachtas (, ), sometimes referred to as Oireachtas Éireann, is the Bicameralism, bicameral parliament of Republic of Ireland, Ireland. The Oireachtas consists of: *The President of Ireland *The bicameralism, two houses of the Oireachtas ...

to make laws and for the judiciary to administer the law and these roles of two organs of the state would not require the state to be above the law. Budd J. refers to Article 1 in the constitution which enshrines the nation with the right to select a specific form of government; and asserts that Article 5 means that the

government A government is the system or group of people governing an organized community, generally a state. In the case of its broad associative definition, government normally consists of legislature, executive, and judiciary. Government is a ...

is subject to the powers given to people in the constitution. Furthermore, Walsh J. states that it is not required that immunity from

litigation - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...

should be an ingredient of being a sovereign state. Budd J. stated that the Constitution helps to provide rights and remedies for people, and that if the drafters of the constitution intended the state to have immunity, this would have been explicitly stated in the constitution, as can be seen in Article 13, relating to the immunity of the

President President most commonly refers to: *President (corporate title) *President (education), a leader of a college or university *President (government title) President may also refer to: Automobiles * Nissan President, a 1966–2010 Japanese ful ...

. Budd J. asserts that as the

king King is the title given to a male monarch in a variety of contexts. The female equivalent is queen, which title is also given to the consort of a king. *In the context of prehistory, antiquity and contemporary indigenous peoples, the tit ...

departed with the establishment of the Irish Constitution, any '

feudal Feudalism, also known as the feudal system, was the combination of the legal, economic, military, cultural and political customs that flourished in Middle Ages, medieval Europe between the 9th and 15th centuries. Broadly defined, it was a wa ...

' assumptions of legal immunity have also disappeared. Budd J. stated that if Ireland is a juristic person (as established in ''Comyn v Attorney General'' and ''Commissioner of Public Works v Kavanagh)'' then

prima facie ''Prima facie'' (; ) is a Latin expression meaning ''at first sight'' or ''based on first impression''. The literal translation would be 'at first face' or 'at first appearance', from the feminine forms of ''primus'' ('first') and ''facies'' (' ...

there would appear to be no reason why the state cannot be sued, as with any juristic person. Fitzgerald J. dissented from the judgment of the Supreme Court. In conclusion, the court found that the state could be sued and specified that the Attorney General was the appropriate party in such legal proceedings.

Conclusion

This is a landmark case in Ireland, with the profound implication as stated by Osborough (1976): "The immunity of the State in tort had been given its

quietus Titus Fulvius Junius Quietus (died 261) was a Roman usurper against Roman Emperor Gallienus. History Quietus was the son of Fulvius Macrianus and a noblewoman, possibly named Junia. According to ''Historia Augusta'', he was a military tribune ...

" and the concerns of the judge in the High Court about the risks of Ministers and their servants being held liable for errors indicates how significant the subsequent ruling in the Supreme Court was. Judicial acts would seem to be protected with immunity by

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

rules and the constitution. The judgment in ''Byrne v Ireland and the Attorney General'' also reinforced and extended the existing

tortious A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...

liability of the State relating to road accidents caused by agents of the state in publicly owned vehicles in the Civil Liability Act (1961). The historical context of the landmark decision is captured in Binchy's (2016) characterisation of it as marking the emerging nature of the Irish state as a servant of its people rather than a repository of sovereign rights and immunity inherent in the Crown.

External links

''Byrne v. Ireland''

972 Year 972 ( CMLXXII) was a leap year starting on Monday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * Spring – Emperor John I Tzimiskes divides the Bulgarian territories, recent ...

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References

{{Reflist __FORCETOC__ Law of the Republic of Ireland Republic of Ireland constitutional case law Supreme Court of Ireland cases 1972 in case law