Law term preview: busy period expected as courts deal with new litigation

Convicted murderers Graham Dwyer and Patrick Quirke will seek to overturn their convictions in separate appeals set for hearing in the new law term opening next month.

Another high-profile appeal involves Boy B, one of two teenagers convicted in connection with the murder of schoolgirl Ana Kriégel in a derelict house in west Dublin four years ago.

Gerard The Monk Hutch and a former Sinn Féin councillor, Jonathan Dowdall, face trial on October 3rd before the non-jury Special Criminal Court on charges in connection with the murder of Kinahan gang member David Byrne at the Regency Hotel on Dublin’s northside in February 2016.

A separate case in October involves a High Court application by the Criminal Assets Bureau (Cab) against Daniel Kinahan and Thomas Bomber Kavanagh for orders aimed at seizing a luxury mansion in west Dublin for the State as allegedly representing the proceeds of crime.

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Kinahan, believed to be in Dubai, and Kavanagh, who is serving a 21-year sentence in England on £30 million (€34.33 million) drug importation charges, have so far not indicated any intention to participate in the hearing. Cab previously told the court it believes both play leading roles in the Kinahan crime cartel.

The bureau claims information from a protected witness indicates businessman Jimmy Mansfield junior gave the property at 10 Coldwater Lakes in Saggart, Dublin to the cartel as part repayment for a failure to make property investments with some €4.5m cash the gang gave him in 2009.

Cab believes the property came under the effective control of Daniel Kinahan sometime after 2014 and says there was evidence of his residing there when it was raided by gardaí in early 2015.

Jimmy Mansfield jnr and his brother Patrick Joseph Mansfield previously consented to orders waiving any claim against the property.

This law term will mark a return, after some two years of Covid-19 restrictions, to business as usual in the civil and criminal courts. A range of court lists, and some applications, will continue to be dealt with remotely or via hybrid, mixed remote and physical, hearings.

A busy term is expected as the courts will have to deal with new litigation while continuing to try to clear a backlog of cases, particularly affecting criminal trials and family law cases, exacerbated by the Covid-19 pandemic.

Waiting times have been substantially cut in the Court of Appeal which will on October 5th hear an appeal by Boy B, one of two boys convicted in June 2019 of Kriégel’s murder. A Central Criminal Court jury had accepted the prosecution case that Boy B lured her to a derelict house in St Catherine’s Park in Lucan, Dublin, in May 2018 so that his friend, Boy A, could murder her. Boy A was also convicted of Kriégel’s aggravated sexual assault in a manner that involved serious violence.

Both boys were aged 13 at the time. Boy B denied any part in the murder and his lawyers argued at the trial that he was an innocent bystander. He was sentenced to 15 years of detention, to be reviewed after eight.

Boy A was sentenced to life imprisonment with a review after 12 years and eight years imprisonment for aggravated sexual assault. No appeal has been lodged on Boy A’s behalf.

Kriégel’s body, naked apart from a pair of socks, was found by gardaí in a derelict farmhouse, Glenwood House, Laraghcon, Clonee Road in Lucan, on May 17th, 2018. She was reported missing by her parents three days earlier.

Meanwhile, in the Central Criminal Court on October 4th, a Co Mayo man is due to go on trial charged with the murder of 49-year-old Colm Horkan, a Detective Garda, in a shooting incident in Co Roscommon in 2020.

Stephen Silver (45), of Aughaward, Foxford, denies the charge of murder of a member of An Garda Siochána acting in the course of his duty, knowing that, or being reckless as to whether he was a member of the Garda acting in the course of his duty, at Main Street, Castlerea, Co Roscommon, on June 17th, 2020.

In December, James Kilroy (48) is due to go on trial at the Central Criminal Court on a charge of murdering his wife, Valerie French Kilroy (41), a mother of three, at their home at Kilbree Lower, Westport, Co Mayo, in June 2019.

On October 25th, Patrick Quirke will appeal to the Supreme Court to overturn his 2019 conviction for the murder of DJ Bobby Mr Moonlight Ryan (52) at Fawnagowan, Co Tipperary.

Quirke, of Breanshamore, Co Tipperary, had denied the murder of Mr Ryan who went missing on June 2nd, 2011, after leaving his partner Mary Lowry’s house early that morning. His body was found almost two years later in an underground run-off tank on a farm owned by Ms Lowry which had been leased by Quirke.

Quirke lost an earlier appeal to the Court of Appeal against his conviction but the Supreme Court agreed to hear a further appeal to address legal issues concerning the validity of search warrants and the use of expert witnesses.

On December 1st, the Court of Appeal will hear Graham Dwyer’s appeal against his 2015 conviction for the murder of childcare worker Elaine O Hara in 2012.

Mobile phone metadata concerning Master and Slave phones played a major role in securing that conviction and Dwyer is expected to heavily rely on a 2018 High Court declaration that a provision of the 2011 law allowing metadata retention here on a general and indiscriminate basis without necessary safeguards and independent oversight breached EU law.

The delay in hearing Dwyer’s criminal appeal was mainly due to a State appeal over that High Court declaration. Following a judgment earlier this year of the Court of Justice of the EU endorsing the High Court decision, the State conceded its appeal, clearing the way for Dwyer’s criminal appeal to proceed.

A significant civil appeal lodged with the Court of Appeal could have a major impact on the future conduct of personal injury litigation in the courts.

Bridget Delaney, from Dungarvan, Co Waterford, has appealed the High Court’s dismissal of her challenge to the constitutionality of the law paving the way for the introduction in April 2021 of new guidelines slashing awards for mainly minor personal injuries.

The rejection of Ms Delaney’s case, and of a separate challenge by Dubliner Tara Wolfe, a hospital catering assistant, concerning how the Personal Injuries Assessment Board (Piab) assessed her claim under the guidelines were perceived as a boost for insurance reform campaigners who want to see less litigation of personal injury claims and more claims resolved via Piab.

Both cases will be subject of direction hearings in the Court of Appeal this term and it is expected, given their significance, early hearing dates will be granted.

Back in the High Court, an important judgment is awaited on a challenge by former Stardust nightclub manager Eamon Butterly aimed at requiring the coroner who is conducting new inquests into the fatal fire to instruct the jury it is not open to them to return an unlawful killing verdict.

The court has heard that the Dublin District Coroner, Dr Myra Cullinane, conducted pre-inquest hearings during which the question of whether a jury could reach a verdict of unlawful killing became an issue. She refused to rule out the question of such a verdict, it is claimed.

In 2019, the then attorney general Séamus Woulfe directed that new inquests be held because there was an “insufficiency of inquiry as to how the deaths occurred, namely a failure to sufficiently consider those of the surrounding circumstances that concern the cause or causes of the fire”.

Mr Butterly and his family owned the nightclub in Artane, Dublin, when a fire broke out, leading to the deaths of 48 death people on the night of February 13th/14th,1981. His case is against the coroner, the Minister for Justice and Attorney General.

Later this term, the High Court is expected to be asked to start case managing more than 1,100 separate actions lodged on behalf of property owners over defective mica blocks. The cases are against Cassidy Brothers Concrete Products Ltd, Donegal County Council and the National Standards Authority of Ireland.

The litigation is at a very early stage but it is expected the court will be asked to hear lead cases to determine the core issues raised. A statement of claim is expected to be provided by late September.

In the Supreme Court, judgment is expected this term on an important appeal by Green Party TD Patrick Costello over the dismissal of his challenge to the planned ratification of aspects of the EU-Canada trade deal known as Ceta (Comprehensive Economic Trade Agreement).

The cases raise significant and important questions of law in respect of the State’s adherence to international treaties with binding tribunal mechanisms.

The appeal was prioritised because the proposal to ratify the Comprehensive Economic Trade Agreement of 2016 remains pending before Dáil Éireann and due to the important issues raised.

The Dublin South-Central TD brought the case on foot of concerns including the constitutionality of provisions in Ceta for “investor courts” to decide complaints by Canadians who invest in EU member states. The State, Mr Costello argued, could be made liable for damages for loss suffered by a Canadian investor as a result of Irish environmental regulation.

The ratification of Ceta would entail an unconstitutional transfer of important elements of the State’s sovereignty to institutions such as tribunals created by Ceta and a vote of the people via referendum would be required to ratify Ceta, he argued.

The High Court found Ceta will operate only at the level of international law and, as a result, its provisions could not be characterised as laws in breach of Article 15.2 of the Constitution. However, it agreed with the TD that ratification of the deal was not something necessitated by virtue of obligations of EU membership.

In agreeing to hear Deputy Costello’s appeal over that judgment, the Supreme Court said the issues raised are of general public importance which, potentially, “could have legal impact in a number of sectors”.

Significant issues regarding State sovereignty and the administration of justice are raised, it said.

A judgment of potentially far-reaching effect concerning liability for the legal costs of judicial reviews of planning decisions is also expected this term from the Supreme Court.

The appeal arose from a challenge by Heather Hill Management Company, a company of local residents, and Gabriel McGoldrick to An Bord Pleanála’s permission for a strategic housing development of 197 residential units in Bearna, Co Galway.

The High Court overturned the permission for reasons including the proposed development involved a material contravention of the Galway County Development Plan.

The High Court decided the applicants were entitled to a protective costs order (PCO) under section 50B of the Planning and Development Act, concerning entitlement to public participation in planning decisions, in relation to all the grounds of their challenge, including those not related to environmental issues.

After the Court of Appeal subsequently held the PCO applied only to environmental grounds, the Supreme Court agreed to hear an appeal against that decision due to the importance of the legal issues raised. The core issue is the correct approach to be taken by the courts in determining protective costs order applications in planning/environmental litigation.