Practice Profile
Martin Hayden SC has a broad practice covering areas of Aviation Law, Banking Law, Tax Law, Commercial Law, Employment Law, Public Procurement Law and Competition Law. He has appeared regularly in the Superior Courts of Ireland and has also presented cases in the European Court of Justice. In addition, he has appeared in Inquiries in Ireland relating to the Mahon Tribunal (Planning abuse), the Moriarty Tribunal (investigation in relation to the sale of mobile telephone licences) and in relation to both the Finlay and Lindsay Tribunals into the Irish Blood Transfusion Service Board concerning contamination of Irish haemophiliacs with Hepatitis C and HIV (in both latter Tribunals, he acted on behalf of the Irish Haemophilia Society as lead Counsel).
In addition, he has undertaken major planning inquiries; appearing on behalf of Ryanair in the oral hearings relating to the construction of Terminal 2 at Dublin Airport. Martin Hayden has a detailed and specialist knowledge of e-contracts in the context of the Aviation industry and regularly acts for the largest airline in Europe. He regularly acts for one of the largest Banks in Ireland and has also been heavily involved in financial litigation arising out of the economic collapse suffered in Ireland post-2008.
Work Undertaken
Commercial / Banking
Martin Hayden has extensive experience in all types of commercial legal cases, advising major corporations across a broad range of subjects. Notably, he has been involved in cases establishing the extent of Stockbrokers’ liability in relation to advisory and discretionary accounts, in particular in relation to CFDs; he has advised major airlines in relation to complex contractual liabilities and litigation, establishing both exclusive jurisdiction clauses and protection of database rights on the internet. He has successfully presented cases on behalf of a major airline based upon the concept of e-contracts and the applicable law in relation to the assumptions of obligations and rights by third parties accessing a company’s website.
Competition/Public Procurement
He has acted in a number of significant Competition and Public Procurement cases. In particular, he has acted in the case of Nurendale Limited t/a Panda Waste Services v. Dublin City Council on behalf of Panda Waste in a judicial review challenge based upon competition criteria relating to the organisation of the Dublin Waste Disposal Plan. The action centered on the construction of an incinerator requiring the commitment of 650,000 tonnes of waste annually and concerned the establishment of the framework by the four relevant Dublin Local Authorities with a consequent impact upon the waste collection industry. He acted on behalf of the waste industry successfully challenging and striking down the Dublin Waste Management Plan and in essence resulting in the forestalling of the construction of an incinerator in the greater Dublin area.
He has also acted in relation to two major challenges brought against the State in relation to the establishment of Framework Agreements for the provision of Managed Print Services [MPS] to the State and for the delivery of office equipment in various forms of photocopying and multifunctional devices to the State. He acted on behalf of a number of private suppliers to the market who had formerly supplied Government Departments and State bodies whom, under the intended Framework Agreements, would have been excluded from participation. He was successful in striking down the application of the State Framework Agreement for MPS and a decision is awaited in relation to the second Framework Agreement.
Aviation Law
He has appeared on a number of occasions in relation to Aviation Law and related matters. In particular, he acted on behalf of a substantial European airline in relation to its challenge to Regulation 261 before the ECJ challenging (unsuccessfully) the proportionality and application of Regulation 261 in relation to airlines’ obligations to customers arising out of the Icelandic ash cloud and the resultant closure of European airspace. Martin has also acted regularly in relation to challenges to the operation and assessment of charges by the Airport Regulator in relation to the operation of Dublin Airport. In this regard, he has been involved in a number of judicial review challenges regarding the rate of levy arising out of the operation of the regulated asset base.
Employment Law
Martin regularly appears on behalf of a number of international corporations in employment matters. In this context, on behalf of a client, he successfully challenged the Irish legislative structure in relation to requiring companies to engage with and recognise Trade Unions in employer/employee negotiations. This had the result of altering the legislative landscape radically from the point of view of mandatory Union recognition
Notable Cases
Nurendale Limited t/a Panda Waste Services v Dublin City Council [2009] IEHC 588
Martin was lead Counsel for Panda Waste with the implementation of what was known as the Dublin Waste Management Plan. The latter was a plan advanced by the four Dublin Local Authorities to establish a waste management plan that obligated the use of incineration as the chosen method for waste disposal. As part of this waste management plan the proposals were that the Local Authorities would enter into binding contracts with a venture partner to fund, build and operate a waste incinerator in Dublin. Panda Waste was and remains a substantial waste service operator that had chosen an alternative method of waste disposal in relation to landfill (segregation and so forth.) It wished, together with another operator Greenstar, (since in liquidation) to bring a case before the Competition Court challenging the authority and jurisdiction both of the Department and the Local Authorities to adopt the waste management plan and impose the mandated system. This was successful in overturning the waste management plan and eventually resulting in the collapse of the €600m project, construction of and operation of the incinerator.
Haughey v J&E Davy Stockbrokers, Bank of Ireland Mortgage Bank and Bank of Ireland [2014] IEHC 206
In this case, Martin acted on behalf of the Plaintiff who brought proceedings against Davy Stockbrokers who are the largest stockbrokers in Ireland in relation to their advices and services connected with the operation, use and liability for contracts for difference (CFDs) in relation to stock trading. This was one of the first cases in Ireland and in fact in the context of the existing English case law relating to articulating the full extent, liability and obligation of stockbrokers and whether fiduciary duties exist or there are special circumstances that may create a duty of care. In light of the financial collapse that has been the experience in Ireland since 2008, this is a significant and seminal case in the apportionment of obligation and liability for financial services advices. It involved the application of MiFiD, the stockbroking rules, obligations and trading in relation to CFDs with Cantor Fitzgerald and IG Markets. It ran for four weeks and ultimately resulted in a €2m award in favour of the Plaintiff together with costs.
CLM Properties Limited –v- Greenstar Holdings, KTK Landfill Limited and the Governor & Company of the Bank of Ireland and David Carson [2014] IEHC 178
Martin acted on behalf of CLM Properties Limited together with parallel proceedings brought by the Irish Environmental Protection Agency against the same parties relating to the collapse of the Greenstar waste operation. The matter directly in issue relates to the obligations under the Waste Directive and licensing conditions in relation to maintenance and remediation of landfill sites. This case relates to the ringfencing of funds collected by waste operators and whether and to what extent Bank charges rank in priority to any funds collected which were originally sourced for the purposes of providing a fund under a waste licence to remediate landfill sites. Whilst CLM has been unsuccessful at first instance before the Irish High Court, the matter is now before the Supreme Court with a request for a reference to Luxembourg.
Article 261 Ryanair case – Denise McDonagh v Ryanair; Case C-12/11
Martin acted for Ryanair in relation to a reference to the European Court of Justice relating to the obligations imposed upon airlines under Regulation 261 flowing from the closing down of the European Airspace during the Icelandic volcanic eruption. Whilst unsuccessful in articulating the position that the only appropriate or proper and proportionate application of the Regulation necessitated a limitation on the level of care that airlines are obliged to provide; the Court of Justice articulated in its decision its concerns in relation to the potential disproportionate nature of the differential of treatment between transport modes i.e. that land and sea transporters had both temporal and financial limitations on the level of care that was required. This has resulted in a process whereby Regulation 261 is in the process of being amended to create a proportionate response and obligations for airlines.
Michael O’ Sullivan v Canada Life Assurance Ireland Limited [2014] IEHC 217
Martin acted as lead Counsel on behalf of Michael O’Sullivan, the Plaintiff, who brought a challenge against Canada Life whereby the latter refused to transfer his pension fund within the EU to Malta. It involved the application of the provisions of Section 770 of the Taxes Consolidation Act 1977 and in particular the inter-play and entitlements arising out of the provisions of SI 716/2003 Occupational Pension Schemes and Personal Retirement Savings Accounts (Overseas Transfer Payment) Regulations 2003. The Regulations applied EU Directives relating to pension mobility. The Pension Industry in this jurisdiction had decided upon a strategy to prevent the transfer out of Ireland, within the EU, in order to prevent the outflow of funds. This case was a test case for the industry in which Martin acted for Michael O’ Sullivan and was successful in obtaining an Order establishing that there was no entitlement by Canada Life or Pension Providers to restrict free movement of pension funds within the EU subject to compliance with the appropriate EU Regulations/Directives.
Sherborough Securities Limited & Others v An Bord Plenala and Coras Iompar Eireann
Martin acted as lead Counsel for the Plaintiffs against the Irish Planning Authority and Transport Company, CIE relating to the compulsory acquisition of land for the purposes of constructing an underground railway system in Dublin. It related to the challenge by way of judicial review to what were known as Railway Orders obtained for the purposes of the DART Underground Electrified Heavy Railway Order 2011 and in particular a challenge to the seven year period permitted to CIE to exercise its entitlement. It involved a consideration of the Land Clauses Consolidation Act 1845 and the earlier pre-1921 legislation giving rise to the jurisdiction to compulsorily acquire land in this jurisdiction pursuant to Railway Orders all of which are based upon UK legislation.
Ryanair v Billigfluege and Ryanair v On the Beach; [2010] IEHC 47, [2013] IEHC 124; Supreme Court ruling given on the 20th November 2014 (written judgment pending)
In relation to both of these cases, Martin acted as lead Counsel on behalf of Ryanair in which Ryanair was bringing applications for injunctions to restrain the commercial use of its website by comparison website operators within the EU. There have been a number of substantial hearings in which Ryanair has been successful in establishing that Ireland has jurisdiction to hear the substantive hearings in circumstances whereby pursuant to the Brussels Convention, the Defendants have sought to argue jurisdiction, locus and principally whether there is a cause of action. Applying in the main the concepts that had been developed in the US and Canada; the Irish High Court has now adopted the principals and concepts of contracting on the net in parallel with the US position.
Significant Reported Cases
• Tribunal of Inquiry into the Blood Transfusion Service Board (Finlay Tribunal – 1997)
• Tribunal of Inquiry into the Infection with HIV and Hepatitis C of Persons with Haemophilia and Related Matters
(Lindsay Tribunal – 1999-2001)
• Tribunal of Inquiry into Payments to Politicians and Related Matters (Moriarty Tribunal – 2000)
• Tribunal of Inquiry into Certain Planning Matters and Payments (Flood Tribunal – 2001-2004)
• Reynolds v Elio Malocco v Murray [1999] 1 ILRM 289
• Ryanair v Labour Court and Irish Municipal Public and Civil Trade Union [2007] 1 ILRM 45
• Nurendale Limited t/a Panda Waste Services v Dublin City Council [2009] IEHC 588
• Ryanair Ltd v Billigfluege .de GMBH [2010] IEHC 47; Supreme Court ruling given on the 20th November 2014
(written judgment pending)
• McDonagh v Ryanair Ltd; Case C-12/11
• Sherborough Securities Limited & Others v An Bord Plenala and Coras Iompar Eireann
• Ryanair Ltd v On the Beach Ltd. [2013] IEHC 124
• McCaughey v Anglo Irish Bank [2013] IESC 17
• O’Sullivan v Canada Life Assurance Ireland Ltd. [2014] IEHC 217
• Haughey v J&E Davy Stockbrokers, Bank of Ireland Mortgage Bank and Bank of Ireland [2014] IEHC 206