Cantrell v Allied Irish Banks PLC & Ors Unreported, Court of Appeal, 18th July 2019

Martin Hayden SC represented AIB on appeal to the Irish Court of Appeal and was successful in having a class action claim dismissed against the Bank for in excess of €50m. This case raised the question of when a cause of action in tort relating to investments in fluctuating financial instruments was constituted. The Court of Appeal accepted AIB’s argument that the claims were statute barred when the investors entered into the investments, regardless of the fact that for many years, the investments were in positive territory and showed substantial profits. The claim was made by the investors that the LTV covenants were wrongly included in certain lending arrangements, and that there was a failure to inform the investors of the LTV covenants, or to advise of the risks posed by their inclusion in the lending structures. The Court of Appeal found that if the claims of the investors were to be characterised as arising from the fact that they entered into a flawed transaction, the loss occurred at the time of the loan transactions when the LTV covenants were agreed and were therefore statute barred. It was the existence of the LTV covenants and not market forces that resulted in the investments being something less than what they claimed they understood them to be.

Ryanair v Fórsa Unreported, High Court, 21st August 2019

Martin Hayden SC successfully obtained an injunction on behalf of Ryanair prohibiting the Irish trade union, Fórsa, which represents pilots, from organising, directing, sanctioning or endorsing the participation of its membership in a strike on 22 or 23 August 2019. Fórsa was also prohibited from directly or indirectly adopting or relying upon or otherwise giving effect to any purported notice of industrial action in respect of those dates. This application was not dissimilar to the one sought by Ryanair in the UK to prevent BALPA from also carrying out a 48-hour strike.

In finding in Ryanair’s favour, the High Court held that it was not satisfied that a secret ballot had been held in accordance with the Industrial Relations Act 1990, as amended. The Court had not been furnished with detail as to the steps that were taken by the trade union to apprise its members of the ballot and of how they could exercise their right to participate in that ballot. The onus was on the trade union to demonstrate compliance with the legislation and the Court found there was a lacuna in the evidence before it on this point.

Applying the principles set out in Campus Oil v Minister for Energy in 1983, which were recalibrated to an extent in Merck Sharp & Dohme v Clonmel Healthcare Limited, the Court held that the balance lay in favour of granting the injunction against Fórsa.

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