Application_of_precedent in Irish Law

The Application of Precedent

• The process: relevant circumstances in the present case; rule to be applied to the case must be discovered by examining previous similar cases (precedent); rule applied to the circumstances of present case.

Example 1

• Considine v Shannon regional Fisheries Board [1994] Costello J: �principle of precedent is easy to state, but is difficult to apply in practice’

• The issue: after a not guilty verdict (acquittal) in the District Court, could an appeal could be brought to the Circuit Court by the prosecution as provided for in S. 310 of the Fisheries (Consolidation) Act 1959?

• The relevant precedent: The People (DPP) v O’Shea [1982].

• 3-2 majority of the SC: an appeal against an acquittal lies to the Supreme Court from the Central Criminal Court.

• Two members of the majority (O’Higgins and Walsh JJ) suggested the SC could order a retrial if the appeal was successful; other majority judge (Hederman) expressed no opinion; two dissenting judges (Finlay and Henchy JJ) held that no right of appeal

• In Considine, two points were different from O’Shea;

o O’Shea dealt with Article 34.4.3 (appeals to Supreme Court from High Court), while Considine dealt with 34.4.4 (appeals from lower courts, eg. District Court to the Circuit Court)

o O’Shea dealt with an appeal from a jury verdict while Considine dealt with a judge’s decision.

• Costello J felt the principles laid down by the SC were binding on him. But what were those principles? The decision in O’Shea was:

•Article 34.4.3 (appeals to Supreme Court from High Court) was not limited by Article 38.5 (trial by jury) (2: yes, 2: no, 1: maybe)

•Article 34.4.3 (appeals to Supreme Court from High Court) was not limited by Article 38.1 (trial in the course of law) (2:yes, 2: no, 1: maybe).

• Although the �maybe’ here, Hederman J’s judgment, did not deal expressly with the point, Costello J felt that, by implication, he must have agreed with the other two majority judges. Therefore Costello J felt that (by implication as this point was not referred to in O’Shea):

•Article 34.3.4 (appeals from lower courts) not limited by Article 38.1 (trial in due course of law)

Example 2

• law of negligence; liability of professionals (doctors, lawyers, etc).

• Donoghue v Stevenson [1932]. Lord Atkin outlined his famous �neighbour’ principle:

�The rule that you are to love your neighbour becomes in law: You must not injure your neighbour and the lawyer’s question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law becomes my neighbour? The answer seems to be - persons who are so closely and directly affected by