Legal System

Statutes in Force The statute law of Ireland comprises the following: Acts of the Oireachtas established under the 1937 Constitution Acts of the Oireachtas established under the 1922 Constitution Statutes of the Parliament of the United Kingdom of Great Britain and Ireland (1801 -1922) which  applied to Ireland; Statutes of Irish Parliaments passed prior to the Union  with Great Britain in 1801; Statutes of the Parliaments of England and Great Britain which were extended to Ireland by legislation of the Irish Parliament or the Parliament of the United Kingdom; Statutes of Parliaments of England applies to Ireland by writ of mandate from the Norman Conquest through to Poynings’ Law; Statutes of Parliaments of England applied to Ireland by Poynings’ Law (1485); Statutes of Parliaments of England and Great Britain applied to Ireland under various Acts. The pre-Union Irish  Statutes were published in 20 volumes in the early 19th century. A revised edition of the Irish Statutes was published as a single volume, the Irish statutes, 1310 to 1800 by the Stationery Office in 1885. … Read the rest

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Legislation Legislation refers to laws made formally.  Primary legislation refers to Statutes or Acts made by the Oireachtas. The Oireachtas in the Iegislature in the Republic of Ireland. The Oireachtas comprises the Dáil, Seanad and the President. The President’s role is nominal. He or She is obliged to sign Bills into law, subject only  to his power to refer the same to the Supreme Court on the grounds of possible unconstitutionality. Legislation includes so-called secondary legislation. Secondary legislation comprises principally, statutory instruments or rules, made under the authority of primary legislation.  Secondary legislation must be compatible with the relevant primary legislation. It must be made under clear power in the primary legislation. The secondary legislation may be “ultra vires”, i.e. outside the rule making power in the primary legislation. The exclusive power of making laws in the State is vested in the Oireachtas.  The Oireachtas may create subordinate legislatures. None such have been established. … Read the rest

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Commencement A bill becomes law when it is signed by the President. However, the legislation may not take effect immediately. Commonly, there is provision for particular parts of an Act or the Act as a whole, to be commenced by on or more commencement orders. Commencement orders are generally made by the Minister. They are published by way of a statutory instrument. The Order specify the day and days on which the act is to become into force. Different parts of an Act may come into force on different days. This may occur, where the Act deals with distinct subject matters or schemes, which cannot be immediately put into force or which require a phased commencement. The Interpretation Act provides that where an Act is specified ti come into force on a particular day, it is come into force at the end of the day, before the designated day. Legislation may never be commenced.… Read the rest

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General The courts must take judicial notice of all statutes.  Statute law does not need to be proved as such. Statute law may be ambiguous.  It may be ambiguous on its face or may be ambiguous as to how it applies to particular circumstances.  If a statutory provision is ambiguous, it must first be interpreted before being applied. Courts interpret statutes with reference to particular circumstances as particular cases arrive.  Many important provisions will not be interpreted unless and until a case happens to arise on the particular circumstance before a higher court and the judge gives a reasoned written  decision. Many important points have not been settled. There is no mechanism for bringing important points of law to court in test form other than with  reference to particular facts and circumstances.  The only method of testing principles of law and an abstract basis is the  provision for reference by the President of bills to the Supreme Court for a judgement on its  constitutionality.… Read the rest

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Literal / Plain Meaning The literal approach to interpretation follows the principle that the intention of the statute is reflected in its ordinary literal meaning.  If the plain words of the legislation are clear then effect should be given to it and no further issues on interpretation arise. The literal approach is attractive in that it does not involve judges in interpreting the policies and purposes behind the law.  This leaves the courts less vulnerable to accusations of rewriting the law through interpretations. The principle holds that words should be given their ordinary and natural meaning.  Once this is plain and unambiguous, does not lead to absurdity, effect should be given to it. Further refinement or expression of the rule is the plain meaning principle.  If the plain meaning is clear and unambiguous, it should be applied without further interpretation. Approach to Interpretation The ordinary meaning of a statute is not necessarily a self-evident concept. … Read the rest

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Context / Schematic Interpretation Statutes are interpreted in their legal context.  The Constitution stands at the apex of the Irths legal system.  New law and statutes sit in the context of existing common law and statute.  In interpreting statutes, this legal context will frequently be helpful and relevant. Particular sections of legislation are interpreted in the context of the entirety of the legislation.  The entirety of the Act is relevant to interpretation.  It will disclose  a purpose and intention in cases of ambiguity. The interpretation of the legislation in the context of the entire Act is sometimes referred to as a schematic interpretation.  Words are interpreted in their context, in light of the overall purpose and intention of the legislation. The legislative and legal background to legislation may help inform its purpose and context. However the pre-existing legislation and background cannot be used to displace the clear meaning of the legislation.… Read the rest

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General Principles Acts are public documents and judges must take judicial notice of them. They are not required to be proved in court. Statutory instruments must be formally proved. The courts may make use of matter that accompanies the legislation. This allows reference to marginal and side notes in Acts but not statutory instruments. Courts may regard to the long title and short title together with the heading. Acts are presumed to continue in force and apply at all times as the occasion requires. This is based on the argument that Acts cannot become redundant by non-application or non-use. Function and Scope Interpretation Acts have been in force since the end of the 19th century. They provide general rules on the interpretation of statutes. The latest interpretation act is the Interpretation Act 2005. The purpose of the act is to give general direction to the courts on the interpretation of statutes.… Read the rest

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Judicial Law Making In theory, judges do not make or change the law. The judge applies the law to the facts and makes the decision.   This would breach the principle of the separation of powers. The sole power to make law is vested in the Oireachtas (parliament). In principle, the judge’s role is limited to the application of the existing law to the facts of the particular case in hand. Notwithstanding the formal principle that judges do not make law, they may face choices in evolving existing principles and/or applying them to new facts. In this limited sense, judges may “make” law. The common law has developed and continues to develop through the doctrine of judicial precedent.  In some cases, it might be fairly said that judges make the law as that the application of existing principles for new circumstances is not self-evident. The notion that the judges do not ever make law is recognised in somewhat fictional and old fashioned. … Read the rest

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Hierarchy of Courts and Precedent Precedent works in the context of the hierarchy of courts.  In Ireland, the Supreme Court and Court of Appeal stand in the hierarchy above the High Courts and deal principally with points of law.  A decision of the Supreme Court is binding on the High Court and is generally binding on the Supreme Court itself, save for exceptional cases where it will reverse its findings on the law. Precedent seeks to increase certainty and remove arbitrariness in the decision on matters of interpretation and discretion.  The High Court is bound to follow the Supreme Court and Court of Appeal precedent even if it is inclined to the view that it is wrong.  The High Court is bound by the ratio decidendi only and not statements that are made obiter.  However, obiter comments of the Supreme Court will be influential on the context and the statement will determine the weight which it holds.… Read the rest

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Liability for Negligence For over 200 years, it was accepted that advocates, including in particular barristers, were immune from suit in respect of the conduct and management of cases in court. This is extended to pre-trial work which was intimately connected with the conduct of the case in court, that it can fairly be said to be a preliminary decision affecting the way in which the case is to be conducted when it is heard. The justifications for the immunity were based on public policy.  The decision of a court should not be collaterally impugned.  The general immunity and privilege of things done or said in court should not be undermined.  An advocate owes a duty to the court as well as his client, and it was argued that imposition of liability for negligence might inhibit performing fearlessly and independently in court. The House of Lords determined in 2001 that public policy considerations were no longer sufficiently persuasive and in principle,  advocates could be liable for negligence in the same way as another profession.… Read the rest

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Irish Law Reports The primary source of common law is written judgements of the higher courts, the High Court and the Supreme Court. Selected written judgments of the higher courts are published in hardback volumes of law reports. They are usually published on a weekly or monthly basis and are republished or bound in hardback bound volumes, published several times a year. Law reports are cited in a manner, established by their publisher.  Cases in law reports are usually cited, with the year, then a reference to the series of volume and finally the page number or case number. Ryan v The Attorney General [1965] 1 I.R. 294. The premier printed series of Irish law reports is the “Irish Reports”, which have been published since 1865. They are published by Irish Council for Law Reporting. Private Series The Irish Law Reports Monthly, which is the other major series of Irish law reports, commenced publication in 1981 and are published by Westlaw.… Read the rest

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UK Law Reports The judgements of the UK courts constitute a very significant source of Irish law. The relative size of the United Kingdom is such that there is a greater volume of precedents available. Across a wide range of areas, legal precedents /judgements of the English courts are regularly cited and relied on by the Irish courts.  This reflects the two Countries common legal heritage. In most non-statutory areas of law, there is very little discernible difference between Irish and English law. The Irish Constitution has had a significant influence and has opened divergences in some areas. English and Irish Statute law has diverged in many cases.  However, many statures are in the same, or similar terms in Ireland and England, for historical reasons and reasons of convenience. The European Union has reinforced uniformity in some areas. Northern Ireland law is very similar to the  Law of the Republic of Ireland in many areas.… Read the rest

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Overview Barristers usually specialise in advising on and bringing cases before the higher Courts.  Barristers will usually appear to represent clients in the High Court, Circuit Court and Supreme Court. Barristers frequently appear in the District Court.  However, most District Court cases will be pleaded and dealt with by solicitors. Barristers must operate as sole traders. They may not enter partnerships with other barristers nor may they incorporate. A barrister must be available to take work from any solicitor who instructs him.  The so-called taxi system is designed to secure that any barrister may in principle be available to any instructing solicitor regardless of the size or resources of the firm concerned. Barristers may only be instructed through a solicitor except in a number of limited cases where direct access to the public is allowed.  Therefore in a dispute above District Court level, a solicitor and barrister are likely to be employed.  … Read the rest

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Nature of Law Law refers to the collection of rules making up the legal system as a whole.  Rules differ radically in their nature and purpose.  Some rules prohibit specific behaviour.  Breach is punishable under the law. Other rules facilitate business and commerce, such as company law and the law of contract which enforces agreements. Other rules create rights of redress for wrongs which can be enforced between individuals, but with which, the State is not concerned. There are rules which deal with the relationship between the individual and the State. The Constitution confers rights that cannot be overridden by other law, even that passed by the Oireachtas. There is a vast range of legislation which confers powers on central and local government and regulates numerous areas of business and everyday life. Common Law The two principal sources of law in Ireland are the common law and Statute law; legislation.  Common law is Judge-made law.… Read the rest

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General Common law is one of the main sources of Irish law. It consists of a series of rules and principles developed by judges over the centuries. Many of the most important of business law rules are common law rules. Examples include contract law, civil wrongs (tort), agency and restitution. Many of the basic rules evolved over centuries of experience and are not really controversial or political in nature. Irish common law rules share a common ancestry, with common law in England, Northern Ireland and most US States. Many of the basic rules evolved many hundreds of years ago and can be recognised in United States common law, even though it became independent from England over 230 years ago.  In most areas, Irish common law is identical or almost identical to Northern Irish and English common law. In practice, many areas of common law have been recorded in leading and established textbooks.… Read the rest

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Many legal disputes turn on the interpretation of legislation in the context of the circumstances.  If the matter is adjudicated upon by a Court the Court will apply the legislation to the facts as found.  In many cases the facts will not be disputed but the question will turn on how the law applies to them. The Courts, in the event of a dispute, use certain principles and techniques in interpreting Statutes.  These techniques assist in anticipating how a Court may interpret a Statute so as to facilitate a resolution or settlement of a matter prior to the necessity for Court determination. Statutes are usually drafted after careful review and consideration.  They are drafted by the parliamentary draftsman’s office which consists of specialist legally qualified barristers and solicitors. Legislation is usually drafted in precise and technical language so as to cater for the complexity of circumstances that may arise.  There will often be one or more interpretation sections which define how certain words mean in the context of the Statute.… Read the rest

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Written Judgments Traditionally, written decisions of the courts are given where a novel or important point of law arises. The influence of the European Convention on Human Rights and modern concepts of justice have made written judgments more common in cases in the higher cases. In making its decision the Judge or Judges in a multi-judge Court will write written reasons as to their interpretation and decision of what the facts are and how the law applies.  In either common law cases or cases based on the interpretation of statutes, the Courts will explain in a written decision which explains how the law is applied to the facts. Many written legal judgments/decisions contain discussions of the law in the context of particular cases.  Where a point of law is raised and there is the question as to what “correct” point of is, the Judge will typically review and discuss relevant previous cases or precedents.… Read the rest

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Common Law Many of the most important principles of law are common law principles.  Contract law, restitution, the law of civil wrongs, personal property are almost entirely common-law based. In higher court cases, where points of law are contested and argued, the Courts may focus on a handful of cases that are relevant to the particular situation. In these cases, previous Court decisions and reasoned judgments are reviewed. Where a decision of a higher or equivalent Court is available on the exact point of principle, it is binding and should be applied.  However, in many cases, even where the facts appear similar to previous cases, there may be some element of discretion as to what facts the Judges find to be relevant and accordingly apply. Matters of interpretation arise in relation to the application of the law to the facts. In the majority of cases, no new precedents or law is established.… Read the rest

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Organisation The legal profession in Ireland consists of two distinct branches.  They have separate regulators, separate training and it is not possible to be a member of both branches at once. When the Legal Services Regulatory Authority commences, it will become the single regulator. The majority of lawyers are solicitors regulated by the Incorporated Law Society of Ireland.  About 80 to 90% of all lawyers are solicitors. Solicitors operate from offices throughout the country.  They are not entitled to trade as companies or limited liability partnerships.  They may trade as sole practitioners or partners. A qualified solicitor may only practise as a solicitor if he holds a practising certificate.  Mandatory insurance and compliance with certain other conditions are required on an ongoing basis.  Fees must be paid for each solicitor.  A partnership or employer firm will generally pay the practising certificate fees. It is an offence for a person to practice law for reward in the areas set out in the Solicitors Act without being a qualified solicitor with a practising certificate.… Read the rest

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