The Prospective and Retrospective Effect of Judicial Decisions in Ireland

© Springer International Publishing Switzerland 2015
Eva SteinerComparing the Prospective Effect of Judicial Rulings Across JurisdictionsIus Comparatum – Global Studies in Comparative Law310.1007/978-3-319-16175-4_2

2. The Prospective and Retrospective Effect of Judicial Decisions in Ireland

Niamh Connolly 

Law School, House 39, Trinity College Dublin, College Green, Dublin 2, Ireland



Niamh Connolly


This chapter examines the operation of the common law system in Ireland. The Republic of Ireland differs from many common law jurisdictions in that it has a written constitution which empowers judges to invalidate unconstitutional legislation. The importance of judicial decision-making in constitutional cases has influenced judicial practice more generally. Irish judges feel a constitutional duty to prioritise doing justice in each case. They have historically been less formalistic than judges in some common law jurisdictions. They follow precedent in a reasonably flexible way which allows the common law to develop. They have a creative role, although they exercise self-restraint in changing the law due to the separation of powers. This chapter considers whether the Irish legal system accepts prospective overruling or similar techniques designed to limit the retrospective effect of judicial decision-making. The question of retrospective effect has arisen most acutely in constitutional cases, where the courts find a statute to be invalid after it has been in force and people have relied on it. Two landmark cases limit the effects of a ruling of unconstitutionality by different means. Murphy v Attorney General states that an unconstitutional statute is void ab initio and that there should be redress in all but exceptional cases. A v Governor of Arbour Hill Prison precludes people who have been convicted under an unconstitutional statute and whose cases have reached finality from availing of the invalidity. The relationship between these authorities requires clarification, but they represent a functional equivalent of prospective overruling. If similar measures can apply when judges develop common law rules, then it appears that Irish law accepts prospective overruling.


The Republic of Ireland possesses a common law system, governed by a written constitution.1 Its common law nature and the substance of many laws reveal its close historical ties with the law of England and Wales. However, Ireland’s constitutionalist order diverges markedly from the English model. The constitutional framework has strongly influenced the conception of the judicial function in Ireland. A self-assured judiciary adopts a reasonably flexible approach to precedent in the common law, in order to do justice between the parties in each case.

Prospective overruling has not been expressly adopted in Ireland. As in England, some decisions employ techniques which resemble prospective overruling. The problem of the retroactive effect of judicial changes to the law has arisen most obviously in the constitutional context. Irish judges have the power to declare that statutes which have been in force are unconstitutional and invalid. This function has the potential to create serious problems in unwinding actions taken when the statute was thought to be lawful. Over the past 30 years, the courts have struggled to find a solution which upholds constitutional theory while also avoiding chaos or injustice. The measures which the judiciary have used to restrict the retrospective effect of a finding of unconstitutionality may be regarded as a form of prospective overruling. If similar measures might apply when judges develop common law rules, then it appears that Ireland does accept prospective overruling. It would, however, remain vanishingly rare, and only appropriate in cases where a change to the law would have exceptionally prejudicial effects on people who relied on the previous understanding of the law.

The Irish Legal System’s Constitutional Framework

Compared with other common law jurisdictions, Ireland has a distinctive constitutional order, characterised notably by vigorous judicial review of the constitutionality of legislation. The People are sovereign.2 The State is “subject to the constitution, which limits, confines and restricts its powers.”3 The Constitution is predicated on the separation of powers.4 Article 15.2.1° attributes the “sole and exclusive power of making laws” to the Oireachtas, which body comprises the President and a bicameral parliament.5 The Oireachtas is prohibited from enacting any law which is inconsistent with the Constitution; any unconstitutional laws are invalid.6 The High Court and the Supreme Court may determine the validity of any law by reference to the Constitution.7 The Constitution Review Group terms this “a key provision of the Constitution which to date has proved to be conspicuously successful.”8

The Common Law in Ireland

Ireland has inherited both the common law method and the substance of many laws from its connection with the United Kingdom. Between 1800 and 1922, Ireland was an integral part of the United Kingdom legal order. The United Kingdom’s House of Lords was the court of ultimate appeal for Irish cases.9 From 1924 until 1933, appeals could be brought from the Irish Supreme Court to the Privy Council in London.10 There was a great deal of continuity in Irish law before and after independence.11 Both the 1922 Constitution and the 1937 Constitution expressly provided that all the substantive laws in force in Ireland immediately prior to the introduction of the new Constitution would continue in force.12

The Republic of Ireland’s written constitution “was superimposed on, and indeed presumes the existence of, the common law system.”13 Many areas of law are predominantly governed by case law. For example, the law of judicial review of administrative acts is largely judge-made.14 Other examples include contract law, the constitutional protection of citizens’ fundamental rights, and the law of evidence. It is widely accepted that judges make law, and that their role is not merely interpretative, but also creative.15

On its face, the provision which grants the Legislature the “sole and exclusive power of making laws” seems incompatible with the common law system.16 To avoid the conflict, this rule must be understood to refer to “laws” in the sense of statutes. However, in DPP v Cash,17 Charleton J held that the constitutional allocation of the legislative function to Parliament restricts judges’ power to make new common law rules.18 If so, the Constitution reinforces the common law’s own stricture that judges may develop existing common law, but may not create entirely new rules.

The Place of Statutes

The courts are keenly aware of the imperative not to encroach on the legislative function.19 The power of the courts to decide cases by applying judge-made rules is subordinate to statute law. If Parliament has enacted a statute which applies to the case before the court, the court must interpret and apply the statute.20 A statute must prevail over a conflicting common law rule.21

As in any legal system, the importance of the power of interpreting written law should not be underestimated.22 The Interpretation Act 2005 guides judges in interpreting statutes, and they may use a purposive approach to discern Parliament’s intention.23 The common law frequently retains a supporting role in giving meaning to the terms and concepts used. Parliament is understood to be aware of the pre-existing law when it drafts legislation.24 In interpreting laws, judges must not be influenced by their own preferences as to what they should say.25 The judge’s function is to apply the law, not to reform it.26

The courts are very conscious of the need not to trespass on the legislative function in performing their duty to interpret statutes.27 They are “strictly confined to ascertaining the true meaning of each statutory provision”.28 They have no right to interpret the statute to say what the judges wish it did say. They cannot fill gaps in the statute and are sometimes powerless to avoid an unjust result.29 In The State (Murphy) v Johnston,30 an error in a criminal statute made a nonsense of it. The Supreme Court ruled that the courts had no power to rectify the error. Only Parliament could correct it, even though it meant that many prosecutions for drunk driving would fail on a technicality until the legislation was amended.31


The common law method aims to achieve a delicate balance between two goals, which may frequently conflict. The law should be certain and predictable; it should also be just and move with the times.32 Precedent is “the means by which the common law achieves, so far as possible, uniformity, consistency, predictability and certainty.”33 Since people rely on the law to organise their affairs, it should be consistent. Citizens should be able to inform themselves of the law.34

The doctrine of precedent is entwined with the hierarchical courts structure: “the authority of precedent is vertical and that lower courts are bound by decisions of higher courts.”35 Courts are obliged to follow and apply relevant authorities emanating from higher courts, “even when they disagree with them and even when such disagreement appears well founded.”36 A court may refuse to follow a precedent from a court of the same level if it was decided disregarding an important argument. However, it is more appropriate for a trial court to apply the rules of precedent, and, if necessary, its decision can be appealed to a higher court, which will not be constrained by the same case law.37

Developing the Common Law

The law must also change: it is not “a mausoleum.”38 Both continuity and creativity are legitimate values in the development of the common law.39 Precedent is not a straight-jacket. Judges can use their power to interpret past authorities to nudge the law in new directions. They have wide latitude in determining the ratio decidendi of a prior case.40 Whenever collegiate judges have agreed on the outcome but given divergent reasons, this sows the seeds of uncertainty and creative ambiguity. Determining the effect of an apparent precedent frequently requires complex analysis of the case law, including the contexts in which principles were developed and the interrelationship between different decisions.41 By distinguishing or reinterpreting a decision, later judges might determine that it supports a principle quite different from what was previously thought.42

Besides, rules which were created by judges “can be changed and altered by judges.”43 The common law judge, conscious of the bounds of his power to make law and the dangers of making sweeping pronouncements, is usually cautious. Judges usually refrain from attempting to propound and delimit an exhaustive set of rules for future application.44 Even when they develop new principles, they leave them open-ended.45 The contours of a new rule are best defined, “step by step, precedent after precedent, and when set against the concrete facts of a specific case.”46

Yet the common law is capable of dramatic evolution.47 Changes in law and society eventually provoke eruptions in the case law. The Irish law on the recognition of foreign divorces needed to change after divorce was introduced in this jurisdiction.48 The law of unjust enrichment provides a striking example of an area in which the common law rules have been transformed in the past quarter century. For example, the House of Lords abolished a long-established common law rule that money could not be recovered on the ground that it was paid by mistake, if the mistake was a mistake about the law.49 While the common law method is built on judicial restraint, occasionally judges deem it necessary to take a larger step than usual. Hutchinson reconciles the tension between stability and change in the common law by placing its transformative capacity at the centre.50

A Permeable Legal System

Irish judges frequently look to the case law of other jurisdictions for guidance or support.51 Because Ireland is a small jurisdiction, in which relatively few cases are decided, there may be no recent domestic precedent on a point.52 English case law is a particularly strong influence.53 Decisions of the English courts delivered since Irish independence are of persuasive authority.54 The Irish courts also pay attention to the evolution of the common law in other countries which share our heritage. Authorities from other legal systems will be more likely to be adopted in Ireland if the two systems have a similar approach to the area of law. As various private law rules have evolved differently in different common law jurisdictions, precedents advanced in argument as authority are examined to determine how well they fit. For example, the law on remedial constructive trusts in Ireland resembles that which has developed in New Zealand, but departs strongly from English law, which does not recognise this remedy. The Irish Supreme Court has emphasised the idea of a consensus among common law jurisdictions.55 Our courts will be more likely to make radical changes in the common law in this jurisdiction, when such changes conform with the evolution of the law in comparator jurisdictions. This wider context offers comfort for the judiciary when they choose to make significant changes to common law rules without wishing to appear to depart from precedent.

We should distinguish between foreign influences in public and private law, because Ireland’s constitutional order contrasts significantly with that of many common law jurisdictions.56 In constitutional cases, Irish judgments have frequently discussed the law of the United States. More recently, they refer to European constitutional courts. Murray CJ explains this as a “transnational communication of knowledge, concepts and ideals of justice” which inform the interpretation of national law.57

Ireland’s Constitutional Jurisprudence

The law-making power of judges is particularly important in constitutional law.58 The interpretation of the Constitution in each case “can shape what the Constitution means in the future”.59 A deep and complex body of constitutional case law has developed rapidly over the past half century. Ireland’s constitutional jurisprudence thus offers a striking example of the power of case law to transform the law.

The Constitution contains a declaration of fundamental rights, which partially adopts and subsumes rights traditionally recognised in the common law tradition, such as habeas corpus.60 Articles 40 to 44 of the Constitution protect fundamental rights, under subheadings which include personal rights, family, education, private property and religion. These extensive guarantees of fundamental rights were one of the “conspicuous novelties” of the Constitution.61 Initially, neither its drafters nor the legal profession believed that the fundamental rights provisions would have far-reaching effects.62

Since the early 1960s, the superior courts have vigorously developed a body of case law giving meaning to the personal rights enunciated in the Constitution.63 Significantly, they determined that the Constitution also protects an open category of unenumerated personal rights.64 The courts have followed the common law methodology in determining the content of the category of unenumerated personal rights. Rather than developing an abstract or general theory of rights, the courts wait for litigants to claim that they enjoy a certain right before deciding whether the claimed right does indeed fall within the constitutional guarantee. As common lawyers, Irish judges prefer deciding on concrete rather than hypothetical scenarios.65

They treat the constitution as a living document, to be interpreted in light of contemporary values rather than adhering to the values of the society which enacted it.66 The substance and effect of constitutional provisions can evolve over time, with the effect that a law which might be compatible with the constitution at one time can become unconstitutional at a later time.67 This implies a need for the Supreme Court not strictly to be bound by precedent.68

Dissenting judgments provide raw material for the common law to evolve.69 However, until 2013, Article 34.4.5° provided that, in cases where the Supreme Court was called upon to determine the constitutionality of a law, the Court would give a single judgment. There would be no assenting or dissenting opinions.70 This “one judgment rule” was not applied to statutes inherited from prior constitutional regimes.71 The Constitution has now been amended to remove this restriction, except for cases where the President refers a Bill to the Supreme Court before promulgation to verify its constitutionality.72 The rationale behind the “one judgment rule” was to enhance the certainty and authority of determinations by the highest court in the land on the validity of laws. However, it risked doing so by creating a “false picture of unanimity”.73 Dissenting judgments legitimately serve the useful purpose of articulating minority reasoning which might persuade future generations.

Reviewing the compatibility of enacted legislation with the Constitution raises particular risks of encroachment on the legislative function. The courts, keenly aware of the separation of powers, regularly address the limits of their power in this regard. They use a presumption of constitutionality to avoid condemning legislation where possible. Furthermore, if a statute is unconstitutional and invalid, the courts cannot substitute an unobjectionable provision for it.74 Nor can the court recommend to the Legislature how to replace it.75 The judiciary refrains from enforcing socio-economic rights, because to do so would infringe the separation of powers: “it is not the function of the courts to make an assessment of the validity of the many competing claims on national resources”.76 Lastly, the theory of unenumerated rights has declined in recent years and judges emphasise the need for restraint in identifying new constitutional rights.77 In a recent case, the Supreme Court found that the text of the Constitution did not indicate a right constitutional right to end one’s life at a time of one’s choosing.78

The Relaxation of Precedent in the Supreme Court

Common law courts are challenged to find the appropriate balance “between certainty and flexibility.”79 Precedent must not be “our master”.80 Before the 1960s, it was generally assumed that the doctrine of stare decisis applied to decisions of the Supreme Court, rendering them immune from future challenge.81 In 1962, Henchy J, writing extrajudicially, argued that a legal order based on a rigid, supreme constitution should not adhere to the stare decisis rule. He reasoned that the English courts could assume that Parliament has the power to overturn all their decisions through legislation, whereas in Ireland, an erroneous interpretation of the Constitution, if it were not susceptible to correction by the Supreme Court itself, could only be cured by recourse to the People in a referendum.82

The first sign of a rejection of stare decisis came in The State (Quinn) v Ryan,83 where the Supreme Court invalidated a provision which it had previously upheld as compatible with the Constitution.84 Strictly speaking, the decision in Ryan did not require overruling the previous authority because the earlier case had not considered the arguments on which the current challenge was based. However, Walsh J expressed strong views on the doctrine of stare decisis. Like Henchy J, Walsh J considered it implausible that the People, in enacting the Constitution, intended to give the case law of the Supreme Court the same normative status as the Constitution itself. This would be the inevitable consequence if every interpretation of the Constitution by the Supreme Court was fully binding in all future decisions.85 Walsh J concluded that for any court of final appeal, stare decisis might not “ever be anything more than judicial policy, albeit strong judicial policy.”86

Shortly afterwards, in Attorney General v Ryan’s Car Hire 87 the Supreme Court expressly overruled one of its own previous decisions for the first time. Kingsmill Moore J approved the distinction “between the general principle of following precedent and the strict rule of stare decisis.”88 Judges are not infallible and the primary concern of judges must be to do justice. The rigid rule of stare decisis must be replaced by a “more elastic formula”, whereby a court of ultimate appeal can refuse to follow a precedent when it is clearly of the opinion that it was erroneous.89 It remains reasonably unusual for the Supreme Court to reverse its prior positions. More often, there might be two seemingly inconsistent authorities and the challenge is to work out whether and how they can be reconciled.90

There is one notable exception to the power of the Supreme Court to overrule its past decisions. The President may refer Bills voted in Parliament to the Supreme Court, in order to determine, before promulgation, whether they contradict the Constitution.91 Article 34.3.3° prohibits any court from later questioning the validity of a law which was approved by the Supreme Court prior to promulgation under an Article 26 reference. The Irish Constitution thereby gives one specific and limited category of decision unusually wide, binding and permanent effect.92 The Article 26 reference procedure is the only case in which future courts will be bound by a decision concerning a point which was not argued before the court. The sweeping effect of a declaration of validity in an Article 26 reference is said to deter the President from using this power.

Reasons Not to Follow a Precedent

A court may be justified in refusing to follow a precedent if there was a severe defect in the original authority. This means more than that the previous decision must have been wrong. The defects which justify disregarding a precedent include insufficient authority having been pleaded or submissions being incorrect, or the judge having misunderstood an important element.93 A decision can be stigmatised as per incuriam if it failed to consider “a relevant argument, an important judicial precedent or a relevant statutory provision”.94 For example, Geasley v DPP concerned a precedent which was clearly decided in ignorance of the law: it turned on a statutory wording which was no longer in force at that time.95 This defect entitled the later judge to refuse to follow it.

In Re Worldport Ireland Limited, decided in 2005, Clarke J stated that a “clear error in the judgment” might suffice.96 He also indicated that the age of the precedent is relevant where the law has subsequently advanced.97 Another case asks whether the precedent is “manifestly wrong”.98 More recently, some judges may be applying a more liberal approach, which could apply where there is a disagreement about the law between courts of the same level.99 In EC v Clinical Director of the Central Mental Hospital, Hogan J emphasises the need for caution and respect in departing from a precedent of the same level, before setting out the reasoning which compels him to a contrary solution.100 Similarly, in XA v Minister for Justice,101 he states that the matter is so fundamental that he cannot follow another High Court precedent with which he disagrees.102

The Limits of Making and Changing Judge-Made Law

Although we accept that judges make law, there are still limits to the power of judges to make common law rules. Common lawyers frequently speak of judges “developing” the common law.103 This is “a helpful description, not a misleading euphemism.”104 Lord Bingham points out that changing the common law in a modest, incremental fashion ensures that change remains within the confines of what citizens might reasonably expect.105 Existing principles may be expanded or adapted, but it is not usually possible for judges to invent entirely new rules. How far judges have the power to modify the common law seems is a question of degree: it is not entirely clear where the line should be drawn.106

Irish courts confronted the limits of their power to develop the common law in a series of decisions on the nullity of marriages. During the 1980s, judges expanded the common law grounds on which nullity could be declared, to cover cases of mental illness which prevented a person from carrying on a caring interpersonal relationship.107 In UF v JC, the court was asked to recognise a new ground to annul a marriage due to the homosexuality of one spouse. In the High Court, Keane J criticised the recent extensions of the law. He believed it was impermissible for judges to introduce entirely new grounds for nullity.108 However, Keane J’s decision was overturned on appeal to the Supreme Court, which approved the homosexuality of a spouse as a new ground for nullity and expressly approved the earlier decisions as extensions warranted by analogy with existing rules.109

In contrast, the Supreme Court ruled in L v L that a proposed change to the common law was impermissible. The High Court had awarded equitable ownership of half of the family property to a wife following her separation from her husband.110 Existing rules authorise the creation of trusts over property in circumstances of relationship breakup where the plaintiff has contributed financially to the acquisition of the property. In L v L, the wife had made no financial contribution, having worked full-time in the home. The Supreme Court held that the High Court decision moved beyond merely extending existing law. The courts do not have the power to “identify a brand new right”.111

Recently, the Irish courts have been consistently rejecting the power to make new common law rules. Accordingly, Hogan J refused to invent a new tort of reckless lending in Healy v Stepstone Mortgage Funding Limited.112 On a number of occasions, Charleton J has ruled that the Constitution prohibits judges from creating new common law rules.113 In Re Flightlease (Ireland) Limited, the Supreme Court refused to move to a test of a test of real and substantial connection for jurisdiction in private international law. This was not “a matter of detail but a fundamental reorientation of the law”.114

In Hussein v The Labour Court,115 Hogan J reluctantly applied a common law rule which deprived a worker who did not have an employment permit of legal protection against exploitation. Disturbed by the court’s inability to offer redress, he stated that he would transmit a copy to the executive and legislative organs of government for them to consider possible legislative reforms. This unusual step demonstrates that Hogan J would have wished to change the rule if he could, accepted that it was for the Legislature to consider reform, and was open to initiating an unusual degree of dialogue between the judicial and legislative powers. Respect for the separation of powers and the idea of democratic legitimacy are not the only reasons why judges defer to Parliament when the law needs reform. Judges accept that the Legislature is better situated to make informed holistic policy decisions.116 In UF v JC, Keane J indicated that judicial law-making could entail a fragmented approach and the risk of uncertainty.117

A Judicial Culture Which Prioritises Justice over Formalism

Although judges respect the limits of their law-making power, on the whole, the case law suggests that Irish judges are more willing than their counterparts in some other common law jurisdictions to use their power to modify the common law. In London Street Tramways v London City Council, Lord Halsbury articulated a highly formalist perspective, when he accepted the occasional injustice as preferable to the inconvenience of having each question reargued in every case.118 Kingsmill Moore J strenuously rejected this view in Attorney General v Ryan’s Car Hire.119 Irish judges generally seem to be relatively willing to emulate Lord Denning’s flexible and inventive approach to the common law.120

Many dramatic innovations in Irish common law are informed by the constitutional background.121 The constitutional tort exemplifies this. In Meskell v Córas Iompair Éireann,122 the Supreme Court ruled that a constitutional right can be protected by legal action “even though such action may not fit into any of the ordinary forms of action in either common law or equity.”123 Another dramatic example of judicial law-making creating new rights is Murphy v Attorney General, which established a right to recover wrongfully demanded taxes from the State.124 This preceded similar developments in Canada and the United Kingdom.125

In private law, the Irish courts also moved ahead of other common law jurisdictions in awarding compensatory damages for negligently inflicted psychiatric harm.126 They have been highly receptive to proprietary remedies including the remedial constructive trust.127 Some of these changes may reflect sympathy for parties who found themselves in difficult situations. The liberal development of the law on marital nullity seems to fit this mould.128 Innovative landmark decisions do not usually result from conservatism and disciplined legal reasoning.129 In a contest between the ‘legally correct’ answer and the desired, just solution, the latter frequently triumphs. The concern to do justice in each individual case outweighs the risk of complicating or undermining the wider structure of rules and doctrine.

The apparent tendency of the Irish judiciary to favour substantive justice over a more formalist approach, which would favour certainty and predictability, is influenced by the Constitution.130 Article 40.3.1° obliges the State “as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.” In addition, the State must, through its laws, “protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.” This constitutional duty binds the judiciary as an organ of the State. In addition, the Preamble invokes the ideal of justice. Walsh J interpreted this as imposing on judges a duty to interpret people’s rights in conformity with the ideal of justice.131

In light of these constitutional provisions, Finlay CJ identifies the first fundamental function of the judge as to do justice between the parties.132 Secondly, the judge must be seen to do justice. Thirdly, he must consider the longer term effects of his decision, including on the public and including on the development of case law.133 He emphasises that achieving the just outcome in the individual case is the highest priority. Kavanagh believes that the Irish Constitution led the Irish judiciary to reject the positivist notion that they could be required to “blindly enforce the law as it was, irrespective of what injustice that would cause”.134 Binchy argues that the mindset which our judges developed to adjudicate on constitutional matters informed their reasoning in other areas, so that they moved, “from the incrementalist philosophy of the common law into a way of thinking that looks for the broad principle, expressed in more abstract and, at times, rhetorical language.”135

Another explanation for the relative flexibility of Irish judges may relate to the size of a legal system.136 Goodall argues that there is a weaker need for a legal system in a small jurisdiction to be highly formalist. There is less fear of opening the floodgates to an uncontrollable flow of cases. In a small jurisdiction, judges can be confident that they will be able to refine the legal principles as future cases gradually arise. She also observes that smaller legal systems tend to have more consistency in the judgments given throughout their courts structure.137 This increased innate coherence within the system may free the judges of the superior courts from the strictest adherence to stare decisis: we need not fear that occasionally changing a common law rule would lead to chaos.

The success of landmark decisions depends on them being accepted as ‘politically valid and socially acceptable’.138 The judiciary is a strongly legitimate authority within the Irish constitutional order.139 It is on an equal footing with the other powers of the State and granted the power to control the actions of the legislature and the executive. Society views this strong and active judiciary as legitimate. Ireland ranks third in the world for public confidence in the independence of the judiciary.140 In this context, it is natural for judicial power to possess a high degree of self-confidence which emboldens its decision-making. Ultimately, there is no evidence that the public considers Irish judges to have struck the wrong balance between certainty and justice.

The Declaratory Theory of Judicial Decision-Making

The traditional understanding of the role of the judge in the common law has been that the judge discovers and declares what the law already is.141 This declaratory theory of law is essentially a fiction, or “fairy tale”.142 It usefully circumscribed the law-making power of judges, keeping them conservative, deterring them from overstepping the bounds through a zealous desire to reform the law. Some advocates of the declaratory theory want judicial rule-making, if it must happen, to be “covert and imperceptible”.143 The fiction has been challenged in more recent times. Moves away from the strictest form of adherence to precedent reflect the acknowledgement that judges can, indeed, change the common law.144 It is now generally accepted that judges do make law, and that this is proper, within the appropriate limits.145

Kleinwort Benson v Lincoln City Council 146 breathed new life into a modern conception of the declaratory theory of law. This conception does not imply that the law is “static and unchanging” or that judicial decisions are “infallible or immutable”.147 In Kleinwort Benson, a claim for restitution turned on whether the payments could be described as mistaken, when everyone thought that they were legal at the time they were made. After the payments were made, the courts ruled that local authorities had lacked the capacity to engage in these deals.148 Lord Browne-Wilkinson’s view was that, since the law changed after the payment was made, then “at the time of payment, the payer was not labouring under any mistake”.149 However, he was in the minority. Lord Goff, leading the majority, acknowledged the fiction of the idea that judges discover pre-existing law, but reasoned that the common law is nonetheless based on a form of the declaratory theory. This means that judicial statements of the law must be applied to events which occurred at an earlier date, and applied equally to all cases. Consequently, he rejected prospective overruling as having “no place in our legal system.”150 Since the payments were unlawful when they were made, and the parties believed them to be legally required, they were mistaken. Lord Goff also rejected two proposed defences, which would protect payments which were either made on a settled understanding of the law or honestly received.151

There has not been much explicit discussion of theories of judicial decision-making in the Irish case law. It is generally accepted that judges can change the law from what it was previously. In A v Governor of Arbour Hill Prison, Murray CJ said that we have moved on from the belief that judges merely draw on existing law “at least in its purest form…”152 One of the few explicit references to declaratory theory came from Hogan J in FX v Clinical Director of the Central Mental Hospital (No 1).153 Hogan J invoked the declaratory theory, while suggesting it was not fully representative of what occurred when the court departed from previous authority and acknowledging the difficulty that parties would have relied upon the law as it was believed to be before the change.154 In Re Flightlease, Clarke J acknowledged that judgments can effect “radical change” to the common law, which can have an unsettling effect on citizens’ transactions.155

It is understood that judgments generally have retrospective effect.156 In A v Governor of Arbour Hill Prison,157 Murray CJ affirms the common law position that judicial decisions as to what the law is apply retrospectively to facts which have already occurred.158 Lord Goff said he could not “imagine how a common law system, or indeed any legal system, can operate otherwise if the law is be applied equally to all and yet be capable of organic change.”159 In West Midland Baptist Association v Birmingham Corporation, the House of Lords considered whether it could legitimately revisit a judge-made rule of law.160 Lord Reid reasoned that whichever rule the judges chose must be taken to have applied all along: “[w]e cannot say that the law was one thing yesterday but is to be something different tomorrow.”161 That would mean that people who were previously affected by the old rule would, if it was now changed, have been deprived of the benefit of the “correct” rule. This raises the question of whether the retrospective effect of changes to the common law should ever be limited.

Prospective Overruling in English and Irish Law

Two distinct aspects of the judicial function in Ireland could raise questions about the temporal effects of judicial decision-making. The first arises when judges change common law rules. The second occurs when then declare a statute which has been in force for a period to be contrary to the Constitution. It may be important to protect past reliance on the accepted understanding of the law.162 Judges are keenly aware of this issue and their first response is restraint when tempted to change the law.163 Another partial solution is the availability of defences such as limitation,164 laches, and res judicata.165 A range of other potential responses falls under the heading of “prospective overruling”.166 The Irish courts have engaged with these difficulties in depth in the constitutional context. There are strong indications that the Irish judiciary regards these questions as two sides of the one coin.167 On the other hand, academic commentators have doubted that the same solutions should apply in both types of case.168

The English courts have not fully adopted the technique of prospective overruling, but occasional dicta have expressed support for the notion.169 In Hall v Simons, Lord Hope said he hoped the change to the law which abolished the previous rule that barristers were immune from suit would operate from the date of the judgment.170 In Jones v Secretary of State for Social Services, Lord Simon suggested that the most satisfactory solution might have been to apply the law as it then stood to the parties in the case, while prospectively overruling it for the future. However, he believed that judges should not claim the power to use this technique without statutory authorisation by Parliament, as it would affect the constitutional balance of powers between the Legislature and judiciary.171 In R v Governor of Brockhill Prison, ex parte Evans (No 2), the House of Lords considered the possibility of prospective effect in cases where judicial interpretation of a statute changed. Lord Slynn observed that “there may be situations in which it would be desirable, and in no way unjust, that the effect of judicial rulings should be prospective or limited to certain claimants”.172 However, there was no justification for this in the present case.

The House of Lords again considered prospective overruling in Re Spectrum Plus in 2005.173 It changed the common law rules on distinguishing between types of security which received different levels of preference on insolvency. This would affect many commercial lenders. Lord Nicholls concluded that,

there could be circumstances in this country where prospective overruling would be necessary to serve the underlying objective of the courts of this country: to administer justice fairly and in accordance with the law.174

This might arise where a decision,

would have such gravely unfair and disruptive consequences for past transactions or happenings that this House would be compelled to depart from the normal principles175

However, the reliance on a previous understanding of the law by commercial actors in the present case was far from sufficient to justify the exceptional measure of prospective overruling. Based on these authorities, it seems prospective overruling might be possible in England, if a sufficiently exceptional case arose.176

There are also dicta against prospective overruling. In Evans, Lord Hobhouse considered it “extremely doubtful” that there would ever be a case which would justify limiting the retrospective effect of a judicial statement of the law.177 He disapproved of the idea as a denial of the courts’ constitutional function to grant the parties their legal rights. Furthermore, it would invade the legislative power for judges to declare a legal rule to bind others in the future. Lastly, he said, a statement of the law which was not applied to the determination of the case before the court must necessarily be obiter dictum and therefore cannot constitute an authoritative precedent for the future. Lord Hobhouse’s objections reflect the sense that there is a distinction between the legitimacy of the common law judge deciding a case in a manner which will be followed in the future, and independently of a decision in a case before him, purporting to invent a new rule.178 As Lord Nicholls expresses it so clearly: “Prospective overruling robs a ruling of its essential authenticity as a judicial act.”179

Irish judgments do not directly discuss prospective overruling except in the specific constitutional context. Many of the considerations which English judges evoke would apply. The very cautious approach in England and Ireland contrasts with American acceptance of prospective overruling. This may reflect wider differences in legal culture between these jurisdictions. American adherence to legal realist and law and economics analysis provides a favourable environment for prospective overruling.180 The declaratory theory of judicial decision-making, even in its more sophisticated and modern forms, finds prospective overruling problematic.181

Several distinctive features of Irish judicial culture might affect our judges’ views on prospective overruling. On one hand, the courts’ constitutional duty to do justice in all cases might argue against prospective effect in ordinary common law cases. On the other hand, Irish judges’ less strict adherence to precedent may raise more acute problems of reliance and a stronger sense that the declaratory theory is outmoded. Another consideration which may be relevant is that there are likely constitutional constraints on retrospectively imposing new liabilities – either criminal or civil – through a change in the law.182 Retrospectively depriving people of vested legal rights would be unjust and unconstitutional.183

Functional Equivalents of Prospective Overruling

Although the English courts have not explicitly employed prospective overruling in a common law context, they do use other approaches which closely resemble prospective overruling.184 Friedmann considers the landmark judgment on liability for negligent misstatement in Hedley Byrne v Heller 185 tantamount to prospective overruling.186 The House of Lords could simply have dismissed the case on the ground of the exclusion clause agreed by the parties. Instead, it set out detailed opinions on how it would deal with liability for financial misstatements in future. Technically, the judgments were obiter dicta, but they established a new cause of action which was followed in future cases.187 Secondly, Lady Arden identifies the decision of the House of Lords in Royal Bank of Scotland v Etridge (No 2) as a “low key” example of a form of prospective overruling.188 The case concerned undue influence in the context where a loan is secured against the property of the borrower’s spouse. Lord Nicholls set down criteria which would – in the future – be used to assess whether a bank had taken sufficient steps to protect a spouse’s interests. He clearly stated that the new criteria would apply to future actions, while previous criteria would continue to govern past transactions.189 Both these decisions have been followed in Ireland and there is no reason why similar approaches to stating the law for the future would not be used in this jurisdiction.

In Vesey v. Bus Éireann,190 the Irish Supreme Court expressed its reluctance to change the common law without warning. The plaintiff successfully sued the defendant in negligence after a traffic accident. The defendant argued that damages should be reduced because the plaintiff lied consistently about the amount of his loss. Hardiman J said that even if courts have an inherent power to reduce damages because of dishonesty, “it would not be appropriate to exercise it without warning in the circumstances of the present case.”191 Commentators wondered whether Hardiman J meant a warning by a trial judge, because

there is no principle that an appellate court, which is entitled and indeed required to develop legal principles, has to relieve the litigants in a case before them of the prospect of their being affected, to their surprise, by the articulation in their case of a new legal principle.192

Hardiman J revisited his remarks in O’Connor v Dublin Bus.193 This judgment indicates that he viewed the judgment in Vesey as itself beginning a process of giving fair warning to dishonest plaintiffs that they could be penalised. He said,

it is fair publicly to state what I believe to be the inherent powers of the court in cases of gross dishonesty, precisely so as to remove the possible unfairness involved in exercising those powers without warning.194

Hardiman J’s obiter dicta have subsequently been understood to represent the law and therefore themselves constitute the prior warning that the courts will henceforth penalise people who are grossly dishonest in their pursuit of a legal action.195 The leading text on practice and procedure sternly warns its readership that plaintiffs would ignore Hardiman J’s warning at their peril.196 This, then, is another functional equivalent of prospective overruling.

Irish Constitutional Law and the Retroactivity Problem

In Ireland, the problem of the implications of a judicial decision for prior conduct has been considered primarily in the context of unconstitutional legislation.197 Judicial review of the constitutionality of legislation which is already in force is a defining feature of the legal system. Constitutional theory indicates that a law which is not authorised by the superior norm cannot be valid.198 This implies that we should also deprive the invalid law of legal effect and reverse acts purportedly justified by it. However, experience has shown that undoing what has been done under an unconstitutional statute can be highly problematic. It may be impractical or undesirable.199 This is a common problem across jurisdictions.200 The United States Supreme Court has, controversially, ruled that it can deny retroactive effect to constitutional decisions.201 Canada permits the suspension of declarations of unconstitutionality where necessary to avoid creating a danger to the public, threatening the rule of law, or prejudicing citizens without vindicating the rights infringed.202

Constitutional rulings in Ireland have raised the prospect that elections,203 criminal trials204 and the levying of income tax205

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