Greene v. Minister for Agriculture [1981] IEHC 1; [1990] 2 IR 17 (4 April 1981)

The High Court
 
Between
Thomas Greene and Others
Plaintiffs
 
And
 
The Minister for Agriculture, Ireland and
The Attorney General 
Defendants
 
1981 No. 2453P [4th April, 1989]
 
Status: Reported at [1990] 2 IR 17

Murphy J.
 
 	This is a claim by the plaintiffs for an order declaring that certain schemes made by the Minister for Agriculture between 1975 and 1986 in pursuance of E.E.C. Directive 75/268/EEC or some of them are invalid in whole or in part. On the 28th April, 1975, the Council of the European Communities made a directive “on mountain and hill farming and farming in certain less favoured areas”. This is the directive cited as 75/268. As is customary in Council directives it contains numerous recitals setting out the background against which it is made and the object which it seeks to achieve. Some of these recitals are particularly relevant to the present case and I quote them in full as follows:-
 
“Whereas the statement made by the Community concerning hill farming annexed to the Treaty of Accession declares that special conditions obtain in hill farming areas as compared with other areas of the United Kingdom and that differences, at times very marked, exist between areas in the Member States of the original Community, and also that the special conditions obtaining in certain areas of the enlarged Community may require action with a view to attempting to resolve the problems raised by these special conditions and in particular to maintain reasonable incomes for farmers in such areas;
 
Whereas it is necessary that steps be taken to ensure the continued conservation of the countryside in mountain areas and in certain other less favoured areas; whereas the Member States have already taken or plan to take positive measures for this purpose and these efforts should be encouraged; whereas farming performs a fundamental function in this respect;
 
Whereas the steady decline in agricultural incomes in these areas as compared with other regions of the Community, and the particularly poor working conditions prevelant in such areas are causing large scale depopulation of farming and rural areas, which will eventually lead to the abandonment of land which was previously maintained, and moreover jeopardising the viability and continued habitation of those areas the population of which is predominantly dependent on an agricultural economy;
 
Whereas in adopting provisions allowing Member States to apply for the assistance of farming in the less favoured areas, all or some of the measures making up a particular system of aids designed to meet the particular needs of these areas the Community would be supporting the efforts made by the Member States to maintain a farming industry in such areas;
 
Whereas the permanent natural handicaps existing in such areas which are due chiefly to the poor quality of the soil, the degree of slope of the land and the short growing season, and which can be overcome only by operations the cost of which would be exorbitant, lead to high production costs and prevent farms from achieving a level of income similar to that enjoyed by farms of a comparable type in other regions;
 
Whereas it may be essential if the objectives assigned to farming in the less favoured areas are to be attained that farmers permanently engaged in agriculture in such areas be paid annual compensatory allowances;
 
Whereas it should be left to the Member States to fix the amount of such allowances according to the severity of the handicaps involved within the limits and conditions fixed for the different types of areas both as to the amounts which may be paid and the types of production which may be covered.”
 
The operative part of the directive is set out in Article 1 thereof in the following terms:-
 
“In order to ensure the continuation of farming, thereby maintaining a minimum population level or conserving the countryside in certain less favoured areas the list of which is determined in accordance with the procedure laid down in Article 2, Member States are authorised to introduce the special system of aids provided for in Article 4 to encourage farming and to raise farm incomes in those areas”.
 
The directive describes in general terms the type of less favoured farming areas to which the schemes might relate but imposes on the individual Member States the obligation of designating the relevant areas within the national territories. The particular type of aid provided is described as “a compensatory allowance”. Again the individual Member States are assigned the task (by Article 7) of fixing the amounts of the compensatory allowance subject to provisions providing for both minimum and maximum payments. The minimum figure (as set out in Article 7) provides that no allowance shall be paid for “less than fifteen units of account per livestock unit”. Nor may the allowance exceed fifty units of account per livestock unit. Livestock units are established by the annexe to the directive which expresses ovine, bovine and capric animals in livestock units for the purposes of the directive. Effectively, therefore, the compensatory allowance takes the form of an animal headage payment by the Member State to certain farmers and there is then provision (in Article 15) under which the Member States may be recouped part of the expenditure incurred by them. The portion of the expenditure borne by the Community has varied from time to time but is now approximately 50%. The directive is addressed to the Member States and under Article 17 the Member States are required to take the necessary measures to conform to the provisions thereof within one year from the date of its notification. However, perhaps the most specific provision dealing with the obligation of the Member States is set out in Article 6 as follows:-
 
“1.	Where Member States grant a compensatory allowance, farmers with at least three hectares of utilised agricultural area who undertake to pursue a farming activity in accordance with the aims of this directive for at least five years shall be eligible for such an allowance. However, where a farmer gives up agriculture in accordance with Article 2 (1) of Council Directive 72/160/EEC of the 17th April, 1972, concerning measures to encourage the cessation of farming and the re-allocation of utilized agricultural areas for the purpose of structural improvement, in cases of force majeure or, for example where his property is subject to compulsory purchase or is purchased in the public interest, he shall be released from such undertaking. Farmers in receipt of a retirement pension shall be released from the undertaking referred to in the preceding paragraph.
 
2.	Member States may lay down additional or restrictive conditions for granting the compensatory allowance.”
 
The Minister duly designated the disadvantaged areas and notified the Council of his decision in that regard. In 1975 administrative schemes were prepared and promulgated by the Minister in purported compliance with directive 75/268, one providing for cattle headage payments in severely handicapped areas, the second known as the beef cow scheme in disadvantaged areas and the third the handicapped areas (mountain sheep) scheme, 1975. All of these schemes provided that they should be applicable only to farmers with at least 7.5 statute acres of utilized agricultural area who undertook to pursue farming activity for at least five years. To that extent and in the manner to which the farmers might be released from their undertakings the schemes prepared by the Minister reflected very closely the provisions of paragraph 1 of Article 6 of the directive. In addition the cattle headage scheme provided that “applications will be accepted only from herd owners whose herds are registered under the bovine tuberculosis eradication scheme.” The scheme in relation to sheep as it evolved in subsequent years contained numerous conditions with regard to the breeds and types of sheep to which it would apply as well as to their quality and marking. In particular a condition was imposed excluding applications from flock owners “who do not furnish a current sheep-dipping certificate in respect of the sheep presented.” Attention was drawn to these technical conditions as being ones not specifically provided for by the Council directive but being conditions additional and restrictive properly imposed by the Minister in exercise of the powers conferred upon him by paragraph 2 of Article 6 aforesaid and indeed as representative of the type of condition which that paragraph envisaged. In all of the schemes for the year 1979 the Minister introduced an additional condition in the following terms:-
 
“The scheme will only apply to applicants…whose off farm income did not exceed £3,550 for the year ended the 31st December, 1978.”
 
That clause was varied and extended in 1982 by the substitution of a provision in the £allowing terms:-
 
“The scheme is open to farmers…whose off farm income combined with that of their spouses did not exceed £5,415 for the income tax year ended the 5th April, 1982.”
 
The combined spouse off farm income limit has changed from time to time. It has been both increased and reduced.
 
The named plaintiffs are farmers in disadvantaged areas or the spouses of such farmers. All of them have been refused compensatory allowances under one or other of the ministerial schemes. It is clear from the evidence that the applications, failed in some cases because the off farm income of the applicant exceeded the limit fixed by the scheme from time to time and in other cases it was clear that the off farm income of the spouse was the reason why the application for payment was refused. Apart from that essential fact the evidence of the named plaintiffs was not of the greatest importance. Perhaps it could be said of all of them that the incomes which they derive from farming -whether one accepts the figures as computed by the plaintiffs themselves or as revised by Dr. Bielenberg on their behalf - are very modest indeed. This could be significant in the sense that the headage payments payable under the schemes though apparently small in amount might be of marginal significance to them. On the other hand the scheme is not necessarily confined to farmers with very small holdings or unprofitable farms. Indeed the plaintiffs would emphasise the fact that the scheme is open to farmers who could be earning an income in excess of £20,000 per annum from their farming activities.
 
The arguments made on behalf of the plaintiffs may be summarised as follows:-
 
1.	That such of the ministerial schemes as excluded applicants by reference to their own off farm income or that of their spouse was invalid, as a scheme based on or including such a condition was ultra vires the directive which it purported to implement. It was, it was contended, ultra vires because it distinguished without justification between whole-time farmers and part-time farmers; between wealthy farmers and poor farmers, because there was no justification in the directive for according different treatment to farmers with different incomes. In support of the principle involved reference was made to Case 48/75 The State v. Royer [1976] E.C.R. 497 at p.519 and in particular the passage at paragraph 75 in the following terms:-
 
“The freedom left to the Member States by Article 189 as to the choice of forms and methods of implementation of directives does not affect their obligation to choose the most appropriate forms and methods to ensure the effectiveness of the directives.”
 
Again reference was made to Case 124/76 Moulins Pont-a-Mousson v. Office Nationale lnterprofessionel des Céréales [1977] 2 E.C.R. 1795 at p.1811 for the general proposition (at paragraph 17) as follows:-
 
“This principle requires that similar situations shall not be treated differently unless differentiation is objectively justified.”
 
However, the issue between the parties in this regard did not turn so much on any principle of E.E.C. law as upon the interpretation of the directive itself. Was the purpose of the directive the conservation of land as the plaintiffs contend or was its purpose to provide income support for farmers in disadvantaged areas as the defendants argue? It seems to me that the directive had both objectives. In the first of the recitals quoted from the directive specific reference was made to the need “to maintain reasonable incomes for farmers” in less favoured areas. It was a subsequent recital which expressed concern about:-
 
“jeopardising the viability and continued habitation of those areas the population of which is predominantly dependent on an agricultural economy.”
 
It seems to me that these recitals make it clear that the directive had the twofold purpose of conserving less favoured areas and maintaining farm incomes. It may be that one object was the means of achieving another but both are clearly identified and it seems to me therefore that the Minister in framing a scheme to implement the directive was entitled to have regard to both of the material considerations. Once it is recognised that the maintenance of farm incomes in the relevant areas is a valid and material consideration there is no difficulty in justifying some form of means test. If part of the objective of the directive is to achieve “reasonable incomes” or if the attainment of such incomes is the means of achieving the ultimate goal of conservation of less favoured areas it would be legitimate and in my view appropriate to import into the scheme some form of
means test.
 
The plaintiffs can and do point out that the form of the means test is crude. It is not clear why it relates to off farm income and not farm income. Perhaps it is particularly surprising to learn that the off farm income as interpreted for the purposes of the scheme does not extend to unearned income. Again it is obvious that in the absence of some form of tapering provision or marginal relief the income limits could operate oppressively in some cases. It is theoretically possible that as a result of an additional £2 of income between him and his spouse an applicant could lose £2,000 in headage payments. Perhaps some of these factors can be explained within the policy of the directive. Perhaps it could be argued that off farm earned income entails a greater degree of off farm activities and accordingly a lesser involvement in the pursuit of farming. Whilst Dr. Bielenberg, the distinguished agricultural consultant, in the course of his evidence disputed that proposition, it does seem to me that the point is at least arguable. In fact the desirability of limiting compensatory allowances having regard to off farm incomes has been recognised in at least four of the Member States. Belgium, France, Greece and Italy operate schemes which required the applicant to earn at least 50% of his income and to spend at least 50% of his time working on the farm. The fact that other Member States have such schemes and that those schemes and the scheme prepared by the Minister for Agriculture here have been approved annually by the Commission which, as I say, reimburses a substantial part of the expenditure is a material, though not decisive, consideration. The fact that a scheme may produce anomalies which more detailed consideration or more sophisticated drafting might obviate would not be a sound reason for condemning the validity of the scheme. In my view the series of schemes made by the Minister in purported compliance with directive 75/268 were an appropriate means of implementing that directive having regard to its purpose and the express powers conferred on the individual Member States. Accordingly the argument by the plaintiffs to the effect that the schemes were ultra vires the directive fails.
 
2.	Anticipating correctly an argument to be made by the defendants, it was contended that Article 29, s. 4, sub-s. 3 of the Constitution did not protect the ministerial schemes from a challenge as to their validity having regard to the provisions of the Constitution. The relevant sub-section of the Constitution provides as follows:-
 
“The State may become a member of the European Coal and Steel Community (established by Treaty signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty signed at Rome on the 25th day of March, 1957) and the European Atomic Energy Community (established by Treaty signed at Rome on the 25th day of March, 1957). No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State.”
 
On behalf of the defendants it was contended that the implementation of the ministerial schemes was necessitated by the obligations of this State as a member of the Community. Whilst it was recognised that the scheme was drafted and made by the Minister it was pointed out that it required and had obtained the approval of the Commission and it was contended that on being approved each scheme became “a measure adopted by the State necessitated by the obligations of membership of the Communities.” In my view this argument is not well founded. Undoubtedly membership of the Communities required Ireland to implement a scheme complying with directive 75/268 but it does not follow that any and every scheme drafted in pursuance of that directive and meeting its purpose is necessarily required by our membership of the Communities. The specific provisions of Article 6, para. 2 allowing Member States to introduce “additional or restrictive conditions” and the fact that some members have and others have not introduced such restrictive conditions demonstrates that such conditions are not required by membership of the Communities.
 
In Lawlor v. Minister for Agriculture [1990] 1 IR 356 in dealing with Article 29, s. 4, sub-s. 3 of the Constitution I did comment at p. 377 as follows:-
 
“It seems to me that the word ‘necessitated’ in that sub-section could not be limited in its construction to laws, acts or measures all of which are required in all of their parts to be enacted, done or adopted by the obligations of membership of the Community. It seems to me that the word necessitated in this context must extend to and include acts or measures which are consequent upon membership of the Community and in general fulfilment of the obligations of such membership, and even where there may be a choice or degree of discretion vested in the State as to the particular manner in which it would meet the general spirit of its obligations of membership.”
 
I have no doubt but that laws enacted, acts done and measures adopted by the State are necessitated within the meaning of the Third Amendment aforesaid by obligations of membership of the Communities even where the particular actions of the State involve a measure of choice, selection or discretion. If there were no such flexibility it would hardly be necessary to say that the particular actions were adopted by the State at all. Presumably they would have operated as a Community regulation rather than as a directive by it.
 
On the other hand there must be a point at which the discretion exercised by the State or the national authority is so far-reaching or so detached from the result to be achieved by the directive that it cannot be said to have been “necessitated” by it. In Lawlor v. Minister for Agriculture the directive under consideration effectively required Member States to make some provision providing for or dealing with the problems which would necessarily have arisen between the base year for the reference quantity (or quota as it is referred to in practice) and the date on which the relevant Council regulations came into operation. There was a measure of discretion as to how this might be achieved but either the problem had to be resolved by legislation or the lacuna filled by judicial decision as rights would necessarily have been affected between the base year and the date on which the regulations took effect. In the present case there is nothing in the directive which requires expressly or by implication any regulation by Member States dealing with the income of farmers or their spouses who may be affected by the directive. As I say the particular conditions were introduced by some Member States and not by others in accordance with the almost unqualified discretion with regard to the imposition of conditions conferred by the directive. It does seem to me that the word “necessitated” as used in Article 29, s.4, sub-s.3 involves questions of degrees of necessity or at least limits as to discretion. In the present case it seems to me that the particular provisions introduced by the defendants with regard to the income of the farmer or his spouse could not be said to have been necessitated by the obligations of the State as a member of the Communities.
 
3.	The plaintiffs further argued that the ministerial schemes which imposed conditions in relation to the income of a farmer or his spouse were ultra vires the Minister, first, because they failed to vindicate the personal right of the citizen to equality before the law in accordance with Article 40, ss.1 and 3 of the Constitution and, secondly, because they were in breach of the pledge given by the State in Article 41, s.3 to guard with special care the institution of marriage. Counsel for the plaintiffs recognised that there were formidable difficulties in sustaining the argument based on the equality provisions contained in Article 40, s.1 of the Constitution. The authoritative exposition of Article 40, s.1 of the Constitution is set out in the decision of the Supreme Court in Quinn's Supermarket v. Attorney General [1972] IR 1 and is summarised in the judgment of Walsh J. at pp.13-14 as follows:-
 
“The provisions of Article 40, s.1, of the Constitution were discussed in the decision of this Court in The State (Nicolaou) v. An Bord Uchtála [1966] IR 567, 639. As was there decided, this provision is not a guarantee of absolute equality for all citizens in all circumstances but it is a guarantee of equality as human persons and (as the Irish text of the Constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequalities grounded upon an assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community.”
 
On behalf of the plaintiffs it was suggested that this was a restricted interpretation of Article 40, s.1 and that I should prefer the wider interpretation for which Professor Kelly contends in his learned treatise on the Constitution. Apart from any difficulty which this court might face in adopting the interpretation and approach favoured by Professor Kelly as expressed by him in The Irish Constitution (2nd ed.) (1980) at p.347 and as amplified in his article in XVIII Irish Jurist (1983) 259, it seems to me that the constitutional issue in the present case is effectively governed by the decision of the Supreme Court delivered by Kenny J. in Murphy v. Attorney General [1982] I.R. 241 in which it was held that the imposition of different burdens of taxation on married couples living together as against the burden imposed on unmarried couples living together did not offend the equality article of the Constitution. It seems to me that that precedent and principle are equally applicable to the present case. However, I believe that the same authority, Murphy v. Attorney General, requires me to conclude that the imposition of a scheme by the State or any of its agents on married couples living together which is substantially different from one placed on unmarried couples living together is in breach of the pledge by the State to guard with special care the institution of marriage and to protect it against attack. The judgment of the Court on that issue is set out in the penultimate paragraph of the judgment at p.287 and may have been ambiguous in the sense that it was not clear whether the Court was condemning the legislation because it represented something in the nature of an inducement to live together without marrying or whether the legislation was condemned simply because of the penalty which it imposed. That the latter was the correct interpretation was clearly established by a single sentence towards the conclusion of the judgment of the Chief Justice in Muckley v. Ireland [1985] IR 472 at 485 as follows:-
 
“Essentially the decision [Murphy v. Attorney General] is to the effect that the invalid sections penalised the married state.”
 
Again the fact that the particular financial burden imposed on the plaintiffs in Murphy v. Attorney General related to a “progressive” tax was not the decisive factor in condemning the fiscal provisions under which it was provided. In Hyland v. Minister for Social Welfare [1989] IR 624, Barrington J. applied the decision in Murphy v. Attorney General to those provisions of the Social Welfare (No.2) Act, 1985, which imposed a financial disadvantage - though not a progressive one -on married as opposed to unmarried couples living together .
 
Conclusions
 
What then are the consequences of this constitutional infirmity in the ministerial schemes made pursuant to directive 75/268?
 
The ministerial schemes not being laws enacted by the Oireachtas are not invalidated by virtue of Article 15, s.4 of the Constitution. Again that Article would have no application and would provide no direct assistance in determining the extent to which the schemes would be invalidated or the date from which they would cease to have operative effect. The ministerial schemes are defective and must be condemned because they fail to respect and vindicate express constitutional rights. In State (McLoughlin) v. Eastern Health Board [1986] IR 416 at 426 McCarthy J. observed as follows:-
 
“…I greatly doubt if any statutory instrument can remain valid when any material portion of it has been judicially condemned; I cannot identify any legal principle of construction to support judicial resuscitation of truncated subordinate legislation.”
 
Whilst I would be happy to adopt that proposition and the felicitous manner in which it is expressed, it is even more important to recognise that in the present case, as in McLoughlin, the operation of the ministerial schemes without excluding therefrom the married couples who exceeded the income limits for the time being would be to operate a very different scheme from that which had been intended by the Minister and sanctioned both in its content and its financing by the Commission. The very large number of persons associated with the plaintiffs in the present case is ample proof of that fact. In the circumstances the argument of the plaintiffs for relief based on the severance of the offensive conditions from the remainder of the schemes cannot succeed. 
 
The question whether a Minister may be liable in damages for an ultra vires decision taken by him in good faith was considered in Pine Valley Developments v. Minister for the Environment [1987] IR 23. There the Supreme Court also considered the claims of a property owner whose rights were affected by such an ultra vires decision as a result of the failure of the State to defend and vindicate his property right by taking effective action to compensate him for the loss which he sustained as a result of the invalid order. The Supreme Court rejected the claim for damages under either heading in the particular circumstances of that case.
 
The plaintiffs in the present case, unlike those in Pine Valley, cannot establish the infringement of any personal constitutional right. The only right which they can assert successfully is the general right of the citizen to the performance by the State of its obligation “to guard with special care the institution of marriage.” Whilst I accept that citizens are entitled to ensure that that duty is observed and the constitutional pledge is honoured the duty cast on the State does not create a corresponding right in the individual citizen so that a breach of the duty would necessarily constitute an infringement of any right of his. Even if the unconstitutional and ultra vires action of the Minister did give rise to an action sounding in damages I would not accept that such damages could be measured by reference to the difference between the headage payments which the plaintiffs would have received under the various ministerial schemes if they had operated in accordance with their terms other than those conditions relating to the income of spouses. This conclusion necessarily follows from the views which I have already expressed on the non-severability of the offending conditions. The evidence indicated that the amount allocated annually for the ministerial schemes both by the State and by the Commission was determined on the basis of the conditions contained in the schemes including the condition which excluded individuals or married couples with incomes exceeding specified limits. I would not infer from the evidence nor would economic considerations suggest that the monies available would have been increased to meet the demands which would have arisen if it had been appreciated that these conditions were in part invalid having regard to the provisions of the Constitution. It seems much more likely that appropriate steps would have been taken to redraft these conditions so as to ensure that they did not discriminate against married couples or otherwise penalise the married state. Economic interests, constitutional requirements and public morality would all be in harmony if the condition discriminating against married couples was extended to unmarried couples living together. However, these are not recommendations for amendment but reasons for declining to infer that the damages suffered by the plaintiffs or any of them could be measured by reference to the headage payments from which they were precluded by virtue of the unconstitutional conditions in the ministerial schemes.
 
The seminal case on damages for breach of constitutional rights is Meskell v. Coras Iompair Éireann [1973] IR 121 and the basic proposition as to that right is set out by Walsh J. at p.138 as follows:-
 
“…a person whose constitutional rights have been infringed may sue to enforce them or he may sue for damages suffered by reason of the infringement.”
 
It seems to me that the constitutional rights of the plaintiffs, that is to say, their personal constitutional rights, have not been infringed. What has happened is that the Minister as an agent of the State has neglected to perform his constitutional duty to safeguard the institution of marriage. There is no evidence of damage suffered by the plaintiffs by reason of the neglect by the Minister of that constitutional duty. In these circumstances it seems to me that the plaintiffs are entitled to declaratory relief only and that their claim to damages fails.
 
One further matter arose in the case which is not material for the purposes of this judgment but it might be helpful to comment on it in case the matter is taken elsewhere. The action was brought by five plaintiffs named in the title to the proceedings and paragraph 12 of the statement of claim went on to assert as follows:-
 
“The plaintiffs bring this action on behalf of themselves and on behalf of all farmers in such areas, and in particular those farmers who are listed in the schedule hereto, who, since the implementation of regulations of 1979 and those which follow them, have been refused or have not received headage payments on account of the aforementioned invalid and discriminatory provisions.”
 
In fact no schedule was annexed to the statement of claim but by agreement between the solicitors on behalf of the plaintiffs and the defendants a list of 1390 farmers was transmitted to the defendants in lieu of the schedule referred to in the statement of claim. Counsel contended that all of the persons named in the list were plaintiffs and that the persons named in the title to the proceedings were entitled to sue on behalf and for the benefit of those named in the list without any further order of the court. On behalf of the defendants it was contended that a representative order would be necessary for that purpose and that the same should not be granted. As the nominal plaintiffs did not in fact apply for a representative order no issue was knit. However, evidence was led and argument was addressed to the issue of fact as to how far the persons named in the list had authorised proceedings on their behalf. The listed plaintiffs (as opposed to those named as plaintiffs) did not sign and were not asked to sign any specific authorisation in respect of the proceedings. What the evidence established was that the problem was debated in a number of venues throughout the country where interested parties were invited to attend and a general exchange of views took place. Essentially those who were in favour of pursuing the matter further were asked to subscribe to a fighting fund and I am satisfied on the evidence that they did so on the basis that they would be persons on whose behalf and for whose benefit the proceedings would be brought. I think it unlikely that they anticipated that they might render themselves liable for additional costs as a result of so doing. Indeed the evidence would suggest that the funds collected were such that there should be no need for further recourse to those associated with the proceedings no matter what the outcome of the case. Accordingly I would resolve any issue of fact in regard to this matter by concluding that the listed plaintiffs had authorised the proceedings on their behalf and in their name. As I say this is not material having regard to the decision which I have reached and will be relevant only if my judgment on the substantive issue is reversed by the Supreme Court.