The Court of Appeal increased damages for a block layer whose constitutional right to earn a livelihood was breached after a union failed to decide his application for full membership and told employers he was not a member. The court also proposed exemplary damages of €7,500 against the union and set out a provisional costs order.
The judgment, delivered by Ms Justice Power on 15 October 2021, allowed the appeal on the assessment of lost opportunities and exemplary damages. It replaced the High Court’s €15,000 general damages award with €22,500, including recognition of the established loss of job opportunities. It also proposed €7,500 in exemplary damages to mark the court’s disapproval of the union’s conduct.
The liability finding had already been established in earlier proceedings. The Court of Appeal had found that after the block layer’s probationary union membership ended on 31 December 1999, the Building and Allied Trades Union failed to assess his suitability for full membership as its rules required. It found that the union then informed employers he was not a member, leading them to dismiss him or not employ him further. The breach concerned the post-probationary period. The court had rejected findings of conspiracy and intimidation, and found no wrongful exclusion during the earlier pre-probationary or probationary periods.
The High Court had refused damages for claimed lost earnings, opportunities, distress, aggravated damages and exemplary damages, while awarding €15,000 in general damages. The Court of Appeal upheld the refusal of the lost earnings claim: the block layer had not proved his specific net loss. It also upheld the refusal of damages for distress and aggravated damages. The court said the expert evidence on distress had been admitted and then disregarded in an unusual way, but concluded that the ultimate decision not to award distress damages was not vitiated by error. It found that the absence of an apology alone did not justify aggravated damages.
The appeal court said the High Court should have considered evidence of job losses already accepted during the liability stage when assessing lost opportunities. That loss did not require the same detailed financial proof as a lost earnings claim and should have informed general damages. It also found that the High Court had not adequately assessed the union’s conduct when considering exemplary damages. Although the conduct did not establish conspiracy or intimidation, it supported an award for the constitutional breach.
On costs, the court proposed that the block layer recover 85% of High Court costs and expenses, all expenses from the quantum hearing, and all expenses incurred in the appeal. It proposed no High Court costs order against him and no costs in favour of the respondents on appeal. The costs proposals were expressly provisional: parties could seek a short hearing within seven days to argue for an alternative order. The judgment records that the other two appeal judges agreed with its reasoning and conclusions.