Constitution & Torts
Cases
Hanrahan v. Merck Sharp and Dohme (Ireland) Ltd
[1988] IESC 1; [1988] ILRM 629 (5th July, 1988)
The plaintiffs have also invoked the Constitution in support of their argument as to the onus of proof. They contend that the tort relied on by them in support of their claim is but a reflection of the duty imposed on the State by Article 40.3 of the Constitution in regard to their personal rights and property rights. The relevant constitutional provisions are:-
The State guarantees in its laws to respect, and as far as practicable, by its laws to
defend and vindicate the personal rights of the citizen.
2 The State shall, in particular, by 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.
23. I agree that the tort of nuisance relied on in this case may be said to be an implementation of the State’s duties under those provisions as to the personal rights and property rights of the plaintiffs as citizens. The particular duty pointed to by the plaintiffs is the duty to vindicate the personal right to bodily integrity and the property right to their land and livestock. They say that vindication of those rights under the constitutional guarantee is not properly effective by leaving them to their rights as plaintiffs in an action for nuisance and that the vindication they are guaranteed requires that once they show that they have been damnified in their person or property as alleged, it should be for the defendants to show that emissions from their factory were not the cause.
24. So far as I am aware, the constitutional provisions relied on have never been used in the courts to shape the form of any existing tort or to change the normal onus of proof. The implementation of those constitutional rights is primarily a matter for the State and the courts are entitled to intervene only when there has been a failure to implement or, where the implementation relied on is plainly inadequate, to effectuate the constitutional guarantee in question. In many torts “ for example, negligence, defamation, trespass to person or property “ a plaintiff may give evidence of what he claims to be a breach of a constitutional right, but he may fail in the action because of what is usually a matter of onus of proof or because of some other legal or technical defence. A person may of course in the absence of a common law or statutory cause of action, sue directly for breach of a constitutional right (see Meskell v C.I.E. IR 121); but when he founds his action on an existing tort he is normally confined to the limitations of that tort. It might be different if it could be shown that the tort in question is basically ineffective to protect his constitutional right. But that is not alleged here. What is said is that he may not succeed in having his constitutional rights vindicated if he is required to carry the normal onus of proof. However, the same may be said about many other causes of action. Lack of knowledge as to the true nature of the defendants conduct or course of conduct may cause the plaintiff difficulty, but it does not change the onus of proof.
25. It is also to be noted that the guarantee to respect and defend personal rights given in Article 40.3.1º applies only ˜as far as practicable and the guarantee to vindicate property rights given in Article 40.3.2 refers only to cases of ˜injustice done. The guarantees, therefore, are not unqualified or absolute. I find it impossible to hold that Article 40.3.1means that a plaintiff in an action in nuisance is to be relieved of the onus of proving the necessary ingredients of that tort. Neither, in my view, does Article 40.3.2warrant such a dispensation, for the guarantee of vindication there given arises only ˜in the case of injustice done, so it is for the plaintiff to prove that the injustice relied on was actually suffered by him and that it was caused by the defendant.
26. I would hold that the trial judge correctly rejected the submission of the plaintiffs that an onus of disproving the allegation as to causation should rest on the defendants.
Parsons v Kavanagh (t/a a Quantabus Travel Club) [1990] ILRM 560 (HC, 1987)
O’Hanlon J:
The plaintiff brought proceedings in the Circuit Court seeking an injunction to restrain the defendants from operating a passenger bus service on the Dublin/Clonmel, Clonmel/Dublin route, while not in possession of the appropriate passenger licence granted in accordance with the provisions of the Road Transport Acts I 932 and 1933. The equity civil bill also included a claim for £15,000 for alleged wrongful interference with a passenger bus service which the plaintiff claimed she was lawfully operating between the said termini pursuant to the terms of a licence granted under the provisions of the said Acts.
It was pleaded, and not contested, that the plaintiff’s husband had obtained the necessary licence for this purpose, and had carried on a passenger transport business between Clonmel and Dublin from the year 1969, and that on his death the plaintiff succeeded to his entitlement to operate the said business. A rival concern, in the shape of the defendants, came on the scene towards the end of the year 1986, and commenced to provide a bus service in competition with the plaintiff between Clonmel and Dublin, charging lower prices than the plaintiff. It was alleged by the plaintiff, and once again not seriously disputed by the defendants, that the defendants did not have, at any material time, the necessary licence under the Road Transport Acts which would have entitled them to provide the said passenger bus service.
In these circumstances the plaintiff, being apprehensive of the impact the defendants’ competition would have on her business, sought and was granted an injunction to restrain the defendants from continuing with their bus service, and from that decision the defendants have appealed to the High Court. No damages were awarded by the learned President of the Circuit Court, who dealt with the case, the competing bus service having been in operation only during the months of December 1986 and January 1987.
Two grounds of appeal were relied on by the defendants. It was contended that the plaintiff was not entitled in her personal capacity to seek an injunction for the purpose of enforcing the provisions of the Road Transport Acts against the defendants. second, the defendants claimed that even if this legal issue were decided in favour of the plaintiff, the Circuit Court had no jurisdiction to deal with the claim as no facts had been pleaded or established which would bring the claim within the equity jurisdiction of that court. Apart from these issues of strict law which were raised by the defendants, they also claimed that the plaintiff had failed to produce any or any adequate evidence to show that any loss or damage had been caused to her by reason of the operations carried on by the defendants.
Some of the general principles which have emerged as a result of these decisions may be stated as follows.
1. Whether or not an individual can bring a common law action in respect ofa breach ofa duty imposed by statute depends upon whether the intention of the statute considered as a whole and in the circumstances in which it was made and to which it relates was to impose a duty which is a public duty only, or to impose in additiona duty enforceable by an aggrieved individual. No universal rule can be formulated which will answer the question whether in any given case an individual can sue: Phillips v Britannia Hygienic Laundry Co Ltd[ 1923]2 KB 832 at 841; Halsbury s Laws of England (4th ed, Vol 44) paras 941, 961.
2. The only rule which in all circumstances is valid is that the answer must depend ona consideration of the whole Act and the circumstances, including the existing law, in which it was enacted. In answering the question it is relevant to consider whether the statute was intended to protect a limited class of persons or the public asa whole; whether the damage suffered by the person seeking to sue was of the kind which the statute was intended to prevent; whethera special statutory remedy by way of penalty or otherwise is prescribed for breach of the statute; the nature of the obligation imposed, and the general purview and intendment of the statute. If a statute, on its true construction, is intended to protecta particular class it is some indication that members of that class are intended to havea right of action, as for example, in the case of statutes for the
protection of factory workers: Cutler v Wandsworth Stadium Ltd[ 1949] AC 398.
3. Wherea statutory remedy by way of criminal proceedings is provided for the breach ofa statutory duty there is a strong implication that no civil action for breach of that duty lies. The imposition by a statute of a penalty for breach ofa statutory duty is generally a ground for holding that no common law action for damages lies for breach of that duty: per Lord Tenterden CJ in Doed Bishop of Rochesterv Bridges (1831) I B & Ad 847 at 859. It may be relevant to consider whether the penalty imposed by the statute is an adequate deterrent against breach of statutory duty: Groves v Lord Wimborne (1898)2 QB 402.
The plaintiff in the present case claims that the Road Transport Acts were passed not merely for the benefit of the public at large, but for the protection of those to whom passenger carriage licences were granted against uncontrolled competition from unauthorised operators who were not subject to any of the conditions imposed under the Acts on licensees for the safeguarding of the interests of the public.
She also claims that a person carrying on a lawful trade or calling hasa legal right to be protected from any unlawful interference with it, a principle which commended itself to Lord Denning MR in Exp Island Records Ltd [1978] Ch 122.
I do not accept the contention of the plaintiff that the Road Transport Acts 1932 and 1933 should on their true construction be regarded as statutes passed for the benefit of that limited class of the public, of whom the plaintiff is one, who are for the time being holders of licences granted under the Acts for the carriage of passengers by road. The provisions of the Acts appear to me to be comparable in ways with the provisions of the Betting and Lotteries Act 1934 which was considered by the House of Lords in Cutlerv Wandsworth Stadium Ltd, regulating the conditions under which bookmakers were to bepermitted to practice their calling in dog-racing tracks. The Law Lords refused to regard the statute in question as a ‘bookmakers’ charter’ and refused relief by way of injunction to the plaintiff who was a bookmaker claiming to have been excluded from Wandsworth Stadium in breach of the obligations imposed on the track-owner under the provisions of the Act. Returning to the topic in Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173, the House of Lords rejected the principle which had been enunciated by Lord Denning MR in the Island Records case, that ‘whenever a lawful business carried on by one individual in fact suffers damage as a consequence of a contravention by another individual of any statutory prohibition, the former has a civil right of action against the latter for such damage.’ The decision in Lonrho was followed by the English Court of Appeal in RCA Corporation v Pollard [1983] Ch 135, Oliver LJ observing that:
“no case cited to us has gone so far as to confer a cause of action where the damage complained of is merely economic damage as an incidental result of the breach of a prohibition in a statute not designed to protect the interests of a class to which the plaintiff belongs”.
In our jurisdiction, however, one must consider whether the legal situation may not differ hy reason of the provisions of the Constitution. There is also the wider principle, not expressly derived from the Constitution, but accepted by Costello J in his judgment in Attorney General v Paper/ink Ltd [1984] ILRM 373 (quoting Lord Denning MR in Attorney General v Chaudry [1971] 1 WLR 1614 at 1624) that:
“whenever Parliament has enacted a law and given a particular remedy for the breach of it, such remedy being in an inferior court, nevertheless, the High Court always has a reserve power to enforce the law so enacted by way of an injunction or other suitable remedy. The High Court has jurisdiction to ensure obedience to the law whenever it is just and convenient so to do.”
The right to earn one’s living by any lawful means was recognised by Kenny J in Murtagh Properties Ltd v Cleary [1972] IR 330 as one of the unspecified or undefined rights arising under the Constitution, to which he had referred in his previous judgment in Ryan v Attorney General [1965] IR 294. In the Murtagh Properties case he granted an injunction to restrain picketing of a licensed premises on the basis that it amounted to an unlawful interference with the constitutional right of the barmaids employed thereto to earn their livelihood.
The same judge in the later case Yeates v Minister for Posts and Telegraphs [1978] I LRM 22 again referred to constitutional right (with the concurrence of 6 Dalaigh CJ and Budd J):
“It has been submitted in this court on behalf of the plaintiff and not really contested by the defendants that among the unspecified rights guaranteed by the Constitution is the right to work; I accept that proposition. The question whether that right is being infringed or not must depend upon the particular circumstances of any given case.”
The Supreme Court in Byrne v Ireland [1972] IR 241 was primarily concerned with the enforceability of civil claims against the State in situations where a right of action would arise against a private individual but the judgments also stress that rights derived from the Constitution must be safeguarded by remedies to be provided by the courts. Walsh J said, at p 281 of the report:
“Where the people by the Constitution create rights against the State or impose duties upon the State, a remedy to enforce these must be deemed to be also available. It is as much the duty of the State to render justice against itself in favour of citizens as it is to administer the same between private individuals. The investigation and the adjudication of such claims by their nature belong to the judicial power of government in the Statedesignated in Article 6 of the Constitution of Ireland, which is vested in the judges and the courts appointed and established under the Constitution in accordance with the provisions of the Constitution.”
I take the view, accordingly, that the constitutional right to earn one’s livelihood by any lawful means carries with it the entitlement to be protected against any unlawful activity on the part of another person or persons which materially impairs or infringes that right. In the present case, I am satisfied that the plaintiff was engaged in the lawful trade or calling of private bus operator between Clonmel and Dublin and that her ability to provide for her own livelihood by this means was threatened and actually interfered with in a material manner by operations conducted outside the law by the defendants. While the evidence of actual loss caused to the plaintiff was unsatisfactory in some respects, it was sufficient to satisfy me as a matter of probability that the defendants’ unlawful operations as carriers were having a significant impact on the plaintiff’s source of income at the time when these proceedings were commenced. The plaintiff’s son gave evidence to the effect that the Dublin run was the most profitable part of the family business and he expressed the opinion that they would have to close down if the defendants’ operations were allowed to continue. It does not take much to convince me that a rival operation offering a return fare of £7 as against the £IO fare offered by the plaintiff’s buses, was bound to hit the plaintiff’s operation very hard, and I accept that it did pose a real threat to her livelihood.
On the basis that the defendants have been shown to have engaged in unlawful activity which impaired in a significant manner the plaintiff’s exercise of her constitutional right to earn her living by lawful means, I propose to uphold the finding of the learned President of the Circuit Court that a case has been made out for the granting of an injunction as sought by the plaintiff.
I would also incline to the view that even if the claim could not be maintained for breach of constitutional right, it would be enforceable on the basis referred to in the judgment of Costello J in the Paperlink case, having regard to the present-day inadequacy of the penalties provided by the Road Transport Acts I 932 and 1933 for such breaches of the provisions of the Acts. These monetary penalties have remained unchanged for some 55 years and with the fall in the value of money in the meantime they appear to me at the present time to be somewhat derisory as a deterrent against possible breaches of the Acts.
Meskell v. Coras Iompair Eireann
Walsh J. [1973] IR 121
Supreme Court
…. a right guaranteed by the Contitution . can be protected action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it. Therefore, if a person has suffered damage by virtue of a breach of a constitutional right or the infringement of a constitutional right, that person is entitled to seek redress against the person or persons who have infringed that right. As was pointed out by Mr. Justice Budd in Educational Company of Ireland Ltd.v. Fitzpatrick (No. 2) 17, it follows that “if one citizen has a right under the Constitution there exists a correlative duty on the part of other citizens to respect that right and not to interfere with it.” He went on to say that the Courts would act so as not to permit a person to be deprived of his constitutional rights and would see to it that those rights were protected.
The learned trial judge went on to treat the action as one for damages for conspiracy. In the course of dealing with this aspect he said: “Even were I to assume that the plaintiff suffered damage as a result of the action of the defendants and the unions (and I am far from concluding that he did) the case must fail, for the object or purpose of the agreement was not to injure the plaintiff. The test is ‘what is in truth the object in the minds of the combiners when they acted as they did?'” That test was stated by Viscount Simon L.C. in Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch 18, which the trial judge said had been incorporated into the law of this country by the judgment of the Supreme Court in McGowan v.Murphy (Supreme Court, 10th April, 1967). The learned trial judge was not quite correct in this reference to McGowan v. Murphy. The only reference in that decision to the Crofter Case 18 was as an authority for the proposition that a combination of persons was in a less favoured position than an individual when the sole or main purpose of the combination was the injuring of a person and that person suffers damage. In other words that there can be conspiracy when the object of the agreement is unlawful even when the means are not unlawful. The passage the learned trial judge may have been thinking of was one which was based on the decision in Sorrell v. Smith 19 and which appeared in the judgment delivered in the Supreme Court as follows: “If, however, the real purpose of the combination was not to injure the plaintiff but to defend the interests of the trade union by maintaining discipline then no wrong was committed and no action will lie even though damage to the plaintiff resulted provided that the means used were not in themselves unlawful.” The key phrase there are the words “provided that the means used were not in themselves unlawful.”
In the present case one may assume for the purpose of the decision that the object of the agreement between the defendants and the trade unions was the well-being of the defendants and of the unions, and even of the members of the unions. The complaint made here is that the means adopted to achieve this end were unlawful. If that is so, then there was a conspiracy. To infringe another’s constitutional rights or to coerce him into abandoning them or waiving them (in so far as that may be possible) is unlawful as constituting a violation of the fundamental law of the State; in so far as such conduct constitutes the means towards an end which is not in itself unlawful, the means are unlawful and an agreement to employ such means constitutes a conspiracy. If damage results, it is an actionable conspiracy. It is not necessary in this judgment to decide whether or not it amounts to a criminal conspiracy. The decision in the Crofter Case 20does not in any way indicate that, because the predominant purpose of an agreement is not unlawful, the agreement cannot amount to a conspiracy even if unlawful means are used. In the present case the learned trial judge concenttrated entirely upon the object or purpose of the agreement, and he overlooked the means employed which were the matters complained of in the action.
The plaintiff’s case rested upon the provisions in Article 40, s. 6. sub-ss. 1 (iii) and 2, of the Constitution, and upon the decision of the former Supreme Court of Justice in Educational Company of Ireland Ltd. v.Fitzpatrick. (No. 2) That case decided that the right of citizens to form associations and unions conferred also the implicit right to abstain from joining associations or unions, which might be called the right of dissociation.
One of the questions which was argued in detail in the present appeal was the effect of the constitutional right to form an association, or the constitutional right not to belong to an association, on the ordinary common-law rights of an employer to engage or dismiss his workers when, in doing so, he was not in breach of contract. If an employer threatens an employee with dismissal if he should join a trade union, the employer is putting pressure on the employee to abandon the exercise of a constitutional right and is interfering with his constitutional rights. If the employer dismisses the worker because of the latter’s insistence upon exercising his constitutional right, the fact that the form or notice of dismissal is good at common law does not in any way lessen the infringement of the right involved or mitigate the damage which the worker may suffer by reason of his insistence upon exercising his constitutional right. If the Oireachtas cannot validly seek to compel a person to forgo a constitutional right, can such a power be effectively exercised by some lesser body or by an individual employer? To exercise what may be loosely called a common-law right of dismissal as a method of compelling a person to abandon a constitutional right, or as a penalty for his not doing so, must necessarily be regarded as an abuse of the common-law right because it is an infringement, and an abuse, of the Constitution which is superior to the common law and which must prevail if there is a conflict between the two. The same considerations apply to cases where a person is dismissed or penalised because of his insistence upon, or his refusal to waive, his right to dissociate. In each of these cases the injured party is entitled, in my view, to recover damages for any damage he may have suffered by reason of the dismissal or penalty resulting from his insistence upon exercising his constitutional right, or his refusal to abandon it or waive it. As there is no claim in the present case for reinstatement, I do not need to consider that matter.
The present case is one relating to dismissal only. The defendants, in their submissions in this Court, claimed that neither the constitutional rights mentioned nor the other Articles of the Constitution guarantee to any citizen the right to any particular employment or class of employment, irrespective of membership or non-membership of a trade union. In my view, that point does not arise for consideration in this case and could arise only if this action arose out of a refusal to engage or hire a person seeking employment on the grounds that he was a member of a trade union or on the grounds that he was not, or on the ground that he had refused to given an undertaking either way. I do not wish to express any view on such a case until there is one brought to this Court.
In my view, upon the facts proved in this case the plaintiff is entitled to a declaration that his dismissal was a denial and a violation of and an unlawful interference with his constitutional rights, and that the agreement between the trade unions concerned and the defendants to procure or cause that dismissal was an actionable conspiracy because the means employed constituted a breach or infringement of the plaintiff’s constitutional rights. In my view, the plaintiff is entitled to such damages as may, upon inquiry, be proved to have been sustained by him.
Lastly, the defendants relied upon s. 10 of the Railways Act, 1933, as applied by s. 46 of the Transport Act, 1950. Those sections provide that the rates of pay, the hours of duty and other conditions of service of the road transport employees shall be regulated in accordance with agreements made or to be made from time to time between the trade union representatives of such employees on the one part and the defendants on the other part. The defendants say that the agreement, the subject matter of the present litigation, was such an agreement and was expressly provided for by statute and, as such, could not constitute an actionable conspiracy. In effect, therefore, the defendants say that the statute contemplates that an agreement between the trade unions and the defendants could contain a condition requiring trade-union membership, or membership of a particular trade union, to be a condition of a contract of service between the defendants and their workmen. Article 9 of the Constitution of SaorstƒÂ¡t ireann guaranteed the right to “form associations or unions.” For the reasons already given by the formerSupreme Court of Justice in the Educational Company of Ireland Ltd. v. Fitzpatrick (No. 2) 23, I am of opinion that this guarantee also carried with it the implicit guarantee of the right of dissociation. Bearing in mind the observations of the Chief Justice in The State (Quinn) v. Ryan 24at p. 119 and my own observations at p. 125 of the report, it follows that s. 10 of the Act of 1933 would be construed on the presumption that it was in accordance with the Constitution of the day and that the Oireachtas of the day did not intend it to be otherwise. If s. 10 of the Act of 1933 had purported to give power to the trade unions concerned and the railway company to do what was done in the present case, it would clearly have been in breach of the guarantee contained in Article 9 of the Constitution of SaorstƒÂ¡t ireann , 1922.
I do not think that s. 10 of the Act of 1933 is capable of any such interpretation. On the ordinary rules of construction the reference to other conditions of service, being preceded by the express reference to rates of pay and hours of duty, could not be held to include matters so different in kind from the ones mentioned as compulsory membership of trade unions or of some particular trade union or trade unions. In my view, what the statute did aim at was uniformity of rates of pay, hours of duty, and similar conditions of service of the road-transport employees irrespective of whether they were members of trade unions or not.
Section 10 of the Act of 1933 applied to road-transport employees of a railway company identical provisions as those applicable to certain railway employees under s. 55, sub-s. 1, of the Railways Act, 1924. The class of railway employees referred to in the Act of 1924 was set out in the eighth schedule to that Act. Both of these statutory provisions were the subject of a decision in this Court in Transport Salaried Staffs Association v. CƒÂ³ras Iompair ireann . 25 In my own judgment in that case at p. 200 of the report I used the following words which are applicable to both s. 55, sub-s. 1, of the Act of 1924 and s. 10 of the Act of 1933: “That Act, among its other objects, provided for the amalgamation of various railway companies then in existence and one of the objects of the section was quite clearly to achieve a degree of uniformity in the conditions of employment and the rates of pay of the employees of the same or similar classes or grades employed in the various companies. As employees were not necessarily represented by what one might call ‘house unions’ in these particular companies but were catered for by one or more trade unions whose membership covered some or perhaps all of the companies, it was clearly a practical way of achieving uniformity to permit or authorise the companies and the unions to agree on the matters referred to without regard to the size or area of any particular company. Furthermore, it appears to me that the object of the section was to enable this uniformity to be achieved for grades of employees as such rather than the particular members of these grades who happened to be members of a trade union. The object of the section was not to have these agreements negotiated on behalf of employees in the sense that the trade unions might be taken to be the negotiating agents with the power to contract on behalf of each individual member, but rather to set up a uniform standard of rates of wages, conditions of service, hours of duty, etc., which would, by virtue of the statutory provision, be required to be contained in each individual contract of employment between an employee in the grades concerned and his employing railway company.”In my view there is nothing in s. 10 of the Act of 1933 on which the defendants can rely to justify the step they took against the plaintiff in the present case.
It is also of interest to note that Transport Salaried Staffs Association v. Coras Iompair ireann 26 clearly established that those who have an interest in enforcing a statutory duty have a right of action even where the statute itself provides no penalty for breach of the obligations imposed by it and does not indicate any way in which the duty was to be enforced. A fortiori, 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.
In my opinion the order of the High Court should be set aside and an order made in the terms I have already indicated.
Redmond v The Minister for the Environment
(13 February 2004) HC Herbert J:
I am unable to accept the argument advanced on behalf of the respondents in this Issue that this Court should either always decline or should at least be very slow and then only in the most extreme circumstances, to make an award of damages against the legislative arm of the State for the infringement in an Act of the Oireachtas of a right guaranteed by the Constitution. Such a restraint, it was said, is a necessary consequence of the separation of powers contained in the Constitution and of the deference which the great institutions of State should owe to each other. It was further submitted that the prospect of such an award of damages would inevitably inhibit and delay the National Parliament in its vital work of enacting legislation for the proper government of the State, a task often performed under exacting time constraints.
It was held by the Supreme Court in the case of TD & Ors v The Minister for Education & Ors [2001] 4 IR 259, that the doctrine of separation of powers required that none of the three institutions of government be paramount. In my judgment, it is essential in a constitutional democracy such as this State, where a rule or convention of parliamentary sovereignty has no place, that the courts should have the power and be prepared wherever necessary to, vindicate by, “all permitted and necessary redress,” (to borrow the phrase ofHenchy J, in the case of Murphy v The Attorney General [1982] IR
241 at 313 ), including where justice so requires by an award of damages, the constitutional rights of anyone, even where the transgression on those rights is in an Act of the National Parliament passed into law by the votes of the elected representatives of the People and signed by the President. This does not, I believe, amount to unwarranted judicial activism trespassing on the legislative function of the Oireachtas. No evidence was advanced at the hearing of this Issue and I am not prepared to assume that this particular power and, indeed duty of the courts, would in any way inhibit or interfere with the proper functioning of the legislative arm of the State within its own unique sphere of activity under the Constitution.
From the decision of the Supreme Court in the cases of, The State (Quinn) v Ryan [1965] IR 70; Byrne v Ireland and the Attorney General [1972] IR 241, and Murphy v The Attorney General [1982] IR 241, and decisions in other cases to which I was referred during the hearing of this Issue but which I consider it unnecessary to cite here, I am satisfied that this Court does have full power to award damages, – ordinary compensatory damages or aggravated or increased compensatory damages and even punitive or exemplary damages, (see Conway v Irish National Teachers’ Organisation & Ors [1991] 2 IR 305), – against the legislative arm of the State for breach of a constitutional right by an Act of the Oireachtas or by a provision of such an Act. However, I do not think that it is reasonably possible or even desirable to attempt to formulate any principles of general application as to the circumstances in which the Court might so award damages or as to the type or amount of those damages. In this respect I adopt what was held by Henchy J, in the case of Murphy v The Attorney General [1982] IR 241 at 315, where he stated, when speaking of such redress and of the sometimes ‘transcendent considerations’ which may render any or some particular forms of redress unavailable ie, damages or restitution, – “in any event, I think experience has shown that such constitutional problems are best brought to solution, step by step, precedent after precedent, and when set against the concrete facts of a specific case.”
In my judgment in this case, delivered on the 31st day of July, 2001, I held that the deposit requirement imposed by s 47 of the Electoral Act 1992, for candidacy in elections for membership of Dail Eireann and by s 13 of the European Parliament Election Act 1997, for candidacy in elections for membership of the European Parliament, was, in each case, unconstitutional. I did not, however, find that any alternative or other conditions whatsoever which might be imposed as a condition of candidacy would also be unconstitutional. Following upon this decision the Oireachtas enacted the Electoral (Amendment) Act 2002, (Number 4 of 2002), which came into operation on the 25th day of March 2002. This Act provided for a compulsory system of nomination of any prospective candidate who did not have a certificate of political affiliation. In cases of election to membership of Dail Eireann, the assent of 30 registered Dail electors in the particular constituency, (excluding the candidate and any proposer), was required. In the case of elections to membership of the European Parliament, the assent of 60 registered European electors in the particular constituency, (excluding the candidate and any proposer), was required.
Having regard to the evidence offered during the course of this case, such legislation could scarcely be properly described as controversial or unexpected. The evidence of the distinguished experts in the disciplines of Political Science and Social and Economic Science who gave evidence in this case, including that of Professor Richard Sinnott of University College Dublin, who was called in evidence on behalf of the plaintiff, was to the effect that access to candidacy for election to membership of the principal national legislative assembly, at least in all European and other accepted democratic systems, was subject to some qualifying requirement and that this was desirable to prevent abuse of the electoral system.. The evidence of all the experts was that a system of nomination was probably the most widely used and the most democratic means of protecting the electoral system from being abused.
No evidence was given by the plaintiff at the hearing of this Issue or at the previous hearing that he was willing to or could put himself in a position to comply with a system of nomination by assent. I concluded having heard the plaintiff in evidence that the plaintiff was resolutely and adamantly opposed to any form of condition whatsoever. It was his opinion that all forms of condition for candidacy were unconstitutional and that every citizen, not otherwise precluded by the provisions of the Constitution itself, l’llioyed an immediate right, which could not be subjected to any form of qualification wliatsoever, to become a candidate for election to either Dail Eireann or the European l’arliament and in that capacity of putting his or her particular political philosophy and programme for government before the electorate. However, on the weight of the evidence, the Court cannot disregard the probability, amounting almost to a certainty, that the legislative arm of the State, would not countenance an entirely open system of nomination for election to membership of Dail Eireann or the European Parliament, absent a ruling by this Court that any form of condition for such nomination would be 1111constitutional. In the events which occurred, the plaintiff could not have becomea candidate for election to membership of Dail Eireann or of the European Parliament without complying with the provisions of s 1 or s 2 of the Electoral (Amendment) Act 2002. An unsuccessful challenge to the provisions of this Act was taken in the case of Thomas King & Ors v The Minister for the Environment, Ireland and the Attorney Ucneral, Gudgment of Kearns J, unreported, delivered the 19 December, 2003).
I believe it to be the proper inference to be drawn from the facts that exactly similar events would not alone probably but almost certainly have occurred had Mr Redmond sought the intervention of the court on the occasion of any of his previous unsuccessful attempts to become a candidate at elections for membership of Dail Eireann or the l¢:uropean Parliament in 1992 and 1994. In my judgment he therefore cannot establish, as a matter of probability, that but for the imyugned condition he would have had a chance of being elected to membership of Dail Eireann or the European Parliament or at least have had a chance or putting his political opinions and his legislative proposals before the electorate in the character of a candidate. In my judgment this is a case of injury without loss. However, I am satisfied that this infringement of the plaintiff’s constitutional right is actionable without proof of actual loss. I am also satisfied that there is no basis for an award of punitive or exemplary damages in this case.
In the case of Conway and Others v The Irish National Teachers Organisation and Others [1991] 2 IR 305 at 320, Finlay CJ, with whose judgment Griffin and McCarthy JJ, agreed, held that every wrong which constitutes the breach of a constitutional right does not automatically attract exemplary damages. In the instant case I am satisfied that there is no basis for a finding by this Court of any wilful and conscious wrongdoing by the legislative arm of the State in knowing disregard of the constitutional rights of the plaintiff. While the enactment into law of the impugned statutory provisions was deliberate and in that sense intentional, I am satisfied that the resulting breach of the plaintiff’s constitutional right was not intended but was a wholly undesired and altogether inadvertent consequence of the legislation.
I am quite satisfied that the sole intention of the Oireachtas in maintaining the deposit requirement for Dail Eireann and European Parliament Elections was to protect the electoral system from abuse. I am satisfied that the sole purpose of the Oireachtas in increasing the amount of the deposit was to reflect chan es in the value of money over time, i.e. the amount of the deposit in elections to Dail Eireann remained at the sum of £100 (former currency) from 1923 to 1992. It was accepted by all the expert witnesses who gave evidence to this Court that the deposit, whether for election to membership of Dail Eireann or the European Parliament was not generally excessive or obviously discriminatory. …….
. In the events which occurred, the plaintiff could not have becomea candidate for election to membership of Dail Eireann or of the European Parliament without complying with the provisions of s 1 or s 2 of the Electoral (Amendment) Act 2002. An unsuccessful challenge to the provisions of this Act was taken in the case of Thomas King & Ors v The Minister for the Environment, Ireland and the Attorney Ucneral, Gudgment of Kearns J, unreported, delivered the 19 December, 2003).
I believe it to be the proper inference to be drawn from the facts that exactly similar events would not alone probably but almost certainly have occurred had Mr Redmond sought the intervention of the court on the occasion of any of his previous unsuccessful attempts to become a candidate at elections for membership of Dail Eireann or the l¢:uropean Parliament in 1992 and 1994. In my judgment he therefore cannot establish, as a matter of probability, that but for the impugned condition he would have had a chance of being elected to membership of Dail Eireann or the European Parliament or at least have had a chance or putting his political opinions and his legislative proposals before the electorate in the character of a candidate. In my judgment this is a case of injury without loss. However, I am satisfied that this infringement of the plaintiff’s constitutional right is actionable without proof of actual loss. I am also satisfied that there is no basis for an award of punitive or exemplary damages in this case.
In the case of Conway and Others v The Irish National Teachers Organisation and Others [1991] 2 IR 305 at 320, Finlay CJ, with whose judgment Griffin and McCarthy JJ, agreed, held that every wrong which constitutes the breach of a constitutional right does not automatically attract exemplary damages. In the instant case I am satisfied that there is no basis for a finding by this Court of any wilful and conscious wrongdoing by the legislative arm of the State in knowing disregard of the constitutional rights of the plaintiff. While the enactment into law of the impugned statutory provisions was deliberate and in that sense intentional, I am satisfied that the resulting breach of the plaintiff’s constitutional right was not intended but was a wholly undesired and altogether inadvertent consequence of the legislation.
I am quite satisfied that the sole intention of the Oireachtas in maintaining the deposit requirement for Dail Eireann and European Parliament Elections was to protect the electoral system from abuse. I am satisfied that the sole purpose of the Oireachtas in increasing the amount of the deposit was to reflect chan es in the value of money over time, i.e. the amount of the deposit in elections to Dail Eireann remained at the sum of £100 (former currency) from 1923 to 1992. It was accepted by all the expert witnesses who gave evidence to this Court that the deposit, whether for election to membership of Dail Eireann or the European Parliament was not generally excessive or obviously discriminatory. Unfortunately, on the evidence it did have the effect of discriminating against citizens of the State, such as the plaintiff, whose misfortune it was to exist in unusually improvised circumstances. Despite the evidence of Professor Nolan that the number of “poor households” in the State in 1992 and 1994 was 15% of the population and in 1997 was 10% of the population, there was no evidence that the Oireachtas
wilfully, consciously and knowingly disregarded the possible effect of the deposit requirement on the ability of such citizens to stand for election to membership of Dail Eireann or the European Parliament. The impugned sections were not specific to the plaintiff or to any group or category of citizens but applied generally to all citizens of the State. The deposit requirement could not be regarded in my view as a form of limiting access fee or penalty because it was returnable in certain circumstances. The deposit requirement was not a novel feature as it had existed in Irish electoral law, unchallenged, since the Representation of the People Act 1918. I do not accept the argument that the suggestion, even in such an authoritive text on Irish Constitutional Law as Kelly, [(1994), Third Edition, editors Hogan and Whyte, Introductory Section page CX] that the deposit requirement might be unconstitutional would render the continuation of that requirement by the Oireachtas unreasonable or irrational. Finally, there is no evidence that the impugned legislation occasioned the plaintiff any pecuniary loss or damage.
I therefore propose to award nominal damages to the plaintiff. These damages are not and it is important that they should not be considered to be in any sense derisory or contemptuous. In the case of The Mediana [1900] AC 113 at 116, Lord Halsbury LC, said:
“‘nominal damages’ is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right … ”
In the case of Kearney v The Minister for Justice, Ireland and the Attorney General [1986] IR 116, Costello J, (as he then was) awarded the sum of £25 in the then currency to the plaintiff for an unjustified infringement of his right to communicate under Article 40 Section 3, subsection 1, of the Constitution. In that case certain letters which had been passed under the Prison Rules had not been delivered to the addressee. I will award Mr Redmond nominal damages in the sum of €130.
The plaintiff’s claim was for damages for loss of a chance of being elected either to membership of Dail Eireann or the European Parliament or alternatively for loss ofa chance to put his political opinions and legislative programme before the electorate as sucha candidate. I find on the evidence of the expert witnesses, especially Professor Sinnott and Professor Laver, that the plaintiff, seeking election for the first time, standing as an independent candidate without previous political connections, experience or exposure at any level, without being associated with any popular cause whether
primitive form of public address system having been reserved, purchased, hired or borrowed. …
In my judgment there was no evidence that the plaintiff on any of the occasions in 1994 and 1997 when he unsuccessfully endeavoured to have his name entered on lhl· list of candidates for election to membership of Dail Eireann or the European Parliament had made any plan or given any real consideration to what he would do if by some chance his application should succeed. I am satisfied on the balance of probabilities that on those occasions he had not made any real plans or given any real ronsideration to putting his political proposals and ideas before the electorate. The plaintiff stated in evidence, that he was aware from 1991 that a deposit would be required if he wished to stand for election.
The evidence given by the plaintiff on the previous hearing, – he did not give evidcnce on this Issue-, andwhich I accept, is that in 1993 he wrote, edited and published a 127 page booklet entitled “The Rules of Natural Justice”. I found that this booklet set out the plaintiff’s own social, moral and political opinions and his proposals fllr reform, including constitutional reform. I do not know how many copies of this hlloklet were printed for the sum of £600 (former currency) or thereabouts, paid by the plaintiff’s daughter for printing and publishing. While the trouble taken in publishing hi s booklet shows that the plaintiff has very sincerely held political opinions and ideas, ii does not establish as a matter of probability that he lost a reasonable chance of putting I hose opinions and ideas before the electorate as a result of the breach of his r1mstitutional right.
Loss of a chance means a chance of profit, material gain or some other “temporal advantage”, ie frustration of a business venture; loss of an opportunity to advance or chance an acting on sports career. In my judgment loss of a chance of putting political llpinions or ideas before the public would in itself be too vague and too incapable, as distinct from merely difficult, of being estimated in money to constitute a cause of action in tort, and therefore by analogy for breach of a constitutional right.
…..In fact the chance of his being elected to membership of either body was, on the evidence, so negligible that it could not reasonably be said that the plaintiff had lost a reasonable chance and had thereby sustained loss.
In the alternative, the plaintiff claimed damages for loss of a chance to present his political ideas and proposals to the electorate as a candidate for membership of Dail Eireann or of the European Parliament. However, neither at the hearing of this issue nor at the previous hearing was any evidence offered that the plaintiff had made any plans, arrangements or preparations whatsoever with a view to presenting any such ideas or proposals to the electorate. At the occasion on which he gave evidence to this Court he said that his electoral programme would be to highlight the problems of poor people and the unemployed. However, no evidence was given of the preparation or even of the formulation of a campaign strategy of even the most basic kind to carry this programme to the electorate. No evidence was given of any area maps or electoral registers having been obtained or of banners, posters, handouts or even campaign notes or speeches having been sourced, ordered obtained or prepared….
The second issue
The second issue is this:
“Whether the defendants owed the plaintiff a constitutional duty or obligation under Article 40, s. 3 and/or Article 41 of the Constitution or otherwise to consider the extradition request the subject of these proceedings and to process speedily the said request as is alleged by the plaintiff in paras 10 and 13 (A) of the statement of claim.”
Paragraph 10 of the statement of claim claimed that the Attorney General owed a “constitutional obligation to the plaintiff to consider the extradition request and speedily to process it to ensure that the accused was quickly brought to justice”, and it was claimed that there was a breach of this constitutional obligation and duty in that the Attorney General “wrongly and without lawful excuse failed, neglected and refused to endorse the said warrants for execution within the State”. Paragraph 13 (A) claimed that the acts and omissions of the Attorney General “have infringed the constitutional rights of the plaintiff and caused her damage”.Sub-paragraph (A) gave particulars as follows:
“The defendants herein owed the plaintiff a constitutional duty by reason of Article 40, s. 3 and Article 41 of the Constitution of Ireland to defend and vindicate her bodily integrity and to protect the plaintiff’s family in its constitution and authority. In the context of the present case the said constitutional requirements obligated the
W. v. Ireland (No. 2)
[1997] 2 I.R. 141
Costello P.
The issue fixed by the court refers both to Article 40, s. 3 and Article 41. Article 41 deals with the Family but the plaintiff’s counsel has expressly stated that the plaintiff is no longer maintaining a claim for damages by reason of the breach of this Article. Her claim is limited to a breach of Article 40, s. 3 which provides as follows:
“1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2 The State shall, in particular, by 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.”
It is well established that the right to bodily integrity is one of the personal rights which, although not specifically mentioned in this Article, are nonetheless protected by Article 40, section 3. The plaintiff’s case is that there existed a duty imposed on the defendants not to infringe her right to bodily integrity and that this involved an obligation to deal with the extradition warrants speedily, an obligation which the delays of the Attorney General breached, for which damages are recoverable.
(a) The existence of the asserted constitutional duty.
The duty which it is alleged the “defendants” (that is, Ireland the Attorney General and the Government of Ireland) owed to the plaintiff was to process the extradition requests speedily. While there is, of course, a general duty on the State (imposed by the Constitution) to defend and vindicate by its laws the citizen’s constitutional rights, what is alleged in this case is a specific constitutional duty arising under the provisions of the Extradition Act, 1965 (as amended). For reasons already explained, the Act of 1965 did not impose a duty of care on the Attorney General towards the plaintiff, and for similar reasons I do not think that it imposed a duty on him (or on any of the other defendants) not to infringe the plaintiff’s right to bodily integrity. The Act created no relationship of any sort between any of the defendants and the plaintiff and no circumstances of any sort existed by which a duty to take into consideration the plaintiffs bodily integrity (and so speedily consider the extradition warrants) existed.
There is, as I pointed out, a second reason why the Attorney General owed no duty of care at common law to the plaintiff, arising from considerations of public policy. The same reasons apply when considering the claim based on the Constitution. The rights guaranteed under the Constitution are not absolute rights (with the exception of an implied right not to be tortured, which must be regarded as an absolute right which can never be abridged) and their exercise and enjoyment may be, and frequently are, limited by reason of the exigencies of the common good. I concluded, applying well established principles of the law of tort, that it would be contrary to public policy to impose on the Attorney General a duty of care towards the plaintiff. The reasons why no common law duty existed also meant that no constitutional duty existed, because the exigencies of the common good (that is, in this case, the need to allow the Attorney General carry out his important public functions, without the threat of an action for damages for negligence at the suit of a private individual) justifies the court in depriving the plaintiff of a claim for damages for breach of duty not to infringe her right to bodily integrity. This means that none of the defendants owed under the Constitution the right asserted on the plaintiff’s behalf.
(b) The existence of a discrete action for damages for breach of a constitutionally protected right.
Although the views I have just expressed dispose of the plaintiff’s claim that she is entitled to damages for breach of a constitutionally protected right, I think it is proper that I should express my views on the issue which was extensively debated on this part of the case, namely whether, had a constitutional duty existed, an action for damages for its breach existed. In approaching this issue (essentially one of constitutional construction), constitutionally guaranteed rights may, as the court’s decisions show, be divided into two distinct classes (a) those which, independent of the Constitution, are regulated and protected by law (common law and/or statutory law) and (b) those which are not so regulated and protected. In the first class are all those fundamental rights which the Constitution recognises that man has by virtue of his rational being antecedent to positive law and are rights which are regulated and protected by law in every State which values human rights. In this country, there exists a large and complex body of laws which regulate the exercise and enjoyment of these basic rights, protect them against attack and provides compensation for their wrongful infringement. A few examples will suffice to demonstrate the point. The right to private property is protected by laws against trespass; its enjoyment is regulated by laws against the creation of nuisance; remedies for breach of the right to private property (by way of injunctive relief and actions for damages) are available, limitation on its exercise is provided for by law, allow for its compulsory acquisition and limit the power to dispose of it by will. The right to liberty is protected by habeas corpus Acts and laws against wrongful imprisonment, while the exercise of the right is limited by provisions of the criminal code and legal powers of arrest and imprisonment. The right of freedom of expression is regulated by defamation laws and laws to protect public morality. And the right which is in issue in this case, the right to bodily integrity, is protected by extensive provisions in the law of tort.
The courts have, however, pointed out that the Constitution guarantees the exercise and enjoyment of other rights which are not regulated by law and for which no legal provision exists either to prohibit an anticipated infringement or to compensate for a past one. It is now established that for this class of rights the Constitution is to be construed as providing a separate cause of action for damages for breach of a constitutional right. In Meskell v. C.I.E. [1973] I.R. 121, the Supreme Court held (at pp. 132-133):
“that a right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that a constitutional right carries within it its own right to a remedy or for the enforcement of it.”
In Meskell v. C.I.E. the court held that the right of citizens to form associations and unions, guaranteed by Article 40, s. 6, sub-s. 1 necessarily recognised a correlative right not to join a union, that the defendant had wrongfully attempted to force the plaintiff to abandon his right to disassociation, and that the plaintiff was entitled to damages because of the violation of the right guaranteed to him by the Constitution (at p. 135), even though a claim for damages for infringement of this right was not available under existing law.
Subsequent to Meskell v. C.I.E. further cases have arisen in which the courts have awarded damages for breach of a guaranteed constitutional right where no remedy for damages existed by common law or by statute. In Kearney v. The Minister for Justice [1986] I.R. 116, the court held (at p. 122) that the unauthorised actions of prison officers in failing to deliver to the plaintiff (who was then in custody in prison) letters addressed to
.
him, amounted to an infringement of his constitutional right to communication, the court holding that the wrong which had been committed was an unjustified infringement of a constitutional right, not a tort, entitling him to damages. In McHugh v. Commissioner of An Garda SƒÂochƒÂ¡na [1986] I.R. 228, the Supreme Court awarded the plaintiff costs and expenses incurred in proceedings against the State, in which the State had subsequently accepted liability, treating the claim as one of those referred to in Byrne v. Ireland [1972] I.R. 241, arising from a breach for which no damages were recoverable within a recognised field of wrongs in the law of torts, but for which the Constitution conferred a right to damages. In Kennedy v. Ireland [1987] I.R. 587, the constitutional right to privacy was infringed and the court, applying the principle in Meskell v. C.I.E. [1973] I.R. 121, held that the plaintiff was entitled to damages for breach of a constitutionally protected right, and not for breach of any wrong recognised by common law or statute.
The courts will not only award damages where a constitutional right, which is unprotected by law has been infringed, but will also grant an injunction to prohibit the infringement of such a right. In Lovett v. Gogan [1995] 3 I.R. 132, the Supreme Court held that the defendants’ activities constituted an actual or threatened interference with the plaintiff’s constitutional right to earn a living by lawful means, and it granted an injunction to protect him from the threatened invasion of those rights.
What falls for consideration in this case is not a guaranteed right of this second class, but a right (i.e. the right to bodily integrity) in respect of which there is a large body of law (both common law and statutory), which regulates its exercise, protects it against infringement and compensates its holder should the right be breached. The question, therefore, is whether, in this case, the Constitution is to be construed as conferring a discrete cause of action for damages for breach of the plaintiff’s right to bodily integrity, notwithstanding the existence of the law of tort and statutory provisions which confer a right of action for damages for personal injuries sustained by the negligent act or omission of another. The question can be posed this way:should the Constitution be construed so as to confer on a pedestrian, injured by an army lorry, a right to claim damages against the State for infringement of the right to bodily integrity in addition to, or as an alternate to, an action for damages for negligence?
I am satisfied that it should not be so construed.
The State has a duty by its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizens (Article 40, s. 3, sub-s. 1). This constitutional provision does not require
the Oireachtas to enact specific laws protecting constitutionally protected rights, and the State’s duty under this Article is implemented by the existence of laws (common law and statutory) which confer a right of action for damages (or a power to grant injunctive relief) in relation to acts or omissions which may constitute an infringement of guaranteed rights (see Hanrahan v. Merck Sharp & Dohme (Ireland) Ltd. [1988] I.L.R.M. 629, at pp. 635-636). Thus, if the law of torts makes provision for an action for damages for bodily injury caused by negligence and if the law also adequately protects the injured pedestrian’s guaranteed right to bodily integrity, then the State’s Article 40 duties have been fulfilled. The courts are required by the Constitution to apply the law and the causes of actions it confers and when these adequately protect guaranteed rights they are not called upon, in order to discharge their constitutional duties, to establish a new cause of actionindeed it would be contrary to their constitutional function to do so. Furthermore, to do so would be otiose. If a cause of action for damages for infringement of the constitutional right of bodily integrity were granted to the injured plaintiff in the example I have given, the court would have to consider whether there was any breach of the duty which the driver of the army lorry owed to the pedestrian (for the right is not an absolute one) and, in considering the nature and scope of the duty, would decide whether the lorry driver had failed to take proper care for the plaintiff’s safety, whether the pedestrian failed to take care for his own safety, apportion liability as required by the Civil Liability Act, 1961, assess damages in accordance with established principles, and in certain circumstances consider whether the claim was statute barredin other words apply the law of tort to the new cause of action. There is therefore no need to construe the Constitution as conferring a new and discrete cause of action for damages in those cases in which the acts or omissions which constitute the alleged infringement also constitute an actionable wrong at law for which damages are recoverable. Of course, a provision of the law to be applied might not, in a given case, adequately protect the guaranteed right (for example the law might contain a limitation period which in the particular circumstance trenched unfairly on a guaranteed right and thus deprive the plaintiff of a right to compensation, as in O’Brien v. Keogh [1972] I.R. 144, then the law would be applied without the provision, which would be rendered invalid by the Constitution).
The conclusions which I have just announced are consistent with and follow from the views of the Supreme Court in Hanrahan v. Merck Sharpe & Dohme (Ireland) Ltd. [1988] I.L.R.M. 629. The plaintiff in that
case had claimed damages for a nuisance and submitted that the onus of proof in relation to his claim shifted to the defendants by reason of the provisions of Article 40, s. 3 of the Constitution. His case was that the vindication of his constitutionally protected rights was not properly effected by leaving him to his rights as plaintiff in an action for nuisance, and that the vindication which the guarantee contained in the Constitution required was that the defendants should show that the emissions from their factory (which was the cause of the alleged nuisance) was not the cause of the nuisance. The Supreme Court rejected this submission and pointed out (at p. 636):
“A person may of course in the absence of a common law or statutory cause of action, sue directly for breach of a constitutional right (see Meskell v. C.I.E. [1973] I.R. 121; but when he founds his action on an existing tort he is normally confined to the limitations of that tort. It might be different if it could be shown that the tort in question is basically ineffective to protect his constitutional right.”
These conclusions are also consistent with the views expressed in Meskell v. C.I.E. which, by holding that a new and distinct cause of action for damages for breach of a constitutional right was created when the existing law failed to confer any right to damages, implied that when it did so confer no new cause of action should be created. They are also consistent with those of Barron J. in Sweeney v. Duggan [1991] 2 I.R. 274, at p. 285.
I should briefly explain why I have not been able to agree to the submissions advanced on the part of the plaintiff. It is accepted that the decision in Hanrahan v. Merck Sharpe & Dohme [1988] I.L.R.M. 629 does not support the plaintiff’s case, but it is argued that the portion of the judgment which I have just quoted is obiter and that the number of authorities supporting the plaintiff’s contentions are more numerous and that Hanrahan is inconsistent with the decision of the Supreme Court in Lovett v. Gogan [1995] 3 I.R. 132.
However the authorities to which I was referred do not, in my view, establish either that the principle of construction which I have advanced is wrong, or that the decision in Hanrahan is in any way inconsistent with other decisions. Byrne v. Ireland [1972] I.R. 241 established that the State is not immune from suit whilst Ryan v. Ireland [1989] I.R. 177 established that the State could be sued in tort. But the issue now under consideration is whether a separate action lies for damages for breach of a constitutionally protected right, and the fact that the State may be sued for the tort of negligence has no bearing on that issue. It has been perfectly clear since Meskell v. C.I.E. [1973] I.R. 121, that the courts will award damages and grant injunctions for breach of constitutionally protected rights, but in each of the cases where that occurred Meskell v. C.I.E. was either explicitly or implicitly applied and damages were awarded (and in the case of Lovett v. Gogan [1995] 3 I.R. 132 an injunction was granted) where no remedy at law existed. None of those cases decided that an action for damages for breach of a guaranteed right would lie in cases where the existing law protected the right.
I am satisfied that the law of torts which is applicable in this case was not ineffective to protect the plaintiff’s constitutionally guaranteed rights. It does not follow that because a plaintiff does not recover damages under the applicable law (in this case, the law of torts) it must be ineffective in protecting guaranteed rights. It is necessary to consider why the plaintiff’s claim has failed. As already explained, the applicable principles of the law of torts established that there was neither a duty owed to the plaintiff by the defendants under the law of torts, nor the Constitution, to process the extradition warrants speedily, and so by applying the principles of the law of torts the plaintiff was not deprived of a remedy to which she was entitled under the Constitution.
The second issue must therefore be answered in the negative.
McDonnell v. Ireland
[1998] 1 I.R. 134
Keane J.
S.C.
The learned authors add:-
“The law of torts exists for the purpose of preventing men from hurting one another, whether in respect of their property, their persons, their reputations, or anything else which is theirs.”
Manifestly, as this and other leading textbooks demonstrate, the law, as it has evolved, has staked out the territory within which the law of torts holds sway with more precision. For a variety of reasons, damage which at first sight may seem to have been wrongfully inflicted may not be properly remediable in tort. Even where remediable, the proceedings may still require to be brought within the constraints of a different form of action, most conspicuously in the case of actions for breach of contract, with significant consequences in areas such as the assessment of damages. But subject to these limitations, which do not require exploration in the context of the present case, it may well be said that the English law of tort has, as a matter of history, demonstrated over the centuries a flexibility and a capacity to adapt to changing social conditions, even without legislative assistance, which made it the obvious instrument for the righting of civil wrongs when the Constitution was enacted in 1937.
The dynamic nature of the tort action was well understood when the Act of 1957 was enacted. It had been graphically illustrated by the manner in which the action for negligence outgrew the medieval constraints of the action for”trespass on the case”. The law had seen new species of tortious principles, such as the rule in Rylands v. Fletcher (1868) 2 H.L. 330, impose novel forms of liability on defendants. I see no reason to suppose that the Oireachtas legislated in 1957 on the basis that the law of tort was at that stage petrified for all time. It may be, however, – and surmise on the topic would be both unjustifiable and unprofitable – that the draughtsman did not envisage the extent to which the developing constitutional jurisprudence of the High Court and the Supreme Court in later decades would powerfully reinforce the progressive development of the law of civil wrongs.
I take by way of example the unenumerated constitutional right of privacy upheld in Kennedy v. Ireland [1987] I.R. 587. It is true that the courts in England have been hesitant in recognising that such a tort exists; see R. v. Khan [1996] 3 W.L.R. 162. But even in the absence of a written constitution, such a novel growth might, for all one knows, have flourished sturdily in this jurisdiction. The fact that it did so in the form of an action for infringement of a constitutional right does not prevent it, in my view, from being classified as a civil wrong. Indeed, I do not know of any other category to which it could be assigned. Specifically, it can be classified as a civil wrong which is not a breach of contract but which is remediable by an action for unliquidated damages and/or an injunction. The same considerations would apply to the cause of action alleged to be vested in the plaintiff in the present case for breach of his constitutional rights. On this view, the present action would seem to be appropriately described as an action in tort and, bearing in mind that, major legislative interventions such as the Civil Liability Act, 1961 apart, the law of torts – including the categorisation by name of specific forms of wrongdoing as torts – has been evolved by the courts, there is no obstacle to an action for damages for breach of a constitutional right being identified as such.
In Meskell v. Coras Iompair Eireann [1973] I.R. 121 Walsh J. said at p. 132:-
“It has been said on a number of occasions in this Court, and most notably in the decision in Byrne v. Ireland [[1972] I.R. 241] that a right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it.”
I think that passage is perfectly consistent with the constitutional right being protected b y a new form of action in tort, provided, of course, the form of action thus fashioned sufficiently protects the constitutional right in question.
Nor do I see any conflict between that view and the passage in the judgment of Henchy J. in Hanrahan v. Merck, Sharp & Dohme (Ireland) Ltd. [1988] 1 I.L.R.M. 629, on which counsel for the plaintiff relied. The learned judge pointed out that at p. 636:-
“A person may of course in the absence of a common law or statutory cause of action, sue directly for breach of a constitutional right (see Meskell v. Coras Iompair ƒ°ireann [1973] I.R. 121); but when he founds his action on an existing tort he is normally confined to the limitations of that tort. It might be different if it could be shown that the tort in question is basically ineffective to protect his constitutional right.”
There is nothing in that passage to suggest that where a plaintiff is obliged to have recourse to an action for breach of a constitutional right, because the existing corpus of tort law affords him no remedy, or an inadequate remedy, that action cannot in turn be described as an action in tort, albeit a tort not hitherto recognised by the law, within the meaning of, and for the purpose of, the Act of 1957.
Nor does the reference by Finlay C.J. in Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305, to “damages in tort or for breach of a constitutional right”assist the plaintiff. The learned Chief Justice was solely concerned at that point in his judgment with considering the differing headings of damages recoverable in Irish law, whether in an action for tort in the conventional sense or in an action for breach of a constitutional right. Whether the second category, actions for breaches of constitutional rights, could appropriately be grouped under the heading of “actions in tort” in other contexts, such as the Act of 1957, was not under consideration in that case.
It may, of course, be the case that, in considering whether other features of the generalcorpus of tort law apply to actions in protection of constitutional rights, questions may arise which are not relevant in these proceedings. Professor William Binchy in an interesting essay (“Constitutional Remedies and the Law of Torts”; Human Rights and Constitutional Law; Essays in Honour of Brian Walsh (Dublin 1992)) has suggested that significant differences may arise in some contexts given that, as he argues, the English law of tort was traditionally concerned with providing redress for wrongs, whereas the Constitution is essentially concerned with the protection of rights. Again, however, it is unnecessary to embark on those uncharted seas. Whatever may be the position in regard to other possible defences, no one has been able to identify in this case any ground for supposing that an action for breach of a constitutional right which has all the indicia of an action in tort should have a different limitation period from that applicable to actions in tort generally, or indeed no limitation period at all, other than its origin in the Constitution itself, which is a classically circular argument. Nor could it be seriously argued that the fact that the action for breach of a constitutional right frequently takes the form of proceedings against organs of the State is of itself a reason for treating a limitation statute as inapplicable. Even if it were, it is to be borne in mind that, as is made clear by Meskell v. Coras Iompair ƒ°ireann [1973] I.R. 121, the defendant in such actions need not necessarily be an organ of the State.
In this context, it is worth recalling the policy considerations which underlie statutes of limitation such as the Act of 1957. They have been succinctly and comprehensively stated by Finlay C.J. in Tuohy v. Courtney [1994] 3 I.R. 1 as follows at p. 48:-
“The primary purpose would appear to be, firstly, to protect defendants against stale claims and avoid the injustices which might occur to them were they asked to defend themselves from claims which were not notified to them within a reasonable time.
Secondly, they are designed to promote as far as possible expeditious trials of action so that a court may have before it as the material upon which it must make its decision oral evidence which has the accuracy of recent recollection and documentary proof which is complete, features which must make a major contribution to the correctness and justice of the decision arrived at.
Thirdly, they are designed to promote as far as possible and proper a certainty or finality in potential claims which will permit individuals to arrange their affairs whether on a domestic, commercial or professional level in reliance to the maximum extent possible upon the absence of unknown or unexpected liabilities.
The counter-balance to these objectives is the necessity, as far as is practicable or as best it may, for the State to ensure that such time limits do not unreasonably or unjustly impose hardship . . .”
I can se e no reason why an actress sunbathing in her back garden whose privacy is intruded upon by a long-range camera should defer proceedings until her old age to provide herself with a nest egg, while a young man or woman rendered a paraplegic by a drunken motorist must be cut off from suing after three years. The policy considerations identified by the learned Chief Justice in the passage which I have cited are applicable to actions such as the present as much as to actions founded on tort in the conventional sense.
I am satisfied that the decision of Carroll J. was correct in point of law and should be upheld.
There remains the plaintiff’s claim for a declaration that he is still an established civil servant. It is unnecessary to consider whether, if he still occupies such a status, the Minister would be entitled, provided he acts in accordance with natural justice, to dispense with his services either on the ground that there is no work available for him or that his conduct during the period he was employed precludes the Minister from maintaining him in that employment. It is sufficient to say that, whether the declaration sought by the plaintiff in this case is an equitable form of relief or, as claimed on his behalf, a remedy to which he is entitled ex debito justitiae, it must fall victim to the operation of an ancient legal maxim applicable in every sphere of the law: ex turpi causa non oritur actio. I would also agree that, in any event, as was made clear in Murphy v. The Attorney General [1982] I.R. 241, the fact that the provisions struck down were invalid ab initio does not have, as a necessary consequence, the vesting of a cause of action in the plaintiff.
I would dismiss the appeal.
Kennedy v. Ireland
[1987] I.R 587
Hamilton P. 590
Constitutional Rights
In their statement of claim the plaintiffs, inter alia, claim:
(1) that their rights under Article 40, s. 3 of the Constitution include the personal right to privacy and to be free from unlawful and unwarranted intrusions into their private telephone conversations,
(2) that the State has failed:
(a) to defend and vindicate their personal rights,
(b) to respect the privacy of the plaintiffs in the exercise of their profession as political journalists and in the living of their private lives by not interfering with, listening to and tapping their telephone conversations,
(c) to respect the guarantee to all citizens to express freely their convictions and opinions, including criticism of Government policy,
and
(3) that the State has:
(a) interfered without any lawful cause or justification into the private lives and liberties of the plaintiffs,
(b) tapped the telephones of the plaintiffs and taken transcripts of conversations in a manner intended to interfere with the plaintiffs in the exercise of their guaranteed rights.
The personal right to privacy is not one of the rights actually acknowledged by Article 40 of the Constitution but as stated by Mr. Justice Kenny in Ryan v. The Attorney General [1965] I.R. 294 at p. 313:
“[T]here are many personal rights of the citizen which follow from the Christian and democratic nature of the State which are not mentioned in Article 40 at all.”
The personal right to privacy is one of such rights. In the course of his judgment in Norris v. The Attorney General [1984] I.R. 36 at pp. 100 and 101 of the report, Mr. Justice McCarthy stated:
“The Constitution does not guarantee or, in any way, expressly refer to a right of privacy no more, indeed than does the United States Constitution, with which our Constitution bears so many apparent similarities. In the United States Constitution the right to privacy in one form or another has been founded upon the First Amendment ( Stanley v. Georgia (1969) 394 U.S. 557); the Fourth and Fifth Amendments ( Terry v. Ohio (1968) 392 U.S. 1); in the penumbras of the Bill of Rights ( Griswold v. Connecticut (1965) 381 U.S. 479) the contraceptives case; in the Ninth Amendment ( Griswold v. Connecticut ); and in the concept of liberty guaranteed by the first section of the Fourteenth Amendment ( Meyer v. Nebraska (1923) 262 U.S. 390).
In our Constitution a right of privacy is not spelt out. As stated by Mr. Justice Henchy in his judgment, there is a guarantee of privacy in voting under Article 16, s. 1, sub-s. 4 the secret
ballot; a limited right of privacy given to certain litigants under laws made under Article 34; the limited freedom from arrest and detention under Article 40, s. 4; the inviolability of the dwelling of every citizen under Article 40, s. 5; the rights of the citizens to express freely their convictions and opinions, to assemble peaceably and without arms, and to form associations and unions-all conferred by Article 40, s. 6, sub-s. 1; the rights of the family under Article 41; the rights of the family with regard to education under Article 42; the right of private property under Article 43; freedom of conscience and the free profession and practise of religion under Article 44. All these may properly be described as different facets of the right of privacy, but they are general in nature (as necessarily they must be in a Constitution) and do not set bounds to the enumeration of the details of such a right of privacy when the occasion arises. In our jurisdiction this is best exemplified in the McGee Case [1974] I.R. 284 where, whilst Mr. Justice Walsh rested his judgment upon the provisions of Article 41, Mr. Justice Budd, Mr. Justice Henchy and Mr. Justice Walsh relied upon the guarantees of Article 40, section 3. I would respectfully share the latter view of the true foundation for what the McGee Case upheld the right of privacy in marriage.
Whilst the Constitution of the Irish Free State (SaorstƒÂ¡t ƒ°ireann ) 1922, did not, as it were, isolate the fundamental rights of citizens in a manner in which the present Constitution of 1937 has done, articles 6, 7, 8, 9 and 10 of that Constitution indicate the manner in which certain rights were spelt out but, to a degree, highlight the absence of such guarantees as are contained in Article 40, s. 3, and Article 41 of the Constitution. There may well be historical reasons for these differences a greater awareness of the need for the annunciation of fundamental rights was present during the 1930s than at the time of the negotiations for the Treaty that led to the enactment of the Constitution of the Irish Free State. At all events, since 1937, the concept of judicial dynamism in constitutional law has grown, thereby identifying more readily the role of the Courts, and in particular, this Court as the judicial organ of government, not merely by way of a supervisory jurisdiction on the actions of the legislative and executive branches of government but by way of legal interpretation thus playing its part in “seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured . . .” as most strikingly evidenced by the decision in the McGee Case .
How then, to identify the nature of the personal right of privacy? The right to privacy has been called by Brandeis J. of the
United States Federal Supreme Court “the right to be let alone” a quotation cited by the Chief Justice in this case and by Mr. Justice Walsh in his dissenting judgment as a member of the Court of Human Rights in Dudgeon v. United Kingdom (1981) 4 E.H.R.R. 149. By way of definition it has brevity and clarity and I would respectfully adopt it as accurate and adequate for my purpose but, to a degree, the very definition begs the question. The right to privacy is not in issue, the issue is the extent of that right or the extent of the right to be let alone.”
Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of the citizen which flow from the Christian and democratic nature of the State. It is not an unqualified right. Its exercise may be restricted by the constitutional rights of others, by the requirements of the common good and is subject to the requirements of public order and morality.
There are many aspects to the right to privacy, some of which have been dealt with in the cases referred to by Mr. Justice McCarthy in the passage which I have just quoted from his judgment in Norris’s Case [1984] I.R. 36 and the remaining aspects remain to be dealt with when suitable cases come before the courts for determination. The question to be determined in this case is whether the right to privacy includes the right to privacy in respect of telephonic conversations and the right to hold such conversations without deliberate, conscious and unjustified interference therewith and intrusion thereon by servants of the State, who listen to such conversation, record them, transcribe them and make the transcriptions thereof available to other persons.
I have no doubt but that it does.
As stated by Mr. Justice Henchy in his judgment in Norris v. The Attorney General [1984] I.R. 36 at p. 71:
“Having regard to the purposive Christian ethos of the Constitution, particularly as set out in the preamble (“to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations”), to the denomination of the State as “sovereign, independent, democratic” in Article 5, and to the recognition, expressly or by necessary implication, of particular personal rights, such recognition being frequently hedged in by overriding requirements such as”public order and morality” or “the authority of the State” or “the exigencies of the common good”, there is necessarily given to the citizen, within the required social, political and moral framework, such a range of personal freedoms or immunities as are necessary to ensure his dignity and freedom as an individual in the type of
society envisaged. The essence of those rights is that they inhere in the individual personality of the citizen in his capacity as a vital human component of the social, political and moral order posited by the Constitution.
Amongst those basic personal rights is a complex of rights which vary in nature, purpose and range (each necessarily being a facet of the citizen’s core of individuality within the constitutional order) and which may be compendiously referred to as the right of privacy.”
The nature of the right to privacy must be such as to ensure the dignity and freedom of an individual in the type of society envisaged by the Constitution, namely, a sovereign, independent and democratic society. The dignity and freedom of an individual in a democratic society cannot be ensured if his communications of a private nature, be they written or telephonic, are deliberately, consciously and unjustifiably intruded upon and interfered with. I emphasise the words “deliberately, consciously and unjustifiably”because an individual must accept the risk of accidental interference with his communications and the fact that in certain circumstances the exigencies of the common good may require and justify such intrusion and interference. No such circumstances exist in this case.
There has been, as is admitted on behalf of the defendants, a deliberate, conscious and unjustifiable interference by the State through its executive organ with the telephonic communications of the plaintiffs and such interference constitutes an infringement of the constitutional rights to privacy of the three plaintiffs. Though the second plaintiff is not a citizen of this state, he is entitled to the same personal rights as if he were. Such interference constituted an infringement of the plaintiff’s constitutional right to privacy and, in the words of Mr. Justice Walsh spoken during the course of his judgment in Meskell v. CƒÂ³ras Iompair ƒ°ireann [1973] I.R. 121 at p. 134, such interference was “unlawful as constituting a violation of the fundamental law of the State.”
In the same case, Walsh J. further stated at pp. 132 and 133:
“[A] right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it.”
In this case the plaintiffs and each of them claim damages for breach of constitutional rights, abuse of power and breach of contract. In the events which have happened, the only remedy which the plaintiffs can obtain in this court, which, as one of the organs of the State is obliged to respect, defend and vindicate the personal rights of the citizens, lies in damages. Damages may be compensatory, aggravated, exemplary or punitive.
In the course of argument in this case I stated that, in my opinion, the plaintiffs were not entitled to punitive damages in this case. I still adhere to that view because of the action of the then Minister for Justice, in the course of the statement made by him on the 20th January, 1983, already referred to, in openly acknowledging that both the telephones referred to in this case were in fact “tapped”, that the system of safeguards which successive Ministers of Justice have publicly declared in DƒÂ¡il ƒ°ireann to be an integral part of the system was either disregarded or, what amounted to the same thing, was operated in such a way as to be rendered meaningless and that the facts showed that there was no justification for the tapping of either of the two telephones and that what occurred went beyond what could be explained as just an error of judgment. In doing so he, though belatedly, vindicated the good names of the plaintiffs herein, in particular the first and second plaintiffs.
It is quite clear from a consideration of the Civil Liability Act, 1961, and in particular s. 7, sub-s. 2 and s. 14, sub-s. 4 thereof that Irish law recognises a distinction as between “punitive damages” and “exemplary damages”. In determining the damages to which the plaintiffs are entitled, I must have regard not only to the distress which was suffered by the plaintiffs as a result of the infringement of their constitutional right to privacy, the implication thereof and the publicity consequent thereto but also to the fact that the infringement was carried out deliberately, consciously and without justification by the executive organ of the State which is under a constitutional obligation to respect, vindicate and defend that right.
In the course of his speech to the House of Lords in Rookes v. Barnard [1964] A.C. 1129, at p. 1226, Lord Devlin distinguished between aggravated and exemplary damages and stated that exemplary damages may be awarded where there has been “oppressive, arbitrary or unconstitutional action by the servants or the government”.
The action of the executive in this case in “tapping” the telephones of the plaintiffs without any lawful justification and in interfering with and intruding upon the privacy of the plaintiffs constituted an attack on their dignity and freedom as individuals and as journalists and cannot be tolerated in a democratic society such as ours is and our Constitution requires it to be and the injury done to the plaintiffs has been aggravated by the fact that it has been done by an organ of state which is under a constitutional obligation to respect, vindicate and defend their rights. The plaintiffs are in my opinion entitled to substantial damages and it is, in the circumstances of this case, irrelevant whether they be described as “aggravated” or “exemplary”damages.
I have carefully considered the evidence of the plaintiffs which I accept as honest and truthful with regard to the effect that the knowledge that their telephones had been “tapped” had on them and the distress that they suffered, which distress was accentuated by the realisation that the only justification for such tapping lay in security reasons or in connection with the investigation of serious crime. I am satisfied that the plaintiffs have not suffered any loss and am not satisfied that the change in the second plaintiff’s career as a journalist is attributable to the actions of the executive. I am also satisfied, particularly having regard to the statement of the Minister for Justice already referred to, that the reputations of the plaintiffs and each of them, have been vindicated. That being said however, the injury done to the plaintiffs’ right to privacy was serious, the distress suffered by them as a result thereof significant and in the case of the first and second plaintiffs was done consciously, deliberately and without justification. In the case of the third plaintiff, who is the spouse of the second plaintiff, the injury was not done consciously or deliberately but incidentally.
In all the circumstances of this case, I will award to the first plaintiff the sum of £20,000 damages, to the second plaintiff the sum of ‚£20,000 damages and to the third plaintiff the sum of ‚£10,000 damages.
Foley v Sunday Newspapers Ltd,
[2005] I.E.H.C. 14JUDGMENT of Mr. Justice Kelly delivered the 28th of January, 2005
THESE PROCEEDINGS
This action was commenced by the issue of a plenary summons on 16th December, 2004. On the same day a notice of motion was issued seeking interlocutory relief which is the subject of this judgment. That relief is as follows:-
“(1) An order by way of prohibitory interlocutory injunction restraining the defendant, it servants or agents, from publishing or causing to be published in any form or be broadcast in any sound or television broadcast or by means of any cable or satellite programme service or public computer network, any material relating to or concerning the plaintiff (whether referred to by name or by necessary implication) that;
(a) Encourages, advocates, promotes or predicts, explicitly or
by necessary implication, an attempt to endanger the life and/or the health of the plaintiff;
(b) Suggests, explicitly or by necessary implication, that the plaintiff has acted or is acting as an informer to An Garda Síochána in respect of the activities of persons with criminal tendencies and/or persons engaged in drug dealing;
(c) Is intended to interfere with and/or is in reckless disregard of the plaintiff’s right to life, privacy and bodily integrity pursuant to Article 40.3 of Bunreacht na hÉireann.
(2) Such further or other relief as to this honourable court shall seem just or appropriate.
(3) An order providing for the costs of and incidental to this application”.
The notice of motion was grounded upon an affidavit sworn by James MacGuill who is the plaintiff’s solicitor. In turn that affidavit was responded to by Colm McGinty. Two further affidavits were subsequently sworn by the same deponents and the motion for interlocutory relief was heard by me on 18th and 19th January, 2005.
THE PLAINTIFF
In the plenary summons the plaintiff is described as unemployed and residing at 114 Cashel Avenue, Crumlin, Dublin 12. In the affidavit grounding the application his solicitor describes him as “a citizen who has had a number of criminal convictions but who is not presently (sic) serving any sentence”. In the first replying affidavit the number of criminal convictions was put at in excess of 45, including convictions for crimes of violence and malicious damage. Neither the number nor the nature of those convictions recorded against the plaintiff is in dispute.
Over the last 10 years the plaintiff has been shot on three separate occasions. In December, 1995, he was shot in the arm and stomach. In February, 1996, he was shot in the back and the finger. He was again shot in the year 2000. He obtained judgment for IR£120,000.00 against a man called Charles Bowden in respect of the shooting in February, 1996. That sum was awarded by Kinlen J. on 15th November, 2000, but the judgment remains unsatisfied.
In the first replying affidavit at para. 5 the plaintiff is described as “a notorious and self professed crime lord and major drug dealer known as ‘the Viper'”. It gives details of some of his criminal convictions over many years. These are not denied either by the plaintiff who chose not to swear any affidavit or on his behalf by his solicitor.
THE DEFENDENT
The defendant has its registered office in Terenure, Dublin and is the publisher of the Sunday World newspaper. The editor of that newspaper is Mr. Colm McGinty. The crime editor of that newspaper is Mr. Paul Williams. Mr. Williams has written about the activities of the plaintiff on numerous occasions, not merely in the newspaper, but in a book which he authored called “Crime Lords”.
The first edition of that book was published in August, 2003 and contained a chapter devoted to the lifestyle and criminal activities of the plaintiff.
In October, 2003, the Sunday World newspaper produced a twelve page pullout containing extracts from that book.
The plaintiff was animadverted upon again in the newspaper’s edition of 25th April, 2004 in an article entitled “Sinn Féin: The Big Lie”.
On 5th December, 2004, the paper published an article by way of a serialisation of a further book written by Mr. Williams called “Crime Lords Update”. It is that publication in the Sunday World which has given rise to these proceedings.
It is the stated policy of the newspaper to expose and report on the criminal underworld and its principal figures.
THE NATURE OF THESE PROCEEDINGS
The material published of and concerning the plaintiff by the defendant prior to the article of the 5th December, 2004, would, if untrue, be highly defamatory. But the plaintiff has never sued in defamation in respect of any article published of or concerning him by the defendant prior to 5th December, 2004, nor does he do so in respect of that publication either.
His solicitor has sworn that letters have been sent to the defendant concerning the publications prior to December, 2005, complaining of “unsubstantiated allegations that have linked the plaintiff, quite incorrectly and unfairly, to various criminal activities and enterprises, these allegations accordingly being grossly defamatory of him and his reputation”. The explanation given for not taking action in respect of the allegations identified as “being grossly defamatory of him and his reputation” is that the plaintiff is “a citizen whose reputation and character is blemished and who for that reason is unlikely to have an effective remedy available to him in the law of defamation even when matters that are materially untrue and highly prejudicial are published about him”. It is said on his behalf that he has no effective conventional legal remedy available to him concerning such publications.
In a further affidavit the plaintiff’s solicitor alleges that he is instructed that “in countless respects the plaintiff challenges the accuracy of the content of the first edition of ‘Crime Lords’ that relates to him”. Again he gives by way of explanation for not suing in respect of such material the fact that the plaintiff has a reputation and character which is blemished.
No one has a right to a reputation which is unmerited. One can only suffer an injury to reputation if what is said is false. In defamation the falsity of the libel is presumed but justification is a complete defence. The plaintiff contends that even when matters materially untrue and highly prejudicial are published about him he is devoid of a remedy in the law of defamation, presumably because he does not have a reputation worthy of merit.
It is in these circumstances that he brings these proceedings which have as their basis not damage to the plaintiff’s reputation but rather what is said to be an interference with his right to life and bodily integrity.
THE PUBLICATION OF 5th DECEMBER, 2004
In its issue of the 5th December, 2004, the Sunday World newspaper published a lengthy article running from pages 63 to 66 inclusive. It was headed “Crime Lords Update”. It purported to set out what were described as “new exclusive extracts from Paul William’s exposé of Irish crime”.
On the first page of the article it is said that the publication of the book “Crime Lords” infuriated several criminals who subjected Mr. Williams and his family to what is described as an appalling campaign of intimidation. That campaign it is alleged led to several death threats, an acid attack and the planting of an elaborate hoax bomb at Mr. William’s home. Mr. Williams and his family were evacuated from their home along with 150 of his neighbours in the early hours of a November morning. The article alleges that the gangster who led that campaign was the plaintiff whom it calls (and not for the first time) “the Viper”. On pages 64 and 65 under the heading “How the Viper tried to silence me” there is an extensive article pertaining to the plaintiff alleging inter alia that he has engaged in intimidation of Mr. Williams. The article continues to its conclusion on page 66. The heading on that page is “Foley’s a Dead Man Walking”. The sub-heading is “Viper isn’t Trusted by Other Gang Members”.
The plaintiff’s solicitor in his affidavit of 16th December, 2004, identifies a section of the article which is contained at page 66 as being the one that has caused the plaintiff what is described as the greatest concern.
FIRST COMPLAINT
Apart from the heading on page 66 the first element of the article identified for criticism is the concluding sentences of it. They read “A retired detective who has known the colourful gangster for almost 30 years commented: ‘no, that’s not for Martin, he doesn’t have the cop on to know when to quit and he can’t help himself getting into trouble. I have always predicted that Foley will not die in his sleep and have told him this on many occasions. The only thing that amazes me is that he has lived for so long'”.
In dealing with this aspect of the matter the plaintiff’s solicitor swears as follows:-
“The plaintiff is deeply concerned to read in a Sunday newspaper that has a particularly wide circulation amongst his friends, family, associates, neighbours, acquaintances and general social class that his violent demise is effectively being predicted in a banner heading. In the context of he being a person who has already had the misfortune to be the subject of three violent attempts on his life, this aspect of the article is either intended to provoke a further attempt on his life or is reckless and irresponsible as to that possible effect. The banner headline in particular, is, in all the circumstances, amongst the most profoundly irresponsible journalism and editorship of a widely circulating national newspaper that I could conceive of”.
Whatever about the criticism of the headline on page 66, the material concerning the retired detective and his views is a verbatim reproduction of the final few sentences of the article which appeared in the newspaper’s 12 page pull out on October 26th, 2003. That in turn is a verbatim reproduction of the final paragraph of page 91 of the book “Crime Lords” which was published in August, 2003. The plaintiff did not bring any proceedings concerning this material when it first appeared in these two separate publications well over a year ago.
In dealing with this part of the plaintiff’s case, the editor of the defendant has sworn as follows:-
“The portion in question is an understandable comment by a person familiar with the plaintiff’s activities and the previous attempts on the plaintiff’s life. It is not in any way an attempt to provoke a further attempt on the plaintiff’s life. On the contrary the retired garda detective states that as the plaintiff is a violent criminal and given that his fellow criminals have already tried to kill him, if the plaintiff continues to engage in criminality he is likely to be the subject of further violence and attempts on his life. As indicated by Mr. McGuill there have been three previous attempts on the plaintiff’s life. The plaintiff has also been abducted by the I.R.A. These incidents have all stemmed from the plaintiff’s involvement in criminal activities. The plaintiff is a person who orchestrates and deals in terror and violence, it is therefore not surprising that his life has been threatened in the past or may again be threatened in the future. Any threat to the plaintiff’s life is wholly attributable to his continued involvement in crime and association with other members of the criminal class”.
SECOND COMPLAINT
This complaint also relates to material which is contained on page 66 of the newspaper. The passage in question reads:-
“He has become a source of embarrassment to the likes of Sinn Féin/I.R.A. who Foley, by his own admissions, has effectively bought off. According to reliable sources, the Viper is no longer a target for the I.R.A.’s hit-men despite the fact that he has been on many of their murder lists in the past. It is widely rumoured in gangland circles that Foley broke the habit of a lifetime and decided to pay some of his drug money into the coffers of Sinn Féin, the I.R.A’s political party who allegedly stand for social justice.
VIOLENT
Garda intelligence has consistently categorised Foley as a ‘dangerous, violent criminal’.
The Viper’s charmed existence in terms of dealing with the I.R.A. and other gun attacks has been reflected in his dealings with the police”.
Issue is now taken with this material and the plaintiff instructed his solicitor that it was entirely untrue to suggest
(a) that he has now or ever has had anything to do with drug money, or
(b) that he has paid drug money or any money at all, to Sinn Féin.
There was however nothing new in this allegation published on December 5th, 2004.
In the Sunday World of 25th April, 2004, on its front page the following statement was published:-
“Drug dealing is just one of the several rackets being used to fund Gerry Adams’s party. The revelation came after the Independent Monitoring Commission revealed that Sinn Féin/I.R.A. are deeply involved in organised crime and murder”.
That front page article was continued inside on pages 10 and 11. Amongst the material published on those pages was the following:-
“Today the Provos and Sinn Féin cannot afford to put drug dealers out of business because they are actually living off the proceeds of the rackets.
One of their benefactors is the country’s best known drug baron, Martin ‘the Viper’ Foley who, by his own admission, has been paying of f the Provos for the past few years rather than suffer the same fate as his best mate Seamus ‘Shavo’ Hogan who was murdered three years ago.
Foley, a notorious miser, decided to help the ’cause’ after a senior Sinn Féin representative visited his daughter’s school.
During the visit the Sinn Féin/Provo told the kids, including the Viper’s daughter, that the drug problem was ‘being taken care of’ in the area.
Astonishingly the Shinner told how Shavo was out of the way and then he named two other local drug dealers, Foley and another man.
POLITICAL THUGS
The Viper got a fright when he heard about the comments and ran to the police to complain about the Shinner. Local gardai then foiled what they believed to be an attempt by the Provos to shoot the Viper.
Since then Foley has been paying up to help fund the Sinn Féin election machine and he has had no more trouble from the Provos.
To quote Minister Michael MacDowell, it is vomit inducing hypocrisy that these political thugs are funding themselves from the coffers of an evil mobster who is poisoning thousands of our young people with heroin, ecstasy and cocaine.
These days Foley openly brags to his associates that he is ‘well in’ with named Sinn Féin politicians. Other times he claims the Provos are scared of him.
And of course it is a two way street.
Foley’s close friends in Sinn Féin probably shared their knowledge in terrorism and showed him how to make the elaborate hoax bomb he placed under my car last November”.
The plaintiff did not bring any proceedings concerning this material when it first appeared in April, 2004.
THE THIRD COMPLAINT
The complaint is made in respect of the following passage which also appears at page 66 of the newspaper.
“Foley’s ability to avoid being caught has caused unease among many police officers, especially among those whose job it is to watch the Viper. Several reliable sources, both in the Garda Síochána and in the underworld, believe that the Viper is protected by a senior ranking member of the force. The theory is that Foley passes high grade information about the activities of other drug dealers to this officer. In the past twelve months since the bomb hoax Foley has miraculously managed to avoid at least three major drug busts where large amounts of cocaine and other narcotics were seized. In each case Foley had, astonishingly, left the scene where the drugs were found just a short time before the police came knocking”.
The plaintiff has reserved his most trenchant criticism for this particular allegation. His solicitor has sworn as follows in relation to it:-
“It is impossible to over emphasise the damage that this aspect of the article is capable of doing. The plaintiff is accused of being an informer of An Garda Síochána in respect of the activities of drug dealers, although it is clear from the terms of the article that the allegation is based on speculation rather than evidence. I say and believe that the allegation necessarily presents a real and substantial risk to the safety and life of the plaintiff as the sort of person involved in the activity of drug dealing would very likely be indifferent to the right to life, privacy and bodily integrity of the plaintiff were they to believe that he was providing material information to the police about their activities. The court can take judicial notice of the unhappy trend of a large number of so called ‘gangland killings’ in recent times that evidence the very real nature of the threat that this aspect of the article poses to the plaintiff’s safety and life.
I want to reiterate that I am categorically instructed by the plaintiff that the allegation that he is a police informer is without any foundation and is specifically denied.
But even assuming it were true, I say and believe that its publication still could not be justified at law given the grave threat to the life, privacy and bodily integrity of the plaintiff that its publication necessarily creates. Whilst I do not wish to labour this affidavit with matter that is more appropriate for subsequent legal argument, I say and believe that the plaintiff’s constitutional rights under Bunreacht Na hÉireann must be such as to outweigh the rights of the defendant to freedom of expression and to carry out their lawful business”.
This allegation of being a police informer had not been made prior to the article of 5th December, 2004. The attitude of the defendant in relation to it is not in doubt. It stands over it and says that it constitutes proper and responsible journalism in the context of its policy of exposing and reporting on the criminal underworld and its principal figures.
THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003
The defendant contends that no injunctive relief can be granted to the plaintiff pursuant to the provisions of the European Convention on Human Rights Act, 2003. In the plenary summons declaratory relief is sought by reference to that Act. However, it was accepted by the plaintiff that the interlocutory injunctive relief which he seeks in this application is not being sought pursuant to this Act. Consequently it is not necessary for me to consider the defendant’s submissions that the court has no jurisdiction to grant such an order.
THE CONSITUTION
The sole basis for the plaintiff’s claim is by reference to the right to life and bodily integrity conferred on him under the provisions of the Constitution. Counsel on his behalf said that what is at issue in the proceedings is the right on the part of the defendant to publish material which carries a real and substantial risk to his life. In that context it is said that his reputation is irrelevant save as it might be raised to attack his credibility on the genuineness of his fear should there be any repetition of the material contained in the article of 5th December, 2004.
Prior to the institution of these proceedings the plaintiff’s solicitor, by a letter of 8th December, 2004, sought an undertaking from the defendant that it would not in the future publish material of Mr. Foley which might in any way be construed as placing him at risk of attack from any source and that it would not violate his rights to privacy and the privacy rights of his family.
The defendant’s solicitor’s reply on 15th December, 2004, indicated that the defendant stood over the contents of the publication and the reporting of the plaintiff’s activities. He pointed out that the plaintiff had a number of attempts made on his life which were well documented and reported in criminal trials and court actions and that they all arose from his criminal activities. He went on to comment that it was remarkable that the plaintiff should attempt to suggest that the passing of information to the Garda authorities concerning criminal activities was in some way improper. He denied, in categoric fashion, that the defendant had defamed the plaintiff or had done anything unlawful or had violated his rights. The final sentence of the letter was unequivocal – “There will be no undertaking given to your client as demanded”.
PROHIBITORY INJUCTIONS
The speech of Lord Diplock in American Cyanamid Co. v. Ethicon Limited [1975] AC 396 is considered by some commentators to have clarified and by others to have revolutionised the approach of the courts to interlocutory injunctions. Whichever view be correct there can be no doubt as to the guidelines which he laid down for the courts to follow on such applications. His views were endorsed by the Supreme Court in Campus Oil v. Minister for Industry and Energy (No. 2) [1983] I.R. 88.
In short, the guidelines provide that in order to obtain an interlocutory prohibitory injunction a plaintiff must demonstrate –
(a) The existence of a serious question to be tried,
(b) The inadequacy of damages, and
(c) That the balance of convenience lies in favour of the grant of the injunction.
Whilst these issues, if resolved in favour of the plaintiff, will in many cases give rise to an injunction being granted (provided an appropriate undertaking as to damages is forthcoming) it is not always so. Indeed Lord Diplock acknowledged that in addition to these three questions there might be many other special factors to be taken into consideration in the particular circumstances of individual cases.
Over the years since the decision in American Cyanamid, a number of special categories of cases have been identified where the American Cyanamid guidelines, even if satisfied, do not result in an interlocutory injunction being granted. A good example of this is the rule that save in truly exceptional circumstances a court will not impose a prior restraint on publication unless it is clear that no defence will succeed at trial.
This is known as the rule in Bonnard v. Perryman [1891] 2 Ch. 269 and is of some relevance to this case.
In Bonnard’s case Lord Coleridge CJ sitting with four other judges including the Master of the Rolls said that although the courts undoubtedly possessed the requisite jurisdiction to grant interlocutory injunctive relief, in all but exceptional cases they should not issue an interlocutory injunction to restrain the publication of a libel which the defence sought to justify except where it was clear that the defence would fail. He based this on the need not to restrict the right of free speech by interfering before the final determination of the matter by a jury save in a clear case of an untrue libel. He said:-
“The subject matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions”.
The rule in Bonnard v. Perryman was approved and followed by the Supreme Court in Sinclair v. Gogarty [1937] I.R. 377.
It was authoritatively restated in England in more recent times in Fraser v. Evans [1969] 1 Q.B. 349 and Herbage v. Pressdram Limited [1984] 2 All E.R. 769. In that case Griffiths LJ restated the effect of the rule and then said:-
“These principles have evolved because of the value the court has placed on freedom of speech and I think also on the freedom of the press, when balancing it against the reputation of a single individual who, if wrong, can be compensated in damages”.
He refused to dilute the principle and having summarised an argument by counsel which suggested that the decision of the House of Lords in American Cyanamid v. Ethicon justified a departure from the rule he said:-
“If the court were to accept this argument, the practical effect would I believe be that in very many cases the plaintiff would obtain an injunction, for on the American Cyanamid principles he would often show a serious issue to be tried, that damages would not be realistic compensation, and that the balance of convenience favoured restraining repetition of the alleged libel until the trial of the action. It would thus be a very considerable incursion into the present rule which is based on freedom of speech”.
The rule in Bonnard v. Perryman has survived the enactment in England of the Human Rights Act, 1998. That Act incorporated the European Convention for the Protection of Human Rights and Fundamental Freedoms into the domestic law of England and Wales. In a decision of the Court of Appeal given on 5th November, 2004, in the case of Greene v. Associated Newspapers Limited [2005] 1 All ER 30, it was held that the Act had not changed the rule.
If the present case were an action in defamation it is clear that having regard to what is being said on oath by the defendant to the effect that it stands over the allegations which it has made concerning the plaintiff, an injunction would not be granted. It is the defendant’s contention that the plaintiff should not be entitled to an injunction in the present case in circumstances where he has not brought libel proceedings and if he did so he would be refused an injunction. The injunction sought would be just as much an incursion into the freedom of the press and it is said ought not to be granted.
Although this argument was made as part of the defendant’s case that there was no serious issue for trial, I prefer to deal with it when I come to consider the balance of convenience and the exercise of the undoubted discretion which a court has in the grant of any interlocutory injunction of the type in suit.
SERIOUS ISSUE FOR TRIAL
Apart from the argument concerning the lack of jurisdiction under the European Convention on Human Rights Act, 2003 and the one to which I have just adverted, the defendant also contended that for a number of other reasons the plaintiff has not made out a serious issue for trial. I do not propose to rehearse them here as it is not necessary to do so having regard to the conclusion which I have reached on this application. I will therefore assume, although without deciding it, that the plaintiff has made out an issue for trial or, to use the words of Lord Diplock, that his action is not frivolous or vexatious.
ADEQUACY OF DAMAGES
Again under this heading I will proceed on the basis and assume that if the plaintiff is correct damages would prove to be an inadequate remedy for him since he contends his life is endangered by any repetition of the offending material.
BALANCE OF CONVENIENCE
In American Cyanamid, Lord Diplock said:-
“It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. They will vary from case to case”.
In the present case I have on the one hand the contention of the plaintiff that repetition of the matter which he has identified by the defendant between now and trial could give rise to a risk to his life and bodily integrity. On the other hand the defendant contends that it should be free to publish this material if it wishes to do so and that it stands over it as being true.
It is important to bear in mind that all of the material complained of consists of statements of fact or the expression of opinions. Nowhere is there any express exhortation made or encouragement given to anyone to harm the plaintiff. There is no evidence or reason to believe that the defendant will do so in the future. If there was a real and substantial risk of such an exhortation being made different considerations might apply.
In this country we have a free press. The right to freedom of expression is provided for in Article 40 of the Constitution and Article 10 of the European Convention on Human Rights. It is an important right and one which the courts must be extremely circumspect about curtailing particularly at the interlocutory stage of a proceeding. Important as it is however, it cannot equal or be more important than the right to life. If therefore the evidence established a real likelihood that repetition of the material in question would infringe the plaintiff’s right to life, the court would have to give effect to such a right. That appears to be the gist of what was said by Finlay CJ in SPUC v. Grogan [1989] IR 753 at 765 where in the context of the facts of that case he said:-
“With regard to the issue of the balance of convenience, I am satisfied that where an injunction is sought to protect a constitutional right, the only matter which could properly be capable of being weighed in the balance against the granting of such a protection would be another competing constitutional right”.
That case was decided in circumstances where the court had clearly established that the actual activity which the defendants in the case were claiming and intending to pursue as of right was unlawful having regard to the provisions of Article 40 of the Constitution.
I do not accept the contention made by counsel for the plaintiff that the passage which I have just quoted is of universal application regardless of the facts. On his argument once a plaintiff seeks an injunction to protect a constitutional right the balance of convenience is recalibrated so as to permit only the consideration of another competing constitutional right.
To apply this approach could give rise to injustice and abuses of process. A formulaic assertion of a claim to protect a constitutional right without any analysis of the background against which it was made being open to the court and an ability only to consider on the balance of convenience a competing constitutional right could give rise to considerable injustice.
I do not accept that the statement relied upon by counsel for the plaintiff was intended to or does in fact create a general principle applicable regardless of circumstances in all cases where an injunction is sought in the protection of a constitutional right. The court is not deprived of its ability to assess the evidence and its context and to consider fully the balance of convenience.
There are a number of matters which appear to me appropriate to take into account on this question of the balance of convenience.
First, all of the material which has been complained of is already in the public domain. Much of it has been in the public domain for a very long time. In the case of what I have described as the first complaint it was published in book form in August, 2003. It was repeated by the newspaper in October, 2003. Despite what is now said by the plaintiff he took no proceedings of any sort in relation to those publications. In my view it is altogether too late to seek an injunction restraining further publication of this material. It also calls into question the genuineness of his alleged belief concerning this material particularly when he has avoided swearing any affidavit himself in these proceedings.
Similar observations can be made in respect of the second complaint which deals with material first published in April, 2004.
The third complaint is undoubtedly new. No criticism on the grounds of delay can be made of the plaintiff in this instance.
I have already mentioned the argument made by the defendant to the effect that as the plaintiff would not be granted an injunction of this type in a defamation action so he should not be granted such in the present case. I do not think that that necessarily follows but I am quite satisfied that before an injunction of this type should be granted the plaintiff would have to demonstrate by proper evidence a convincing case to bring about a curtailment of the freedom of expression of the press.
This is particularly so having regard to the strongly expressed guarantees in the Constitution in favour of freedom of expression. The Irish (and indeed the English courts in the absence of a written constitution) have always shown a marked reluctance to exercise their injunction jurisdiction in a manner which would entrench on the freedom of expression enjoyed by the press and the media generally. A good example of this is to be found in the judgment of O’Hanlon J. in MM v. Drury & Ors. [1994] 2 I.R. 8.
This approach is also justified having regard to the provisions of Article 10 of the European Convention on Human Rights and the jurisprudence which has built up on foot of it.
Article 10 of the European Convention on Human Rights is entitled ‘Freedom of Expression’ and reads as follows:-
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.
In the case of Venables v. News Group Newspapers Limited [2001] Fam 430 Butler-Sloss P. held (admittedly on a trial) that by virtue of Article 10 of the Convention the freedom of the media to publish could not be restricted unless the need for such restrictions fell within the exceptions in Article 10(2) which were to be construed narrowly. She also held that the onus lay on those seeking such restrictions to show that they were in accordance with the law, necessary in a democratic society to satisfy one of the strong and pressing social needs identified in Article 10(2), and proportionate to the legitimate aim pursued.
In the course of her judgment she cited with approval the observations of Munby J. in Kelly v. British Broadcasting Corporation [2001] Fam 59 where he said:-
“If those who seek to bring themselves within para. 2 of Article 10 are to establish ‘convincingly’ that they are – and that is what they have to establish – they cannot do so by mere assertion, however eminent the person making the assertion, nor by simply inviting the court to make assumptions; what is required… is proper evidence”.
In the present case it appears to me that the evidence falls short of what would justify me in curtailing the freedom of the defendant to state facts and express opinions upon the plaintiff and his activities.
As I have already pointed out, I can find no evidence of any express exhortation or positive encouragement to persons to do violence to the plaintiff.
The three previous attempts on his life long antedate the publication of any material by the defendant which the plaintiff has identified as offensive. That fact is supportive of the view that any risk to the plaintiff’s life or wellbeing comes not from any publication by the defendant but rather from his own involvement in criminal activities and the criminal underworld.
As the evidence stands I am satisfied that I would not be justified in restricting the defendant’s right between now and the trial of this action to write of or concerning the plaintiff provided of course that they do not exhort anybody to do violence towards him. They have not done so in the past and there is no evidence that they intend to do so in future.
Whatever about the issues that fall to be determined at trial the evidence before the court does not justify the curtailment of the defendants rights which the plaintiff seeks.
Furthermore the information in question is in the public domain and the bringing of this action with its attendant publicity has given it a much wider circulation. An injunction restraining this defendant from repeating it would have little value. The plaintiff has of course by bringing this action obtained prominence for his denials of the allegations with which he takes issue.
I am also satisfied that the order which is sought is altogether too wide. If it were to be granted in the terms sought the task of the defendant in attempting to ascertain what would be permissible material to publish and what not would be very difficult indeed. Even if I were minded to grant an injunction I would not do so in those terms.
Accordingly the application for injunctive relief is refused. I will however direct an early trial of this action and will hear counsel on the question of the delivery of accelerated pleadings and the fixing of a trial date.
Sullivan v Boylan (No.2)
[2013] IEHC 104
JUDGMENT of Mr. Justice Hogan delivered on 12th March, 2013
1. Few things are more important in life than the security of one’s own dwelling and the right to come and go from that abode without interference. It is a right which perhaps most of us take for granted. It is only when that security has been threatened by intruders – such as in the aftermath of a burglary – that we realise that how important that sense of safety, security and a general sense of repose from the cares of the world actually is. It is precisely for those reasons that Article 40.5 of the Constitution safeguards the inviolability of the dwelling: see generally The People (Director of Public Prosecutions) v. Barnes [2006] IECCA 165, [2007] 3 IR 130, per Hardiman J.
2. In this judgment I am now called upon to make an award of damages following a finding by me that the third defendant had gravely infringed the constitutional rights of this plaintiff in my first judgment in this matter: Sullivan v. Boylan [2012] IEHC 389. While the details of the ordeal to which the plaintiff was subjected by the third defendant are recorded in that judgment, it may be helpful if the background facts are briefly recapitulated.
3. The plaintiff, Ms. Sullivan, lives alone in Clontarf, Dublin 3. She engaged the first and second defendants (whom I shall collectively describe as “Boylan contractors”) in December, 2011 to build an extension to her property and to carry out certain refurbishments works. The works commenced in February, 2012 and ceased in May, 2012. By April, Ms. Sullivan had paid €84,000 of the initial contract sum of €91,250. There was subsequently a dispute as to whether certain contracted works had been carried out or whether instead certain additional work had to be performed over and above that which had originally been contracted for. In sum, therefore, the issue is whether Ms. Sullivan owes the Boylan contractors €7,000.00 (approximately) or €20,000.00 (approximately) or perhaps nothing at all.
4. It is clear nevertheless that there is a legitimate argument regarding the existence of any such debt or, if there is a debt, the amount of same. The Boylan contractors decided, however, to put the matter into the hands of a debt collector, Patrick McCartan. It is the latter’s conduct which gave rise to these proceedings and which required to be restrained by injunction.
The Conduct of Mr. McCartan
5. The first contact which Ms. Sullivan had with Mr. McCartan was on 1st August, 2012. She received a telephone call from him during which Mr. McCartan identified himself as someone who worked with financial institutions. He said that he had heard from Mr. Boylan and wanted to hear her side of the story. She had understood Mr. McCartan to be some kind of intermediary, and while Mr. McCartan sought a meeting, Ms. Sullivan indicated that she would get back to him.
6. Ms. Sullivan did not have to wait long for Mr. McCartan. He turned up unannounced on the 3rd August, and appears to have allowed himself through the front door. Ms. Sullivan, whilst surprised, was not taken aback by this because Mr. McCartan did not then behave aggressively. He identified himself as the person who had rung earlier, and she invited him further into the house to show the difficulties which had arisen on the construction works. Mr. McCartan did not say that he was a debt collector but rather indicated that – or, at least appeared to indicate that – there might be some room for a constructive engagement between Ms. Sullivan and Mr. Boylan. Ms. Sullivan was quite happy with that meeting.
7. Matters changed for the worst on the 8th August, 2012, when Ms. Sullivan received an email from Mr. McCartan claiming she owed the sum of €23,783 to the Boylan contractors. The email was in the following terms:-
“I can have Mr. Boylan accept if paid by Friday the sum of €20,000.00 of which payment must be made [directly to a particular bank account]. Failure for this to appear in the account by Friday 12 noon, my instructions are to act immediately and secure judgment and park our vehicle DEBT COLLECTOR fully signage outside your house and place of work. I really would prefer an amicable agreement to settle, however I have a responsibility to my client to collect as per instructions with less interruption from yourself. You do not need any more grief from neighbours and the site of a large van with signage directed and with your details is something that should be avoided. I expect your reply and settlement as per instructions above.”
It was purportedly signed in the name of Greenbank Solutions Credit License 564337 licensed to operate in the UK, Ireland, USA, and Europe.
8. On receipt of this email Ms. Sullivan contacted her solicitor who, in turn, sent a letter to Mr. Boylan asking him to desist. On the 10th August, Mr. McCartan contacted Ms. Sullivan by telephone. She explained that she had instructed her solicitor to handle matters with Mr. Boylan. Shortly after that she received a text message from Mr. McCartan in the following terms:-
“Deirdre you have refused to co-operate, I gave you a week and no reply. I am assuming no payment has been made. I have it made quite clear a full €23k is now required plus 10% our fee or we will expose you on this debt and will get it.”
She received approximately seven further phone calls from Mr. McCartan from the same telephone number later that afternoon, but she did not answer them.
9. Not surprisingly, Ms. Sullivan was extremely distressed by this persistent calling and she sent him a text message asking him to desist from this. Giving evidence before me at the damages hearing on 1st March, 2013, Ms. Sullivan explained that she found this series of threatening phone calls very distressing and frightening and she felt that she was being watched.
10. She then received a further text message from Mr. McCartan in the following terms:-
“My calls and presence will continue. You created the problem and agreed with me. I … will embarrass you to your neighbours if you continue also a charge will be placed on your property and a judgment. Your choice as my client is correct.”
Ms. Sullivan’s solicitor, Mr. MacGuill, then wrote a further letter to Mr. McCartan asking him to desist from this conduct and drawing his attention to the provisions of s. 10 and s. 11 of the Non-Fatal Offences Against the Person Act 1997 (“the Act of 1997”), and indicating that any further direct approaches to her for the sums in dispute would be referred to the Gardaí.
11. Unfortunately, however, Mr. McCartan did not desist. He sent her an email on the 15th August in the following terms:-
“Dear Madam,
Unfortunately for you and your lies this matter is now being in possession and legal charge being obtained immediately please do not insult me with a letter of a so called solicitor with no letter heading or qualifications why has he to hide all you have a minimum of three days to pay or your broader investments and business will be of interest to the Revenue, do not underestimate my knowledge of your hidden undeclared properties and business.”
Ms. Sullivan comments in her affidavit that:-
“I have no undeclared properties and business. I had had issued in relation to foreign property [which] were sorted out with the Revenue Commissioners a number of years ago with the assistance of a tax adviser. I do not know how Mr. Boylan or Mr. McCartan obtained access to that information.”
The harassment nonetheless continued unabated, as another email followed:-
“Dear Madam,
Your non-cooperation adds to our increased demand for payment due to Mr. Boylan. If you decline to acknowledge as from tomorrow as previously indicated we will cause you severe embarrassment, your neighbours have also indicated they will not tolerate increased traffic or nuisance operations causing inconvenience to their access. We are within our rights and failure by you to settle your debt will only add to your discomfort in the area. You owe the money so pay up and save yourself all this embarrassment. We look forward to your early settlement.
Greenbank Collections Licensed Debt Collectors.”
Worse was to follow. On Friday 24th August Ms. Sullivan received an email from Mr. McCartan as follows:-
“We will be in attendance after 4.00pm for full debt otherwise our van will maintain a spot outside your house to highlight your refusal to settle.”
There then followed a text message:-
“We are sitting outside till you come out with payment €25,000 or we start knocking on doors and telling the neighbours.”
12. Ms. Sullivan was extremely alarmed by this, but felt that she had no option but to return home immediately from work. She found a large Northern Ireland registered white van parked directly in front of her house with the signage – “Licensed Debt Collectors” – prominently displayed. Ms. Sullivan recognised Mr. McCartan and spoke to him. She drew attention to the fact that her architect was finalising her report on the disputed works. Ms. Sullivan was very distressed and in her agitated state she called Mr. McCartan a criminal. While it is clear from her affidavit that she was contrite about having made that statement, one must adjudge it to be pardonable in the circumstances given the extreme distress to which she had been subjected. Mr. McCartan indicated that he took exception to her remark and telephoned Mr. Boylan. However, there was an altercation between Mr. McCartan and Ms. Sullivan and a very unsatisfactory subsequent conversation between Mr. Boylan and Ms. Sullivan.
13. As indicated, Ms. Sullivan was extremely distressed as a result of this and drove to Clontarf Garda Station. Ms. Sullivan found the Gardaí very sympathetic and they had not previously been aware of Mr. McCartan’s presence outside her house. They accompanied her back to her house where after discussions with Mr. McCartan the Gardaí indicated that he would leave shortly. The Gardaí acknowledged, however, that they were powerless to stop him coming back. The Gardaí were also plainly of the view that they could take no steps as such to stop Mr. McCartan parking his vehicle with the debt collection signage directly outside Ms. Sullivan’s house.
14. Shortly after he had parked his van outside her house, Mr. McCartan then sent Ms. Sullivan another text in the following terms:-
“Madam, solicitors are money grabbing hoods without the mask. Do not threaten me with an uneducated [solicitor] as most were fraud in the good times. You have till Monday to have €20k in my account or else the Garda said I can park outside if I want. Your neighbours are not impressed and we will be back if you refuse to pay with your name in large print Monday. As for your remark a full apology and I will have you for every euro you may have as I have you taped. Monday?”
(I have redacted some of the coarser language used).
Ms. Sullivan was naturally extremely frightened and shocked to receive this text message. She spoke with Garda Hanrahan of Clontarf Garda Station who had been present earlier that day. While Garda Hanrahan advised her to retain all emails and text messages, Ms. Sullivan formed the view that the Gardaí considered the Mr. McCartan was within his rights in parking the vehicle outside her front door.
15. Matters came to a head on Monday 27th August, 2012, when Mr. McGuill sought undertakings on behalf of Ms. Sullivan from both Mr. Boylan and Mr. McCartan prior to making an application to this Court. The prospect of litigation did not, however, daunt Mr. McCartan in the least. The telephone calls kept coming and on that morning he had sent an email saying that she had “one hour” to contact him with payment as otherwise “the van goes back, and seizure of goods will take place [and] a vigil will be maintained outside your home to let everyone know how deceptive your are.” Further emails along similar lines were sent later that day and, as it happens, on the 28th and 29th August.
16. It was against this background that the application for an interlocutory injunction was first made to me on the following day, Tuesday, 28th August. While I granted certain relief ex parte, the matter was adjourned on a number of occasions to enable the defendants to put their side of the case. Although the Boylan contractors have subsequently given appropriate undertakings to the Court and have terminated Mr. McCartan’s retainer, Mr. McCartan has never appeared and has not been represented at any of these hearings.
17. I accordingly granted the plaintiff an interlocutory injunction restraining Mr. McCartan from effectively watching and besetting her home. I subsequently granted a permanent injunction restraining Mr. McCartan from engaging in such conduct.
18. It is clear that Ms. Sullivan found the entire episode frightening and deeply traumatic. She felt that there was no one to whom she could turn, as her parents were elderly and she did not want to cause them needless anxiety. She lost weight and she was prescribed a mild sleeping tablet by reason of the extreme stress to which she had been subjected.
19. As I observed in the course of the original judgment:-
“… it has to be said that it is, frankly, difficult to speak with moderation in respect of the conduct of Mr. McCartan. His behaviour has, however, been contemptible, irresponsible and outrageous. He has sought to harass, bully, defame, vilify and intimidate Ms. Sullivan and to all but imprison her in her own home. It is behaviour which in a civilised society cannot be tolerated for an instant and it represents conduct which this Court cannot and will not allow.”
The findings in the first judgment
20. In the course of the first judgment I concluded that Mr. McCartan’s conduct amounted to a prima facie breach of ss. 10 and 11 of the Non-Fatal Offences against the Person Act 1997 (“the Act of 1997”) . These sections provide:-
“10(1) Any person who, without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence.
(2) For the purposes of this section a person harasses another where—
(a) he or she, by his or her acts intentionally or recklessly, seriously interferes with the other’s peace and privacy or causes alarm, distress or harm to the other, and
(b) his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other’s peace and privacy or cause alarm, distress or harm to the other.
(3) Where a person is guilty of an offence under subsection (1), the court may, in addition to or as an alternative to any other penalty, order that the person shall not, for such period as the court may, specify, communicate by any means with the other person or that the person shall not approach within such distance as the court shall specify of the place of residence or employment of the other person.
(4) A person who fails to comply with the terms of an order under subsection (3) shall be guilty of an offence.
(5) If on the evidence the court is not satisfied that the person should be convicted of an offence under subsection (1), the court may nevertheless make an order under subsection (3) upon an application to it in that behalf if, having regard to the evidence, the court is satisfied that it is in the interests of justice so to do.
(6) A person guilty of an offence under this section shall be liable—
( a ) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both, or
( b ) on conviction on indictment to a fine or to imprisonment for a term not exceeding 7 years or to both.
11.(1) A person who makes any demand for payment of a debt shall be guilty of an offence if—
(a) the demands by reason of their frequency are calculated to subject the debtor or a member of the family of the debtor to alarm, distress or humiliation, or
(b) the person falsely represents that criminal proceedings lie for non-payment of the debt, or
(c) the person falsely represents that he or she is authorised in some official capacity to enforce payment, or
(d) the person utters a document falsely represented to have an official character.”
21. As I pointed out in that judgment, there can be little doubt but that Mr. McCartan has harassed Ms. Sullivan by “persistently following, watching, pestering, besetting or communicating with her” within the meaning of s. 10(1) of the Act of 1997, not least when she made it perfectly clear to him that such conduct was to stop. While Mr. McCartan was perfectly entitled to assert a demand for payment on behalf of the Boylan contractors, he was not entitled to make demands which by reason of their frequency were calculated – in the words of s. 11(1) of the Act of 1997 – “to subject the debtor or a member of the family of the debtor to alarm, distress or humiliation”. The demands made here were clearly intended to alarm and humiliate Ms. Sullivan. This, indeed, was the entire object of the exercise. Here it may be observed that the act of parking a van with the display sign “licensed debt collector” directly outside her house coupled with the threat to start ringing on the doors of her neighbours speaks for itself.
22. I went on to hold that the third defendant’s conduct had involved a breach of her constitutional rights to the protection of the person (Article 40.3.2) and the inviolability of the dwelling (Article 40.5):-
“The fact, moreover, that Mr. McCartan unblushingly continued with his practice of harassing the plaintiff even after the Gardaí had spoken to him points to the objective necessity for judicial intervention if the plaintiff’s right to secure the protection of her person (Article 40.3.2) and her dwelling (Article 40.5) is to be effective and not merely illusory.
…In the present case it requires little imagination to visualise the acute mental distress which Ms. Sullivan suffered as a result of this this outrageous conduct. The citizen’s right to the security of his or her person necessarily implies that the subjection by unlawful means of any person to what would objectively be regarded as acute mental distress must be regarded as amounting in itself to a breach of Article 40.3.2.
Nor could she find that repose from the cares of world presupposed by Article 40.5 – again to adopt the words of Hardiman J. in O’Brien – in the comfort of her own dwelling. The Irish language text of Article 40.5 (“Is slán do gach saoránach a ionad cónaithe….”) captures and expresses the essence of the English language word (“inviolability”) by stressing the concepts of safety and security of the dwelling. Here again all of this was compromised by the actions of Mr. McCartan. One might ask: who in such circumstances would feel safe in their house if, prior to entering or exiting their own private dwelling, they were effectively forced to run the gauntlet of passing what amounts to a picket bearing unpleasant messages by a menacing stranger, especially where these messages were designed to intimidate and humiliate?”
23. Here the calculated and persistent pattern of Mr. McCartan’s conduct may be emphasised. All of us may be upset by occasional rudeness, brusqueness or even angry words uttered in the heat of the moment and, of course, none of us are ourselves without sin in that regard as well. Such upset must be accepted as part of the give and take of everyday life, even if we do not like it when it occurs. What was objectionable about Mr. McCartan’s conduct – and that which brought it to the point of constitutional transgression – was its persistent, premeditated, unyielding and oppressive character.
The remedies for this unlawful conduct
24. In the light of these findings, it now falls to this Court to devise appropriate remedies in order to vindicate Ms. Sullivan’s constitutional rights which have been so outrageously violated by Mr. McCartan’s quite deplorable conduct. Article 40.3.2 and Article 40.5 are, of course, self-executing provisions which apply to both State actors and private citizens alike. There is absolutely no doubt but that a plaintiff whose constitutional rights have been infringed in this fashion can, in principle, at least, sue for breach of these rights: see, e.g., Meskell v. Córas Iompair Eireann [1973] I.R. 121, per Walsh J., Hanrahan v. Merck, Sharpe & Dohme Ltd. [1988] I.R. 629, per Henchy J. and Grant v. Roche Products Ltd. [2008] IESC 35, [2008] 4 IR 679 per Hardiman J.
25. It is true that in Hanrahan Henchy J. envisaged that this would be done only where the existing tort law was “basically ineffective” to protect constitutional rights. But it is far from clear that the existing law of torts sufficiently or adequately protects the constitutional interests of the plaintiff in the present case. It is true that, as might be expected, there are features of tort law which to some degree cover some of the interests which the plaintiff here seeks to vindicate. The principal nominate torts which might serve for this purpose are, of course, an action in private nuisance and the rule in Wilkinson v. Downton [1897] 2 QB 57. We may consider each of these torts in turn.
The law of nuisance
26. It would be tempting to attempt to shoehorn the plaintiff’s claim within the established boundaries of the law of nuisance. But here it must be recalled that the law of nuisance complements ownership of land and the scope of that tort requires to be understood in that historical context. As Professor Newark explained in his classic article, “The Boundaries of Nuisance” (1949) 65 L.Q.R. 480, 488-489:-
“In true cases of nuisance the interest of the plaintiff which is invaded is not the interest of bodily security but the interest of liberty to exercise rights over land in the amplest manner. A sulphurous chimney in a residential area is not a nuisance because it makes householders cough and splutter but because it prevents them taking their ease in their gardens. It is for this reason that the plaintiff in an action for nuisance must show some title to realty.” (emphasis added)
27. This passage (and perhaps especially the words which I have taken the liberty of emphasising) sums up the conceptual reason why the law of nuisance would be “basically ineffective” in the Hanrahan sense to protect the interests safeguarded by Article 40.5. Nuisance is designed to protect ownership of land, whereas Article 40.5 protects the rights of the residents of a dwelling to security, protection against all-comers and privacy which are all necessary features of the inviolability of the dwelling. These are rights which are enjoyed by all who reside in the dwelling and not simply by those who have legal title to that property. It might be said that whereas nuisance protects the proprietary interests of those with title to the dwelling, Article 40.5 is fundamentally directed at protecting the privacy interests of those who reside in a dwelling against the world at large. Nuisance, in other words, is an established tort relating to land, whereas Article 40.5 is concerned with the protection of the person as it relates to the protection of the security and privacy interests of those resident in a particular dwelling, even if they have no proprietary rights in respect of that dwelling.
28. This is borne out by developments in the United Kingdom within the last twenty years or so, starting with the decision of the English Court of Appeal in Khorasandjian v. Bush [1993] QB 727. In this case an 18 year old young woman had formed a romantic relationship with an older man. When that relationship ended, the older man pestered and harassed her in a most intolerable fashion. In the Court of Appeal one of the issues was whether the courts had jurisdiction to grant an injunction restraining the defendant from endeavouring to contact her by telephoning her at her parent’s home where she resided. A majority of the Court held that it had such a jurisdiction, but it is clear that the reasoning in that case – whatever about the actual result – did not survive the subsequent decision of the House of Lords in Hunter v. Canary Wharf Ltd. [1997] UKHL 14, [1997] AC 655.
29. In Hunter Lord Goff summarised thus the issues in Khorasandjian ([1997] AC 655, 690-691):-
“An injunction was granted restraining the defendant from various forms of activity directed at the plaintiff, and this included an order restraining him from “harassing, pestering or communicating with” the plaintiff. The question before the Court of Appeal was whether the judge had jurisdiction to grant such an injunction, in relation to telephone calls made to the plaintiff at her parents’ home. The home was the property of the plaintiff’s mother, and it was recognised that her mother could complain of persistent and unwanted telephone calls made to her; but it was submitted that the plaintiff, as a mere licensee in her mother’s house, could not invoke the tort of private nuisance to complain of unwanted and harassing telephone calls made to her in her mother’s home. The majority of the Court of Appeal (Peter Gibson J. dissenting) rejected this submission, relying on the decision of the Appellate Division of the Alberta Supreme Court in Motherwell v. Motherwell (1976) 73 D.L.R. (3d) 62. In that case, the Appellate Division not only recognised that the legal owner of property could obtain an injunction, on the ground of private nuisance, to restrain persistent harassment by unwanted telephone calls to his home, but also that the same remedy was open to his wife who had no interest in the property. In the Court of Appeal Peter Gibson J. dissented on the ground that it was wrong in principle that a mere licensee or someone without any interest in, or right to occupy, the relevant land should be able to sue in private nuisance.”
30. In a powerful judgment Lord Goff then proceeded to show how Motherwell v. Motherwell was based on a misunderstanding of earlier English cases regarding the entitlement of a mere licensee to sue in private nuisance. He then said ([1997] AC 655, 691-692):-
“This conclusion was very largely based on the decision of the Court of Appeal in Foster v. Warblington U.D.C. [1906] 1 K.B. 648, which Clement J.A. understood to establish a distinction between “one who is ‘merely present'” and “occupancy of a substantial nature”, and that in the latter case the occupier was entitled to sue in private nuisance. However Foster does not in my opinion provide authority for the proposition that a person in the position of a mere licensee, such as a wife or husband in her or his spouse’s house, is entitled to sue in that action. This misunderstanding must, I fear, undermine the authority of Motherwell on this point; and in so far as the decision of the Court of Appeal in Khorasandjian v. Bush is founded upon Motherwell it is likewise undermined.
But I must go further. If a plaintiff, such as the daughter of the householder in Khorasandjian v. Bush, is harassed by abusive telephone calls, the gravamen of the complaint lies in the harassment which is just as much an abuse, or indeed an invasion of her privacy, whether she is pestered in this way in her mother’s or her husband’s house, or she is staying with a friend, or is at her place of work, or even in her car with a mobile phone. In truth, what the Court of Appeal appears to have been doing was to exploit the law of private nuisance in order to create by the back door a tort of harassment which was only partially effective in that it was artificially limited to harassment which takes place in her home. I myself do not consider that this is a satisfactory manner in which to develop the law… In any event, a tort of harassment has now received statutory recognition: see the Protection from Harassment Act 1997. We are therefore no longer troubled with the question whether the common law should be developed to provide such a remedy.
It follows that, on the authorities as they stand, an action in private nuisance will only lie at the suit of a person who has a right to the land affected. Ordinarily, such a person can only sue if he has the right to exclusive possession of the land, such as a freeholder or tenant in possession, or even a licensee with exclusive possession. Exceptionally…. this category may include a person in actual possession who has no right to be there; and in any event a reversioner can sue in so far his reversionary interest is affected. But a mere licensee on the land has no right to sue.”
The rule in Wilkinson v. Downton
31. Much the same can also be said with regard to Wilkinson v. Downton. In that case the defendant falsely told the plaintiff as a practical joke that her husband had been injured in an accident involving a horse-drawn vehicle and that he was lying prostrate on the ground with his legs broken and that he had summoned her to fetch him. While the plaintiff’s husband returned safely by train from the races at Harlow that evening, the effects on the plaintiff were nonetheless dramatic. She became violently ill, her hair turned white and she seems to have suffered a severe psychiatric illness as a result.
32. The plaintiff sued for damages in an action on the case. Wright J. held the defendant liable on the ground that ([1897] 2 QB 57,58-59):-
“he had wilfully done an act calculated to cause physical harm to the plaintiff, that is to say, to infringe her legal right to personal safety and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification for the act.”
33. Quite apart from the fact that, as McMahon and Binchy, Law of Torts (Dublin, 2000) observe at para. 22.28 the “precise scope of the tort is somewhat uncertain”, the rule in Wilkinson v. Downton protects only some – but by no means all – of the interests safeguarded by Article 40.3.2. This is indeed illustrated by the facts of the present case.
34. An essential element of the tort in Wilkinson v. Downton is that the words were spoken falsely and were calculated to cause physical harm. One might, of course, say that in one sense Mr. McCartan spoke falsely in asserting that monies were due. Critically, however, he believed this to be true and, in any event, it may well be that when their dispute is finally resolved Ms. Sullivan may possibly find herself having to pay a particular sum to the Boylan contractors. But even if he had spoken the truth, it would not in the least have excused his behaviour or avoided an infringement of Article 40.3.2 and Article 40.5.
35. One might equally contend that the actions of the Mr. McCartan were calculated to physical harm to Ms. Sullivan and that they did in fact do so. It would nevertheless be artificial to extend the rule in Wilkinson v. Downton in this fashion. In the latter case the injuria was the acute physical harm which the plaintiff had suffered. It is true that in the present case Ms. Sullivan lost weight and in the end was prescribed a mild sedative to assist her to have sleeping pattern restored.
36. But there the comparisons end, as unlike Wilkinson v. Downton, the claim here is not really for physical injury at all. It is rather for the acute distress caused by the outrageous invasion of her personal space which is the very essence of the inviolability guarantee in Article 40.5. This guarantee is complemented by the protection of the person in Article 40.3.2, the effect of which, if I may venture to repeat what I said in Kinsella v. Governor of Mountjoy Prison [2011] IEHC 235, is that:-
“By solemnly committing the State to protecting the person, Article 40.3.2 protects not simply the integrity of the human body, but also the integrity of the human mind and personality.”
I might further repeat what I said on this point in Sullivan (No.1):
“In the present case it requires little imagination to visualise the acute mental distress which Ms. Sullivan suffered as a result of this outrageous conduct. The citizen’s right to the security of his or her person necessarily implies that the subjection by unlawful means of any person to what would objectively be regarded as acute mental distress must be regarded as amounting in itself to a breach of Article 40.3.2.”
37. Of course, the ancient Roman jurist would have had no difficulty at all in recognising what occurred in the present case as actionable iniuria, a tort which “protected the personality or personhood”: see Birks, “Harassment and Hubris” (1997) 32 Irish Jurist 1, 6. Reflecting this Roman inheritance, most continental civil codes would also readily permit an actio iniuriarum in respect of conduct of this kind.
In some civil law jurisdictions traditional tort law on this subject has, moreover, been supplemented and augmented by the judicial invocation of relevant constitutional guarantees. This has been particularly true in Germany where the Basic Law’s guarantees in terms of human dignity and the protection of the person are in terms very similar to our own constitutional guarantees: see, e.g., Zweigert and Kötz, An Introduction to Comparative Law (Oxford, 1992) at 729-730.
38. All of this is merely to say that the common law might well yet develop unaided to match its civilian counterparts so that in time that the law of nuisance and the rule in Wilkinson v. Downton would be regarded as just distinct sub-rules of a more general tort which protected human dignity and the person. As it happens, save in part for the fact that a statutory tort of harassment was created in the United Kingdom by the Protection from Harassment Act 1997, there might well have been English developments along these lines in the intervening period.
39. Indeed, in his concurring judgment in Hunter, Lord Hoffman may be thought to have contemplated that such might well occur ([1997] AC 655, 707):
“The perceived gap in Khorasandjian v. Bush [1993] QB 727 was the absence of a tort of intentional harassment causing distress without actual bodily or psychiatric illness. This limitation is thought to arise out of cases like Wilkinson v. Downton [1897] 2 QB 57 and Janvier v. Sweeney [1919] 2 K.B. 316. The law of harassment has now been put on a statutory basis (see the Protection from Harassment Act 1997) and it is unnecessary to consider how the common law might have developed. But as at present advised, I see no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence: see Hicks v. Chief Constable of the South Yorkshire Police [1992] 2 All ER 65. The policy considerations are quite different. I do not therefore say that Khorasandjian v. Bush [1993] QB 727 was wrongly decided. But it must be seen as a case on intentional harassment, not nuisance.”
40. This view was shared by Professor Birks in his masterly essay on the topic, “Harassment and Hubris”. As the original essay had been written before the decision of the House of Lords in Hunter and the enactment (in the UK) of the Protection from Harassment Act 1997, he subsequently argued in a postscript to that essay:
“One of the things which the lecture says is that the case of Khorasandijian v. Bush was stretching the limits of the tort of nuisance to make it do some of the work of a tort of harassment, and it argues that the resources lay at hand to do that work more directly and more comprehensively. The new statute, introducing civil and criminal redress, took the pressure off the tort of nuisance, allowing the House of Lords to say in Hunter v. Canary Wharf Limited that Khorasandijian had indeed overstretched the tort of nuisance and was to that extent wrong.”
41. These views were also echoed by Professor Glazebrook who argued (“Wilkinson v. Downton: A Centenary Postscript” (1997) 32 Irish Jurist 46, 48):
“So, if Wilkinson v. Downton is authority for anything, it is for the proposition that it is a tort to cause another anxiety, worry or distress when this is done intentionally, unjustifiably and inexcusably. It is not necessary, as some often suppose, that the anxiety, worry and distress should have resulted in illness. Illness is not part of the cause of action any more than physical injury is part of the cause of action in trespass to the person….”
42. Nevertheless, Lord Hoffmann himself subsequently seemed to rule out the development of such liability in Wainright v. Home Office [2004] 2 AC 406 (a case involving the strip searching of visitors to a prison) when he said ([2004] 2 AC 406, 426) that Wilkinson v. Downton “does not provide a remedy for distress which does not amount to recognised psychiatric injury.”
43. But just because the common law might have so developed or might yet so develop at some stage in the future does not take from the fact that the existing law of torts is still basically ineffective to protect the plaintiff in a case of this kind. It is true that – just as with the UK – our law of harassment has been placed on a statutory footing (s. 10 of the 1997 Act), but in this jurisdiction – unlike the UK Act – this is confined to the criminalisation of such conduct and does not address the question of remedies in tort. The fact that there is no statutory right to recover damages for this wrong simply underscores the basic ineffectiveness of traditional tort law fully to vindicate the constitutional rights to the protection of the person and the inviolability of the dwelling.
44. In the light of these conclusions it is not necessary for me to effect a re-shaping of existing common law rules. It follows, therefore, that for all of the above reasons the plaintiff can nevertheless sue and recover damages in respect of the violation of her constitutional rights as guaranteed by Article 40.3.2 and Article 40.5 given the basic ineffectiveness (in the Hanrahan sense) of the existing common law rules to protect the important interests relating to the protection of the person and the security of the dwelling which are safeguarded by these constitutional provisions. Even if the common law has not (yet) developed a general principle of tortious liability by reference to which the person is to be protected, that it is irrelevant given that Article 40.3.2 of the Constitution articulates such a general principle in clear and express terms. I am accordingly obliged as a result to fashion remedies which will uphold that constitutional right.
The appropriate level of damages
45. It is not easy to calculate the appropriate level of damages in unusual cases of this kind. In Raducan v. Minister for Justice [2011] IEHC 224, [2012] 1 I.L.R.M. 419 I awarded €7,500 to the Moldovian plaintiff who had been falsely detained by immigration officials as a result of a bureaucratic error following her arrival in Dublin airport on a fight from Bucharest. This meant that the plaintiff was unlawfully detained at a detention centre for three days. While the error was bona fide and the plaintiff herself very fairly acknowledged the fact that she was well treated while in prison, the sum was designed to compensate her for the loss of liberty for three days.
46. In the present case the interference with the plaintiff’s freedom was nothing as far-reaching as in Raducan. Nevertheless, whereas the deprivation of liberty in that case was the result of a bona fide mistake contrast, the defendant’s conduct here has been outrageous, contumelious and malicious. The offending conduct, moreover, lasted for a three week period as compared with the three days in Raducan.
47. In Herrity v. Associated Newspapers Ltd. [2008] IEHC 249, [2009] 1 I.R. 326 the defendant newspaper published detailed transcripts of the plaintiff’s private telephone conversations which had apparently been obtained by her estranged husband. The transcripts showed that the plaintiff had a romantic relationship with a Roman Catholic priest and the details of these transcripts were then published by the defendant newspaper to the plaintiff’s immense distress.
48. Dunne J. held that the defendant had thereby violated the plaintiff’s constitutional right to privacy. Addressing herself to the question of damages Dunne J. concluded ([2009] 1 I.R. 326, 347):
“Bearing in mind the facts and circumstances of this case, I am assessing ordinary and aggravated compensatory damages in the sum of €60,000 for the conscious and deliberate and unjustified breach of the plaintiff’s right to privacy and the undoubted and significant distress caused to the plaintiff as a result of that breach. The blatant use of unlawfully obtained transcripts of telephone conversations is such that it seems to me that it could not be condoned in any way whatsoever. The behaviour of the defendant in making use of such material is, in my view, nothing short of outrageous. It will be seldom that a court will award punitive or exemplary damages. However, bearing in mind the comments of Finlay C.J. in [Conway v. Irish National Teachers’ Organisation [1991] 2 I.R. 305], it seems to me that this is one of the rare occasions when the court’s disapproval of the defendant’s conduct in all the circumstances of the case should be marked by awarding such damages. In all the circumstances of this case it seems to me that the appropriate sum to award in respect of punitive damages for the conduct of the defendant in making use of transcripts of telephone conversations obtained unlawfully is the sum of €30,000.
Accordingly, there will be a decree in favour of the plaintiff in the sum of €90,000.”
49. Of course, the invasion of privacy in Herrity was particularly outrageous, not least given that it was committed by a powerful newspaper for commercial gain. This private and intimate information was thereby communicated to a wide audience and, of course, this did not happen in the present case. It must furthermore be acknowledged that Mr. McCartan’s conduct stopped following a court order and to that extent Ms. Sullivan’s rights have already been vindicated by judicial decision. Yet the outrageous conduct of the defendant cannot be ignored, nor are the grave breaches of the plaintiff’s constitutional rights to be lightly overlooked.
50. In the circumstances, I consider that the present case is somewhat closer to Raducan in terms of the effects on the plaintiff’s life and welfare, even if the breaches of constitutional rights in the present case were more sustained and had a longer duration. In these circumstances I will award the plaintiff the sum of €15,000 by way of general damages.
Whether exemplary damages should be awarded
51. In Conway v. Irish National Teachers’ Organisation [1991] 2 I.R. 305, 317 Finlay C.J. envisaged that exemplary damages could be awarded in addition to compensatory damages where it was appropriate “to mark the court’s particular disapproval of the defendant’s conduct in all the circumstances of the case.” Given all that I have said in both the first judgment and in this judgment regarding the oppressive, arrogant and contumelious behaviour of Mr. McCartan, just as in Herrity, it is entirely appropriate that exemplary damages should be awarded. Here I propose to follow the example of Dunne J. in Herrity and to award the plaintiff by way of exemplary damages 50% of the sum awarded as compensatory damages, i.e., the sum of €7,500.
Conclusions
52. For the reasons stated, therefore, I propose to award the plaintiff the sum of €15,000 in respect of general damages, with €7,500 by way of exemplary damages. I will thus award her the sum of €22,500 for breaches of her constitutional rights as against the third defendant.
Hayes v Ireland & Others
Liam Hayes (Formerly an Infant but now of Full Age) v Ireland, The Minister for Education, The Attorney General, Irish National Teachers’ Organisation and Others
1981 No. 2617P
High Court
6 October 1986
[1987] I.L.R.M. 651
(Carroll J)
CARROLL J
delivered her judgment on 6 October 1986 saying: This action arises out of the school strike in Drimoleague, County Cork in 1976/77 and in particular to the issue of a directive by the Irish National *653 Teachers’ Organisation (I.N.T.O.) to their members in the schools adjoining Drimoleague Parish on 20 August 1976 directing them not to enrol pupils from the affected schools. It is a claim for damages for breach of the constitutional right to free primary education under Article 42.4, of the Constitution by one of the pupils affected by the strike. He has brought the action against Ireland, the Minister for Education and the Attorney General (the 1st to the 3rd named defendants), the I.N.T.O. (the 4th named defendant), the individual members of the National Executive of that union (the 5th to the 24th named defendants), the teachers in the schools adjoining Drimoleague Parish (the 25th to the 38th named defendants) and the teachers in Drimoleague Parish itself (the 41st to 46th named defendants) all of whom are members of the I.N.T.O. The action has been discontinued against Ireland, the Minister for Education and the Attorney General and also against all the teachers except Nan Hurley (25th named defendant), Eoghan O’Suilleabhain (26th named defendant) and Con O’Rourke (28th named defendant), Michael O’Sullivan (29th named defendant) Edith Bentley (30th named defendant).
That a cause of action exists has been established in the case of Crowley v Ireland [1980] IR 102 and the facts surrounding the strike are set out in the judgments of McMahon J in the High Court and O’Higgins CJ and Kenny J in the Supreme Court.
To summarize very briefly, the initial cause of the strike was when Mr Nicholas McCarthy applied for the position of Principal teacher of Drimoleague National School when he was not eligible for appointment. Notwithstanding this, Father Crowley, the Parish Priest, appointed him. The Department of Education refused to sanction the appointment as Mr McCarthy had not got the necessary number of years as a teacher. The job was readvertised and the same persons applied. The Department of Education said that none of the eligible applicants were regarded as possessing the standard of general suitability considered desirable for the post. In fact the Department subsequently acknowledged that one of the applicants, Mr Collins, who was Principal of Dromore National School and a member of the Executive Committee of the I.N.T.O., did possess the desired standard of general suitability.
In the Summer of 1975 Father Crowley got permission from the Department to appoint a temporary Principal for the coming school year on the clear understanding that the person appointed would have no claim to appointment in a permanent capacity by virtue of his being given temporary recognition. Father Crowley then appointed Mr McCarthy as temporary Principal. Despite repeated reminders from the Department and repeated efforts by the I.N.T.O. to resolve the dispute, Father Crowley and the Board of Management (which had then come into being) refused to readvertise the post. The I.N.T.O. served strike notice and the teachers in the Drimoleague schools withdrew their services on 1 April 1976 with the exception of Mr McCarthy who continued to teach. Initially seven schools were affected but this was subsequently reduced to the three *654 schools under Father Crowley’s management. The strike did not have the desired effect. It was not until the end of the school year that the post was readvertised. Mr McCarthy reapplied and was appointed to the position in July 1976. By an action which was never explained, the Department of Education, in spite of the express terms upon which Mr McCarthy was appointed, sanctioned his appointment in a permanent capacity.
It was following this that the I.N.T.O. issued the directive in August 1976 to their members in adjoining schools not to enrol the Drimoleague pupils. This directive was not withdrawn until June 1977.
In his judgment McMahon J was doubtful whether the refusal to enrol was the exercise of a constitutional right. Assuming without so deciding that the I.N.T.O. members were exercising a constitutional right in refusing to enrol the children from Dromore, he held that what was done amounted to the use of unlawful means to deprive the Drimoleague children of their constitutional right and held that it was actionable at the suit of the children who could show that they had been deprived of their constitutional right by the action of the teachers. At page 111 he says:
The question of whether any of the plaintiffs is entitled to damages in accordance with this judgment and, if so, the amount of damages must stand reserved.
The I.N.T.O. did not appeal the judgment in any aspect and the Supreme Court appeal was an appeal by the State against the judgment as it affected the State’s constitutional obligations. However, in the majority judgment Kenny J says:
The trial judge (Mr Justice McMahon) held that the circular was an unlawful interference with the constitutional rights of the infant plaintiffs to free primary education. I think that he was right in doing so; it is significant that I.N.T.O. and the members of its central executive committee have not appealed against this finding. Therefore, I.N.T.O. have been held to have caused an unlawful interference with the constitutional rights of the infant plaintiffs which is a most serious matter, particularly when carried out by this organisation of teachers. (at p. 128)
While McMahon J left open the question of whether any of the plaintiffs were entitled to damages, in my opinion the entitlement to damages does arise as a result of the unlawful interference by the teachers with a constitutional right. This is not the case of the lawful exercise of a constitutional right which comes into conflict with the constitutional right of another. The action of the I.N.T.O. in issuing the directive and the action of the teachers in obeying it were unlawful.
In the case of Cosgrove v Ireland [1982] ILRM 48 McWilliam J awarded damages to the plaintiff whose statutory right under the Guardianship of Infants Act 1964 had been disregarded by the Department of Foreign Affairs in issuing passports for his children without his consent. Both special and general damages (including mental distress) were awarded. The learned trial judge did not consider it necessary to consider whether *655 the failure to see that the requirements of the Acts were observed caused the violation of any constitutional rights or not.
A plaintiff who establishes unlawful interference with a constitutional right must be in as strong a position as a plaintiff whose statutory rights have been infringed, and is entitled to recover damages for injury suffered by him.
This is not an action based on tort and therefore the defendants cannot rely on the prohibition against actions of tort against trade unions or their members contained in s. 4 of the Trades Disputes Act 1906 (as amended by s. 11 Trades Union Act 1941). This claim is in a category of its own being a claim for damages for unlawful interference with a constitutional right, a concept which was accepted by the Supreme Court in Meskell v CIE [1973] IR 121 (per Walsh J at pages 135 and 136).
The defendants argued that because of the special circumstances of this case there should be if not a nil award at least a very small award of damages. They argued that this was a classic trade union dispute where the union sought to prevent discrimination against a member whom they suspected was being victimised for his trade union activities. Given the recalcitrant attitude of Father Crowley throughout the year and the unexplained decision of the Department in sanctioning the permanent appointment of Mr McCarthy, the I.N.T.O. considered they were clearly justified in pursuing their trade dispute. However the union made an error of judgment in the method they chose. It is unfortunate for them and even more unfortunate for the isolated group of children involved that the method they chose was so discriminatory. Perhaps if the I.N.T.O. had chosen the wider non-discriminatory weapon of a countrywide strike which would have affected all the children of the State, they would probably not be here today. In a very difficult and frustrating situation they came to the wrong decision.
The defendant’s arguments however could only be relevant in deciding whether exemplary or punitive damages should be awarded and the plaintiff does not seek punitive damages. In my opinion no acknowledgement can be made of the difficult position in which the teachers found themselves. The plaintiff is entitled to recover in full such damages as he can prove to have been sustained by him. They are not to be reduced by any considerations relating to the teachers’s position.
In coming to a decision on general damages, I have taken the following facts into account.
The plaintiff was born on 1 July 1964. He comes from a family of eight children of which he is the third eldest. His father is a farmer with 86 acres of land, living three miles from Drimoleague.
The plaintiff was eleven when the strike started in April 1976 and was attending Castledonovan National School, one of the three schools affected by the strike. He was in fifth class and his brother Sean who is two years younger than he, was in fourth class. About forty children continued to attend the school which some of the parents attempted to run with *656 unqualified help. Apart from religious instruction, no real teaching was attempted. The children merely went to school, were given school books and were supervised. This attempt at providing a school closed down in June 1976.
No damages are recoverable in respect of this period. It predated the directive and the lack of schooling was due to the legitimate strike action of the teachers.
In September 1976 after the directive had come into operation the plaintiff’s father did nothing about getting the plaintiff into another school. He hoped the matter would resolve itself. It was not until January 1977 that he first attempted to arrange enrolment in another school. He tried Togher National School and was refused by Mrs Hurley (the 25th named defendant). His wife tried Newcestown and was refused by Mr O’Suilleaghain (the 26th named defendant). He himself went to Dunmanway where Father Slattery, the Manager of the School, (who was not sued) refused to take the children in. He tried Clonakilty Boys National School and was refused by Mr. O’Rourke (the 28th named defendant). He said he did not go to other schools because it was a useless exercise. Other people had gone around there and they exchanged information on the parents’ committee. Mr McCarthy (not sued), who was teaching fifth and sixth standard in Drimoleague, also refused to take the plaintiff.
Mr McCarthy, another parent on the parents’ committee, confirmed that he had tried Mr Forbes (since deceased) of Derryclogh National School and Mrs Bentley (the 30th named defendant) of the model school in Dunmanway and was refused.
The plaintiff’s father said he did not know the directive was withdrawn in June 1977 and it was not until January 1978 that the plaintiff resumed his schooling when bus transport was provided by the State to bring children to outlying schools. The plaintiff was enrolled at Togher in January 1978 and he attended there from January to June. He was then aged thirteen and was put in the fifth class. His brother Sean, two years younger, and other 11 year olds were in the same class.
For the next school year, September 1978 to June 1979, he attended Drimoleague National School, sixth year, under Mr McCarthy. In September 1979 he went to the De La Salle brothers in Skibbereen with his brother Sean. He was then aged fifteen and was in class with 13 year olds including his brother. In June 1981 he did the Group Certificate in which he got C (55 to 69) for Woodwork, D (40 to 54) in Irish, English, Science and Geography and E (25 to 39) in Mechanical Drawing, Mathematics and History. In June 1982 he did the Intermediate Certificate in which he got C in Woodwork, D in Geography, E in Irish (Lower Course), English (Lower Course), and History and F (10 to 24) in Mathematics (Lower Course) Science A and Mechanical Drawing. He left after Intermediate Certificate and in January 1983 became an apprentice butcher. He is still in his apprenticeship and is doing very well at it.
Brother Patrick O’Donoghue, the Headmaster at the De La Salle *657 College in Skibbereen said that he found him helpful and he fitted in well and took part in the class. He said that he was not the most intelligent or brightest but he did his best. He had no complaints from the teachers and does not remember any complaint of bad conduct. He thought the result of the Group Certificate was very satisfactory and was hoping he would repeat the same performance in the Intermediate, but he did badly. The only excuse he could see was that possibly the basics in some subjects were not as well prepared for when the heavier courses came on. There was no streaming in the school as the pupils were divided alphabetically into the different classes. He thought being with boys two years younger would not be too affecting if his younger brother was not with him.
The plaintiff was assessed by a Clinical Psychologist, Doctor O’Mahony, as having an I.Q. of 76 which is in the bottom 10% of the normal population. Doctor O’Mahony said for his age and I.Q. his reading ability was slightly but not grossly deviant. He said he was a marginal case in relation to getting the Intermediate Certificate. He might have passed if he worked very hard. He said he is equipped for the ordinary business of life with manual skills rather than intellectual ones.
Doctor McKenna, a psychologist who gave evidence based on Doctor O’Mahony’s tests, classified the plaintiff as a slow learner with dull normal ability. (If his I.Q. were a point lower, it might have been appropriate to have special schooling (50 to 75 bracket).) He said with an I.Q. of 76 not much could be hoped for academically. Absence from school would be detrimental for him but he would not have ended up with a higher I.Q. if there was no interruption to his schooling.
The plaintiff’s own complaint was that he felt he could have done better. He said his brother did better than him at times and it got him down.
I am satisfied that the plaintiff did suffer a detriment by reason of the loss of two years of school. But only one year can be held to be the responsibility of the defendants. The directive was only in existence from August 1976 to June 1977 and the plaintiff could have gone back to school in September 1977. So the damages claimed by the plaintiff can only relate to the academic year 1976/1977. Indeed, this was the claim made by counsel on his behalf.
I think the loss of three months schooling from April to June 1976 could have been overcome reasonably quickly if the plaintiff could have resumed school in September 1976. However, the additional four month period from September to December 1977 before going to Togher in January 1978 meant losing a full school year. So there is an element of failure to mitigate damage in not returning to school that September. If he had been able to get a full year’s teaching he might have been able to keep a year ahead of his brother instead of having to repeat fifth year. However, it is by no means certain that he would have been taken on in sixth year in September 1977. On the whole I think, given his abilities, it is more likely than not that he would have had to repeat fifth year. There is no doubt the presence *658 of his younger brother in the same class was an irritant to him and an understandable source of annoyance.
I am not convinced that, given unbroken schooling, the plaintiff would ever have been academically capable of staying on in school and passing the Leaving Certificate. It is doubtful whether he would have passed the Intermediate Certificate. He did not come from a family of high academic achievers and his own abilities are indicated by his I.Q. He is fortunately in the process of acquiring a trade which is within his capabilities and has not been deprived of following a chosen career as he did not give any serious thought to any particular occupation.
He is a pleasant young man and he is equipped for the ordinary business of life. There is nothing to prevent him, if he is so inclined, from getting further education. However he did not express any wish to undertake any further course of studies.
No special damages are claimed so the claim lies solely in general damages. I am satisfied there should be an element of mental distress allowed as was allowed by McWilliam J in Cosgrove v Ireland [1982] ILRM 48 at page 55 where he held the plaintiff was entitled to recover such damages as had been proved to have been sustained by him and also general damages for foreseeable mental distress, anxiety and inconvenience.
It seems to me that this is not a case which would attract high general damages, neither is it one where future general damages should be awarded. The plaintiff is as well equipped to deal with the future as he could reasonably hope to be. In terms of ability to earn a living in the future, I am not satisfied he has been disadvantaged. In terms of being able to cope with life and being able to enjoy his leisure in the future I am not satisfied that he has been impaired.
In my opinion the appropriate figure for general damages to date is £4,000.
Judgment is given against all the defendants remaining in the case except Mr O’Sullivan, the 29th named defendant. There was no evidence that he refused to enrol the plaintiff. It was Father Slattery, the manager of the school, who was not sued, who refused. It is appropriate to give judgment against the I.N.T.O., the members of the executive and the teachers who were proved to refuse enrolment. While Mrs Bentley (the 30th named defendant) did not refuse the plaintiff, she refused Mr McCarthy’s children. It was reasonable for the plaintiff’s father to assume she would also refuse his children. No case was made for Mrs Bentley on the grounds that she did not refuse the plaintiff or that she would have enrolled him if he had applied.
Simpson v Governor of Mountjoy Prison & Ors
[2019] IESC 81 (14 November 2019)
Judgment of O’Donnell J. delivered the 14th day of November 2019.1. I agree with the judgment about to be delivered by MacMenamin J. in this matter, andadd these observations only because certain arguments made in this case have touchedon issues which may require further consideration in future cases.2. Given the extent to which prison conditions have been the subject of consideration by theEuropean Court of Human Rights (“ECtHR”), it is, perhaps, understandable that theappellant’s case here was, broadly speaking, that the conditions to which he wassubjected violated an unenumerated right not to be subjected to inhuman or degradingtreatment, in terms and scope identical to the area protected by Article 3 of the EuropeanConvention on Human Rights (“ECHR”). In these proceedings, the appellant’s argumentseeks to couple the detailed jurisprudence of the ECHR together with a claim in the natureof a constitutional tort, seeking to recover damages in Irish law, implicitly on a scale moregenerous than that provided in claims before the ECtHR, for the breach of theunenumerated right.3. I agree with MacMenamin J. that this reasoning cannot be accepted. At first sight, it mayappear both unremarkable and unobjectionable. Who, after all, can possibly be heard toquestion a right not to be subjected to torture or inhuman or degrading treatment? It isalso fair to observe, that in one of the earliest prison condition cases in this jurisdiction,Page 2 ⇓The State (C.) v. Frawley [1976] I.R. 365 accepted that the unenumerated right to bodilyintegrity included a right to freedom from torture and inhuman and degrading treatment,although the right in that case was not found to have been breached, and there was littlefocus therefore on the derivation of the right. Furthermore, since the coming into force ofthe European Convention on Human Rights Act 2003 it is possible to claim damages for abreach by the State of its obligation under section 3 to perform its functions in a mannercompatible with the State’s obligations under the Convention provisions (subject to anystatutory provision or rule of law) if no other remedy in damages is available. It mightappear, therefore, that debate about the route is superfluous when the correct destinationis reached.4. While nothing may turn in this or indeed in many cases, it is important to consider theline of reasoning asserted on behalf of the appellant, since if correct, it may be adopteduncritically in many cases where ECHR jurisprudence is relevant. There are, or may be,differences in the nature of the claims that may be made, the defendant against whomsuch claims can be brought, and perhaps the approach to damages. In is importanttherefore to pay attention to, and scrutinise carefully, the pathway toward any claim todamages in this case.5. I have no doubt that the Irish Constitution prohibits, and has always prohibited, conductwhich is also outlawed by Article 3 of the ECHR. However, I consider it wrong in principleto seek to introduce the language and jurisprudence of the ECHR into the IrishConstitution through the vehicle of unenumerated rights protected under Article 40.3.2°of the Constitution, and in this case the unenumerated right to bodily integrity.6. First, the Constitution makes no express or implied reference to any such right as soformulated. There are, of course, obvious historical reasons why the drafters of the ECHRfelt it necessary to include an express and absolute prohibition on torture and inhumanand degrading treatment in the new Convention. But, it strains credulity to suggest thatthe Irish Constitution anticipated this development and not only did exactly the samething in the same terms, but achieved this object without any express reference in thetext. The terms and structure of the ECHR has meant that the interpretation of Article 3has developed in a particular fashion and into new areas. As the extensive case lawsurveyed in the judgment of MacMenamin J. shows, it has, for example, become thevehicle for attempts to improve, among other things, prison conditions throughout thecontracting states. Furthermore, the ECtHR has adopted an “evolutive interpretation”which has the effect of discovering new rights or expanding the protection of existingrights. This is of course a matter for the jurisprudence of that Court, and indeed may beappropriate in the terms of an international convention that is not easily amended. Again,however, it strains credulity to maintain that the Irish Constitution, through the mediumof an unenumerated right, adopted the self-same prohibitions which moreover developedin precisely the same way. In any event, the function of the Irish Courts is to uphold theConstitution, and that duty cannot be performed if the scope of rights protected under theConstitution is to be determined by the jurisprudence of a court which is not establishedunder the Constitution and has no obligation to uphold it. While it is to be expected thatPage 3 ⇓the two instruments guaranteeing rights considered fundamental would tend to covermuch of the same ground, and the interpretation of one is often helpful in understandingsimilar provisions contained in the other, they are different instruments and there will bemany areas, particularly at the margins (which are often the subject to litigation) wherethe approach, or substance, may be different.7. While it is perhaps understandable, therefore, that a plaintiff would seek to blend theestablished ECHR jurisprudence on prison conditions with a claim for damages for breachof an Irish constitutional right, this is not, in my view, a permissible course, at least in theway advanced in this case. It is a noteworthy feature of this case that there is a simpleassertion or, perhaps more accurately, assumption, that there is an unenumerated rightto freedom from inhuman or degrading treatment protected by the Irish Constitution,without offering any explanation as to why that is so.8. As observed already, I have no doubt that the treatment, which at least in general terms,would fall foul of Article 3 of the Convention is also prohibited by the Constitution.Torture, for example, is outlawed in Irish law because of the specific protection given tothe person in Article 40.3 (and without the need to look to other provisions of theConstitution), a right which also clearly extends beyond a prohibition of treatment whichcan be characterised as torture. Similarly, the Irish Constitution is plainly relevant to theissue of prison conditions. Indeed, it is noteworthy that more than 40 years ago, in thespecific context of prison conditions, it had been decided that, in principle at least, ifprison conditions were so bad they could, in an extreme case, render a detention unlawfuland require the release of the prisoner (State (McDonagh) v. Frawley [1978] I.R. 131). Acitizen can be deprived of liberty in accordance with law, but a law which itself upholdsand is consistent with the Constitution and the values it espouses. However, to assert anunenumerated right to freedom from inhuman or degrading treatment in those terms is toargue backwards from a desired result, rather than forward from the text of theConstitution, and what is to be deduced from it, and the jurisprudence of the Irish courtsinterpreting it.9. Advocate General Hogan, writing extrajudicially, has pointed out that it is oftenunnecessary to speculate on the existence of an unenumerated right when there areclearly enumerated rights addressing the same subject. For example, the unenumeratedright of bodily integrity could be said to be encompassed or capable of being deducedfrom the express guarantee in Article 40.3.2° that the State is obliged to vindicate the“person” of the citizen (see Hogan, “Unenumerated personal rights: the legacy of Ryan vThe Attorney General” in Cahillane, Gallen and Hickey (eds.), Judges, Politics and theIrish Constitution (Manchester University Press, 2017), pp. 49-63. Others have expandedupon this theme. See, for example, Kenny ‘Recent Developments on the Rights of thePerson in Article 40.3: Fleming v Ireland and the Spectre of Unenumerated Rights’(2013) 36(1) D.U.L.J. 322, and Doyle and Hickey, Constitutional Law: Text Cases andMaterials (2nd ed., Clarus Press, 2019), Chapter 15.Page 4 ⇓10. The right of the person, as it has been described, clearly entails more than a prohibitionof physical intrusion. Indeed, both the civil and criminal law of assault, which is one of theways in which the State gives effect to the guarantee to protect the person of the citizen,is not limited to physical touching of the body of the person, and there is no reason toconsider the enumerated right as limited in this way. On the contrary, it is, I think,possible to consider that it goes further, and protects the personal space andpsychological well-being of the individual. It is clearly implicated when a person isconfined by the State in cramped overcrowded and unsanitary conditions with littlepossibility of exercise. In understanding the extent of the right of the person, it is, I think,useful to have regard to the right of privacy, identified in McGee v. The Attorney General[1974] IR 284 as a right deduced from a series of enumerated rights and the socialorder contemplated by the Constitution. Privacy obviously has a physical element, butalso clearly extends beyond it, and it contains aspects of autonomy. When both rights areread as they must be, which is in the light of the value of dignity espoused in thepreamble to the Constitution, it is not difficult to understand why torture, or inhuman ordegrading treatment, or indeed severely substandard prison conditions, can be aninfringement of the constitutional rights of the individual. The fundamental rights,including the personal rights contained in Article 40, were adopted “so that the dignityand freedom of the individual may be assured” and must be interpreted in that light.11. When the Constitution is viewed as a whole, then it seems clear that the guarantee ofprotection of the person in Article 40.3.2° must mean that, while the State may lawfullydeprive a citizen of liberty in accordance with law, it may not do so by a means which, farfrom assuring the dignity of the individual, falls below a standard that could be consideredminimally acceptable. It is not suggested here that the conditions in which the appellantwas held can be justified or excused either by exigency or emergency or somecontravening weighty consideration.12. Accordingly, I agree with MacMenamin J. that the constitutional rights of the appellant,and in particular the right of the person protected by Article 40.3.2° were breached in thiscase.
Result: Other
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O’Donoghue v. Legal Aid Board & Ors
[2004] IEHC 413 (21 December 2004)
JUDGMENT of Mr. Justice Kelly delivered the 21st day of December, 2004.
INTRODUCTION
The plaintiff experienced a delay of 24 months between contacting the first defendant (the Board) for legal aid and ultimately obtaining an appointment with a solicitor. A further month elapsed before she was given a legal aid certificate. These undisputed facts are at the heart of these proceedings. As a result of it the plaintiff claims that the defendants are guilty of breaches of statutory duty, negligence, and have denied her certain rights allegedly due to her under the Constitution and the European Convention on Human Rights. She seeks appropriate declarations and damages. A claim for a mandatory injunction was not pursued since she obtained the relevant legal aid prior to this action being brought.
THE PLAINTIFF
The plaintiff married her husband, Robert O’Donoghue, on the 17th September, 1976. They had one son, Paul, who was born on the 2nd November, 1984.
At the age of 8 months Paul contracted a very serious and rare illness called Reyes Syndrome. He survived the acute stage of that disease but as a result of it he became, and remains, profoundly disabled. Paul’s illness added further strain to what was already a very difficult marriage. That difficulty was created by the plaintiff’s husband’s excessive drinking.
Matters became so serious between the plaintiff and her husband on the 13th July, 1986, that she left the family home along with Paul and returned to her mother’s home. She stayed there for a little less than a year, at which stage she was provided with a small house of just 500 square feet by Cork City Council. She lived there until 2002 when she was re-housed in a larger dwelling. That became necessary because Paul was getting bigger and additional equipment was required in order to deal with his disability.
The family home which she left in 1986 was privately owned having been purchased in the joint names of herself and her husband. The plaintiff contributed towards the repayment of the mortgage on that house.
For about a year after she left that family home, no maintenance was paid by her husband. In 1987 he commenced paying £40.00 per week.
By 1996 the husband was in a second relationship and the woman involved with him had moved into the former family home of the plaintiff. The plaintiff approached her husband with a view to his buying out her interest in that house.
She made contact with a Mr. O’Sullivan, a solicitor in Ernest J. Cantillon and Company, with a view to him, as she put it, “doing the legal arrangements around the paper work involved in the transaction”.
Eventually the husband agreed to purchase her interest. The value of her half interest ultimately netted down to a figure of £12,000.00. She arranged with Mr. O’Sullivan to carry out the conveyancing transaction.
During her meetings with Mr. O’Sullivan, she mentioned to him that she was becoming concerned about her financial situation, particularly having regard to the needs of Paul. Mr. O’Sullivan indicated that he was not in a position to give advice on family law because it was not an area of expertise in his firm. He told her that because she did not have any means to employ a private solicitor her best course would be to go to a law centre run by the Board. At that time, she was not even aware of the existence of such a centre.
Her circumstances had become quite straitened at that time. The needs of Paul were increasing. A charitable organisation which had assisted her in the past was no longer able to do so. Her family were helping out. She had borrowed from them but was not in a position to repay. She had no savings and was becoming more and more concerned about Paul’s position. I accept that he required a very high level of care involving physiotherapy, special diet, nutritional supplements and other assistance, all of which were expensive. She certainly had no means to be able to retain the services of a solicitor privately.
At that stage (1996), she was in receipt of the same sum for maintenance as she had been getting for the preceding 10 years and felt it was not adequate.
Her principal concern was to obtain maintenance which would be adequate to Paul’s needs.
The £12,000.00 nett which she received for her half share in the family home was dissipated quite quickly, both in the repayment of borrowings and in providing for Paul’s needs. On many occasions she asked her husband for an increase in the £40.00 weekly maintenance but was refused in no uncertain terms. Refusals were often accompanied with a threat of giving up his work.
THE LEGAL AID CENTRE
On foot of the suggestion made to her by Mr. O’Sullivan, the plaintiff first attended at the legal aid centre in South Mall, Cork on 2nd February, 1997. She went there without an appointment. After spending some time in a waiting room she was seen by an official to whom she gave some details of her income. She explained her need for maintenance and also expressed an interest in the possibility of obtaining a divorce.
Her primary concern was to have maintenance, particularly for Paul, increased. That was her main reason for consulting the law centre. The possibility of applying for a divorce was of secondary importance.
The plaintiff believes that she gave all necessary information to the official in the legal aid centre on that occasion and was told that she would be contacted within a few weeks in order to make an appointment to see a solicitor. She was told that if she didn’t hear anything from the legal aid centre within six weeks she should telephone.
It is not clear whether the plaintiff returned to the legal aid centre on 27th February, 1997, with a view to filling out the formal application for legal services. She doesn’t appear to have any recollection of that but the formal application is dated 27th February, 1997, although that date is not in the plaintiff’s handwriting. As that was the date on which divorce was introduced, it is likely that her form was so dated having regard to the policy of the Board concerning the preparation of waiting lists for divorce announced in May, 1996 in office notice 24/96. Nothing turns on this since I am quite satisfied that by the end of February, 1997 the plaintiff had taken all necessary steps to apply for legal services from the Board and that the Board was apprised of her situation.
After February, 1997, the plaintiff regularly telephoned the legal aid centre at six weekly intervals throughout the remainder of 1997 and well into 1998. A pattern developed. Every six weeks she would telephone and would be told that the centre had no news for her.
Towards the middle of 1998, she was advised by whatever official she spoke to that she should put her concerns over the delay she was encountering in writing. She did so in a letter of 1st May, 1998. The letter reads:-
“Dear Sir/Madam
I first made application to the Legal Aid Board in February 1997 having been separated for more than ten years without any legal agreement. I am the mother of a severely handicapped thirteen year old boy and I am not getting adequate maintenance from my husband who has a well paid job. Since 1986, he has been giving me £40.00 per week and refuses to pay any more. I am in receipt of £84.00 per week social welfare payment.
I realise that there is a long waiting list due to the workload in the Law Centre but I would be most grateful if you could give me an appointment in the near future to discuss the possibility of getting a divorce but more importantly to sort out adequate maintenance for my son.
I look forward to hearing from you soon.”
The plaintiff’s letter was responded to by a letter of 18th May, 1998. It reads:-
“Dear Ms. O’Donoghue,
I refer to your application for legal aid in February 1997 and to your letter dated 1st May 1998 received here on 5th May 1998.
Unfortunately, due to limited resources at this Law Centre your place on the Waiting List has not yet been reached. However, once your place has been reached on our Waiting List, we will offer you an appointment.”
The plaintiff continued to make contact with the legal aid centre throughout the remainder of 1998.
The plaintiff’s evidence, which I accept, is that, on every occasion that she telephoned the legal aid centre, she told the official who spoke to her of her situation and that the reason why she was phoning was because of concern for her disabled child. She did so in the hope that it would give a sense of urgency to her situation.
On 4th December, 1998, the legal aid centre wrote to the plaintiff in the following terms:-
“Dear Ms. O’Donoghue,
I note that your name is on the waiting list for Legal Services at this Law Centre.
I am now in a position to offer you an appointment to see a Solicitor. Please telephone this Law Centre immediately for the purpose of making this appointment.
In any event, if you do not contact the Law Centre within ten working days of today’s date, I will assume that you are no longer seeking Legal Services at this Centre.”
The plaintiff took up this offer and ultimately got to see a solicitor at the legal aid centre on 17th February, 1999. A detailed attendance was taken of the plaintiff’s situation. The application for legal aid was duly processed and on 25th March, 1999, a legal aid certificate was issued in respect of the plaintiff.
On 31st March, 1999, the plaintiff was written to and told of the issue of the legal aid certificate. She was asked to sign the necessary form and return it together with £23.00 remittance, being her contribution due on foot of the certificate. She did so.
Proceedings were commenced against her husband on her own behalf and on behalf of her son, Paul, in the Cork Circuit Court. Those proceedings were listed for trial on 28th January, 2000, but were not reached on that date. They were heard the following month before His Honour Judge Clifford. The plaintiff was granted a divorce, an order for the custody of Paul and an increase in maintenance of £10.00 per week. That increase was quite small, reflecting a perceived change in the husband’s circumstances in that he was believed to be no longer working. At the end of 1999, all maintenance payments had ceased when it was thought the husband became incapable of work. In fact, he was in effect suspended from work from October, 1999 to March, 2000. He returned to work in March, 2000 on full pay but his employment was terminated in May, 2001.
Subsequently, the husband was in receipt of a substantial redundancy package. Thanks to the activity of the plaintiff’s present solicitor, an application was made to the Circuit Court in respect of this and it resulted in arrears of maintenance of approximately €7,000.00 being discharged, together with a lump sum of some €30,463.00 being paid, with a consequent reduction in the weekly maintenance to some €25.00 per week.
It is quite clear that the plaintiff was, at all material times, entitled to legal aid but had to wait for a period in excess of two years before she obtained her legal aid certificate.
I must now turn to see why delays of this magnitude were encountered by the plaintiff.
THE LEGAL AID BOARD
Mr. Frank Brady, the Director of legal aid with the Board has been an employee of it continuously since 1990. He was Assistant Chief Executive of the Board during the period that the plaintiff was waiting for her legal aid certificate from 1997 to 1999.
During that time, Mr. Brady had ongoing dealings with the State looking for additional funding for the board.
Mr. Brady gave evidence that between 1993 and 1996 the monies which were provided to the Legal Aid Board were adequate for its needs. However, between 1996 and 1999, the funding was inadequate and insufficient. He described the position as follows:-
“Question: Was that a significant inadequacy or an insignificant inadequacy?
Answer: It was a very significant shortfall in the funding available to the board. The new legislation that came in, particularly in relation to divorce in 1997, was going to result in a significant increase in demand for legal services from the board and the funding was not provided to enable us to meet that demand. To the extent that we were not able to meet the demand that was coming to us, funding was inadequate.
Question: Was the State aware of the inadequacy of the funding?
Answer: The State was very well aware of the inadequacy of the funding and we were in continuous correspondence with the State from before divorce came into operation, advising the State of the implications of divorce for the board in terms of demand for legal services and of the resources we needed to meet that demand.”
Mr. Brady went on to describe the way in which he and other officials of the Board communicated the serious position of the Board to the other defendants.
On 18th June, 1996, Mr. Goodman, the Chief Executive of the Board, wrote to the Personnel Officer in the Department of Equality and Law Reform (the department then responsible for the Board) setting out details of additional staff required in order to continue to provide an efficient and effective legal aid service.
One of the posts sought was the restoration of the Deputy Chief Executive post. The person who formerly held that post was promoted into a position in the Department of Justice and the post had not been filled for years. Mr. Goodman concluded his memorandum pointing out that the staff required in it constituted “the minimum additional staffing requirements to enable the Board to carry out its role effectively”. The proposal did not take account of the expansion of the service anticipated in 1997 or the impact which would be made as a result of the introduction of divorce in February, 1997.
It is quite clear that the Board was experiencing considerable additional work at that time (June 1996). The Civil Aid Act (which put the Board on a statutory footing) was due to come into force in October, 1996 and that involved a lot of additional work. The Board also had to contend with the Strategic Management Initiative which had been introduced by the Government, requiring each body to prepare a Corporate Plan or a Strategic Plan and have a greater involvement of staff in putting a focus on customer care and the efficient delivery of services to the public.
Mr. Brady outlined the work which was necessary in order to implement this Strategic Plan but agreed with me that all of that meant a lot more work to be done by the Board but with no appreciable improvement in the provision of legal services.
The Board not merely had to contend with these two developments, both occurring in 1996, but also had to anticipate the impact that divorce would make on the law centre network when it would become available in February, 1997. It clearly anticipated what was likely to occur.
Despite all of this, the Deputy Chief Executive post was not sanctioned until July, 1998, two years and one month after it was requested. And the same fate awaited most of the other staff appointments which were sought in the memorandum of 18th June, 1996.
Leaving the question of divorce to one side completely, it is clear, that, in June, 1996, the Board identified the administrative staff which it would require in order to provide a reasonable service.
There can be no doubt but that the Department of Equality and Law Reform was fully au fait with the position of the Legal Aid Board. In a memorandum of 3rd February, 1997, which was addressed, inter alia, to the secretary of that department and the Minister, a Mr. Donal Costello, of that department, said:-
“The expansion of the Legal Aid Board since 1994 has created an increased demand for the Boards services. Initially the waiting times dropped dramatically and many of the lengthy waiting times were tackled and reduced. However, generally since March, 1996, the average waiting times have been increasing. The average waiting time for December was 3.9 months, (the lowest was Waterford with zero months, the highest was Tralee with 8.5 months). A comparison of waiting times from the 31st July, 1993, 31st January, 1995 and 30th September, 1996 is given at appendix F.
The opening of two new centres at Newbridge and Tullamore may initially slow down the increase in average waiting times, especially in neighbouring centres, but is unlikely to cause an overall reduction (neither Navan when it opened in July, 1996, nor Cavan’s when it opened in November, 1996, resulted in a fall of the monthly average).
The Legal Aid Boards grant for 1997 is £8.3 million, the Board argued for a figure in excess of £10 million to meet the increased demands it expected in 1997. The figure of £8.3 million is sufficient for the Board to maintain its current level of service but not any additional work generated by divorce or increase in demand.
Given the number of divorce cases which would be added to the waiting list at the end of February, together with the increasing demand for the services of the Board and both of which when coupled with the general growth in waiting times to date, it is fairly likely that waiting times will continue to increase in 1997 particularly from March onwards. In the circumstances it should be noted that due to expected heavy demand for the Legal Aid Board services, applicants seeking appointments with solicitors at law centres will have to be informed in many cases that appointments will not be available for five months or more (i.e. a number of months more than that shown on the current list of waiting times).”
On 19th March, 1997, Mr. Goodman wrote again to the personnel officer in the department in the context of the multi-annual budget framework, 1998 to 2000. He submitted a good deal of data and pointed out that he had already set out the Board’s requirements in order to allow for an orderly provision of service for those expected to seek legal aid for divorce. He pointed out that, if approval had been given in 1996, the Board could have recruited the additional full time and temporary staff in a timely fashion and arranged for appropriate training procedures, etc., to be in place by 27th February, 1997. However, as no specific additional resources were provided for divorce, the existing law centres had found an overall increase of 68% in their waiting lists as and from 27th February.
The letter went on:-
“In the absence of the additional resources now sought, waiting lists in all law centres will continue to expand and delays will occur in the full range of services provided by the Board. We will, of course, strive to continue to provide the appropriate emergency and priority services for particular legal remedies. You will be aware that even if sanction is obtained for these additional resources, the delay in recruiting staff etc. will not prevent a very undesirable situation developing both for the public seeking the service and the staff of the Board who are being asked to work under very difficult circumstances in relation to increased demand.”
The final paragraph of the letter acknowledged that the resources of the Board had increased substantially since 1992. However, Mr. Goodman did not think it was appreciated in all quarters that demand for services had increased at the same rate. The figures which he submitted with the letter showed that, as resources increased and more centres were opened, the demand for services grew apace and absorbed the benefit of the additional resources. He also pointed out that the additional resources provided were in the main for new locations and the only real addition to existing locations were twelve solicitors recruited for existing centres in 1993. At that time, there were 39 solicitors in the employment of the Board. By March, 1997, there were, 81. However, except for the twelve mentioned, all of the additional solicitors were located in new centres.
As Mr. Brady testified, the relevant departments were fully aware of the Board’s position and the level of demand for legal services. They were also aware of the impact that that demand had on the waiting lists. This was so as a result of this correspondence and the communication had between the various officials.
On 23rd April, 1997, Mr. Goodman wrote a nine page letter to a Ms. Langford, who was an Assistant Secretary in the Department of Equality and Law Reform. The letter was written following a meeting which had taken place on 10th April, where he was requested to review and restate as appropriate all of the staffing requirements of the Board. He did so in great detail.
He pointed out that in a series of submissions references had been made to the lack of management resources within the Board. He pointed out that in a letter of 4th December, 1995, to the Minister, the Chairperson of the Board had set out her concerns in relation to the management resources of the Board. He pointed out six different deficiencies which existed in the Board. They concerned the underdeveloped I.T. systems, which did not provide adequate support to solicitors and other legal staff; the absence of library services or research services within the Board; the inadequate level of administrative support for solicitors and other senior staff; the absence of a provision for time recording or other measurements within law centres, which he said went to the heart of providing a quality service, as well as giving the Board an ability to know whether or not value for money was being provided; the absence of arrangements or resources to undertake any form of quality control within the Board; the absence of any performance measurements which one might expect in an organisation of the Board’s size. His letter continued:-
“It would be most undesirable if the Board had to wait for an external body to identify these deficiencies before any effective action is taken.”
His letter requested the appointment of two Principal Officers to take control of various functions within the head office.
It is not necessary for me to recite in detail the other elements of this comprehensive letter, which set out, in very clear form, the many needs for both staff, equipment and structures which were required by the Board. There is, however, one part of the letter which bears repetition in full. Mr. Goodman said:-
“With the existing staffing levels the implementation of the new arrangements will slow the throughput of applications with inevitable consequences for the Board’s capacity to meet its obligation to consider applications for legal aid within a reasonable time. Failure by the Board to meet its obligations, as delineated in the Gannon judgement in the Cosgrave case [1991] IR 43, will leave the Board open to legal actions. Senior Counsel has stated that the Board ‘will lose every case in which (an) application to the High Court can show that the Legal Aid Board is refusing or failing to consider (an) entitlement to legal aid within a reasonable period’.
Two Senior Counsel have expressed the view that there may well be a constitutional right to civil legal aid. Such a finding by a Court in a judicial review action against the Board would have major ramifications for the Exchequer in terms of the resources which would have to be provided for civil legal aid. Unless Application Section is adequately staffed to meet the existing demands and the additional demands arising from Divorce, the Private Practitioner Scheme and administrative law developments in relation to procedures, it would appear to be inevitable that it will only be a matter of time before a Court will make an order against the Board directing the provision of legal aid as a matter of constitutional right and duty.”
Mr. Brady’s evidence was that the resources required, particularly in the level of staffing, had been indicated in all the previous correspondence going back to the letter of December, 1995 to the Minister and reiterated in the correspondence of June, 1996. The necessity for these resources was again being pointed out in this letter of 23rd April, 1997. Mr. Brady described, and I accept, the picture painted in Mr. Goodman’s letter as being a very accurate one of the situation as it was. He said:-
“It was an extremely stressful and difficult time to be working in the Board and dealing with the pressures of work.”
I likewise accept his evidence that at no stage did anybody representing any of the Government departments involved indicate that the very serious situation which existed in the Board could be dealt with within its own resources.
I was struck by the fact that all of the correspondence from 1995 up to and including the letter of 23rd April, 1997, did not appear to have had any response in writing from any of the addressees to whom it was directed. I asked Mr. Brady about this. The following was his evidence.
“Question: Did you get any response at all? All this letter writing seems to be one way traffic.
Answer: It is all one way traffic, Your Honour.
Question: Not even the courtesy of an acknowledgement?
Answer: No formal written correspondence was received in response to these letters until December, 1997. There were a lot of discussions going on, as well, just for the record, there were discussions going on between officials but there was no response to these letters, no issues raised in relation to the content or the suggestions in the letters.
Question: Did there appear to be any realisation in the Department of Equality or Justice, or whatever it was at the time, that the situation that was presenting to the Legal Aid Board?
Answer: I think there may have been a realisation that there were difficulties but there was no positive action taken to address those difficulties.
Question: Or any realisation that the people at the coalface, as they say, were having to deal with real people who were in distress and whose needs simply could not be met?
Answer: Again, I would think that there was an appreciation that there were difficulties for people in the law centres and for the public, but again there was no question of saying ‘we’ll do anything to address those difficulties’.”
Later in his testimony, Mr. Brady dealt with the part of the letter which pointed out the opinion expressed by two senior counsel which I have already reproduced. He was asked if it was his view that that was a strong warning to the State. He said:-
“Yes, because the Board was extremely conscious of its obligations at that time. I have been involved with the Board in the context of the Cosgrave case before that. We were very conscious of the need in terms of resourcing of the Board to make it absolutely clear to the State what would be facing the Board and perhaps the State if we did not have the resources to meet the demand that was there. And that is why that was included in the letter, so there would be no misunderstandings or doubts in terms of the Board’s view of the position in relation to resourcing the Board.”
He was then asked if anyone from the State ever suggested that the views expressed were wrong or that the concerns of the Board were misplaced. Indeed, he was asked if the officials of the State ever came back to him at all about this. He said:-
“No, there was absolutely no suggestion from the State that there was anything incorrect about this, and there was no response from the State in relation to this proposal from the Board and the statement by the Board.”
On 30th April, 1997, Mr. Goodman again wrote to Ms. Langford, the Assistant Secretary in the Department of Equality and Law Reform. This letter dealt with staffing requirements of the Board. Again, it is a comprehensive letter and I do not propose to reproduce it in full. Some parts of it are however worthy of reproduction.
Mr. Goodman said:-
“Unfortunately, while an increasing number of people have been in receipt of legal services, the waiting periods in many of the Board’s centres are still unacceptable. By way of information on this point, I am attaching as Appendix 1, a copy of the waiting list as of 31 March 1997. You will be aware that in a number of recent submissions, I have dealt with the question of the particular problems arising for the waiting lists as a result of the introduction of divorce on 27 February. At that time, the waiting list throughout the Board increased by 68% from 1,545 to 2,607. This very substantial once off increase, seriously impedes the ability of the Board’s solicitors to provide legal services within a reasonable period. In this regard, you might take note of my remarks in my letter of 23 April 1997 regarding judicial review in the Cosgrave case (1991) IR 43.
In addition to the waiting lists which operate for general legal services, there are also, as you are aware, emergency services for particular categories of cases, particularly those involving physical violence. There are, however, other categories of cases which should receive priority and a typical example of these are ‘child care’ cases where we represent parents of children whom the Health Boards intend taking into care. In a number of these cases recently, we have been unable to provide legal representation at the appropriate court times and applicants for legal aid have had to attend at the court and seek adjournments on the basis that legal aid applications were awaiting decisions. In some instances, it has been necessary for the applicant to perform this function on more than one occasion. The danger here is that adjournments will be refused and we are also creating a very bad image of the Legal Aid Board with the judiciary.”
Mr. Brady confirmed the accuracy of all of this in the course of his testimony. Later in the letter, under the heading “Staff”, Mr. Goodman said this:-
“A more fundamental problem in relation to staff arises, however, and this relates directly to the pressure of work and lack of resources. In many law centres, where there are extended waiting lists, the staff are under pressure from applicants and third parties, including public representatives, acting on behalf of the applicants, who are continuously seeking explanations for the delay in the provision of the service. It is indeed a fact that the maintenance and management of extended waiting lists has become a block of work in its own right, which detracts from the ability of the staff to provide legal services.”
Mr. Brady indicated that amongst other things this correspondence pointed out that, because of the shortage of staff, solicitors were acting as their own secretaries, thus preventing them from doing solicitors work, solicitors were under such pressure that managing the list itself became a problem and thirdly, that even in emergency or priority cases where the Board had tried to deal with the situation by the introduction of a rota system, the centres became overwhelmed and could not cope with the demand of the work. He confirmed that, in response to this letter setting out these things, there was no response from the State.
The letter also pointed out that the Board was totally dependant on the Departments of Equality and Law Reform and Finance for its resources.
The evidence of Mr. Brady indicates that all of this correspondence coming from Mr. Goodman was achieving little or nothing. Correspondence was not responded to and the position in the Board got worse and worse.
An interesting insight into the approach of the Department of Finance was provided in a memorandum of 21st November, 1996, which came to Mr. Brady’s attention only as a result of it being disclosed in an affidavit of discovery. The memorandum deals with the estimates provisions in 1997 for the Legal Aid Board. It reads as follows:-
“1. The Department of Finance, per telephone message of 21st November, 1996, have offered £7.9 million as an allocation for the Legal Aid Board for 1997 (an increase of £ .4 million on the £7.5 million on offer). The Board’s minimum requirements in order to stand still in 1997 is £8.345 million.
2. They say that if the offer is rejected it will be withdrawn and the figure to be put to Government will revert to £7.5 million.
3. I advised Finance that it would be necessary to have Ministerial approval for whatever decision is taken.
4. The revised figure of £7.9 million would also be inadequate and would give rise to the sort of problems for the Legal Aid Board that are outlined in the final two paragraphs of the attached memorandum, albeit on a smaller scale.
5. I recommend that the Department continue to press for the full £8.345 million necessary to operate the Legal Aid Board.”
Mr. Brady’s comment on this memorandum was that it gave an insight into what was going on at the time. It indicated that the Department of Finance was not prepared to fund even the basic level of service, never mind the additional resources that were required at the time.
Ultimately, the £8.345 million which was what the Board needed in order to stand still was forthcoming, but no more.
In June, 1997, the Department of Equality and Law Reform prepared a draft memorandum for the Government. It set out that Department’s view of the Board’s requirements. It was supportive of the Board’s position. It was apparently sent to the Department of Finance who in the same month responded negatively. They said inter alia:-
“In these circumstances and in the light of the Government decision of July, 1995 on staff numbers it is not possible to concede additional staffing in any area, no matter how socially desirable it may be, as the entire Government policy on the control of public service numbers would be eroded.
Accordingly, the Minister for Finance considers that the Government should not approve the proposals in the draft memorandum at the present time. Instead he proposes that the request for additional resources for marriage counselling, family mediation service and the Legal Aid Board should be subject to further discussions between his department and the Department of Equality and Law Reform. The request for additional staff would then be considered, in conjunction with other demands for additional staff, in the context of the Government consideration of departments estimates proposals for the period 1998 to 2000 under the multi-annual budgetary framework and any overall review of staffing.”
At the time that that response was forthcoming, there can be no doubt that all of the concerns of the Board had been communicated to the Department of Equality and Law Reform and by it to the Department of Finance, but with no success.
Meanwhile, Mr. Goodman continued to write. In a memorandum of 23rd June, 1997, he again set out the position in a comprehensive way.
On 23rd July, 1997, a meeting took place between the Chairperson of the Board and the Minister for Justice, Equality and Law Reform. At this stage, the Department of Equality and Law Reform had been abolished and its functions were brought under the aegis of the Department of Justice. The meeting was followed by a letter of the same date.
The Chairperson’s letter set out two options to the Minister. The first was based on the draft Memorandum for Government prepared in the Department of Equality and Law Reform, to which I have already referred but which was updated. If, however, that proposal was unacceptable, she set out a second option. The Board considered it essential that this option at least be taken if it were to continue to meet the existing demands in relation to support, control and management. Even that, however, she stressed, would not correct the unsatisfactory situation with law centre waiting lists.
In the course of her letter concerning option B, the Chairperson pointed out that she had mentioned the situation that pertained in the Chief State Solicitor’s office and indicated that many of the deficiencies identified by consultants in that office were, in her opinion, present in the Board. The additional resources necessary to correct those deficiencies in the Chief State Solicitor’s office had been sanctioned by the Department of Finance but only after the publication of a consultant’s report and a series of industrial relations disputes. She said the Board considered that it would be most undesirable if it had to wait for a report or a comment from an external body before actions were taken in order to provide the necessary resources to correct problems within the Board. She went on to point out, however, that option B would not correct the unsatisfactory situation concerning law centre waiting lists.
On 22nd September, 1997, Mr. Goodman again wrote to the Department of Justice. It is worthwhile remembering that at that stage the requests made in June, 1996 had not been met. In the course of this letter he pointed out:-
“An unacceptable picture in relation to waiting periods is, however, also developing. The figures I provided this morning suggest that the position will continue to deteriorate for the foreseeable future. As a minimum we need to strengthen the resources of existing centres and this is also probably the most economical means of improving the level of service.”
On the 30th October, 1997, the Personnel Officer of the Board wrote to the Personnel Officer of the Department of Justice and copied the letter to the Assistant Secretary. Amongst other things the letter said:-
“The Board are extremely concerned about the situation which has arisen in a number of Law Centres, where, in addition to the problems with the length of the Waiting Lists (copy enclosed), consequential problems are arising due to a number of Solicitors taking on unacceptably high caseloads in attempting to deal with the demands being placed on their Law Centre. We are concerned that this situation could give rise to cases where delays or other problems encountered by clients, in the processing of their cases, create the potential for a professional negligence case against the Board.
In the circumstances, I am to request sanction to engage three solicitors and three typists on a temporary contract basis for nine months. It is envisaged that these staff would be used in Tullamore, Cork and as relief in the Dublin general area.
I can confirm that the costs involved in recruiting these temporary staff can be met for 1997 from savings from within our approved Grant- in-Aid and I expect that the costs arising in 1998 will be met from that year’s Grant- in-Aid.”
It is clear that Mr. Brady was very concerned about this latest development. So much so, that he expressed a view to solicitors who were taking on unacceptably high case loads that they were doing too much and that it was inappropriate that they continued to take on cases.
In November, 1997, a formal proposal was made for the engagement of three solicitors and three typists on a temporary contract basis for nine months. It received the support of the Minister for Justice, Equality and Law Reform and was responded to positively by the Department of Finance. In December, 1997, the Board were told of the Department of Finance’s approval. This was the first extra resource given to the Board over the period 1996 and 1997. Further good news appeared to follow in that the estimates for 1998 incorporated the provision of £450,000.00 for additional staff resources for the Board. The Board was informed of this in December, 1997. This funding included monies to provide an extra staff member for the South Mall Centre in Cork to which Mrs. O’Donoghue had had recourse.
Although the commitment to provide the extra staff was given in December, 1997 and was appropriately funded, the Department of Justice has apparently to approve the actual engaging of the particular staff numbers at particular levels. So, while the money was provided, sanction for the additional staff was not forthcoming from the Department of Justice until July, 1998.
So, as of December, 1997, the Board had sanction for the spending of the money on additional staff but could not spend it because approval for the recruitment was not forthcoming from the Department of Justice until July, 1998.
On 6th May, 1998, Mr. Goodman wrote to the Second Secretary in the Department of Justice, again pointing out the unsatisfactory nature of the waiting lists in the law centres. Statistical information was enclosed but little appeared to happen.
The Chairperson of the Board met with the Minister for Justice on 18th June, 1998. She reported the outcome of that meeting to her Board. The following is an extract from the minutes of the relevant board meeting:-
“The Chairperson said that she had informed the Minister that the Board would have to seriously consider closing Law Centres to all new applicants, with the exception of persons seeking assistance in relation to priority matters, unless the requested additional resources were authorised before the July Board meeting. The Chairperson indicated that she had emphasised to the Minister the importance of securing additional staff for Head Office as well as for Law Centres.”
The prospect of law centres closing brought an immediate reaction from the Minister for Justice. In a memorandum of this meeting of 18th June, 1998, prepared by Mr. Goodman, the following is to be found:-
“The Minister immediately indicated that he did not wish any law centres to be closed and he asked Mr Magner to prepare an immediate note from him to the Minister for Finance regarding the staffing of the Board.”
The extraordinary thing is that the money had been sanctioned for additional staff the previous December and sanction for the recruitment of the staff was being delayed in the Department of Justice and was not forthcoming until July, 1998.
Mr. Brady said that the Board was totally exasperated by the situation and by the way things had gone on. The Chairperson particularly could not understand why there was such a delay in authorising the recruitment. Neither can I. With all of the warnings that had been given from 1995 onward and with the budget allocation made in December, 1997, I simply cannot understand why it took until July, 1998 to get authority to actually employ the persons.
By letter dated 8th July, 1998, the Department of Finance finally gave sanction for the creation and filling of 25 additional posts, including five relief solicitors, one of whom was recruited for the South Mall Law Centre in Cork. Upon receipt of this sanction, the Legal Aid Board then had to go through the process of advertising for solicitors and conducting a competition to recruit them. The solicitor in question took up duty in January, 1999 and it was she who eventually saw the plaintiff in February of that year.
CONCLUSIONS ON THE POSITION OF THE BOARD
Mr. Brady’s evidence satisfies me that the cause of the delay encountered by the plaintiff was the absence of resources in the law centre to meet demands. Had the Board been provided with the staff which it sought, the plaintiff would have been given an appointment to see a solicitor within a period of about four to five months at most.
I accept Mr. Brady’s evidence. The Board was acutely aware of the deteriorating situation. It made the position known to the relevant departments and sought the funds and approvals necessary to deal with the problem.
The Board’s Chief Executive, with uncanny accuracy, predicted what would happen if the situation was not addressed. Whilst I am concerned with the delay encountered by the plaintiff, it is clear that the whole working of the Board and Legal Aid Centres was seriously sub-standard. Working conditions were appalling but nothing much was done about it. The only time any sense of urgency appears to have been manifested was when the threat of closure of law centres was made.
There was consistent failure to even respond to the Board’s correspondence, never mind considering in any serious way the reasonable requests made by it.
SOUTH MALL CENTRE
Insofar as the South Mall Law Centre was concerned, the annual report of the Board presented the average waiting time for an appointment with a solicitor as follows:-
1996 – 3.5 months,
1997 – 7 months,
1998 – 16 months.
Whilst the Board attempted to ensure that a system for prioritising applicants by reference to the urgency of their case operated, that system did not work well in the case of the plaintiff. It was described by Mr. Brady as being a systems failure because information concerning her case was not recorded and not conveyed to the managing solicitor. I am satisfied that the reason for that was because of the lack of resources which resulted in insufficient support in the law centre in question. That lack of resources was, as Mr. Brady said, made known to the relevant department on many occasions.
It is difficult to see what more the Board could have done to deal with the problems. They resulted from the failure on the part of the State to fund the Board properly and an inexplicable delay in the Department of Justice in proceeding to give effect to the recruitment sanctioned in December, 1997 until July, 1998.
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENETAL
No witnesses were called to give evidence on behalf of any of these defendants. Neither was any witness called from the Department of Finance.
THE STATUTORY FRAMEWORK
The Board was established by the Civil Legal Aid Act, 1995.
Section 5 (1) of that Act sets out the principal function of the Board as follows:-
“The principal function of the Board shall be to provide, within the Board’s resources and subject to the other provisions of this Act, legal aid and advice in civil cases to persons who satisfy the requirements of this Act.”
Section 19 of the Act requires the Board to establish and maintain a fund to be known as the Legal Aid Fund. That fund consists of sums advanced to the Board pursuant to s. 18 of the Act and all other payments made to the fund or the Board, including contributions paid into the fund by persons who have been granted legal aid and advice, together with any costs or damages recovered by such persons and paid into the fund in accordance with the Act. Section 18 of the Act provides as follows:-
“The Minister may in each financial year, with the consent of the Minister for Finance, advance to the Board out of moneys provided by the Oireachtas, such sum or sums as the Minister, after consultation with the Board, may determine for the purposes of expenditure by the Board in the performance of its functions under this Act.”
Section 28 of the Act sets out the criteria for obtaining legal aid. Insofar as it is relevant, it provides as follows:-
“1. A person shall not be granted legal aid unless the person is granted a legal aid certificate under this section in respect of the legal aid sought.
2. Subject to sections 24 and 29 and the other provisions of this section and to regulations (if any) made under section 37, the Board shall grant a legal aid certificate under this section to a person if, in the opinion of the Board-
(a) the applicant satisfies the criteria in respect of financial eligibility specified in section 29,
(b) the applicant has as a matter of law reasonable grounds for instituting, defending, or, as may be the case, being a party to, the proceedings the subject matter of the application,
(c) the applicant is reasonably likely to be successful in the proceedings, assuming that the facts put forward by him or her in relation to the proceedings are proved before the court or tribunal concerned,
(d) the proceedings the subject matter of the application are the most satisfactory means (having regard to all the circumstances of the case, including the probable cost to the applicant) by which the result sought by the applicant or a more satisfactory one, may be achieved, and
(e) having regard to all the circumstances of the case (including the probable cost to the Board, measured against the likely benefit to the applicant) it is reasonable to grant it.
3. Where the proceedings the subject matter of the application under this section concern the welfare of (including the custody of or access to) a child, paragraphs (c) and (e) of subsection 2 shall not apply.”
Section 28 (4) sets out various grounds upon which the Board may refuse to grant a legal aid certificate.
Section 28 (5) provides as follows:-
“Notwithstanding any other provision of this Act, the Board shall grant a legal aid certificate to a person –
(a) where the State is, by virtue of an international instrument, under an obligation to provide civil legal aid to the person; provided that the person shall, before being granted such certificate, comply with such requirements (if any) as are specified in the international instrument and relate to him or her.”
BREACH OF STATUTORY DUTY AND NEGLIGENCE
The plaintiff contends that the Board has been guilty of a breach of statutory duty because it failed to exercise the function conferred upon it under s. 5 of the 1995 Act within a reasonable time. It did not provide legal aid and advice in a timeous fashion and did not carry out the alleged mandatory obligation to grant a legal aid certificate to the plaintiff who was fully qualified for such within a reasonable time.
During the course of the oral submissions, counsel on behalf of the Board accepted that the plaintiff had a statutory right to apply for legal aid and a statutory right to receive it, provided that she met the qualifications. He accepted that she met the qualifications but that her need of legal aid was not met timeously. Notwithstanding that, he contended that there was no breach of statutory obligation because of the saver contained in section 5. That makes carrying out of the principal function of the Board subject to the resources available to it.
I am of the view that the Board is correct in this contention. The statutory obligation imposed upon it is not an absolute one. It requires it to carry out it’s functions within its resources. In the present case there is in my view no doubt but that the delay encountered by the plaintiff was caused exclusively because of the lack of resources made available to the Board. Those lack of resources were directly responsible for the 25 month delay between her first going to the law centre and the grant of the legal aid certificate to which she was undoubtedly entitled.
The 1995 Act was considered in Kavanagh v. The Legal Aid Board & Ors. (Unreported, High Court, Butler J., 24th October, 2001). In that case, the applicant applied to the Board for legal aid in connection with an application for judicial separation on 23rd September, 1997. By letter of the same date, the Board indicated that on account of the demand for legal services in the Tallaght law centre it was not in a position even to process her application at that time. It was not until almost 20 months later, in May, 1999, that her application was processed and granted. Meantime, in October, 1997, the applicant completed an application for legal services in connection with another matter and was given an appointment with a solicitor under the Board’s private practitioner scheme. This scheme was operated by the Board in respect of certain proceedings in the District Court, whereby legal services were provided through private solicitors who were not employees of the Board. In April, 1998, a further similar application was made and both applications were granted.
While awaiting the outcome of her application for legal aid in relation to the judicial separation proceedings, the applicant was forced to leave the family home because of a violent incident. The court did not see any connection between the applicant being forced to leave home and the delay in the judicial separation proceedings as legal aid was available to her under the private practitioner scheme. The court found that as a matter of fact what was suffered by the applicant arising out of the delay in the processing of her application for legal aid in connection with the judicial separation proceedings was the ordinary inconvenience caused by any such delay, namely, not having such an important matter dealt with promptly and not having her affairs settled.
By the time the matter came before Butler J., the judicial separation proceedings had been disposed of and the only issue remaining for the court was the question of damages. However, in the course of his ruling, Butler J. said that at page 3:-
“The grounds upon which relief is sought in these proceedings are entirely based upon an alleged breach of statutory duty. No question arises as to any rights to which the Applicant may be entitled by virtue of the Constitution or by any international convention. The claim is solely based upon rights and duties arising from the Legal Aid Act, 1995.”
He then considered s. 5 of the Act. He said at page 4:-
“I am satisfied that the language of section 5 (1)… is plain and obvious and requires no special interpretation. The Board shall provide, within its resources and subject to other provisions of the Act legal aid to persons who satisfy the requirements of the Act. The words simply mean that legal aid shall be provided within the Board’s resources and I am fully satisfied on the basis of the Affidavits (and it seems to me that there is no controversy on this aspect of the matter) that that is precisely what the Board did in this case. The Board had a method of dealing with cases in a certain order of priority and within that scheme the Applicant was given equal treatment to all other Applicants.”
The applicant was refused relief.
If the plaintiff here made a claim solely by reference to an alleged breach of statutory duty on the part of the Board (excluding the provisions of s. 28 (5)), she would in my view have to meet a similar fate. The Board in this case did all it could to provide for her and indeed other persons within its resources. The sole cause of the delay encountered by the plaintiff was the lack of resources of the Board. It is hard to think that it could have done anymore than it did to acquaint the relevant parties with its precarious position. The failure to address that position was not the fault of the Board.
The plaintiff here does not confine herself to a claim for a mere breach of statutory duty against the Board. She says that if the Board’s resources were inadequate (as they were), then there was an obligation upon the State to provide adequate resources to the Board.
Her claim in negligence against the Board must likewise fail. I am unable to identify any act of negligence on the part of the Board or it’s officers. They were simply being swamped with work and their cries for assistance went unheeded. The working conditions that they had to experience and the demands being made upon them are evidenced in the lengthy memoranda that were sent regularly by the Board’s Chief Executive to the relevant department. The conditions under which the Board’s personnel had to operate were woefully substandard and the reason for that was the failure to resource the Board properly.
Leaving aside therefore a claim which is made in respect of s. 28 (5) of the Act, I absolve the Board from any liability for either breach of statutory duty or negligence in the way in which it dealt with the plaintiff’s claim.
As to the claim based on s. 28 (5) of the Act, the following is the position. The plaintiff submits that under the European Convention of Human Rights there is an obligation to provide legal aid to her and therefore, under s. 28 (5), a legal aid certificate should have been granted without regard to the Board’s resources because of the phrase “notwithstanding any other provision of this Act”. That phrase, it is said, overrides the saver in s. 5 which requires the Board to function within it’s resources.
I am satisfied that this approach is not well founded. Section 28 (5) will only operate where an international instrument expressly requires the State to provide civil legal aid. The instrument may prescribe requirements which have to be met. The European Convention on Human Rights does neither. Accordingly, even if the construction concerning the phrase “notwithstanding any other provision of this Act” operates to override the saver as to resources in s. 5, the section has no application to this case.
BREACH OF CONSTITUTIONAL OBLIGATION
The plaintiff contends that the State owes obligations to her under the Constitution and the European Convention on Human Rights. She says that if the Board’s resources are inadequate then there is an obligation upon the State to provide adequate and appropriate resources to the Board. She argues that it cannot be the position that the State’s obligations are met merely by the establishment of a board. The Board must be adequately resourced in order to be effective.
Counsel on behalf of the defendants other than the Board made the State’s position perfectly clear. He contended that there is no statutory, constitutional or European Convention right to legal aid. Consequently, there can be no right to have her application dealt with expeditiously. On the question of delay, the only concession that he made was that the plaintiff had experienced delay but denied that it was unreasonable. He contended that legal aid was nothing more than a provision in law which the State made but did not confer a right to it. He also submitted that even if there was a right, be it statutory, constitutional or under the European Convention for Human Rights, the court was entirely powerless to give effect to it because to do so would have fiscal implications for the State. Any decision in favour of the plaintiff would contravene the separation of powers. An intervention by the court is off limits it is argued.
INFRINGMENT OF CONSTITUTIONAL RIGHTS
On 31st July, 2003, the European Court of Human Rights delivered its judgment in the case of Doran v. Ireland (no. 50389199, 2003ECHR 417, 31st July, 2003). The plaintiffs in that case commenced High Court proceedings on 17th July, 1991, seeking damages for negligence against their own solicitors and another firm of solicitors who acted for vendors of property to the plaintiffs. It is not necessary to repeat here in any detail the chronology of what occurred thereafter. It is sufficient to record that extraordinary delay was encountered by the Dorans and it was not until February, 1999 that the litigation came to an end save for the question of costs. The costs issue was finally dealt with in December of 1999. As a result of the delays which they encountered, the Dorans litigated before the European Court of Human Rights. The case is of particular interest because of the submissions which were made by the State to that court as to the entitlements of the Dorans to seek redress in respect of the delay encountered by them by reference to the Constitution. The submissions of the Government are set forth at p. 13 of the judgment. They read as follows:-
“50. The Government maintained that the applicants did have an effective domestic remedy. They submitted that it had been open to them to contend that they had a right to a decision within a reasonable time on two constitutional grounds drawn from the unenumerated rights guaranteed by Article 40 (3) (1) of the Constitution. Such grounds could have been invoked by the applicants at any stage of the proceedings (The State [Shatter, Gallagher & Co.] v. de Valera (No. 2) [1987] I.R. 55 at 59 – 60). While the Constitution and other law did not prescribe any particular remedy for the infringement of an individual’s constitutional rights, the appropriate remedy would depend on the facts of a particular case and ‘may’ include an award of damages against the State (Healy v. Minister for Defence, High Court, 7 July, 1994 at p. 10, and Kennedy v. Ireland [1987] I.R. 587, at 593).
51. The first constitutional ground which the applicants could have invoked was the principle of ‘constitutional justice’. The Government submitted that courts have recognised that the unenumerated rights guaranteed by Article 40 (3) (1) of the Constitution include principles of constitutional justice and that the latter includes various procedural guarantees including a right to a reasonably prompt decision. In this respect, the Government cited a number of domestic cases (In Re Haughey [1971] I.R. 217; Garvey v. Ireland [1981] I.R. 75; O’Keeffe v. Commissioners of Public Works, Supreme Court, 24 March, 1980; The State (McFadden) v. Governor of Mountjoy Prison (No. 1) [1981] I.L.R.M. 113; Cannon v. Minister for the Marine [1991] 1 I.R. 82; Twomey v. Minister for Tourism and Transport, Supreme Court, 12 February 1993; Bosphorous Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Minister for Transport (No. 2) [1997] 2 I.R. 1; In Re Gallagher (No. 2) [1996] 3 IR 10; and McNeal v. Garda Commissioner [1997] 1 I.R. 469).
The Government submitted that constitutional justice had successfully been invoked to augment the specialised code of procedural and evidential law regulating judicial function where the passage of time could have resulted in injustice (O’Domhnaill Merrick [1984] I.R. 151 and Toal v. Duignan (No. 1) [1991] I.L.R.M. 135).
52. The second constitutional ground which the Government suggested the applicants could have invoked was their constitutional right to litigate or their right of access to court to assert and vindicate legal rights (Macauley v. Minister for Posts and Telegraphs [1996] I.R. 345, at 357 – 358). They maintained that the applicants could therefore have argued before the High and Supreme Courts that they had a constitutional right to a decision within a reasonable period of time in order for their right to litigate to be effective, based on the maxim that justice delayed is justice denied and, in particular, they could have argued that their right to litigate extended to the more prompt processing of their case by the court. They could have requested the courts to give effect to this right or, in default, to award them damages for its infringement.
53. Furthermore, the Government submitted that the domestic courts had a positive duty to protect persons against invasion of their constitutional rights. They pointed out that judges take an oath to uphold the Constitution and are therefore under a duty to preserve the individual’s constitutional rights. They further argued that the applicants could also have pleaded the judgments of the European Court of Human Rights as persuasive authority in support of their constitutional contentions.”
The submissions made to this court by the defendants other than the Board are in many respects the polar opposite of what was being said by them to the European Court of Human Rights in Doran v. Ireland.
The plaintiff here bases her case principally upon Article 40.3 of the Constitution. That provides:-
“1°. The State guarantees in its laws to respect, and, as far as practicable, by its law to defend and vindicate the personal rights of the citizen.
2° The State shall, in particular, by 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 each citizen.”
In Ryan v. The Attorney General [1965] IR 294, the courts recognised unspecified personal rights enshrined in the Constitution by virtue of Article 40. A constitutional right to have access to the courts was recognised in Macauley v. The Minister for Posts and Telegraphs [1966] I.R. 345. In that case, Kenny J. said at page 358:-
“That there is a right to have recourse to the High Court to defend and vindicate a legal right and that it is one of the personal rights of the citizen included in the general guarantee of Article 40, sect. 3, seems to me to be a necessary inference from Article 34.3.1…If the High Court has this full original jurisdiction to determine all matters and questions (and this includes the validity of any law having regard to the provisions of the Constitution) it must follow that the citizens have a right to have recourse to that Court to question the validity of any law having regard to the provisions of the Constitution or for the purpose of asserting or defending a right given by the Constitution for if it did not exist, the guarantees and rights in the Constitution would be worthless.”
The plaintiff contends that she had no realistic prospect of access to the courts without the assistance of a lawyer. I agree with her. She qualified for such assistance under the relevant statutory provisions and regulations but was denied the necessary help for a period of 25 months.
In M.C. v. The Legal Aid Board & Ors. [1991] 2 I.R. 43, the applicant sought an order compelling the respondents to provide him with a certificate of free legal aid and, in doing so, relied upon the constitutional right of access to the courts. The State argued that there had been no infringement of any constitutional right of access to the courts as such right only related to the right to initiate proceedings and did not extend to the right to be assisted by the State in the defence of civil litigation.
Gannon J. held that an individual citizen did not have a constitutional right to require that the State provide financial support for civil litigation with another citizen. However, he went on to hold that, once a legal aid scheme was in place, there is a constitutional duty on the State to ensure that it is administered fairly and fulfils it purpose. He said:-
“By adopting the scheme for funding legal aid and advice to impecunious litigants the State provides resources to enable such persons to obtain the services of skills adequate to that of an adversary in civil litigation. In my opinion, the adoption of that scheme does not impose any duty on the State or on the Legal Aid Board to any litigant involved in civil litigation other than to ensure that the scheme is implemented fairly to all persons and in a manner which fulfils its declared purpose. I am not convinced that there is any provision in the Constitution which imposes a duty on the State to provide any form of support for civil litigation among citizens. In the absence of such duty I can find no express or implied right in any citizen to require the State to provide financial support for, or to afford free facilities for, civil litigation of a dispute with another citizen.”
That decision was given in the context of a non-statutory scheme.
In Stevenson v. Landy & Ors. (unreported 10th February, 1993), Lardner J. had to deal with the topic again. The case concerned wardship proceedings taken by the Eastern Health Board. The Legal Aid Board had refused to grant legal aid to the mother of the child involved to contest the proceedings because she had failed to show that she was reasonably likely to be successful in the proceedings. This was a requirement provided for in the scheme of legal aid and advice. Lardner J. quoted from the judgment of O’Higgins C.J. in The State (Healy) v. Donoghue [1976] I.R. 325 where he had said at page 350:-
“The requirements of fairness and justice must be considered in relation to the seriousness of the charge brought against the person and the consequences involved for him. Where a man’s liberty is at stake, or where he faces a very severe penalty which may affect his welfare or his livelihood, justice may require more than the application of normal and fair procedures in relation to his trial. Facing as he does, the power of the State which is his accuser, the person charged may be unable to defend himself adequately because of ignorance, lack of education, youth or other incapacity. In such circumstances his plight may require, if justice is to be done, that he should have legal assistance. In such circumstances, if he cannot provide such assistance by reason of lack of means, does justice under the Constitution also require that he be aided in his defence? In my view it does.”
Having quoted that passage Lardner J. went on:-
“That Statement was made in relation to a criminal prosecution. The present case is of a different nature. Having considered the circumstances of the Applicant and in which the application for legal aid to be represented in the wardship proceedings is made, I have come to the conclusion that the dicta which I have quoted are applicable, mutatis mutandis, to the wardship proceedings.”
He construed the scheme of civil legal aid and advice in a manner which he found to be more in accordance with the requirements of the Constitution and having regard to the administration of justice. In another case, namely Kirwan v. Minister for Justice [1994] 1 I.L.R.M. 444, the same judge in dealing with a complaint about the absence of legal aid for persons seeking review of their detention on foot of guilty but insane verdicts, held that the constitutional requirement of fair procedures applied and obliged the executive to provide legal aid for an appropriate person.
Applying the approach of Lardner J. it seems to me that the unfortunate circumstances of the plaintiff in the present case are such that access to the courts and fair procedures under the Constitution would require that she be provided with legal aid. That view is reinforced by the fact that she fell squarely within the entitlements to such under the Act and the regulations but was denied it for a period of 25 months because of the manifest failure of the State. The delay in granting the certificate for legal aid, in my view, amounted to a breach of the constitutional entitlements of the plaintiff and if she can demonstrate loss as a result she is entitled to recover damages in respect thereof.
It is not enough to set up a scheme for the provision of legal aid to necessitous persons and then to render it effectively meaningless for a long period of time. The State must per Gannon J. (in M.C. v. Legal Aid Board) ensure that the scheme “is implemented fairly to all persons and in a manner which fulfils its declared purpose”.
The purpose of the 1995 Act is that persons who meet the necessary criteria shall receive legal aid. That carries the implication that the entitlement to legal aid will be effective and of meaning. How can it be if a delay of 25 months is encountered? Equally, how can the scheme be fair if a qualified person cannot get to see a solicitor for such a lengthy period?
The Act of 1995 gives substance, in many ways, to the constitutional entitlement to legal aid for appropriate persons. The legislature is entitled to define reasonable limits to that right. But the right cannot be effectively set at nought for years in the manner that it was here. I am of opinion that the rights under the Constitution identified and described in the paragraphs quoted from the State’s submission to the European Court of Human Rights in Doran v. Ireland are as applicable to this plaintiff as they were, on the State’s own case, to the Dorans.
It is argued that the court is powerless to intervene in this case regardless of the nature of the right being asserted by the plaintiff whether it be statutory, constitutional, or a right under the European Convention on Human Rights. The reason for such an assertion is that it is said that the court would be trespassing into an area outside its competence under the Constitution. (See Sinnott v. Minister for Education & Ors. [2001] 2 IR 545 and T.D. v. Minister for Education & Ors. [2001] 4 IR 259).
I do not accept such to be the case. This case is not concerned with a claim for any form of mandatory relief against the State. The court is doing no more than what the courts have been doing since at least Ryan v. Attorney General namely, ensuring that a right under the Constitution is protected and given effect. As was stated by Keane C.J. in Sinnott v. Minister for Education at page 631:-
“That is not to say that where a plaintiff successfully claims that his constitutional rights have been violated by the State in the past and will continue to be so violated in the future (which is not the case here) unless the court intervenes, the courts are impotent when it comes to the protection of those rights.”
Later in the judgment he said that while in principle there is nothing to preclude the granting of mandatory relief against a Minister to meet a constitutional obligation, the courts should “presume that where this court grants a declaration that he or she had failed to meet his or her constitutional obligations the Minister will take the appropriate steps to comply with the law as laid down by the courts”.
There is no question of a future breach involved here and I see no reason why the court should not be entitled to deal with a past breach by means of an appropriate declaration and/or an award of damages if necessary.
THE EUROPEAN CONVENTION ON HUMAN RIGHTS
In view of the fact that I have come to the conclusion that the plaintiff’s rights under the Constitution have been infringed and that she is entitled to a remedy in respect thereof, it is strictly speaking not necessary for me to express any view of her entitlements under the European Convention on Human Rights.
It is appropriate to note however, that for many years now and for long before the incorporation of the Convention into Irish law, the courts of this jurisdiction have proceeded on the basis that Irish law is in conformity with the European Convention on Human Rights. There are many examples of this but perhaps one of the most noteworthy is the decision of Kinlen J. in Hanahoe v. Hussey [1998] 3 IR 69 where at p. 102, he said:-
“The judgment of the European Court of Human Rights is not simply of persuasive authority. It has been accepted that in cases of doubt or where jurisprudence is not settled, the courts should have regard to the Convention for the Protection of Human Rights.”
This decision antedated the European Convention on Human Rights Act 2003.
It appears to me that the view which I have formed as to the plaintiff’s entitlements under the Constitution is completely consistent with the provisions of the Convention. In Airey v. Ireland (1980) 2 EHRR 305, the European Court of Human Rights confirmed that Article 6 of the Convention implies the right of access to the courts and in the case of Mrs. Airey confirmed that she had an entitlement to have such access in order to petition for judicial separation. The court also pointed out that the Convention was intended to guarantee rights that were practical and effective rather than merely theoretical or illusory. Just as the possibility of Mrs. Airey conducting her own case did not provide her with an effective right of access neither did such a possibility in the case of the plaintiff in suit. Even though the Convention did not provide for civil legal aid the court held that Article 6.1 might sometimes compel the State to provide for the assistance of a lawyer when it proved indispensable.
In the light of the circumstances of her case the court found that Mrs. Airey did not enjoy an effective right of access to the High Court and that, therefore, there had been a breach of Article 6.1. It seems to me that the same reasoning applies in the present case. The decision that I have arrived at by virtue of the provisions of the Constitution is therefore, it appears to me, in complete conformity with rights which are applicable under the European Convention on Human Rights.
In the light of the declaration which I propose to make, it is not necessary for me to make any determination in respect of the provisions of the European Convention on Human Rights Act 2003. Neither is it appropriate for me to express any view on whether I could do so given that the Act was not on the statute book at the time of the incidents in suit.
DAMAGES
The evidence satisfies me that the plaintiff suffered pecuniary loss as a result of the delay encountered by her.
Mr. Brady accepted in evidence that the 25 month delay experienced by the plaintiff was unacceptable. The Board’s target as of June, 1997 was to provide a service to clients within a two to four month waiting period. There is of course a category of really urgent cases which have to be dealt with in a shorter time scale than that. However, the plaintiff’s claim would not fall within such a category.
I heard uncontroverted evidence from Mr. Brian Gallagher. He is a solicitor and a partner in the firm of Gallagher, Shatter & Company and has extensive experience in family law cases and litigation. He gave evidence that it would be proper practice for a solicitor to see a new family law client within one to two weeks from when the client sought the appointment initially. He regarded a waiting period of 25 months before obtaining such an appointment as not to be proper practice.
I think it is unrealistic to expect the Board ever to be in a position to match the speed of a solicitor in private practice in respect of cases which are not of particular urgency. A client consulting a solicitor in private practice does not have to go through the bureaucratic machinery that must, of necessity apply to the Board. But I see no reason to suggest that the Board’s own target of two to four months is unreasonable. Thus, the plaintiff ought to have had a consultation with a solicitor within a period of about two to four months from the time that she first made contact with the Board.
The solicitor, a Ms. Honor Bolger, who ultimately saw the plaintiff certainly could not be criticised for the speed with which she moved and I therefore think it likely that the case would have been in court with a hearing on the maintenance payable in respect of Paul by about January, 1998.
Whilst there was a claim on paper for maintenance for the plaintiff herself, in fact the matter only proceeded before the circuit judge in respect of maintenance for Paul. I therefore approach this aspect of the case on the basis that the likelihood was that had matters moved with appropriate speed, a claim for an increase in maintenance confined to Paul would have been before the Circuit Court by the month of January, 1998.
At that time, there is no doubt but that the plaintiff’s husband was fully employed. In such circumstances it is improbable that the increase in maintenance would have been limited to one of IR£10.00 per week. That was the figure which was ultimately awarded but in the belief (mistaken as it turned out to be) that the plaintiff’s husband was no longer in employment.
I appreciate of course that requests for increases in maintenance had in the past been rebuffed by the plaintiff’s husband with threats of giving up his job and that he was in a new relationship.
Mr. Gallagher, having been apprised of the earnings of the plaintiff’s husband and the plaintiff’s finances gave evidence as to what he believed could have been argued for by way of an increase in maintenance for Paul.
It is very difficult to know with precision what figure for maintenance the Circuit Court judge would, as a matter of probability, have fixed had the application been before him in January, 1998. I think there can be no doubt but that an increase would have been ordered. On balance I think it likely that the court would have ordered maintenance to be increased by 50% from IR£40.00 to IR£60.00. The measure of the plaintiff’s damages is therefore calculated at IR£20.00 per week for a period of two years; that comes to IR£2,080.00. I add to that a sum in respect of the undoubted additional stress and upset over the norm that was caused to the plaintiff (particularly having regard to Paul’s position) whilst waiting which I assess at the sum of IR£5,000.00. That gives a grand total of IR£7,080.00 and that is the sum I award by way of damages. It converts to a sum of €8,991.60.
CONCLUSION
There will be a declaration in a form to be discussed with counsel in the light of the findings which I have made in this judgment. There will also be judgment in favour of the plaintiff for the sum of €8,991.60.
Approved: Kelly J.
Cronin (A Minor) v. Minister for Education and Science & Ors [2004] IEHC 255 (06 July 2004)
URL: http://www.bailii.org/ie/cases/IEHC/2004/255.html
Cite as: [2004] IEHC 255, [2004] 3 IR 205
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[2004] IEHC 255
THE HIGH COURT
DUBLIN
[2003]1144OP
HC 255/04
JEREMIAH CRONIN (A MINOR) SUING BY HIS MOTHER
AND NEXT FRIEND MARGARET CRONIN
Plaintiff
THE MINISTER FOR EDUCATION AND SCIENCE THE MINISTER FOR HEALTH AND CHILDREN THE SOUTHERN HEALTH BOARD IRELAND AND THE ATTORNEY GENERAL
Defendants
APPROVED JUDGMENT DELIVERED BY MS. JUSTICE LAFFOY TUESDAY 6TH JULY 2004
BACKGROUND
The Plaintiff, Jerry Cronin, is a four-year-old boy and he sues for his mother and next friend, Mrs. Margaret Cronin. In June, 2002 he was diagnosed as suffering from attention deficit hyperactivity, autistic features and/or hearing deficit and speech delay by a consultant paediatrician in Cork. Subsequently, in December 2002 following assessment by the Regional Autism Spectrum Disorder Service, which is funded by the Southern Health Board and operated under the auspices of the Brothers of Charity, a disorder in the autistic spectrum was confirmed. Jerry lives with his parents in Macroom, Co.Cork.
THE PROCEEDINGS
The proceedings were initiated by a Plenary Summons which was issued on 15th October 2003 in which the Plaintiff claims various declaratory reliefs in relation to his constitutional, statutory and other legal entitlements to be provided with appropriate free primary education and also appropriate free
therapies and care. He also claims damages for breach of his constitutional rights. Significantly for present purposes he seeks a mandatory injunction pursuant to the Education Act, 1998 (the Act of 1998) directing the First Defendant, the Minister for Education and Science, to forthwith provide for free primary education, including support services appropriate, to his needs. On the same day as the summons was issued, that is to say, 15th October 2003, a Notice of Motion claiming various interlocutory reliefs was issued. The Motion came on for hearing on the 20th February, 2004.The issues between the Plaintiff and the third Defendant, Southern Health Board, were resolved by agreement. The issues between the Plaintiffs and the First Defendant were considerably narrowed and they were, in fact, narrowed down to two issues. This judgement is concerned with those issues.
THE EVIDENCE
The evidence pertinent to the issues with which the Court is concerned is contained in Affidavits sworn by the Plaintiff’s mother, Mrs. Cronin, on the 10th October, 2003; 12th January, 2004; and 27th January, 2004 and in Affidavits setting out the First Defendant’s position sworn by a civil servant in this department, Mr. John P. Kelly, on the 12th December, 2003; 23rd January, 2004; and 12th February, 2004.In the Affidavits there have been exhibited a number of professional assessments of Jerry by educational psychologists, which include expressions of opinion as to the manner in which Jerry’s education, training and care should be progressed. I propose summarising the views of the professionals insofar as they are relevant to the issues which arise on this application.
SUMMARY OF PROFESSIONAL OPINIONS
Dr. Olive Healy has been involved with Jerry since January, 2003. She is the Director of Education at Cork CABAS School. Jerry has been on the school waiting list since January, 2003. At that time the First Defendant sanctioned ten hours home tuition for Jerry and Dr. Healy, at his mother’s request, agreed to supervise a home programme for him.
In February, 2003 Dr. Healy assessed Jerry and concluded that, given that he was unlikely to be offered a place in the Cork CABAS school soon, the next best option was for Jerry to access a home based CABAS programme for ,thirty two hours per week until he should get his school placement. It was Dr. Healy’s opinion that Jerry would benefit immensely from the consistent and effective behaviour management programme which a CABAS school can offer.
In April, 2003 Sally Williams, senior psychologist with the Regional Autism Spectrum Disorder Service, made an application to the First Defendant for an additional ten hours per week home tutoring for Jerry. She expressed the view that, while not ideal, twenty hours per week home tutoring was nearer to meeting Jerry’s needs than the then current provision. On foot of this application the First Defendant, in May, 2003, sanctioned a further five hours per week home tutoring for Jerry.
In May, 2003 Jerry was assessed in London by Mr. Allen Willis, an education and psychology consultant who specialises in autism and communication disorders. He diagnosed Jerry in the moderate range of the autistic spectrum. He summarised his views of Jerry’s educational needs, as follows, in his report:
“Jerry has significant and complex educational needs and poor compliance to adult direction. He requires an intensive education programme to meet those needs, that is autism specific and consists of 1:1 direct teaching. Jerry needs to have an intensive and systematic approach such as Applied Behavioral Analysis (ABA) as he is not yet able to imitate other children consistently or learn by a language based instructions in a group or class setting. Jerry needs to establish compliance to adult direction as a priority, so that he is then ready to earn from adults and then from other children. He has responded well to 1:1 teaching at home but the hours are insufficient at present. Research indicates that a minimum of thirty two hours per week of ABA is needed to be effective and I would recommend that Jerry receive an ABA programme of no less than this amount per week. He is currently on the waiting list for CABAS in Cork and it is my opinion that he should be placed there and receive an interim ABA programme at home for at least thirty two hours per week until such time as he is placed at CABAS.”
The next milestone was the institution of these proceedings. In November, 2003, the First Defendant sanctioned home tuition for Jerry for twenty hours
per week and this provision was backdated to January, 2003.
In connection with these proceedings Jerry was assessed by Dr. Clare Mangan on behalf of the First Defendant. Dr. Mangan is an educational psychologist. She is the Assistant Senior Education Officer with the Southern Educational and Library Board in Northern Ireland, where she has direct responsibility for children and young people with special education needs, including autism.
Having assessed Jerry in his home, Dr. Mangan furnished a comprehensive report to the First Defendant. Dr. Mangan’s opinion is that Jerry has learning difficulties that are at least in the mild range of learning disability, bordering on the moderate learning disability range in some areas. She diagnosed Jerry as mildly autistic relative to other children who have been given a diagnosis. She recognised that he had special education needs arising from his learning disability and autism and also because of his significant expressive and receptive language delay and problems with social communication. The pre-school provision she recommended was as follows.
On the basis of her assessment she recommended that in the first instance Jerry would benefit from:
“1. A pre-school placement for at least three days per week.
2. In this context he should access full time assistance for the hours that he attends.
3. This assistant and other pre-school staff should require training and support from local autism services to facilitate the delivery of a structural, social, cognitive and language based programme.
The pre-school placement could be supplemented by a home based programme for part of the week. The home based programme would provide additional support in relation to key targets and assist Jerry’s parents with the establishment of targets for self-help and her [his?] functional activities.
“5. Furthermore, speech and language therapy, which is currently being provided at home, should continue to be delivered in this context. The speech and language therapist would also liaise with the pre-school staff as part of an integrated language programme.”
The foregoing could be delivered until Jerry reaches compulsory school age and could also incorporate recommendations 5 to 14 and 16 to 18, inclusive, as specified in the next section of her report which set out her views on school provision. One of the recommendations is the measured use of a behavioral approach such as Applied Behavior Analysis (ABA) if deemed appropriate by his teacher. Dr. Mangan emphasised the word “measured”.
In her report Dr. Mangan also addressed the following issues:
(1) Mr. Willis’s recommendation that Jerry receive 32 hours per week tuition based on ABA. She expressed concern as to the appropriateness and efficacy of such a lengthy and intensive programme.
Other interventions, aside from ABA, for example, the TEACHH programme, which she opined might be more beneficial for Jerry. In relation to school provision for Jerry, Dr. Mangan recommended the application of the TEACHH programme with particular reference to visual schedule. It is necessary to pause here to consider the factual context in which Dr. Mangan’s recommendations have to be considered, the most important factor being the geographic factor which Dr. Mangan recognised as being important. As I’ve stated at the outset, Jerry lives with his family, his parents, two sisters and grandmother in Macroom. There is considerable controversy on the Affidavits as to whether a suitable pre;-school placement could be arranged for Jerry within a reasonable distance of his home. It is not possible to resolve that controversy on the Affidavit evidence. However, the factual position is that a pre-school placement, which his parents considered suitable, has not been found for Jerry apart from a limited in duration pre-school placement at a local pre-school, Toonbridge.
Dr. Healy commented on Dr. Mangan’s recommendations and observations in a report exhibited in Mrs. Cronin’s Affidavit of 27th January, 2004. In relation to the appropriate form of education for Jerry, she disagreed with Dr. Mangan’s choice of TEACHH and favoured ABA within a CABAS model, stating that CABAS is –
“A system that supports optimum pedagogy through the science of individualised instruction.”
In relation to Dr. Mangan’s recommendations for school provision when Jerry reaches compulsory school age, she expressed the view that Jerry could access most of them at Cork CABAS School.
Finally, in a report of 4th February, 2004, Dr. Mangan commented on Dr. Healy’s observations which she interpreted as having synthesised –
” ..the discussion into a TEACHH/ABA dichotomy”.
She confirmed that her opinion was that Jerry would benefit from a range of interventions to meet his special educational needs. As regards future placement, which is not an issue to be dealt with in this judgement, she queried the potential “value added” of a CABAS place over placement in a more geographically convenient autism specific class where an appropriate programme could be planned and delivered.
THE SPECIFIC RELIEF SOUGHT IN THIS APPLICATION
The Plaintiff seeks a mandatory injunction that the First Defendant provide for the cost of twenty nine hours per week one-to-one ABA tuition from appropriately qualified staff throughout the calendar year in his home during the Plaintiff’s pre-school phase and also the coast of supervision of the Plaintiffs educational programme, measured at 300 Euro per month, during the pre-school phase. The arrangements for putting in place the Plaintiff’s programme of home tuition were made by Mrs. Cronin with the assistance of Dr. Healy and others. In effect, what the First Defendant is being asked to do is to fund the provision of the programme. The programme is additional to the Plaintiff’s limited placement in Toonbridge.
GROUNDS ON WHICH THE PLAINTIFF BASES HIS ENTITLEMENTS
The Plaintiff invokes the following rights in support of his claim:
(a) His constitutional right to free primary education appropriate to his needs as recognised by the Supreme Court in Sinnott -v- The Minister for Education [2001] 2 IR 545
(b) His statutory right under the Act of 1998. In particular, reference was made to Section 6, paragraph (g), which provides that every person concerned in the implementation of the Act should have regard to the objects set out, including:
“(g) To promote effective liaison and consultation between schools and centres for education, patrons, teachers, parents, the communities served by schools, local authorities, health boards, persons or groups of persons who have a special interest in or experience of the education of students with special educational needs and the Minister.”
(c) His rights under the European Convention on Human Rights Act, 2003 and in particular the rights derived from Article 13 (Effective Remedy) and Article 2 of the First Protocol (Right to Education).
Counsel for the Plaintiff laid particular emphasis on the observations of Hardiman, J. In Sinnott –v- Minister for Education, at page 711, pointing to the possibility of enforcement of statutory duties in relation to the provision of education for autistic children through court intervention.
THE RESPONSE OF THE FIRST DEFENDANT
In broad outline the response of the First Defendant is as follows:
1.In the provision already made, the First Defendant has fulfilled his duties to the plaintiff both under the constitution and the Act of 1998.
2.Regard has been had by him to the concerns expressed by Dr. Mangan.
3.In relation to a discrete issue which arises in relation to the provision of home tuition during the month of August, home tuition follows the mainstream school year with an extension into July, but not August, to which Mrs. Cronin’s response is that the policy should be informed by the needs of the child
and not by the mainstream school year.
4. The First Defendant is committed to continuing to fulfill his obligations to the Plaintiff and to ensuring that suitable and appropriate education is
made available for him having regard to his needs.
5. However, Section 5, Sub-section 4 of the Act of 1998 mandates the First Defendant in carrying out his functions under the Act to have regard, inter alia, to the resources available. Moreover, his duty under section 6, paragraph (b) of the Act is:
“To provide that as far as is practicable and having regard to the resources available, here is made available to people resident in the State a level and quality of education appropriate to meeting the needs and abilities of those people.”
Counsel for the First Defendant emphasised in particular the reference in paragraph (b) to “the resources available” and to “quality of education appropriate to meeting the needs and abilities of those people”.
It was submitted that what is required of the Defendant is to adopt a reasonable approach and this cannot mean that he may be enjoined to give effect to a programme, just because it is proposed by a psychologist.
THE TEST TO BE APPLIED IN THIS APPLICATION
This is an interlocutory application. The reliefs sought are designed to provide for interim measures pending a full hearing. The application is grounded on Affidavit evidence. In this case the Affidavits have thrown up serious conflictps of evidence, not to mention fundamental conflicts of professional opinion. I have outlined the professional opinion at some length for the purpose of illustrating this point. It is not the function of the Court to resolve such conflicts, even if it could. In particular, the Court cannot make a judgment on the basis of the evidence before it now as to what is in the best interest of Jerry, which after all is what these proceedings are all about.
By way of comment, I would say that the Affidavits on both sides display a level of contention and acrimony which I did not find helpful in determining the issues before the Court. Moreover, Mrs. Cronin raised in one of her Affidavits the outcome of other proceedings in this Court dealing with the type of issues raised in this case and also provision made by the First Defendant for other children with special needs. The response on behalf of the First Defendant was that the “High Court Agreements” referred to are “confidential in nature”. I say by way of comment that it is difficult for the Court to apply the law fairly, consistently, and on the basis of equality, if it is not given the full picture.
The only authority directly in point to which the Court has been referred is Nagle (a minor) -v- South Western Area Health Board and The Minister for Education and Others, in which judgement was delivered by Herbert, J. on the 30th October, 2001, post the decision of the Supreme Court in the Sinnott case and the enactment of the Act of 1998.
Counsel for the First Defendant submitted that, as the Plaintiff is seeking mandatory relief at an interlocutory stage, the criterion which the Court should apply is whether the Plaintiff is likely to succeed at the trial, there being currently the clearest indication that the First Defendant is not in breach of his constitutional or statutory duties to the Plaintiff.
I do not consider that that is the appropriate criterion to apply at this interlocutory stage. It involves making a judgement at this juncture as to the strength of the respective cases of the Plaintiff and the First Defendant, which the court is not entitled to do, as was made clear by the Supreme Court in Westman Holdings -v- McCormack [1992] 1IR 15 (see the judgement of Finlay, C.J.) In this case, given the divergence `of professional opinion, it would be impossible to make such a judgement in any event and none is implicit in this decision.
The relevant criteria are those laid down by the Supreme Court in Campus Oil Limited -v-TheMinister for Industry and Energy (No.2) [1983] IR 88. These criteria and their application to the circumstances of this case are as follows:
First, is there a fair bona fide issue to be tried? The answer is that there is undoubtedly such an issue as to the appropriate pre-school provision of education for the Plaintiff.
Secondly, where does the balance of convenience lie, for or against the grant of an injunction? The answer, in my view, is that it lies in favour of the grant of an injunction. In reality, the refined narrowed matter before the Court is about the provision of money for the programme of education which the plaintiff’s parents believe, and have been advised, is appropriate to his needs at this juncture. I am satisfied that the Plaintiff’s parents could not, without incurring serious hardship, fund the programme from their own resources. The provision sought is specific to the Plaintiff, is limited both in quantum and duration and can have no significant resource or budgetary implications for the First Defendant.
Thirdly, would damages be an adequate remedy if the injunction were refused in the event of the plaintiff being successful? The answer in my view is that they would not, as there is inherent in the circumstances of the plaintiff’s family the real possibility that without the benefit of the provision which is sought, his educational progress would be hindered.
Fourthly, would damages be an adequate remedy if in due course the plaintiff is unsuccessful and the First Defendant has to have recourse to the undertaking given by Mrs. Cronin? As is required, Mrs. Cronin has given the usual undertaking as to damages and in doing so she has very candidly set out the family’s financial circumstances. I am satisfied that she could make the undertaking and that the First Defendant is adequately protected in this regard.
I consider that this is a proper case in which to grant a mandatory injunction in the terms sought on an interlocutory basis.
In reaching this conclusion, I have had particular regard to the decision of the Supreme Court in T. D. -v- The Minister of Education [2001] 4 IR 259, and, in particular, to the observations of Keane, C. J. At page 287. I am satisfied that granting a mandatory injunction does not fall foul of that decision. The relief granted is limited to the particular needs of the Plaintiff and merely extends a programme which the First Defendant has already sanctioned.
THE ORDER
There will be an Order directing the First Defendant, during the pre-school phase of the Plaintiff’s education, to provide for the cost of twenty nine hours per week one-to-one ABA tuition from appropriately qualified personnel throughout the calendar year in his home and the cost of supervision of his education programme measured at 300 Euro per month.
The duration of the pre-school phase depends on appropriate arrangements being made for the plaintiff when he reaches his compulsory school going age, which will be next September. There will be liberty to both parties to apply in relation to the continuation of this Order.
END OF JUDGMENT
BUPA Ireland Ltd v Health Insurance Authority
[2013] IEHC 103, Cooke J.
JUDGMENT of Mr. Justice Cooke delivered the 7th day of March 2013
Introduction
1. On the 23rd day of November, 2006, the Court (McKechnie J.) gave a judgment dismissing the claims originally advanced in this judicial review proceeding, which had sought to challenge the introduction by the respondent Minister of a risk equalisation scheme (the “2003 Scheme”), in the provision of medical health insurance cover by insurers operating in that sector of the market in the State, under a series of statutory instruments made pursuant to the Health Insurance Acts 1994 – 2001.
2. The judgment and order of the Court were appealed by the applicants to the Supreme Court. No notice under Order 58 Rule 10 of the Rules of the Superior Courts was given by the respondents of an intention to contend that such of the findings in that judgment as might have been considered to have rejected positions adopted by them at the High Court hearing should be varied. (The references below to the “respondents” relate to the second and third named respondents, except where otherwise stated, as they alone are concerned in the claim for damages. The Voluntary Health Insurance Board (VHI) had been a party to the proceedings, but was discharged from them following the Supreme Court judgment.)
3. In the High Court proceedings, a series of declaratory reliefs had been claimed directed at the alleged illegality of the 2003 Scheme as thus introduced. In essence, the claims alleged that the scheme was unlawful in that, inter alia, it infringed: Articles 40.3 2° and 43 of the Constitution; the provisions of the Third Non-Life Directive; and Articles 43, 49, 82 and 86 EC of the European Treaties.
4. Although no order of certiorari to quash the statutory instruments in question was originally sought in the judicial review proceedings, a declaration had been claimed that they were ultra vires the relevant statutory provisions, together with (amongst other reliefs,) declarations that s. 12 of the Health Insurance Act of 1994 (the “1994 Act”) and the promulgation of the 2003 Scheme were invalid as unconstitutional. A major issue at the High Court hearing turned upon the validity of the particular risk equalisation scheme, as imposed by the statutory instruments on the basis of s. 12(10) of the 1994 Act (as amended by the Health Insurance Act of 2001), having regard to the definition of “community rating” contained at ss. 2 and 7 of the 1994 Act.
5. The 2003 Scheme, as adopted, had been based upon the concept of “community rating across the market”, in which so-called “inter-generational solidarity” was assessed and imposed by reference to the risk profiles of the entire community of holders of private health insurance policies. The applicants maintained that what was authorised by the 1994 Act (as amended) was something different, namely, inter-generational solidarity by reference to the risk profiles of policy holders when assessed in respect of each distinct category or type of insurance contract or plan, described as “community rating within the plan”. This dispute as to the correct construction of the relevant statutory provisions was thus central to the case and was the acknowledged starting point for the conclusions reached by McKechnie J. (see paragraph 32 of his judgment) on the above alleged infringements.
The Legislative Context
6. The terms of the Treaty articles, the provisions of the Third Non-Life Directive, the technical concepts and methodologies relating to the two types of community rating at issue in the proceedings have been set out and examined in considerable detail in both the judgment of the High Court and that of the Supreme Court, and it is unnecessary to repeat such detail here. It may nevertheless be useful, for the consideration of this aspect of the preliminary issues now before this Court, to briefly summarise the legislative history of the instruments concerned and the policy context in which these issues arise.
7. Until 1996 The Voluntary Health Insurance Board, which had been established as a public body under the Voluntary Health Insurance Act, 1957, was the sole provider of private medical health insurance in the State. That monopoly was required to be abolished by the provisions of the Third Non-Life Directive and the Act of 1994 in its original form was enacted for that purpose. Section 12 of that Act conferred on the Minister a power to prescribe a “risk equalisation scheme” containing such terms and conditions of the type listed in the section as he considered necessary and expedient. Such a scheme was first promulgated in 1996, but never came into effect and was revoked in 1998. In 2003, following amendment of the Act of 1994 by the Health Insurance (Amendment ) Act 2001 (including amendments to the definition of “risk equalisation” and to sections 2, 7 and 12), a new scheme (the “2003 Scheme”) was introduced by S.I No 261 of 2003 as amended by S.I. No.710 of 2003. In April 2005 the first-named respondent recommended to the Minister that the scheme be implemented with effect from 1st July, 2005, but this was not acted upon at that time. The applicants commenced a first judicial review proceeding (the proceeding in the present title), challenging the validity of that recommendation, of the Scheme in question, and of s.12 of the Act of 1994, but this was not pursued at the time, following the Minister’s decision not to act on the recommendation.
8. On 27th October, 2005, the first-named respondent again recommended that the risk equalisation obligations be put into effect and on 23rd December, 2005, the Minister acted on that recommendation and directed commencement of the payment obligations with effect from 1st January, 2006. On 30th January, 2006, the applicants commenced a new judicial review proceeding (2006/112JR) and were granted leave to seek judicial review of the new recommendation and of the Minister’s decision of 23rd December, 2005. The two sets of proceedings were subsequently consolidated as the present proceeding by order of the Court (McKechnie J.) of 24th July, 2009.
9. Because the relevant Treaty articles have changed in numbering since the adoption of the Third Non-Life Directive in 1992 and once again since they were the subject of the analysis in the High Court and Supreme Court judgments; and because much of this judgment is concerned with the analysis of those decisions, the Treaty of Amsterdam numbering (from 1 May 1999) used in those judgments is retained here in order to avoid confusion. For ease of reference the evolution of the numbering of the articles principally concerned is as follows:
Original From 1.5.1999 TFEU
Art. 52 (Establishment) 43 49
Art. 57 (Council directives) 47 53
Art. 59 (Services) 49 56
Art. 66 (Services directives) 55 62
Arts 85&86 (Competition) 81 & 82 101 & 102
Art. 90 (Public undertakings) 86 106
Arts 92 – 94 (State Aid) 87-89 107-109
10. Article 43 gave effect to the right of establishment as one of the fundamental activities of the Community (as it then was) for the achievement of an internal market as envisaged in Article 3 EC. Article 49 EC similarly give effect to the freedom to provide services. Article 47.2 EC conferred legislative competence on the Council to issue the directives necessary for coordination of the provisions required to give effect to the right of establishment. Article 55 EC had the effect of conferring the same legislative power on the Council for the purpose of Article 49 EC.
11. The process of harmonisation or the coordination of laws, regulations and administrative provisions governing the exercise of these rights and freedoms, in relation to insurance services, was pursued in a number of directives in the distinct areas of direct life insurance and non-life insurance, which culminated in the adoption in 1992 of a third directive in each field being respectively Council Directive 92/96/EEC (the “Third Life Assurance Directive”) and Council Directive 92/49/EEC (the “Third Non-Life Insurance Directive” or the “Directive”). These third Council directives had the effect of completing the establishment of the single market in the insurance sector. (The Commission Interpretative Communication: “Freedom to provide services and general good in the insurance sector” (2000/C43/03), referred to in the judgment of McKechnie J. at para. 175, begins with the sentence: “The Third Council Directives 92/49/EEC and 92/96/EEC completed the establishment of the single market in the insurance sector.”)
12. The result of the harmonisation process which culminates, insofar as non-life insurance is concerned, in the Third Non-Life Directive, is that individuals and undertakings are conferred with rights which the Member States are bound to respect, by refraining from imposing on the conduct of non-life insurance business any incompatible requirements, controls or conditions, whether by means of national laws, regulations or administrative decisions. Thus, since 1st July, 1994, undertakings are entitled, in the territories of the Member States, to conduct business on an inter-state basis on foot simultaneously of the right of establishment and the freedom to provide services. In other words, an undertaking established in a home Member State can write policies for customers in a second Member State on the basis of the freedom to provide services and can also, if it chooses, do so by making use of one or more offices established in the second or host Member State for ancillary or support services such as claims assessment, legal services, actuarial services and so on.
13. Financial and prudential regulation is provided for on the basis of the single authorisation from, and supervision by, the competent authority of the Member State in which the undertaking has its head office. Thus, while the Directive contains, for example, notification requirements to the host member state when interstate business is to be conducted, those arrangements are purely for the purpose of exchange of supervisory information between the competent authorities and cannot be used by the host Member State to delay or obstruct the conduct of such business, nor does the entitlement of the host Member State to obtain such verification affect the legality of business written. The essential consequence of the completed establishment of the internal market in the non-life insurance sector, accordingly, is that a host Member State has no entitlement to impose on an undertaking established in a home Member State any additional national regulatory requirements or conditions for the conduct of non-life insurance business, whether undertaken by virtue of the right of establishment or on foot of the freedom to provide services, unless a derogation in that regard is permissible under the terms of the Third Non-Life Directive. This became the central issue between the parties in the hearing before McKechnie J.; namely, whether the restrictions and obligations of the 2003 Scheme came within what was permissible under the Directive and particularly under Article 54 thereof.
The 2005-2008 Proceedings
14. The High Court held that the concept of “community rating” for the purposes of a risk equalisation scheme, based upon a distinct meaning for the purpose of s. 12 of the Act of 1994, was within the power delegated to the Minister and that the 2003 Scheme was thus intra vires the power of the Minister to adopt in that form.
15. The High Court further held that, although the 2003 Scheme in requiring health insurers in the market, notably the applicants, who had a below average risk profile “across the market” to make substantial compensatory payments to other health insurers with above average risk profiles (in effect to the VHI), had potentially market distorting and anti-competitive effects and could be taken as intruding upon constitutional rights of property, it was nevertheless “objectively justified” and did not therefore infringe the rights or protections invoked under European or constitutional law by exceeding what was justifiable in the interests of the common good.
16. The applicants’ appeal to the Supreme Court was successful, but solely on the definition issue and the competence of the Minister to impose the particular “across the market” scheme. The Court held that the 2003 Scheme in those terms was ultra vires the power of the Minister because the only scheme authorised to be imposed under the Act was a risk equalisation scheme based upon the “within the plan” concept of community rating, since that alone was the type of community rating defined for the purposes of the Act by virtue of the terms of ss. 2 and 7.
17. The judgment of the Supreme Court, given by Murray C.J., ended (at page 41) with the conclusion that:-
“The risk equalisation scheme having been introduced on the basis of or having regard to a matter which was erroneous in law the scheme must be considered ultra vires the power of the Minister (as indeed all parties acknowledged would be the inevitable consequence if such an error of law was so found) and therefore should be set aside. In the light of the foregoing conclusion the other issues raised in the proceedings do not require to be addressed. Accordingly I would propose that the appeal be allowed and that the Order of the High Court be substituted by an Order quashing the decision of the Minister and the relevant statutory instruments which introduced the risk equalisation scheme.”
18. The order of McKechnie J. of 23rd January, 2007, made on foot of the High Court judgment of 22nd November, 2006, apart from its rulings in relation to costs, had contained a single operative provision ordering that “the proceedings herein be dismissed.”
19. The order of 17th December, 2008, on foot to the Supreme Court judgment, made after detailed submissions for the purpose by the parties, provides (so far as relevant to present issues) that “the appeal be allowed and that the said order of the High Court be set aside save for so much thereof as awarded the first named respondent its costs against the applicants which order do stand and in lieu of the orders of the High Court hereby set aside
1. the Court doth grant an Order of Certiorari in respect of the decisions of the second named respondent to make the statutory instruments listed in the Schedule to this order and in respect of the said Statutory instruments
2. in lieu of directing that that an order of Certiorari do issue IT IS ORDERED that the aforesaid decisions and Statutory Instruments be quashed without further order [And]
3. that the issue of whether there is any liability by the second, third and fourth named respondents for damages and if so the quantification of any such damages be remitted to the High Court for determination …”.
The Preliminary Issues
20. Upon the remittal of the matter and after hearing the parties, the Court considered it prudent to attempt to focus the issues to be determined by trying a number of preliminary issues as follows:-
A. The effect of the Supreme Court order.
(1) Whether the finding that the introduction of the Risk Equalisation Scheme (“RES”) by the orders listed in the Schedule to the order of 17th December 2008 was unlawful as ultra vires has the effect of setting aside or otherwise negating the findings in the judgment of the High Court of 23rd December 2006 to the effect that the introduction of the scheme was objectively justified for the purpose of the claims of infringement of:
(a) Articles 43 and 49 EC and the Third Non-Life Directive;
(b) Article 82 EC in conjunction with Article 86 EC; and
(c) Articles 40.3 2˚ and 43 of the Constitution.
(2) If so, whether some or all of the claimants are entitled to recover damages in respect of losses, if any, incurred as a result of those infringements?
(3) If so, what is the measure in law to be applied in assessing the quantum of damages?
B. Effect of the Ultra Vires finding.
(1) If the claims in respect of the above infringements are not maintainable, are the claimants entitled to recover damages in respect of losses, if any, incurred as a result of the unlawful introduction of the RES as found by the Supreme Court?
(2) If so, what is the measure in law to be applied in assessing the quantum of such damages?
(3) In the quantification of damages on either basis what effect, if any, is to be attributed to the fact that the business the subject of the R.E. scheme was disposed of in March 2007 prior to the date on which payments under the scheme became payable?
21. The remittal of the matter to this Court thus presents first, the issue as to how the Court should approach the adjudication of a claim for damages where it is the issue of “liability” which has been remitted and not merely the assessment of quantum based upon a liability finding made by the Supreme Court. To what extent have any High Court findings related to liability been overturned or left standing as a result of the ruling by the Supreme Court on the ultra vires question? To what extent, if any, are the findings of the High Court judgment on issues as to the effect of the 2003 Scheme upon competition in the private medical insurance market; or on constitutional or European Union law rights; or as to their objective justification either binding upon or available to be relied upon by the parties now before this Court? Or, is the Court required to embark upon a full plenary re-hearing of the evidence on some or all of those issues in order to rule upon BUPA’s claim that the State is liable to it for damages by reason of the outcome of the case in the Supreme Court, or otherwise?
22. Clearly, the starting point for an examination of these issues is the conclusion reached by the Supreme Court at the end of the judgment of Murray C.J. and already quoted in part above, as follows:-
“Accordingly, since s. 2 of the Act of 1994, as amended, specifies that the term community rating shall be construed in that Act in accordance with s. 7(1)(c) the correct interpretation to be attributed to the phrase community rating in s. 12 of the Act, is community rating within the plan across the market.
Therefore, it is in that sense that the best overall interest of health insurance consumers must be construed for the purposes of a risk equalisation scheme. Community rating within the plan means that such community rated contracts provide an element of intergenerational solidarity, not obviously to the ambit as would flow from community rating across the entire insured population, side by side with the other pillars to which the learned trial judge adverted to; namely, open enrolment, lifetime cover and minimum benefits which, as he pointed out, are provided for in sections 8, 9 and 10 of the Act respectively.
It follows from all of the foregoing that the scheme of risk equalisation adopted by the Minister in 2003 was founded upon an erroneous interpretation of subsection 10(iii) in s. 12. That is to say the scheme was introduced on the basis that community rating meant community rating across the entire insured population and not as defined in the Act.” (Page 40)
23. It is therefore clear that the only determination made by the Supreme Court on the appeal was that relating to the error in the interpretation of the definition of “Risk Equalisation Scheme” in s. 12 of the 1994 Act, rendering the statutory instruments which introduced the scheme ultra vires. The “other issues raised in the proceedings” were not addressed or made the subject of any ruling in the order. That being so, the Supreme Court has not altered expressly any findings made in the High Court out of which “the other issues raised in the proceedings” might be said to have arisen. In the order made on foot of its judgment on 17th December, 2008, the Supreme Court directed that “the issue of whether there is any liability by the second, third and fourth named respondents for damages” and the quantification of any such damages, be remitted to the High Court for determination.
24. As the proceedings stand following the remittal to the High Court, therefore, the applicants have a claim for damages following upon a finding that the measures and decisions which they challenged have been found to have been made or imposed without lawful authority. They also can and do point to findings made in their favour in the judgment of McKechnie J. as to the effects of the 2003 Scheme on their rights under the headings listed in para. 3 above; while the respondents claim that the outcome of that judgment has been that the 2003 Scheme was nevertheless found to be lawful and did not infringe the rights in question.
25. More specifically, the applicants argue that the High Court has found that the 2003 scheme distorted competition and would have resulted in BUPA making a loss by being forced to transfer to the VHI each year substantial sums greater than its annual profits. In the absence of an objective justification, therefore, there was finding of breach of the provisions in question and of unlawful interference with constitutional rights of property. The effect of the Supreme Court judgment, it was submitted, has been that the objective justification found by the Supreme Court has “fallen away” and BUPA is accordingly entitled to damages for those infringements.
26. The respondents, on the other hand, contend that the applicants are not entitled to relitigate entirely those findings made by the High Court and not reversed by the Supreme Court. They submit that it had been open to the applicants to invite the Supreme Court to rule upon the grounds of their appeal relating to the findings made by McKechnie J. as to the existence of objective justification, but they did not do so. They submit that the only issue arising on the remittal, therefore, is whether the applicants are entitled to damages by reason of the ultra vires adoption of the 2003 Scheme by mistake of law.
The Pine Valley/Glencar Principle.
27. Insofar as the ultra vires finding is the first basis upon which the claim for damages is now made against the respondents, the position in law is clear. The mere fact that such decisions were made and such measures introduced or imposed without lawful authority does not of itself give rise to a liability in damages on the part of the respondents. The ultra vires exercise of a statutory power does not provide a basis for a claim in damages unless the claimant can show that the ultra vires act also gives rise to one of the recognised causes of action. The law in this regard was settled by the judgments of the Supreme Court in Pine Valley Developments v. Minister for the Environment [1987] I.R. 23 and reaffirmed by the judgments in Glencar Explorations plc v. Mayo County Council (No. 2) [2002] 1 IR 84. In the judgment of Finlay C.J. in the earlier case, a statement of the law in this regard in Wade on “Administrative Law” (5th Ed.) was cited with approval as follows (at page 36):-
“The present position seems to be that administrative action which is ultra vires but not actionable merely as a breach of duty will found an action for damages in any of the following situations:-
1. If it involves the commission of a recognised tort, such as trespass, false imprisonment or negligence.
2. If it is actuated by malice, e.g. personal spite or a desire to injure for improper reasons.
3. If the authority knows that it does not possess the power which it purports to exercise.”
The learned Chief Justice then added:
“I am satisfied that there would not be liability for damages arising under any other heading. It is, of course conceivable that proof of what has been submitted in this appeal as a gross abuse of the exercise of statutory power of decision, or proof of a wholly unreasonable exercise of that power, would be taken by a court to be evidence that the authority knew or must have known that it did not possess the power that it purported to exercise. I am quite satisfied, however, that the exercise by the defendant of this power in 1997, in the manner in which he did, and having regard to the legal advice which he sought and obtained prior to doing so, could not possibly constitute such a gross abuse of power or wholly unreasonable exercise of power as to lead to an inference that he was aware that he was exercising a power that he did not possess. [….] Not only am I satisfied that this is the true legal position with regard to a person exercising a power of decision under a public statutory duty, but it is clear that there are and have always been weighty considerations of the public interest that make it desirable that the law should be so. Were it not, then there would be an inevitable paralysis of capacity for decisive action in the administration of public affairs.”
28. In his judgment in that case (at page 40 of the above report) Henchy J. stated:
“Breach of statutory duty may occur in a variety of circumstances and with a variety of legal consequences. Here we are concerned only with a breach of statutory duty in the making of a decision which has been committed by statute to the decision-maker. The weight of judicial opinion as stated in the decided cases suggests that the law as to a right to damages in such a case is as follows. Where there has been a delegation by statute to a designated person of a power to make decisions affecting others, unless the statute provides otherwise, an action for damages at the instance of a person adversely affected by an ultra vires decision does not lie against the decision-maker unless he acted negligently, or with malice (in the sense of spite, ill-will or such like improper motive), or that the decision would be in excess of the authorised power; see for example, Dunlop v. Woolahra Municipal Council [1982] AC 158; Bourgoin S.A. v Ministry of Agriculture [1985] 3 All E.R.585. While the law as I have stated it may be lacking in comprehensiveness I believe it reflects, in accordance with the requirements of public policy, the limits of personal liability within which persons or bodies to whom the performance of such decisional functions are delegated are to carry out their public duties.”
29. The above citation from Wade was repeated and the above judgment of Finlay C.J was followed as an authoritative confirmation of the law in this regard in the judgments of Keane C.J and Fennelly J. (with whom the other members of the Supreme Court agreed) in Glencar Exploration plc v Mayo County Council (No.2) [2002] 1 IR 84 at pp 127 and 156 respectively. Clearly, therefore, the fact that the respondent Minister has been held to have acted in excess of the power in that behalf committed to him under the Health Acts when purporting to sign into law the statutory instruments which introduced the 2003 Scheme, does not give rise to a liability for damages on the part of the Minister or the State unless it is found that the imposition of the scheme also involved the commission of a recognised tort or civil wrong. (These two authorities are referred to in further detail below at paras 93-95)
30. In their points of claim delivered in respect of the present issues, the applicants seek to bring themselves within these criteria by asserting that the unlawful imposition of the 2003 Scheme involved actionable wrongs, in that the respondent infringed:-
(a) The applicants’ right of establishment and freedom to provide services under Articles 43 and 49 of the EC Treaty;
(b) Article 86 EC in conjunction with Articles 10 and 82 EC; and
(c) Infringement of the rights of the applicants under Articles 40.3 2˚ and 43 of the Constitution to carry on business and their rights of property. (For sake of brevity, these three heads of actionable wrong will be referred to collectively below as the “three alleged wrongs”.)
31. However, in expanding upon their claims in written submissions and in oral argument at the hearing, the applicants emphasise that their claim to damages does not rest exclusively upon the finding that the 2003 Scheme was invalid, as were the HIA recommendation and the Minister’s decision to require commencement of payments under the it. They rely additionally and independently upon the three above alleged wrongs as causes of action which give rise to a claim for damages. By this the Court understands that if, for example, the 2003 Scheme had not been quashed but had simply been withdrawn and not applied at some point after the judicial review proceedings had been commenced but before any determination of issues had been made by either Court, the respondents would still have committed the alleged wrongs and should be answerable in damages.
The Findings in the High Court Judgment
32. Because the above claims of infringement have already been the subject of specific findings between the parties in the judgment of McKechnie J. in the High Court, it is necessary, in the view of the Court, to consider first the nature and effect of those findings and the basis upon which they were reached. In particular, it is necessary to consider the extent to which, if at all, the relevant findings in relation to the claims of infringement in question can be said to have been dependent upon the 2003 Scheme having been considered to have been correctly defined and interpreted by the respondents as a scheme “across the market”, and not a scheme “within the plan”. It is then necessary to examine whether and to what extent such findings in relation to the alleged infringements can or should be considered to have been affected (either negatively or positively) by the Supreme Court judgment. This appears to be necessary because, as will appear below, there are a number of passages in which Murray C.J. refers to findings made by McKechnie J. from which the possible implication might be drawn that the findings in question had been viewed by the Supreme Court as having been correctly made.
33. In the lengthy judgment, having first set out in detail the relevant provisions of the domestic legislation, the provisions of the Constitution and of the EU Treaties and secondary legislation concerned, the learned High Court judge reviewed extensively a number of technical reports that had been commissioned by the Minister, a government White Paper and other technical papers which examined the implications of, and the problems involved in, restructuring the health insurance market following the removal of the VHI monopoly. He did so with particular reference to the analysis that had been done and the advices given on the importance of ensuring stability and competition in the health insurance market, and the resulting need to provide for risk equalisation between insurance undertakings. He then considered and determined the claims and issues made in the proceedings by approaching them under six headings as follows:
(1) Delay/laches;
(2) The correct legal interpretation of “community rating”;
(3) Unauthorised delegation of legislative power;
(4) Breach of the Third Non-Life Directive;
(5) Alleged breach of Articles 43 and 49 of the Treaty;
(6) Alleged breach of Articles 86 and 82 of the Treaty;
(7) Alleged breaches of Article 43 and Article 40.3 of the Constitution.
34. Having regard to the outcome of the case before the Supreme Court, the present judgment is not concerned to re-examine the issues addressed under the headings (1), (2), or (3) above. It is to be noted, however, that the learned High Court judge concluded his findings in relation to the second issue as to “community rating” by saying:
“I therefore believe that the respondents/notice party’s interpretation of community rating for the purpose of s. 12 is correct.”
and adding:
“This conclusion has considerable significance for several other major issues in this case. For example, a great deal of the expert evidence called on behalf of BUPA was premised on the applicants’ understanding of this phrase for Risk Equalisation purposes. Obviously therefore such evidence can no longer apply given the conclusions above reached.”
35. In other words, the expert evidence adduced on behalf of BUPA in relation to the other major issues which were before the Court at that point was discounted or, at least, considered flawed for the purpose of making findings on the issues which follow in the judgment, because it had been based on the mistaken premise of the incorrect definition.
36. In the judgment, McKechnie J. had dealt separately with issue No. 3 “Breach of the Third Non-Life Directive” (paras. 162/193) and the issue of the “Breach of Articles 43 and 49 of the Treaty” (paras. 194/200). At para. 199, he concluded in respect of the latter issue that the question was determined by his decision on issue No. 3, with the result that no separate ground of challenge could arise based upon the alleged infringement of those Treaty articles. In the absence of any doubt being cast upon that approach by the Supreme Court, it is not open to this Court to be other than satisfied that the conclusion thus reached by McKechnie J. was correct. As he pointed out, BUPA had not in fact been obstructed in exercising its Treaty rights to establish a branch in the State or to provide services. What was at issue was the entitlement of the State to change the conditions under which the business in question was already being carried on by private health insurance undertakings (including BUPA) and that was clearly a matter to be determined by reference to the limitations and obligations of the Third Non-Life Directive.
37. That this is the correct approach to reliance upon Treaty articles, in circumstances where secondary legislation has implemented the Treaty objectives in question, is also supported by the case law of the Court of Justice. The general rule is that where a particular commercial activity, coming within the scope of the Community policies on free movement of goods, persons and services has been the subject of harmonising secondary legislation, usually by directive, then the secondary legislation supersedes the general provisions of the Treaty Articles. The rule originates in the judgment of the Court of Justice in the Tedeschi v. Denkavit Commerciale Srl (Case 5/77) [1977] E.C.R. 1555 and has been reaffirmed in many later cases (see for example Bristol-Myers Squib v. Paranova A/S (Case C-427/93) [1996] ECR I-3457; and Pytheron International SA v. Jean Bourdon SA (Case C-352/95) [1997] E.C.R. 1-172 at para. 17).
38. The rationale of the principle is that the provisions of the harmonising secondary legislation have as their purpose the achievement of the internal market and must therefore be regarded as giving effect, in the particular area of activity, to both the principles of freedom of movement and to the limitations of the principle contained in articles such as Article 45 of the Treaty on activities connected with the exercise of official authority. The European Commission in its “Guide to the application of Treaty Provisions Governing the Free Movement of Goods” (2010) put the point as follows at para. 3.1.1:-
“This is due to the fact that harmonising legislation can be understood as substantiating the free movement of goods principle by establishing actual rights and duties to be observed in the case of specific products. Therefore, any problem that is covered by harmonising legislation would have to be analysed in the light of such concrete terms and not according to the broad principles enshrined in the Treaty.”
39. The same principle applies to provisions such as those contained in the Third Non-Life Directive which, as its recital (1) indicates, was adopted as: “necessary in order to complete the internal market in direct insurance other than life assurance from the point of view of both the right of establishment and of the freedom to provide services …”
40. The key finding of the High Court judgment, accordingly, was that contained in the consideration of issue no. (3): “Breach of The Third Non-Life Directive”. The learned judge first points to the overall objective of the Directive (and its predecessors in the field) in seeking to complete the internal market in non-life insurance by requiring the Member States by 1st July, 1994, to abolish any existing monopolies and to install a system of financial and prudential oversight based upon authorisation and regulation by the authority of the home Member State in which an insurer has its head office. He points out that, under that system of single authorisation and supervision by the competent authority of the home Member State, the authorities of other Member States are precluded from impeding the inter-state provision of the relevant insurance services by imposing additional controls or requirements, save to the extent that derogation is permitted by the terms of the Directive.
41. Thus, the issue before the High Court turned effectively upon Article 54 of the Directive and the question as to whether the 2003 Scheme, as introduced by the Minister, came within the scope of the derogation permissible under that Article. At para. 164 of his judgment, the text of Article 54 is cited and McKechnie J. then proceeds to consider its correct construction in the light of the submissions made and having regard especially to the recitals to the Directive which he cites at para. 166. In particular, the submissions made by BUPA challenging the compatibility of the 2003 Scheme with what was permitted under Article 54 focused on the issue as to whether, in Ireland, the insurance contracts covering the risks identified in Article 54.1 served “as a partial or complete alternative to health cover provided by the statutory social security system” and whether the Minister’s Scheme obligations could be said to be necessary “to protect the general good in that class of insurance”. BUPA’s case had been that, for the series of reasons summarised by the judge, the Scheme was incompatible with the Directive and was not saved by the terms of derogation permitted under Article 54.
42. In addressing these submissions, McKechnie J. had regard to information and material as to the types of social security system operated in various other Member States in assessing whether the system for private medical insurance in Ireland was to be characterised as a substitute for, or an alternative to, the cover provided by the State social security system, as opposed to be being a supplementary system. He also had regard to “the general background”, described in paras. 177/178, in endeavouring to discern what the legislator (the Council) had in mind, as an aid to determining the correct meaning of the Directive. McKechnie J. also took into account the fact that, in advance of the enactment of the Health Act 1994, the European Commission had considered and assessed a draft equalisation scheme as then envisaged and had expressed the view that, in Irish circumstances, a private health insurance plan did constitute an “alternative”, where it provided for at least the same type of benefit as that available under social security.
43. It was the possibility for derogation in this regard provided by Article 54 of the Directive which was the principal focus of the submissions made in the High Court and which forms the basis of the analysis set out at paras. 165 – 193 of the judgment of McKechnie J. Paragraph 1 of that Article provided that, for insurance contracts covering the risks identified in class 2 of point A of the Annex to Directive 73/239/EEC, a Member State in which such contracts “may serve as a partial or complete alternative to health cover provided by the statutory social security system” might require that the contracts comply with “the specific legal provisions adopted by that Member State to protect the general good in that class of insurance”. This part of the judgment was therefore, concerned with a detailed analysis of the essential elements upon which that possibility for derogation was formulated, including in particular the scope and effect of the notion that such contracts serve as a partial or complete alternative to the social security system cover, and the requirement that the specific legal provisions of the host Member State had as their purpose “to protect the general good” in the class of insurance concerned.
44. Having examined the basis upon which the public health sector is operated in the State and taking into account the equivalent systems in a variety of other Member States, he concluded at para. 184 that: “the Irish PMI system acts as an alternative, either partially or completely, to the public health system operating in this country”. There is, accordingly, a clear finding on the mixed issue of fact and of interpretation of Article 54 made on foot of the detailed analysis of the provisions and in the light to extensive evidence put before the Court at the hearing.
45. From para. 190 onwards, McKechnie J. then considered the element of “general good” as a requirement to be met if the specific national legal provisions were to be permissible on the basis of Article 54. For this purpose, the judge had regard to consideration given to the concept of “general good” in the jurisprudence of the Court of Justice as distilled by way of summary in the interpretative communication already mentioned above, and set out in para. 190 of the judgment. He thus held that, in order for the specific legal provisions adopted in the form of the Risk Equalisation Scheme to be deemed necessary “to protect the general good”, they had to be shown to meet the requirements that they: come within a field which has not been harmonised; must pursue an objective of the general good; must be non discriminatory; must be objectively necessary; must be proportionate to the objective pursued; and the objective must not be one which is already safeguarded by rules to which the undertaking is already subject in the Member State of establishment.
46. Taking into account various policy documents, including the Government White Paper as quoted in the judgment, McKechnie J. concluded that a risk equalisation scheme for the purpose of supporting the particular form of community rating – that is, community rating across the market – was sought to be introduced by the Minster in order to protect the general good for the purposes of Article 54.1.
47. The other requirements of protection of the general good were then separately examined from the point of view of objective justification and proportionality as part of the assessment of the issues raised under Articles 43 and 40 of the Constitution and Articles 86 and 82 EC.
48. It is important, of course, to bear in mind that while the Third Non-Life Directive completed the attainment of the internal market for non-life insurance services by coordinating the laws, regulations and administrative provisions applicable to such business, it did so in respect of some aspects of the activities concerned only at the level of minimum standards. In those areas where the coordination was at that level, the Member States remained entitled to define stricter standards when exercising their authorisation powers for the setting up of an insurance undertaking in the home Member State as described in recital (8). McKechnie J. had therefore to consider whether the introduction of the 2003 Scheme by statutory instrument in this case constituted “specific legal provisions” of the kind envisaged in Article 54.1. He concluded that it did, by reference to the explanatory terms of recitals 22 – 24 of the Directive and particularly to that part of recital (24) which described such measures as potentially including provision for:
“Open enrolment, rating on a uniform basis according to the type of policy and lifetime cover; that . . . requiring undertakings offering private health cover or health cover taken out on a voluntary basis to offer standard policies in line with the cover provided by statutory social security schemes at a premium rate or at below a prescribed maximum and to participate in loss compensation schemes . . .”
49. On that basis McKechnie J. concluded that a risk equalisation scheme could come within the concept of “loss compensation scheme”, and as such within the ambit of “specific legal provisions”, within the scope of the permissible derogation of Article 54. It is notable that, in reaching the conclusion given in para 192 of the judgment, he did so on the basis that the pursuit of the general good objective by the Minister, in introducing the 2003 Scheme, was predicated on the recognition, as expressed particularly in the White Paper, that inter generational solidarity played a key role in supporting community rating which, as he put it: “[…] in this context, has its s.12 meaning”. In other words, the finding as to the characterisation of risk equalisation as a “loss compensation scheme” for the purpose of Article 54 is made on the basis that the particular scheme introduced was an “across the market” scheme.
Articles 86 and 82 EC
50. In the section of his judgment between paras. 201 and 236, McKechnie J. addresses the claim made to the effect that the imposition of the 2003 Scheme in the statutory instruments infringed Article 86 of the Treaty, in that it had the effect of depriving the competition rule on abuse of dominance contained in Article 82 of its effectiveness. It was submitted on behalf of BUPA that the 2003 Scheme distorted competition by deterring new entrants; by forcing smaller undertakings to alter pricing strategy while leaving the VHI unaffected; and by effectively expropriating assets from smaller undertakings for transfer to the dominant undertaking, the VHI. It was further submitted that any attempt at putting forward an objective justification for this distortion of competition was unfounded. Any scheme which required an undertaking with a 20% market share to make very large financial transfers to the dominant undertaking could not, almost by definition, pass scrutiny under any proportionality test. Further, it was submitted that no defence was available to the State under Article 86(2) EC because the VHI had not been “entrusted” with a “service of general economic interest”.
51. In analysing these claims McKechnie J. had particular regard to the opposing evidence on the part of the experts called by the parties as to whether the scheme distorted competition. At para. 230 he concluded that “this scheme involved some elements of anti competitive behaviour in that the pricing structure of the market is interfered with and entry is less attractive . . . Therefore competition is distorted”. He declined, however, to accept the characterisation of the financial transfers under the scheme as amounting to expropriation or confiscation. They were designed to compensate for a loss of disadvantage and to restore the profile balance between the undertakings. On that basis he reasoned (para. 231) that it fell to the State to prove the existence of an objective justification for this impact on competition or to satisfy the Court that the State could rely upon para. 2 of Article 86. He identified five factors as requiring to be satisfied if there was to be an “objective necessity defence”:-
1. The measure imposed must satisfy the proportionality test;
2. The aim of the measure must be defined;
3. The chosen means must be suitable to achieve the aim;
4. The measure must be indispensable to the aim in the sense that the result cannot be achieved by any alternative measure which is less anti competitive or of shorter duration;
5, The measure must constitute an appropriate response in the context of Article 82.
As the consideration of these factors arose also under the heading of the constitutional challenge, they were dealt with in the judgment in the latter context.
52. McKechnie J. then dealt with the reliance placed by the State on Article 86(2). It was not seriously disputed, he considered, that the provision of private medical insurance within a statutory scheme is both a service and a service of economic nature and was both directed at the general population and availed of by a large section of it. He concluded that “community rating, open enrolment and lifetime cover could not operate in this country, in economically acceptable conditions, without the presence of a Risk Equalisation Scheme” with the result that the restrictions by way of impact on competition were necessary in order to ensure that the services in question could be carried out in economically viable conditions. At para 234, he said: “So long as there is a fundamental State commitment to community rating across the market, no sustainable case exists, or has been made out, even by BUPA that such a system can survive without some form of Risk Equalisation Scheme”. He added:
“There is no obligation on the State to satisfy the Court that the Irish system is the only conceivable way of providing medical insurance in this jurisdiction
. . . Rather the question is, given the established and preferred state method of providing private cover, enjoying as it does a margin of appreciation in this regard, are the resulting restrictions proportionate to the aims. In my view they are, because if one were to apply the Treaty Rules on Competition, the provision of such a service could only take place and certainly could not take place in conditions of economic acceptability. Accordingly I believe that Article 86(2) is available in this case.”
53. Again, therefore, the High Court judgment, following a detailed trial on the merits comprising extensive expert evidence and very thorough legal argument, concluded that there had been no infringement of the Treaty rules in question.
54. As already indicated, the question of “objective justification”, both in the context of compatibility with the Third Non-Life Directive and for the purpose of the arguments based on Articles 86 and 82, was dealt with in the judgment under the heading of the claims made of interference with constitutional rights under Article 43 and Article 40.3 of the Constitution.
55. Central to the issue as to the compatibility of the Scheme with the limitations imposed by the Articles of the Constitution on encroachment on property rights was a question of the proportionality of the apparent impact which the scheme would have. The respondents had argued that, if the 2003 Scheme and s. 12 of the Act of 1994 (which was impugned as invalid) were held to be compatible with the Third Non-Life Directive, and therefore held to represent permissible conditions on the applicants’ entitlement to conduct non-life insurance business in the State, it could not be said that there had been any unlawful interference with their property rights. McKechnie J. declined, however, to accept the respondents’ submission that the financial effect of the 2003 Scheme on BUPA was to be ignored for this purpose. At para. 249, he cited the evidence that had been given as to the projected liability which BUPA would incur and concluded:-
“Even allowing for BUPA’s historical understating of its anticipated profits and building in a capacity for price increases, which would not unduly effect its revenue generating capacity, there can be no doubt but that on these figures it would be difficult for the applicants, without major structural changes and with its current business model, to cover payments and also obtain an acceptable return on capital. Therefore it is likely that in the short term the scheme will have a significant impact on, at least their profitability, if not also on their reserve fund.”
He added:-
“I am therefore satisfied that with their current business regime, the financial liability resulting from equalisation payments will have a significant impact on BUPA. Accordingly in my view and without any necessity to further elaborate on the evidence, it is safe to proceed on the basis that there is a prima facie infringement of the applicants’ constitutional right to property. Therefore the State must justify.”
56. There then follows an extensive portion of the judgment in which McKechnie J. addresses the “general good” requirement of Article 54, the “objective justification” element of Article 82 and what is referred to as the “obstruct” component of Article 86.
57. This includes a detailed consideration of the expert actuarial, economic and accountancy evidence given on either side as to the alleged deficiencies and detrimental effects of the scheme and the responses given to those criticisms. (See paras. 264/278). As a significant and important part of the evidence relied upon by BUPA was that given by the economist Dr. Koboldt, it is relevant to note an observation made upon it in this context by McKechnie J. at para. 279:-
“In the first place, he offered a view that community rating, in the sense of community rating within plan (or the s. 7 definition) did not require a risk equalisation system to support it. There is no dispute about this proposition. However, his report and his evidence are crucially defective in this central area because both proceeded on a basis that community rating had no meaning other than that just described. Therefore a great deal of his evidence is virtually redundant given my finding on the correct legal meaning of community rating for the purposes of s. 12 of the 1994 Act, and of course for the purposes of the risk equalisation scheme.”
58. Crucially, therefore, as has been submitted on behalf of BUPA to this Court, McKechnie J. has there effectively rejected an important part of the evidence relied upon by BUPA at the original High Court hearing and has done so because it was considered to have proceeded on the basis of community rating as defined in s. 7 which McKechnie J. considered mistaken but which the Supreme Court has now definitively ruled to have been correct. It is also obviously significant that the Court appears to have accepted that there was no dispute as to the proposition that, if what was intended and authorised by the provisions of the 1994 Act was “community rating within the plan”, a scheme of risk equalisation such as that purported to be introduced in the 2003 Scheme (“across the market”) was not required. This has obvious implications for any assessment of the necessity, proportionality and therefore of the objective justification for the 2003 Scheme.
59. In this part of the judgment, McKechnie J. considers also the evidence of the expert witnesses called on behalf of the respondents and particularly that of the two economists, Dr. Walker and Dr. O’Toole, which he preferred and accepted. In the concluding passages of the judgment, from para. 290 onwards, McKechnie J. sets out his essential conclusions on these issues. He held that, on the basis of the economic evidence which he accepted, the market in question is potentially unstable without risk equalisation in the Irish system, and that the 2003 Scheme was therefore “absolutely necessary to support the present system”. He held that, moreover, “it is fair, reasonable and proportionate and the respondents (recte the applicants’) evidence has not undermined this view”.
60. He then dealt with further issues that had been raised, such as whether BUPA had followed a policy of “shadow pricing” since entering to the market and whether it had earned “super profits” in it by doing so. As regards the former, he expressed the view that the evidence suggested that, at least on some occasions, BUPA had adopted a practice very close to shadow pricing, as it indicated that the level of price increases was significant and appeared to be inconsistent with BUPA’s claim that the parity of increases with VHI increases was largely due to similarity of input cost. In regard to the latter issue, he found that BUPA appeared on the evidence to have earned percentage profits which were substantially in excess of any other relative indicator in the sector.
61. Finally, at para. 295, McKechnie J. referred again to the decision of the European Commission of 13th May, 2003, under the State aid provisions of Article 87 EC, following the State’s notification of the 2003 Scheme under that provision. He described the decision as “highly relevant for [the Commission’s] views on the necessity and proportionality of the Risk Equalisation Scheme”. (He referred particularly to paras. 50-59 of the decision). He concluded by saying that he respectfully agreed with the Commission’s decision that the 2003 Scheme had passed both the necessity and the proportionality test and in the final paragraph of the judgment concluded:-
“For the reasons above given I am satisfied that the respondents have discharged the justification and the objective justification test which they must in order to succeed in defending these proceedings. Moreover the impact upon BUPA’s constitutional rights are required within the terms of Article 43 and therefore do not amount to an unjust attack under Article 40.3.”
62. It has been necessary to set out in some detail the above salient aspects of the High Court judgment in order to identify both the specific conclusions reached on the individual issues which remain relevant so far as concerns the liability issue now before this Court, and also to illustrate the extent to which those findings arose out of a full hearing of the claims on the merits following a consideration of detailed evidence, both factual and expert, and a very extensive consideration of legal submissions as to both the requirements and effects of national and EU law.
The Supreme Court Judgment
63. It is next appropriate, accordingly, to look briefly at the basis upon which the Supreme Court, in the judgment of Murray C.J., had regard to those particular findings when arriving at its ruling that a mistake had been made in the interpretation of the definition of “community rating”, with the result that the statutory instruments were ultra vires and were thereupon quashed.
64. As already indicated in para 16 in this judgment, the applicants’ appeal against the High Court judgment was successful, but upon the sole ground that the interpretation of the definition of community rating by reference to ss. 2, 7 and 12 of the Act of 1994 was mistaken, such that the 2003 scheme was ultra vires the powers of the Minister to make the statutory instruments. Nevertheless, in assessing the effect of the Supreme Court order to remit the question as to liability of the respondents for damages in these circumstances for consideration by this Court, regard must be had to the implications of observations made in the judgment of Murray C.J. on some of the above findings of McKechnie J. in relation the evidence given and the analysis made in the High Court.
65. Under the heading of “Impact of the Risk Equalisation Scheme” Murray C.J. said:
“It is quite clear, and the learned trial judge so held, that the risk equalisation scheme as introduced by the Minister, with its concomitant version of community rating of premiums across the entire market in the sense argued for by the Minister, would have serious impact on the economic and trading position of BUPA and potentially for any other recent or new entrant to the market of private health insurance.”
The conclusion of McKechnie J. in para 230 of his judgment (see para. 51 above) that competition was therefore distorted is quoted by Murray C.J. He then observed:-
“It is of course the case that such negative impact on competition in the market may be objectively justified and indeed the learned trial judge found that it was so.”
Murray C.J. pointed out that it was for the legislator in the first instance to determine the extent to which competition could be interfered with, having regard to the legislative objectives, and then said:
“I make reference to the potential effects of the Risk Equalisation Scheme on competition in the private health insurance market not for the purpose of examining the extent of or the justification for such measures but simply for the purpose of highlighting one of the important and potentially far reaching effects which legislation providing for the establishment of such a scheme may have.”
66. Given that there had been no cross appeal by the respondents against the findings adverse to them made by McKechnie J. as to the damaging impact of the Scheme upon the commercial interests of the applicants and its distorting effects on competition, together with the fact that in the appeal the applicants had contended that McKechnie J. had erred in underestimating the severity of the impact and anti -competitive effect, these observations of the Supreme Court can, in the view of the Court, only be taken as reaffirming the findings in question so far as they were in favour of the position of the applicants, while at the same time refraining from making any finding on the question of the contended justification for the scheme as a defence to the claims.
67. The Supreme Court judgment continues with some comments on the findings made in the High Court in relation to the important implications for BUPA’s trading position and profitability of the 2003 scheme once it came to be applied. It notes that McKechnie J. did not accept the applicants’ claim that the required payments would have made it unprofitable for BUPA to remain in the market. Murray C.J. observes:-
“Leaving aside the constitutional issue as such, it is nonetheless evident that the scheme in question, established pursuant to the provisions of s. 12, would have serious effects on the trading profitability of BUPA and inevitably have implications for any undertaking considering entering the market in the future.”
BUPA’s argument was that McKechnie J. should have concluded that the impact on profitability would have been far greater. It was not necessary for the Chief Justice to address that issue and he mentions it only as a matter to be taken into account when interpreting s. 12 in the light of sections 2 and 7. There is then the explicit statement:-
“I consciously refer to potential impact on constitutional rights, as I do not think it is necessary, for present purposes, to determine whether such rights have actually been limited and if so whether such limitation is justified.”
68. It clearly follows that the judgment of the Supreme Court must taken as containing no finding which either reaffirms or casts doubt upon the assessment made in the High Court on the issue as to the alleged infringement of constitutional rights, which, as pointed out above, incorporated the assessment made by McKechnie J. of the issues of objective justification, necessity, proportionality and protection of the common good.
69. Later in the judgment Murray C.J. refers again to the impact of the 2003 Scheme, with its concomitant component of community rating, and to the argument that the learned trial judge had underestimated the effects, pointing out that: “the respondents did not challenge those findings although they argued against some of their implications and said they were in any event objectively justified”. He then adds the comment: “Justified or not, from any point of view a scheme based on community rating across the entire market has actual and potentially serious implications for undertakings in the market”. In the judgment of this Court, these passages can only be read as an affirmation on the part of the Supreme Court that the evidence before the High Court and the assessment made of it by McKechnie J. was at least capable of supporting his findings as to the seriousness of the adverse impact of the 2003 Scheme upon the commercial position of BUPA, and as to its anti-competitive implications and effects. It was only in respect of the issue as to whether such consequences could be excused and rendered lawful as objectively justified that the Supreme Court judgment stops short of expressing any view on the High Court judgment. In reaching the conclusion on the definition issue, the judgment also made this observation:-
“It may well be that the best and most effective, and perhaps even the only effective, means of achieving certain policy objectives is to provide by statute for a form of community rating across the whole market of insured persons and one which is not confined to community rating within the plan. That is a choice for the Oireachtas to make particularly when it has to be balanced with other policy considerations such as the admitted anti-competitive effects of a scheme based on such a form of community rating.”
70. This observation would seem to indicate that it was considered to be, in principle, within the competence of the Oireachtas to overcome the problem which the Supreme Court identified in the definition of “community rating”, by legislating to provide for an appropriate power to impose a risk equalisation scheme based upon community rating across the entire market. The judgment contains, however, no express finding one way or another as to whether the imposition of such a scheme would ultimately prove permissible as an objectively justifiable interference with property rights under the Constitution, or as a measure compatible with the Third Non-Life Directive under its Article 54 and with Article 86 EC.
71. The outcome of the cumulative effect of the High Court and the Supreme Court judgments so far as concerns the position of this Court on the issues now before it, appears to be as follows. The High Court has made a series of clear findings on issues of fact and of mixed fact and law in relation to the detrimental effects contended for by the applicants as to the impact of the 2003 Scheme on BUPA’s commercial position, viability and profitability and as to its distorting effects on competition. These have not been set aside or put in doubt by the judgment of the Supreme Court and, indeed, as indicated above, might be considered to have been in some respects impliedly affirmed. On the other hand, the Supreme Court has expressly refrained from making any finding or giving any view on the findings made by McKechnie J. to the effect that the introduction of the 2003 Scheme was nevertheless not unlawful because, for the purposes of issues Nos. 3, 4 and 5 above, the restrictions and burdens which the scheme brought about for undertakings, including BUPA, were considered necessary, proportionate and objectively justified for the protection of the general good.
Res Judicata
72. As already indicated, the respondents strongly contend that it is not now open to the applicants to seek to relitigate the High Court findings made as to the objective justification which saved the 2003 Scheme. This is, in effect, a plea of res judicata. It is, however, a plea based upon issue estoppel rather than action estoppel, in that the only action between the parties remains before the Court and has not been determined. Nevertheless, as Denning L.J. said in Fidelitas Shipping v. V/O Exportchleb [1966] 1 Q.B. 630 at 640: “Within one cause of action, there may be several issues raised which are necessary for the determination of the whole case.” That was obviously so in the present litigation, in that McKechnie J. was obliged to determine a series of complex issues of fact and law, including the issues which are again before the Court as relied upon by the applicants in the three alleged wrongs.
73. The elements necessary in order to successfully plead issue estoppel are not in doubt. They were summarised by O’Neill J. in Sweeney v. Bus Atha Cliath [2004] 1 I.E. 576 at 581. He said:
“The ingredients necessary to invoke the doctrine of res judicata, on this ground, were summarised in the following passage in the judgment of Keane J. as he then was, in the case of McCauley v. McDermot [1997] 2 I.L.R.M. 486 at p. 492 as follows:-
‘While the doctrine of what has come to be called ‘issue estoppel’ has been the subject of explanation and analysis in many modern decisions, its essential features were helpfully summarized as follows by Lord Guest in Carl Zeiss Stiftung v. Rayner and Keeler Limited [1967] 1 A.C. 853 at p. 935A:
The requirements of issue estoppel still remain
1. That the same question has been decided;
2. That the judicial decision which is said create the estoppel was final; and
3. That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.’”
That summary of the ingredients was approved as “careful and accurate” by the Supreme Court on appeal. ([2004] 1 I.R. 576; see the judgment of Keane C.J. at p. 589).
74. There is no doubt that, in the situation now before this Court, these same questions have been considered and have been the subject of the judicial decision of McKechnie J., and that the parties are the same persons. The issue, accordingly, is whether, in these particular circumstances, the decisions of McKechnie J. are properly characterised as final decisions in the above sense. The respondents point to the fact that the findings of objective justification were the subject of grounds of appeal before the Supreme Court, but, obviously, the Supreme Court expressly refrained from making any ruling upon them and the applicants did not seek to invite the Supreme Court to rule upon those grounds. (They refer in this regard to the approach that had been adopted by appellants in the case if Dellway Investments Limited v. National Asset Management Agency [2011] IESC 3.)
75. Although the situation is unusual, the Court is satisfied that it would be a questionable extension of the concept of issue estoppel to treat these particular issues as having been the subject of final judicial decision in this litigation. In the first place, that does not appear to have been the intended consequence of the Supreme Court determination of the ultra vires issue, for example, in the passages quoted in paras. 64 to 68 above, where Murray C.J. expressly refrains from making any comment upon the questions of objective justification and as to whether the limitation on constitutional rights would be justified.
76. More importantly, however, it is clear, as already adverted to in the above review of the judgment of McKechnie J., that his findings were explicitly predicated on his view of the correct interpretation of the definition of “community rating”. As already pointed out, he acknowledged that his conclusion had “considerable significance for several other major issues” and he felt obliged to discount important parts of the applicants’ expert evidence as a result. (See paras. 34 and 35 above). A further crucial element in the conclusion reached by McKechnie J. was that adverted to in para. 52 above; namely, his understanding that “there is a fundamental State commitment to community rating across the market”. However, it is now clear from the judgment of the Supreme Court that, while there may well have been a fundamental commitment to community rating across the market on the part of the Minister and her advisers, it was based upon a mistaken view of the type of community rating which the Oireachtas had authorised in the Act of 1994. The observation by McKechnie J. to the effect that there was a fundamental commitment of the State is clearly vitiated by the construction given to the Act by the Supreme Court. Insofar as the commitment evinced by the State is that legislated for by the Oireachtas in ss. 2 and 7 of the Act of 1994, it is a commitment to community rating “within the plan”. Clearly, therefore, there was a crucial connection between the finding of objective justification in the High Court judgment and the understanding that there was a “fundamental State commitment” to community rating across the market on the basis that such a risk equalisation scheme was essential to the operation in economically acceptable conditions of a system of community rating based upon open enrolment and lifetime cover. As pointed out in para. 52 above, the finding in favour of the respondents that “Article 86(2) is available in this case” was thus bound up with the acceptance of the proposition that the 2003 Scheme was necessary in order to give effect to the State commitment to community rating across the market.
77. Furthermore, as pointed out in paras. 54 – 58 above, this view of the definition of community rating and of the commitment to community rating across the market as fundamental to the sustainability of the system sought to be achieved, was also considered by McKechnie J. to underpin the conclusion reached that the respondents had discharged the objective justification test for the purposes of the applicants’ reliance upon their constitutional rights of property and that, of course, formed a part of his rulings under the other headings also.
78. The Supreme Court, in finding that the 2003 Scheme was ultra vires the 1994 Act, clearly envisaged, depending upon the terms in which the Oireachtas might ultimately legislate to provide for the introduction of a scheme based on community rating across the market, that such a scheme might well be shown to be capable of objective justification notwithstanding the obvious impact which it would have on competition and on the commercial positions of other insurers in the market. Obviously, issues as to the reasonableness, proportionality and objective justification of any scheme will be dependent upon or influenced by the nature and extent of the impact of a scheme on competition in the market and on the interests and rights of other undertakings.
79. Furthermore, in refraining from expressing any view on the issue of objective justification, the Supreme Court was clearly alive to the possibility that amending legislation, designed to cure the flaw in the Minister’s power to introduce community rating across the market, might not necessarily result in a scheme being introduced which fully replicated the 2003 Scheme, so that considerations of reasonableness, proportionality, objective justification and impact on other undertakings would fall then to be assessed according to the nature and effect of the actual scheme and the market conditions prevailing at the time. That however is not a relevant factor here because the applicants’ claim for damages is directed at the 2003 Scheme as provided for under S.I. 260 of 2003 and as purported to be put into practical effect by the Minister’s decision of 23rd December, 2005, to require commencement of the payment obligations on 1st January, 2006. It was only as and from the latter date that BUPA began to incur a need to make accounting provision for a prospective liability.
80. In remitting the issue of liability to the High Court, in circumstances where the Supreme Court acknowledged the findings made by McKechnie J. as to the distorting effect of the 2003 Scheme on competition and its adverse impact on BUPA’s commercial position, while refraining from expressing any view on the issues of objective justification, the Supreme Court must be taken as having intended the High Court to examine the liability issue by reassessing the question as to the objective justification of the 2003 Scheme in the light of the impact of the finding as to the correct interpretation of the statutory definition on the conclusions previously reached on those questions.
81. Given the importance attached by McKechnie J. to what he considered to be the fundamental commitment of the State to community rating in the s. 12 form, it must follow that the effect of the Supreme Court judgment has been to require the High Court in determining the issue of liability to reassess the questions as to whether the 2003 Scheme was capable of objective justification, had it been competently adopted. That however, must in turn necessarily involve, should the applicants so require, the reopening of the findings made by McKechnie J. as to the nature and extent of the adverse, detrimental and distorting effects of the 2003 Scheme. BUPA had contended before the Supreme Court that the High Court had underestimated these effects, and would presumably argue that the more serious the effects are found to be, the greater is the difficulty in demonstrating that the Scheme could be objectively justified. If the applicants are not estopped from reopening the issue of objective justification, there does not appear to be any basis for holding that the respondents are estopped from reopening the related findings of prima facie infringement or incompatibility at which the objective justification question was addressed. Issue estoppel cannot, in the view of the Court, operate on a piecemeal basis by application to the constituent findings within the issue which has been determined. In this instance, the High Court determined the three issues as to infringement of the Directive, of Articles 86 and 82 and of the constitutional rights. Each of those determinations involved two or more constituent findings. For example, the issue as to the infringement of the Directive involved a series of findings as to the characterisation of private health insurance in the State as alternative to health cover provided by the social security system; as to whether the 2003 scheme was a “specific legal provision” of the kind envisaged by Article 54.1 and as to whether the scheme was necessary “to protect the general good”. (See above paras. 41 – 49).
82. In the view of the Court, it is impossible, for the purpose of applying the principle of issue estoppel, to subdivide such findings within the determination of a given issue. It is the determination of the substantive issue as a whole to which the principle can apply.
83. This situation is further complicated by the fact that the issue of liability now falls to be determined by this Court and not by McKechnie J., as might otherwise have been the case. It seems to the Court that had the issue fallen to be determined by the trial judge he would have been entitled to reassess the issues on the basis of the evidence as originally presented to him, without retrial, and in the light of the Supreme Court ruling on the definition of “community rating”. Not having heard that evidence, this Court cannot adopt that approach – at least in the absence of the agreement of the parties – without resorting to a potentially unfair procedure. By the same token, however, if it is correct to regard the findings on the objective justification questions as no longer tenable, it would appear equally unacceptable that the applicants should be deprived of the opportunity of having those questions re-determined on the basis of the evidence they rely upon as to the disproportionate and excessive effects and impact of the 2003 Scheme and in support of their contentions that it was incapable of being saved by considerations of necessity, justification and pursuit of the common good.
84. Accordingly, in the judgment of the Court, the effect of the Supreme Court judgment in this regard is that, should it be necessary to do so, the determination of the issue of the respondents’ liability for damages, if any, will necessarily involve a re-examination of those claims of infringement, and, in the changed circumstances that now exist, to a rehearing of the relevant evidence, unless the parties agree otherwise.
The Alleged Wrongs
85. Notwithstanding that conclusion it appears to the Court to be both appropriate and necessary to address the preliminary issues identified in the Court’s order in paragraph 20 above at A.(2) and B.(1). As explained above at paragraph 29, the applicants rely in their claim for damages on the three alleged infringements both as recognised torts or wrongs for the purpose of the Pine Valley/Glencar principle and as wrongs committed independently of any error of law in the ultra vires adoption of the statutory instruments.
86. There is no doubt that, as a matter of both Irish law in relation to infringement of constitutional property rights and of European Union law in relation to the infringement of rights conferred by that law which Member States are bound to respect, an entitlement to compensation by way of damages for losses incurred may arise and that the High Court is competent in both cases to award them, provided that the essential criteria of liability are proven to exist. (See, for example, Emerald Meats Limited v. Minister for Agriculture & Ors. [1997] 1 I.R. 1 and Maxwell v. Minister for Agriculture, Food and Forestry [1999] 2 IR 474)
87. The question therefore arises as to whether, in the particular circumstances of this case, those criteria would be established if it is assumed that, on any re-examination and/or rehearing of evidence (should such be necessary) as to the three alleged wrongs, it was determined that the 2003 Scheme had adverse effects on BUPA’s commercial position, on property rights and on competition, as least as detrimental and distorting as that previously determined by McKechnie J., and that the defence of objective justification failed to save it from being unlawful? This question arises because of two particular factors which are peculiar to the situation of the parties. These are, first, the fact that the effect of the Supreme Court order has been to quash the statutory instruments upon which the legal and practical impact of the 2003 Scheme depended, thereby rendering them void ab initio. Secondly, BUPA never actually made any transfers on foot of the payment obligations of the Scheme prior to its being quashed, although, of course, it claims to have sustained loss in having been compelled to mitigate its prospective future loss by disposing of the business for a value less than that it would have had in the absence of the purported imposition of the 2003 Scheme. If the 2003 Scheme never had effect in law, because it was void ab initio as the applicants had contended from the outset, and if the stage was never reached at which actual transfers were compelled to be made, such that the distorting effect on competition of the transfers never occurred, has any justiciable wrong in the senses of the necessary ingredients of the three alleged wrongs actually been committed? Even if it is shown, for example, that the 2003 Scheme would have been unjust if implemented, has any actual attack on property rights taken place if the payments were never made? It is necessary, therefore, to consider the essential elements which must be established in order to maintain a claim for damages under each of the headings of the three alleged wrongs.
88. Because of the relationship, as explained below, between the institutions of the European Union and the Member States, so far as concerns non contractual liability for losses caused through infringement of rights protected or afforded by European law or the provisions of European Treaties and legislation, it is appropriate to consider first the position in Irish law in relation to claims of tortious infringement of constitutional rights.
The Constitutional Wrong
89. That position is not in doubt. Since at least the judgments of the Supreme Court in Byrne v. Ireland [1972] I.R. 241, it has been clear that a right guaranteed by the Constitution carries with it its own right to a remedy even if the action to enforce it does not fit into any of the ordinary forms of action. (See, for example, the judgment of Walsh J. in Meskell v. C.I.E. [1973] I.R. 121). The entitlement gives rise, however, to a discrete cause of action for damages for infringement of constitutional rights only where the harm alleged to have been sustained is not already remediable by an available cause of action under common law or statute. (See for example the judgment of Costello J. in W. v. Ireland (No. 2) [1997] 2 IR 141). It is also clear that where the circumstances of the infringement indicate that it was accompanied by elements of deliberation, of particular oppression or other factors rendering the defendant’s position reprehensible, compensatory damages may be enhanced by aggravated or punitive damages. (see, for example, Kennedy v. Ireland [1987] I.R. 587 and Herrity v. Associated Newspapers (Ireland) Limited [2009] 1 I.R. 361 )
90. Furthermore, it is settled law that in the case of alleged infringements of the rights of property, the protection of Articles 43 and 40.3 2° extends to artificial entities such as limited companies. (See the judgment of Keane J. in Iarnród Éireann v. Ireland [1996] 3 I.R. 321). Next, it is also well settled that not every encroachment by the State upon private property amounts to an “unjust attack” in the sense of Article 40.3 2° of the Constitution. That article falls to be read in conjunction with Article 43, and particularly para. 2 of the latter, which recognises that the State “may as occasion requires delimit by law the exercise of the said rights with the view to reconciling their exercise with the exigencies of the common good”. In Dreher v. Irish Land Commission [1984] I.L.R.M. 94, Walsh J. said: “I think it is clear that any State action that is authorised by Article 43 and conforms to that Article cannot by definition be unjust for the purposes of article 40.3 2°”. This approach has been followed in several subsequent cases including by Murphy J. in Lawlor v. Minister for Agriculture [1990] 1 I.R.356 and by the Supreme Court in O’Callaghan v. Commissioners for Public Works [1985] I.L.R.M. 364.
91. It is to be noted, however, that in all of those cases and in others where legislative provisions or administrative decisions have been challenged as unlawfully encroaching on the property rights protected by Article 40.3 2°, the Courts have been considering instances in which the impugned provisions have had actual effect, such that there had been, or there was liable to have been, an actual encroachment upon the property rights in question. In the judgment of the Court that is not the case here. As already alluded to above, the 2003 Scheme was originally promulgated in June 2003, and signed by the Minister on the 26th of that month. It had been notified to the European Commission under the State aid provisions of the Treaty and been approved by a decision of the Commission on the 13th May, 2003, as not constituting State aid. The Scheme had been opposed from the outset by the applicants, who brought an action for annulment of that decision before the Court of First Instance of the EC under the title of British United Provident Association Limited and Others v. Commission (Case T-289/03). Their application was ultimately, on 12th February, 2008, refused by that Court.
92. Under the provisions of the 2003 Scheme, health insurers were required to submit periodic returns of quarterly data to the first named respondent, and on the basis of that information the first named respondent was empowered to make a recommendation to the Minister as to whether the obligation to commence payment of Risk Equalisation transfers should be commenced. When the present proceeding was originally initiated in 2005, a stay was obtained upon the implementation of payments under the scheme by the Minister, but that relief became moot when the Minister decided not to implement the recommendation at that point. It was only, accordingly, on 1st January, 2006, that the payment obligations came into effect. No payments in fact came to be made by the applicants, and when the High Court judgment was given on 23rd November, 2006, further implementation of the 2003 Scheme was stayed by McKechnie J. pending the filing of a notice of appeal. That stay was subsequently continued by the Supreme Court pending the determination of the appeal. In the meantime, the applicants had announced their decision to leave the Irish market on 14th December, 2006, and they subsequently disposed of their business in the State in March 2007. In these circumstances, in the judgment of the Court, the combined effect of the quashing of the 2003 scheme as ultra vires and the fact that no actual payments came to be made has the result that no actual attack upon property rights of the applicants or the right to carry on business has in fact occurred. To the extent that the applicants’ claims from the outset have been based upon their constitutional entitlement to protection of those rights, their claims have been vindicated by the relief obtained from the Supreme Court.
93. Claims for damages analogous to the present claim have been considered by the Courts in a number of cases in different circumstances. Two of them have already been referred to above. In Pine Valley Developments v. Minister for Environment [1987] I.R. 23, concerned an ultra vires decision of the respondent to grant permission for a development of the plaintiff’s lands, in which it was accepted that it had probably contributed to the diminution in value of the land in question. The claim for damages was rejected, however, by the Supreme Court, Finlay C.J. saying (at page 38):-
“I am satisfied that it would be reasonable to regard as a requirement of the common good an immunity to persons in whom are vested statutory powers of decision from claims for compensation where they act bona fide and without negligence. Such an immunity would contribute to the efficient and decisive exercise of such statutory powers and would, it seems to me, tend to avoid indecisiveness and delay, which might otherwise be involved.”
94. This approach was followed in the judgments of the Supreme Court in Glencar Explorations plc v. Mayo County Council (No. 2), already referred to above, in which a “mining ban” imposed by the respondent’s decision to include the applicant’s lands in a Co. Mayo development plan was held to be ultra vires. Keane C.J. held (at page 128):-
“The remedy available to persons affected by the commission of an ultra vires act by a public authority is an order of certiorari or equivalent relief setting aside the impugned decision and not an action for damages, to allow which, in the case of public officials, would be contrary to public policy for the reasons set out by Finlay C.J. in the passage just cited.”
95. It is to be noted that, in that case, the applicants were holders of prospecting licences which had been granted to them for the areas in question by the Minister for Energy, and considerable sums had been expended by them in prospecting on foot of those licences, resulting in the discovery of gold deposits in commercial quantities. As a consequence, a commercial partner had been found for development of the project that was willing to contribute a substantial investment. The result of the mining ban imposed by the respondent was that the partner in question withdrew and the investment expenditure had to be written off. The High Court had found as a fact that the mining ban had been the cause of the collapse of the project. In other words, the ultra vires act had been the cause of actual loss and damage to the applicants. In his judgment in the case, Fennelly J. underlined what he described as the “fundamental proposition” that there is no direct relationship between the doing of an ultra vires act and the recovery of damages for the act, as follows (at page 148):-
“Firstly, an individual needs no power to perform a wide range of actions which affect others and with the potential to affect them adversely. An individual’s activity is not actionable, however, unless it consists of the commission of some civil wrong, most usually a breach of contract or a tort. The fact that a public authority must act within the scope of the powers conferred upon it has no necessary connection with loss which may be suffered by persons affected by it. Many people or bodies corporate are affected for better or worse by the actions of public authorities in the performance of their statutory duties. However, the incidence of gain or loss to individuals is unrelated to the validity of the decisions made. A valid decision is no more or less likely to cause loss than an invalid one.”
96. This line of authority was also considered in great detail by Budd J. in his judgment in An Blascaod Mor Teo v. Commissioners of Public Works (No. 4) [2000] 3 IR 565, in circumstances which bear some analogy to those of the present case. In an earlier judgment in that litigation, Budd J. had declared invalid as unconstitutional the statute entitled An Blascaod Mor National Historic Park Act 1989, in essence because its provisions for compulsory acquisition of lands upon the island in question were unlawfully discriminatory and failed to vindicate the property rights of the plaintiffs. His judgment was upheld by the Supreme Court and the matter came back before him to determine a number of preliminary issues in relation to the plaintiffs’ claim for damages. Having reviewed extensively the domestic case law in relation to the entitlement of an individual to damages against the State arising out of the adoption of a measure found to be invalid, and having also compared that line of authority with the corresponding position in relation to claims for damages for infringement of European Union law (which is also examined later in the present judgment); Budd J. concluded that the declaration of invalidity of the Act of 1989 adequately vindicated the claim for the constitutional rights of property advanced by the plaintiffs. He said (at page 590):
“While I do not accept that the Oireachtas has total immunity in respect of legislation, since the courts are specifically given the mandate to review legislation for repugnancy, nevertheless for public policy reasons, it seems to me that there must be considerable tolerance of the legislature particularly when it has to weigh in the balance conflicting rights.”
He then observed:
“There is no case in point to give a guideline where damage is alleged to flow from the actual invalid enactment. It seems to me that the appropriate redress in this type of case is a declaration of invalidity. In the circumstances of this case redress should not extend to damages. Having heard cursory evidence, I have concluded that there are a number of imponderables in respect of the heads of damage and that there is a lack of the type of direct causal link necessary. The plaintiffs have never been dispossessed of their property on the island and indeed the publicity arising from the litigation may well have made the culture of the Great Blasket even more well known. . . . If the judiciary is to proceed resolutely but cautiously in relation to redress where a claim is brought in a recognised type of suit based on tort when an Act is found to be invalid, then the court should be all the more reticent where the claim is based on the effects of the actual enactment of an invalid Act.”
97. Thus, Budd J. attached significant importance to the fact that, while the Act in question had been enacted and come into operation, its compulsory acquisition procedures had not in fact been applied to the plaintiffs, such that the practical consequence of actual dispossession by compulsory acquisition had not in fact occurred.
98. In other words, where the exercise of a delegated statutory power, whether to take an administrative decision or adopt and implement a statutory instrument, is found to be ultra vires the public authority in question, there is no automatic entitlement to damages on the part of a person affected, unless the act in question involves some identifiable civil wrong such as breach of contract or a tort, and resulting loss is thereby caused to the person concerned. Otherwise the remedy for a person affected by the ultra vires act is an order of certiorari or equivalent relief.
99. Accordingly, in so far as reliance is placed upon the third of the alleged wrongs; namely, the alleged unlawful infringement of the applicants’ right of property and of the right to conduct a business, no liability on the part of the respondent could in any event arise, in the view of the Court, unless it was established that the adoption of the 2003 Scheme, either as such or in combination with the decision of 23rd December, 2005, to commence the payment obligations, involved also one or other of the two remaining alleged wrongs.
The EU Law Infringements
100. It is necessary, accordingly, to consider whether the wrongs relied upon in the form of alleged infringements of the Directive and of Articles 86 and 82 EC could be characterised as recognised wrongs for the purpose of the Pine Valley/Glencar principle, or alternatively as giving rise to causes of action in their own right, independently of the finding of invalidity of the 2003 Scheme.
101. It is not in dispute that, as a matter of Irish law, such infringements can give rise to claims for damages by an injured party and that such infringements fall to be considered as equivalent to a civil wrong or tort in domestic law. It is necessary, however, to outline briefly the legal context which forms the basis of this position, because the evolution of European law in the area has brought about a situation in which the conditions or criteria for liability on the part of the Union for infringement of rights of individuals under that law have been assimilated to the criteria and conditions applicable to the liability of Member States.
102. Under the constitutional structure of the European Union and the prior European Communities, the Union (as the legal entity) and the Member States share responsibility for ensuring the proper implementation and enforcement of European law. Under Article 288 EC (now Article 340 TFEU) the Treaties had provided that the Union would be non-contractually liable for damage caused by the institutions or their servants in the performance of their duties “in accordance with the general principles common to the laws of the Member States”. Article 235 EC (now Article 268 TFEU) conferred exclusive jurisdiction upon the Court of Justice to determine such claims.
103. Because the Member States contribute extensively to the implementation of European Union law, they too are answerable for compensation if they act unlawfully when doing so and cause damage or loss to injured parties. Under Article 10 EC (now Article 4.3 TEU), the Member States are required to take all appropriate measures, whether general or particular, “to ensure fulfilment of the obligations arising out of (the) Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty”. These obligations include the obligation to make good the unlawful consequences of a breach of Community law. (See for example Asia Motor France v. Commission (Case C-72/90) [1990] E.C.R. 1-2181, paras. 14-15).
104. In the leading case of Francovich and Others v. Italian Republic (Joined Cases C-6 and C-9/90) [1991] E.C.R. 2-5357, the Court of Justice explained the rationale as being based upon the fact that the Treaty had created a legal system which is integrated into the legal systems of the Member States, to be applied by their Courts. The subjects of the legal system include the nationals of the Member States, who have rights conferred by Community law. As a result, “it has been consistently held that the national Courts whose task it is to apply the provisions of community law in areas within their jurisdiction must ensure that those rules take full effect and must protect the rights which they confer on individuals”. (Para. 32)
105. The full effectiveness of Community rules would be impaired and the protection of the rights which they confer would be weakened if individuals were unable to obtain redress when their rights are infringed by a breach of community law for which a Member State can be held responsible. (Para. 33) “It follows that the principle whereby a State must be liable for loss and damage caused to individuals as a result of breaches of Community law, for which the State can be held responsible, is inherent in the system of the Treaty”. (Para. 35)
106. The Francovich case is also the leading authority for the proposition that, while the right of the injured party to reparation derives directly from Union law, it is by reference to the rules of national law that the liability is to be determined and assessed, but:-
“The substantive and procedural conditions for reparation of loss and damage laid down by the national laws of the Member States must not be less favourable than those relating to similar domestic claims and must not be so framed as to make it virtually impossible or accessibly difficult to obtain reparation”. (Para. 43)
The Conditions for Liability
107. While the terms in which the conditions of liability of the Union for damages for infringement of Union law, and those in which the conditions applicable to the liability of Member States might be said to have been expressed differently in the earlier case law, it has been clear since at least the judgment of the Court of Justice in Bergaderm and Groupil v. Commission (Case C-352/98P) [2000] E.C.R 1-5291, that the conditions have now been brought into alignment, so that they are the same whether the rights of the injured party have been infringed by an act or conduct of the Union institutions, or of authorities or agencies for which a Member State is responsible. At para. 41 of that judgment, the Court said:-
“The Court has stated that the conditions under which the State may incur liability for damage caused to individuals by a breach of Community law cannot, in the absence of particular justification differ from those governing the liability of the community in like circumstances. The protection of the rights which individuals derive from Community law cannot vary depending on whether a national authority or a Community authority is responsible for the damage.”
It then outlined the three essential conditions governing liability:-
“As regards Member State liability for damage caused to individuals, the Court has held that Community law confers a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties (Brasserie du Pêcheur and Factortame [(Joined Cases C-46/93 and C-48/93)] [1996] E.C.R. 1-1029).”
108. As far as the first of those conditions is concerned, the act impugned as unlawful must be one which infringes or conflicts with a superior rule of law intended to confer rights on individuals. Those superior rules of law include the provisions of the Treaties, the general principles of Union law and the Union measures upon which the impugned act is based. The general rules of law considered to be superior rules in that sense also include principles such as those of proportionality, equal treatment or non discrimination, the prohibition of misuse of powers, the right to be heard and fundamental rights including the right to property. (In relation to the last of these see, for example, Biovilac v. E.E.C. (Case 59-83) [1984] E.C.R. 4057 at paras 21-22). The rule of law relied upon by the injured party must be one “intended to confer rights on individuals”, and these include the principles just mentioned amongst others.
109. In the context of the present case, therefore, it is clear that, when the provisions of the 2003 Scheme are considered, the provisions of the Third Non-Life Directive must be taken as containing a superior rule of law, in that it is a measure of secondary legislation at Union level which has as its objective the attainment of the Treaty right of establishment and the freedom to provide services. Similarly, Article 86, when taken in conjunction with the prohibition of Article 82, must also be regarded as containing a superior rule of law intended to confer rights on individuals. Its explicit purpose is to protect undertakings against anti competitive behaviour, including anti competitive behaviour rendered possible by State measures.
110. The second condition is that the impugned act or conduct must be sufficiently serious. The purpose of this condition is to draw a distinction between loss or damage which flows from the mere exercise of policy choices on the part of Union institutions or State authorities and loss or damage resulting from a manifest and grave disregard by the institution or authority on the limits of exercise of its powers. (See for example H.N.L. and Others v. Council and Commission (Joined Cases 83 and 94/76, 4, 15 and 40/77) [1978] E.C.R. 1209, para. 6 and the Bergaderm case at para. 43). One of the factors to be taken into account in determining whether there has been such a manifest and grave disregard of the limits on the exercise of an institution’s powers is whether the institution was acting in circumstances where it had a wide degree of discretion, as opposed to a very reduced or even no discretion. A further element which is of relevance in assessing this aspect of the condition is whether the irregularity identified in the act or conduct of the institution or State authority is one which, in comparable circumstances, would not have been committed by a normally prudent and diligent administration. Such a finding may lead to the conclusion that the conduct concerned was of sufficiently serious illegality to give rise to liability. (See for example Medici Grimm v. Council (Case C-36403) [2006] E.C.R. 2-81 at para. 79). It is relevant, also, to take into account the complexity of the situation with which the institution or authority was dealing, and any difficulties in the application or interpretation of legislation. In the last mentioned case, the Court was concerned with a claim that a failure of the Council to provide for retroactive effect of a regulation imposing an anti dumping duty on a specific product constituted a sufficiently serious breach of the Basic Anti-Dumping Regulation (Council Regulation (EC) No. 905/98). At para. 87 of the judgment, the Court ruled:
“However, the Council’s lack of discretion as regards the retroactive effect of Regulation No. 2380/98 is not sufficient to justify the conclusion that in the present case there was a sufficiently serious breach of Article 1(1) of the Basic Regulation such as to give rise to the liability of the community. It is also necessary as a second step, to take account of the complexity of the situation to be regulated, the difficulties in the application or interpretation of the legislation, the clarity and precision of the rule infringed, and whether the error of law made was inexcusable or intentional.”
111. Finally, the third Bergaderm condition requires that the injured party must have sustained loss or damage and there must be a direct causal link between it and the impugned act or conduct on the part of the union institution or state authority concerned. In the wording of Article 288, the liability is to make good damage “caused” by the Community or its institutions. Thus, as in Irish law, issues can arise as to the remoteness of the cause from the loss or the breaking of the causal link by the intervention of some new act or event. For example, in Holcim v Commission (Case T-28/03) [2007] ECR I-2941, the Court of First Instance had previously annulled a Commission decision which had found that the applicant had infringed the competition rules, but the Court held that the undertaking could not claim compensation for costs it had incurred in relation to the provision of a bank guarantee, because the loss it sustained was the consequence of the undertaking’s own decision not to comply with its obligation to pay the fine. (Where an undertaking appeals an infringement decision by applying to annul it, it remains obliged to pay the fine in accordance with the decision but may, with the agreement of the Commission, postpone payment pending the court ruling by undertaking to pay interest and putting in place a bank guarantee for the ultimate liability.)
112. The distinction between recoverable losses caused directly by the unlawful act on the one hand, and losses which are not eligible for compensation for lack of a direct causal link is well illustrated by the differing outcomes in the cases of Dumortier Frères v. Council (Joined cases 64, 113/76, 167, 293/78, 27, 28 and 45/79) [1979] ECR 3091.
113. In an earlier proceeding before the Court as an application for preliminary ruling, the Court of Justice had annulled as unlawful a Council Regulation concerning certain production refunds under the Common Agricultural Policy, for infringement of the principle of equality or non discrimination. The provision in question had unlawfully discriminated between maize gritz for the brewing industry and maize starch. Affected producers then brought actions for damages against the Council. The gritz producers who had not received refunds, instead of increasing their prices to make up for the shortfall, took a commercial decision to sell at a loss in order to retain their markets rather than risk losing markets to the maize starch producers who were in receipt of the refunds.
114. The applicants were held to be entitled to damages equivalent to the production refunds they would have received, had they been entitled to the same payments as the maize starch producers during the relevant period. Certain of the applicants had made additional compensation claims based upon losses sustained due to a fall in sales and operating deficits. The Court rejected those claims on the grounds that those losses were not caused by the unlawful discriminatory treatment of the products in question. At para. 20 of the judgment, the Court said:-
“Although it is beyond dispute that the figures submitted by the applicants clearly show such a fall (in sales to breweries) that fact can hardly be ascribed to the absence of refunds. In fact, as has already been said, the applicants have insisted on the fact that the selling prices of gritz were not increased on account of the abolition of the refunds. On the contrary, as the Court recognised when examining the development of the prices, the gritz producers chose to sell at a loss in order to retain their markets, and not to increase their prices at the risk of losing those markets. Thus, the inequality which existed between gritz and starch as regards the granting of refunds was not reflected in the selling prices. If in spite of that commercial policy, the gritz producers sales fell, the reason for this must be sought in something other than the inequality caused by the abolition of the refunds.”
115. Some of the applicants had also advanced further claims based on losses incurred through factory closures. The Council had argued that the losses in question had been caused by other problems such as obsolescent plant and management difficulties. The Court ruled:-
“The data supplied by the parties on that question in the course of the proceedings are not such as to establish the true causes of the further damage alleged. However, it is sufficient to state that even if it were assumed that the abolition of the refunds exacerbated the difficulties encountered by those applicants, those difficulties would not be a sufficiently direct consequence of the unlawful conduct of the council to render the community liable to make good the damage. In the field of non-contractual liability of public authorities for legislative measures , the principles common to the laws of the member states to which the second paragraph of Article 215 of the EEC Treaty refers cannot be relied on to deduce an obligation to make good every harmful consequence , even a remote one , of unlawful legislation.”
116. It is clear, therefore, that an independent decision taken by a claimant affected by an unlawful legislative measure, when taken voluntarily for its own commercial reasons, will be sufficient to break the necessary causal link between the unlawful measure and the loss sustained.
117. This is accordingly, the context in which it is necessary to consider whether the above conditions could be shown to be met in the alleged infringements of the Third Non-Life Directive and Articles 86 and 82 EC, if it is assumed that the findings made by McKechnie J. as to the adverse and distorting affects of the 2003 Scheme were at least reconfirmed, and that the effects of incompatibility and distortion of competition were held not to be justifiable as having been necessary in pursuit of the common good.
Serious Breach of a Superior Rule of Law
118. So far as the first of the alleged wrongs – infringement of the Directive – is concerned, the first of the three Bergaderm conditions would clearly be met, in that the Directive, as already indicated, must be taken as comprising a superior rule of law intended to confer rights upon individuals or undertakings. In the judgment of the Court, however, it could not be held, in the particular circumstances of the case, that the invalid adoption of the 2003 Scheme amounted to a serious breach of European Union law. This is so for two reasons. First, it could not reasonably be said that the Minister was culpable of a manifest and grave disregard of the margin of appreciation available to the State under Article 54.1 of the Directive, in formulating and adopting a loss compensation scheme having regard to the nature and complexity of the subject matter involved. As the entire history of this legislative exercise since 1996 amply demonstrates, the ultimate decision to initiate the payment obligations of the 2003 Scheme was not reached in a manner which could be characterised as in any sense careless, arbitrary or lacking in preparation or planning. On the contrary, the extensive consultation of experts, the commissioning of reports, the publication of a White Paper, the consideration of the earlier recommendation of the first named respondent and the postponement and later reconsideration of commencement of the Scheme; all of these clearly contradict any suggestion that careful consideration was not given to the exercise of the powers available to the Minister, within the limits of Article 54.1.
119. Secondly, it is abundantly clear not only from the advices, reports and material made available to the Minister over the years in question, but also from the extensive expressions of opinion by experts and the expert evidence given before the High Court, together with the opposing legal submissions and the detailed legal analysis to be found in the judgments of McKechnie J. and the Supreme Court, that the matters with which the Minister was dealing were of very considerable complexity, from the point of view of the technicalities of insurance underwriting, the equilibrium of the private health insurance market and the interpretation of both the Directive and national law. In addition, the draft scheme had been notified to the European Commission under the State aid rules as mentioned above, and, while the applicants dispute the relevance of the Commission decision and the subsequent ruling of the Court of First Instance to the compatibility and competition issues upon which this claim for damages is based, the very fact that the Minister did so notify, and had the benefit of the analysis and approval of the Commission, must weigh heavily in negating any possible finding that there has been a manifest and grave disregard on her part, in the way in which the power to introduce such a scheme was exercised. While it is true that there was ultimately a mistake of national law in the construction of the domestic legislation concerned, it could not, in the judgment of the Court, be said that the manner in which the Scheme was prepared, formulated, reconsidered, postponed and ultimately commenced, was action or conduct which a normally prudent and diligent administration would not have undertaken.
120. Finally, in this regard, it is relevant when assessing the gravity of the alleged infringement, to take into account the nature, extent and gravity of the loss or damage caused. When the 2003 Scheme was promulgated and then implemented, what was clearly foreseeable on the part of the respondents as a consequence of the impact of the Scheme on undertakings such as the applicants, was the making of very substantial transfers of funds to the first named respondent for the ultimate benefit of the VHI. As already mentioned, that consequence did not actually materialise. No such transfers ultimately came to be made. It is true that the applicants may be in a position to claim and to prove that a loss was incurred in the disposal of the Irish business in January, 2007, as compared with the value the business would have had in the absence of the threatened imposition of the 2003 Scheme. Nevertheless, had the applicants waited until the outcome of the Supreme Court appeal and the vindication of their challenge to the Scheme that loss would not have occurred.
121. In the judgment of the Court, the intervention of the applicants’ voluntary decision, however commercially justified and prudent it might have appeared to have been, had the effect of breaking the link of causation between the 2003 Scheme as an infringement of the two alleged wrongs one the one hand and any such loss on the other.
122. As illustrated by the circumstances of the Dumortier cases referred to above at para. 112, an intervening decision taken by a claimant for its own commercial reasons may have the effect of breaking the causal link between the wrongful act and the loss sustained. Although the High Court judgment resulted in the dismissal of the applicants claim, it had also established important findings in their favour as to the detrimental impact of the 2003 Scheme in distorting competition and in altering their commercial position. By deciding to dispose of the business in March 2007, and in so doing deciding the amount of the alleged loss they were prepared to accept, the applicants were taking a risk by not awaiting the outcome of the appeal. It was that choice of risk that caused the alleged lost value of the business, and, in the judgment of the Court, that is something that cannot be laid at the door of the respondents as the basis of a claim for compensation. It is possibly correct, as the applicants have submitted, that it must have been foreseeable to the respondents that the substantial transfers to the HIA which the 2003 Scheme would have required them to make would have an impact upon their commercial position and profitability, at least in the immediate and possibly medium term. It may also be true that the applicants had warned the Minister that they would exit the market rather than risk a further trading loss. It does not follow, however, in the judgment of the Court, that this has the necessary consequence of making the capital loss which the applicants claim to have sustained on the sale of the business a reasonably foreseeable consequence of the introduction of the 2003 Scheme, or the commencement of the payment obligations.
123. It follows, in the judgment of the Court, that neither the second condition as to a sufficiently serious breach, nor the third condition as to the direct causal link between the breach and the damage sustained, could be said to be satisfied in this case.
The Article 86/82 Infringement
124. Finally, it is necessary to consider the alleged infringement of Article 86 EC together with Article 82 EC, and in that regard the same considerations effectively apply. As already indicted earlier in this judgment, the arguments advanced under this heading were considered by McKechnie J. in his judgment at paras. 201 – 236 and culminated in the conclusion reached at para. 234: “Accordingly I believe that Article 86(2) is available in this case”. Essentially, the judge’s approach was to take as the starting point the fact that the VHI was a public undertaking for the purposes of para. (1) of Article 86 and then, having regard to its impact in distorting competition, to consider the evidence as to the compatibility of the 2003 Scheme with the prohibition in para. (1) against the enactment or maintenance in force of any measure contrary to the competition rules, including, in particular, the abuse of dominance rule in Article 82. Having considered the case law relevant to the issue and then examined the conflicting evidence of the expert witnesses on either side, McKechnie J. concluded that competition was distorted (para. 230), although he did not agree that the substantial transfer payments which the Scheme required to be made in favour of the VHI could be characterised as expropriation or confiscation. He then proceeded to examine whether the respondents could answer the applicants’ challenge by proving “the existence of objective justification under Article 82 of the Treaty and/or satisfy the Court that Article 86(2) applies”. (Para. 231). This he referred to as the “objective justification defence” and as that issue was common to the constitutional challenge, it was dealt with later in the judgment. However, having found that the VHI was a “public undertaking” for the purpose of para. (1) of Article 86, and that the incompatibility of the 2003 Scheme with Article 82 had been prima facie established, he also examined the possibility asserted on behalf of the respondents that the derogation of Article 86.2 applied on the basis that the 2003 Scheme went no further than was necessary to avoid the VHI’s performance of its statutory tasks being obstructed by the prohibition in Article 82.
125. For that purpose, he considered whether the VHI was an undertaking which had been “entrusted with the operation of services of general economic interest”. He considered (para 233) that the provision of private medical insurance within a statutory scheme is a “service” and one of an “economic nature”. At para. 234, he found that because community rating, open enrolment and lifetime cover could not operate in economically acceptable conditions without recourse to a risk equalisation scheme, the application of Article 82 would “obstruct” the performance by the VHI of the task assigned to it.
126. The Court has already indicated that it would be inappropriate in this judgment to embark upon any reassessment of issues that are dependent upon the evidence given before McKechnie J. as to the severity or otherwise of the impact of the 2003 Scheme upon the commercial position of BUPA or on competition in the relevant market. The issue that now arises, however, as to the applicability of Article 86.2, is not such an issue because it turns upon the construction of that paragraph in the light of the status and function of the VHI as established under the Health Acts. While it may not be strictly necessary to decide this issue for the purpose of considering the question as to the entitlement to claim damages for an infringement of these Articles, in view of the reasons given below, the Court considers that, for the sake of completeness and in case the issue should be taken further on appeal, the Court should express its view on this aspect of the case.
127. While it is undoubtedly true, as was found in para. 233 of the High Court judgment, that the provision of private medical insurance is both a service and an activity of an economic nature, it appears to this Court that it is not necessarily a “service of general economic interest” in the sense of Article 86.2. As adverted to by McKechnie J. in the cited authorities (including the Commission’s Communication on Services of General Interest in Europe (2001)), the services which qualify for this characterisation are essentially ones which are provided for the benefit of economic activities generally. In particular, the services are frequently those of utilities or distribution networks, which are used or accessed by undertakings in a wide range of industrial or commercial activities. This characteristic can be illustrated by various cases in which the concept has been found to apply:
– Basic postal services – Case C-320/91 Corbeau [1993] ECR 1-2568;
– Distribution of electricity – Case C-393/92 [1994] 1ECR 1520;
– Operations of a cargo port – Case 10/71 Port of Mertert [1971] 739
– Employment recruitment services – Case C-41/90 Hofner [1991] ECR 1-2017.
128. Viewed in this way it is, in the judgment of the Court, questionable whether the tasks performed by the VHI in providing private medical insurance in a market which has been opened to competing non-public undertakings, can be classified as a service of general economic interest. It is a service in one section of a part of the insurance market; namely, the provision of private health insurance in the market for insurances other than life insurance. It is essentially a service availed of by individual persons rather than one which benefits the general commercial or industrial economy.
129. It follows that if it is assumed correct, if not inevitable, to find that the 2003 Scheme, if actually in operation, would have the effect identified in the High Court judgment; namely, the transfer of substantial payments by minority undertakings, (including the applicants) to the dominant undertaking, with concomitant deterrent effects on market entry, the Scheme must constitute a measure incompatible with the obligations of the State under Article 86.1, because it strengthens the market position of the public undertaking at the expense of competing non-public undertakings.
130. It does not necessarily follow, however, that an entitlement to damages would thereby result. The infringement of Article 86.1 on the part of a Member State is the enactment or maintenance in force of an incompatible statutory or administrative measure. While it may well be correct in these circumstances to say that the 2003 Scheme was “enacted” in the sense that the two statutory instruments were signed and that the payment obligations were directed to commence on 1st January, 2006, notwithstanding the subsequent declaration that they were void ab initio; the measures were nevertheless quashed and rendered void, and could not therefore be said to have been “maintained in force” as measures which had actual binding effect in national law. Strictly speaking, as a matter of national law, they were never ‘in force’. Furthermore, the benefit to the VHI which would have distorted competition never actually accrued. Accordingly, for the reasons already expressed above in respect of the alleged infringement of the Directive, the Court is satisfied that any technical infringement of Article 86.1 could not be characterised as such a manifest and grave disregard of the State’s margin of regulatory intervention in the area as to constitute a serious act of infringement which would attract a liability in damages.
131. It is true that in Union law the Bergaderm criteria constitute minimum conditions for liability and do not preclude national rules which impose liability upon the State under less strict conditions. (See, for example, the judgments in Brasserie du Pêcheur and Factortame at para. 66 and in Köbler v. Republik Österreich (Case C-224/01) [2003] ECR 1-10239 at para. 57). Nevertheless, for the reasons already given above in relation to the alleged constitutional wrong (paras. 89-99) it is clear, in the judgment of the Court, that no liability on that basis on the part of the State could arise in the circumstances of this case.
132. It follows that, in the judgment of the Court, the questions posed in the preliminary issues at para. A(2) and B(1) must be answered to the effect that the applicants are not entitled to recover damages in respect of the infringements identified at para. (1) (a), (b) and (c) of those issues.
133. As a consequence it is unnecessary to rule on the issue as to the measure to be applied in assessing damages.
Summary Conclusion
In the light of the reasons given above, the conclusions reached by the Court on the issues directed to be tried can be summarised as follows:
(1) The effect of the Supreme Court judgment and order, in allowing the applicants’ appeal and quashing the 2003 Scheme as ultra vires for mistake of law in construing the definition of “community rating” in the Health Insurance Act 1994 (as amended), has been to render the statutory instruments establishing that scheme void ab initio.
(2) Although the Supreme Court refrained from expressing any view on other findings contained in the High Court judgment, this has had the result that the findings of McKechnie J., to the effect that the 2003 Scheme was in its objective and effects proportionate, reasonable and objectively justified as made in pursuit of the public interest in the common good, cannot be regarded as tenable.
(3) This is so because those findings as made in the High Court judgment were expressly predicated on the ruling as to the interpretation of the definition of “community rating” in the Act of 1994, as the s.12 definition “community rating across the market”, an interpretation which has been adjudged mistaken by the Supreme Court.
(4) Because, in the view of the Court, the setting aside of the High Court’s dismissal of the proceedings by the Supreme Court order has the result that there has been no final determination between the parties of the substantive issues raised as to the lawfulness of the 2003 Scheme, independently of the ultra vires ground, the principle of issue estoppel cannot apply.
(5) Furthermore, because (a) the findings made in the High Court judgment on the substantive issues as to the nature, extent and gravity of the impact of the 2003 Scheme on the applicants’ commercial position and on competition in the market were based upon evidence and expert opinion heard by the High Court; and (b) those issues would now fall to be reassessed by a Court differently composed, it would be necessary, unless the parties otherwise agree, for this Court to hear such evidence de novo if those issues are required to be determined anew.
(6) Nevertheless, the Court is satisfied that even if on such a rehearing, the Court was to reach conclusions as to the detrimental impact of the 2003 Scheme at least equivalent to those reached by McKechnie J. and was also to decide that the 2003 Scheme was not saved from illegality as objectively justified, it would not result in the applicants establishing an entitlement to damages.
(7) This is because, as a matter of both national law and European Union law, the mere fact that the State has, as a result of a mistake of national law in adopting a legislative measure or administrative decision, infringed a right conferred by either law, does not give rise to an entitlement to compensation in addition to the remedy of annulment of the measure in question.
(8) So far as concerns the reliance placed upon the constitutional rights of property and the right to carry on a business, the principle in the cases of Pine Valley Developments and Glencar Explorations applies, and the Court is satisfied that in the particular circumstances of this case no “unjust attack” upon the rights of the applicants actually occurred, because the applicants were never in fact compelled to make the transfer payments which would have arisen under the 2003 Scheme, prior to their deciding to dispose of the Irish business.
(9) So far as concerns the claims based upon alleged infringement of the provisions of the Third Non-Life Directive and Articles 10, 86 and 82 EC, the Court is satisfied that the conditions applicable to liability of a Member State to make reparation for infringement are not met. First, having regard to the legislative and regulatory history of the 2003 Scheme and the consultation, research and deliberation that went into its preparation and implementation in the years prior to 2005, and to the technical complexity and legal uncertainty which surrounded the introduction of such a scheme, it could not be held that there has been a manifest and grave disregard on the part of the Minister or the State of the limitations on the State’s margin of regulatory discretion in this particular area. Secondly, the condition as to the existence of a direct casual link between the infringement alleged and the loss said to have been sustained is not met in this instance. The loss relied upon is the diminished value at which the applicants claim to have disposed of the Irish business in March 2007, but this voluntary decision had the effect of breaking the causal link between the alleged breach and the loss claimed.
(10) Because, in the judgment of the Court, the claim for damages cannot be maintained, it is unnecessary to address the issue as to how damages might fall to be quantified.
Osbourne v Minister for Justice
[2006] I.E.H.C. 117,JUDGMENT of Mr. Justice Clarke delivered 13th April, 2006.
1. Introduction
1.1 This case concerns an incident which took place on 15th August, 1995 when a number of members of An Garda Síochána were engaged in activities at Fitzgerald Park, Mounttown, Dun Laoghaire. There is no doubt but that an incident occurred on the occasion in question but there is considerable controversy as to certain important aspects of the facts and, in particular, facts relevant to this case. Arising out of the incident the plaintiff (“Ms. Osbourne”) claims that she suffered significant personal injuries and claims damages (including aggravated damages) for such injuries and for what she claims were breaches of her constitutional rights.
1.2 As indicated above there is a significant controversy over certain aspects of the incident. However some aspects of what occurred can, on the evidence, be stated to be uncontroversial.
2. The Uncontested Facts
2.1 The Gardaí had an interest in a Robert Merrigan who lived in an apartment at Fitzgerald Park. It would appear that Mr. Merrigan was, at the relevant time, suspected of having committed a burglary at a house in Woodland Park which is a short distance from Fitzgerald Park. It would appear that a watch and a sum of money had been stolen from the house concerned and that the description of one of those allegedly involved matched that of Robert Merrigan.
2.2 On foot of that information an application was made on the 14th August, 1995 to a Peace Commissioner, Mr. Fergus Nestor, for a number of search warrants. Some controversy surrounds those search warrants and that is, therefore, an issue to which I will have to return.
2.3 In any event relying upon the search warrants a number of Gardaí attended at Fitzgerald Park on the evening of 15th August for the purposes of executing those search warrants. The warrants included one in respect of No. 44 Fitzgerald Park at which it would appear that a cousin of Robert Merrigan resided. A second warrant related to No. 45 Fitzgerald Park which is the property in which Ms. Osbourne lived. Both No. 44 and No. 45 are two storey dwellings within an apartment block. The front access is from a first floor external corridor. In both cases there is a rear balcony and it seems that it is relatively easy to go from one balcony to the next. There was thus relatively easy access at the rear from No. 44 to No. 45.
2.4 It does not appear to be in dispute that the Gardaí attempted, initially, to gain access to No. 44. It would seem on the evidence that Robert Merrigan was present at the relevant time in No. 44, that the Gardaí sought to execute the warrant in respect of that premises, that they were initially refused access and were preparing to break in the door to No. 44 when that door was opened allowing the Gardaí to enter. It would also appear that just as the Gardaí were entering Robert Merrigan left through the rear balcony and appeared to enter into the neighbouring dwelling at No. 45.
2.5 In those circumstances it would appear that the Garda in charge (then Sergeant now Inspector Hogan) went back to his car to obtain the warrant in respect of No. 45 which he had left in the car. While Inspector Hogan was engaged in that process two Gardaí would appear to have been left in No. 44 for the purposes of apprehending Mr. Merrigan in the event that he should come back into that property. A number of other Gardaí (probably 3) remained in the corridor outside of both Nos. 44 and 45.
2.6 When Inspector Hogan returned with the warrant in respect of No. 45 it would appear that Robert Merrigan was present in No. 45 when the Gardaí knocked at the door. Robert Merrigan asked the Gardaí whether they had a warrant and was informed that that was indeed the case. Notwithstanding this Robert Merrigan did not open the door and the Gardaí proceeded to break in.
2.7 Thereafter an attempt was made to arrest Robert Merrigan within No. 45 with a struggle ensuing between two Gardaí and Mr. Merrigan. It is also common case that the mother of Robert Merrigan, Frances Merrigan, arrived as the Gardaí were attempting to subdue Mr. Merrigan. It is common case that after a period Mr. Merrigan was subdued and was taken from the property under arrest by a number of Gardaí.
3. The Disputed Facts
3.1 In addition to the fact that there are issues about the search warrant used on the occasion in question there are number of factual disputes between the parties. On Ms. Osbourne’s case she was sitting in a common area of the apartments with a number of friends drinking tea when a significant force of Gardaí arrived. She gave evidence that after a period she was informed that the Gardaí were “kicking our door”. She gave evidence that she went up the ramp which leads to the outdoor corridor but that when she got to her apartment “the door was on the ground”. She says that she then went into the apartment and found Robert Merrigan on a couch in the living room with his mother lying over him and two “very large policemen beating him with batons”. She says that she asked the Gardaí to leave as her children were crying outside the door but was told to “f-off”. She then says she was thrown against the mantelpiece in her living room and in the course of being manhandled out of the premises she “got a kick in the leg” and one the Gardaí stood on her foot. Two other witnesses were called on behalf of Ms. Osbourne who, at least in part, corroborated her account though in respect of one of those witnesses, Frances Merrigan, there was a significant difference of recollection as to whether she (Mrs. Merrigan) or Ms. Osbourne first arrived at the apartment.
3.2 The Garda account is quite different. None of the Gardaí present indicated that they had any recollection of seeing Ms. Osbourne. It would appear to be common case that a crowd gathered in the corridor near Ms. Osbourne’s apartment as the incident developed. The precise size of that crowd and the extent to which it was, as asserted in the Garda evidence, hostile to the Garda operation are a matter of some controversy. It is accepted on behalf of the defendants that Ms. Osbourne may well have been present outside her apartment. In addition while the Garda evidence was to the effect that the crowd was significantly hostile to their presence there is no evidence which suggests hostility on the part of Ms. Osbourne.
3.3 Furthermore the Garda evidence was to the effect that no one was permitted to enter the apartment after the Gardaí had broken down the door, with the exception of Francis Merrigan whom, it was said, was permitted to enter with a view to her speaking to her son for the purposes of attempting to calm him down. On the basis of the Garda evidence, therefore, it is contended that Ms. Osborne never entered her apartment on the occasion in question. While there is no direct evidence from the Gardaí present as to any involvement on the part of Ms. Osborne it is accepted that it might have been possible that she received an injury in the course of the scuffles which the Gardaí contend occurred as Mr. Merrigan was being led from the apartment under arrest.
4. The Issues
4.1 The issues which arise in this case are, therefore:-
(a) The validity of the warrant under which the Gardaí forcibly entered Ms. Osbourne’s apartment;
(b) The consequences, for the purposes of this action, of such a warrant being invalid (if that should be the case);
(c) Whether, as a matter of fact, Ms. Osbourne was injured, as she contends, while being physically removed from her apartment;
(d) Whether, if it should be found to be the case that she was so injured, same occurred in a manner giving rise to a claim in damages as against the Gardaí concerned;
(e) If necessary damages.
4.2 I propose dealing with each of those matters in the order in which I have set them out.
5. The Validity of the Warrant
5.1 Each of the relevant warrants was issued under s. 42(1) of the Larceny Act, 1916. The section provides as follows:-
“If it is made to appear by information on oath before a justice of the peace that there is reasonable cause to believe that any person has in his custody or possession or on his premises any property whatsoever with respect to which any offence against this act has been committed, the justice may grant a warrant to search for and cease same.”
5.2 As indicated above then Sergeant Hogan had in his possession four warrants relating to different premises in the Fitzgerald Park area and in particular warrants in respect of both Nos. 44 and 45. His stated basis, as given in evidence, for seeking warrants in respect of each of the premises was that it was his experience that Robert Merrigan attempted to move from one premises to another whenever he found himself being sought by the Gardaí. Given that the property which had been stolen was movable property (in particular the watch) then Sergeant Hogan indicated that it was his belief that the property was likely to be found on Robert Merrigan. In those circumstances he stated that he had a belief that the stolen property would be found wherever Robert Merrigan was found. His stated basis for believing that it was possible that the property would be found at No. 44 was the fact that a cousin of Robert Merrigan lived there and that he (Robert Merrigan) was known to frequent that property. His stated basis for a belief that the property might be found at No. 45 was the modus operandi of Robert Merrigan, to which I have referred, coupled with the easy access from the balcony at the back of No. 44 to the balcony at the back of No. 45 as a means of escape.
5.3 In those circumstances the reason why then Sergeant Hogan indicated that he believed that stolen property might be found at No. 45 had nothing to do with any insinuation in respect of the character of Ms. Osbourne (who was the occupant of that property) but concerned the possibility that Mr. Merrigan might go from No. 44 to No. 45 carrying the stolen property with him.
5.4 While now Inspector Hogan’s evidence was challenged in that regard I am satisfied that he was of the belief which he stated and that he had reasonable grounds for being of that belief. The separate sworn informations grounding the applications for the warrants in respect of both Nos. 44 and 45 states the following:-
“On 9th August, 1995, a nearby house, 8 Woodland Mounttown was broken into by two youths who left when disturbed. They had climbed a drain pipe and left rear open window. They took €20 cash and a silver gent’s watch. One of the culprits fits the description of Robert Merrigan.”
5.5 The Peace Commissioner also gave evidence that then Sergeant Hogan had supplied additional information on oath to him, on applying for the warrants concerned, which satisfied him of the link between the stolen watch and the premises at 44 or 45 Fitzgerald Park. I am satisfied on the evidence that then Sergeant Hogan gave an explanation to the Peace Commissioner in terms similar to that which he gave to the court. I am therefore satisfied that the Peace Commissioner issued each of the relevant search warrants on the basis of an account given by then Sergeant Hogan both in writing and verbally but in both cases on oath and corresponding, in general terms, with the account to which I have referred above.
5.6 Having concluded that then Sergeant Hogan genuinely had the beliefs which formed part of that account and had a reasonable basis for those beliefs I must conclude that the warrants were bona fide sought and bona fide granted by the Peace Commissioner.
5.7 There is, however, a further technical issue concerning the validity of the warrants. Both s. 42 itself, and the standard form of information used, refer, in the present tense, to the individual concerned having in his custody the relevant property at a specified premises. In those circumstances it does not seem to me to be the case that the section permitted the issuing of a warrant in circumstances where the most that could be said was that there was a possibility that the premises concerned might be used as an escape route. Such a possibility does not seem to me to be consistent with the clear wording of the statute. In those circumstances I am not satisfied that the warrant was valid. Equally I am satisfied that then Sergeant Hogan in seeking the warrant acted bona fide, gave an accurate account of his beliefs to the Peace Commissioner, and believed that it was open to him to obtain a warrant based upon that information. I am not satisfied that there is any substance to the contention that then Sergeant Hogan acted in a mala fide way in seeking the warrants concerned. Equally I am satisfied that the Peace Commissioner bona fide believed that he was entitled to issue the warrants sought on foot of the information on oath given to him by then Sergeant Hogan.
5.8 The warrant was also defective in a technical sense in that the Peace Commissioner failed to cross out the alternative description of, “District Judge” as a potential author of the warrant and it was not, therefore, clear as to the capacity in which the person issuing the warrant had acted.
5.9 While such a practice is undoubtedly undesirable for the reasons indicated in the People (D.P.P.) v. Edgeworth [2001] 2 IR 131 it is a mis-description in the sense in which that term was used in Edgeworth. At p. 137 Hardiman J. commented on the mis-description in that case in the following terms:-
“The mis-description, and that is the most it can be called, involved in the use of the heading “the District Court” is not a breach of any condition or criterion imposed by the legislature and is simply an error. In my view there is no basis in law for the proposition that this error invalidates a document which accords with all specified requirements of the law.”
5.10 In those circumstances I am not satisfied that the error in question invalidated the warrants. Even if I am wrong in that view, there was no basis on the evidence for any reason to believe that any of the Gardaí involved in the execution of the warrant were aware of any such technical deficiency and their actions could not, on that ground, be described as being knowingly wrongful.
6. The Consequences of Invalidity
6.1 I therefore turn to the question of the consequences of the invalidity of the warrant in the light of my finding that it was bona fide sought and granted. In the People (A.G.) v. O’Brien [1965] IR 142, a search warrant for a premises was deemed to be invalid because an error was made in filling in the address of the house to be searched on foot of the warrant. The case concerned the admissibility of evidence at a criminal trial, where the evidence was obtained on foot of the execution of the warrant.
6.2 At p. 162 Kingsmill Moore J. stated the following:-
“Walsh J., in the judgment which he is about to deliver, is of the opinion that where evidence has been obtained by the State or its agents as a result of a deliberate and conscious violation of the constitution (as opposed to the common law) rights of an accused person it should be excluded save where there are “extraordinary excusing circumstances”, and mentions as such circumstances the need to prevent an imminent destruction of vital evidence or rescue of a victim in peril, and the seizure of evidence obtained in the course of and incidental to a lawful arrest even though the premises on which an arrest has been made without a search warrant.”
6.3 The passage from the judgment of Walsh J. that Kingsmill Moore J. was referring to reads as follows:-
“In the present case it is abundantly clear from the evidence that it was through an error that the wrong address appeared on the search warrant and that the searching officers were unaware of the error. There was no deliberate or conscious violation of the right of the appellants against arbitrary intrusion by the Garda officers. The evidence obtained by reason of this search is not inadmissible on the constitutional ground.”
6.4 O’Brien has the merit of being a case dealing specifically with a search warrant. While it is concerned with the admissibility of evidence there is no reason, in my view, not to apply the overriding principle to the question of the consideration of any other consequences of reliance upon an invalid warrant. I am therefore satisfied that no claim in damages (whether for breach of constitutional rights or in tort) can be brought in respect of actions taken on foot of a warrant which though apparently valid was technically infirm, but was not relied upon in circumstances which amounted to, as Walsh J. put it in O’Brien, a “deliberate or conscious violation” of the rights concerned. There could, of course, be a deliberate or conscious violation of rights where a false basis was put forward for obtaining the warrant or where a basis was put forward which, while correct on the facts, was one which the person seeking the warrant knew did not justify the grant of the warrant. Furthermore it is implicit from the judgments in O’Brien that reliance on a warrant which is subject to a technical defect but where that defect was known, prior to the execution of the warrant, by those involved in its execution might also amount to a deliberate or conscious violation or rights.
6.5 Such an overall view of the entitlement to damages arising from the consequences of the execution of a warrant which is technically defective is, in my view, consistent with the jurisprudence of the courts in the analogous area of breach of statutory duty by officials or others charged with carrying out public functions. In such circumstances it is now well settled that damages do not arise in the absence of a deliberate and knowing breach of statutory obligation.
6.6 Applying those principles to the facts of this case I am not satisfied that it can be said that there was any deliberate or conscious violation of the rights of Ms. Osbourne. For the reasons which I have analysed above I am satisfied that then Sergeant Hogan put forward as a basis for seeking the warrants a reasonable belief as to the circumstances in which stolen property might be found on No. 45 Fitzgerald Park. I am not satisfied that he was aware that there might be a technical difficulty with using such a basis as the means for obtaining a warrant in respect of a potential escape route. I am equally, therefore, satisfied that there is no basis for suggesting that he was aware that the warrant might be subject to a defect on that basis. In all those circumstances I am not satisfied that any defect in the warrant is such that enables Ms. Osbourne, on that ground alone, to recover damages. The circumstances surrounding the execution of the warrant are, of course, controversial and that is an issue to which I must now turn. However it follows from my findings in respect of the warrant that those circumstances need to be examined on the basis that no claim can be brought which stems from any invalidity in the warrant itself. Those circumstances need to be examined, therefore, on the basis that the Gardaí had in their possession an apparently valid warrant in respect of No. 45 Fitzgerald Park and that any infirmity in respect of that warrant was not a matter which those executing it were aware of at the relevant time.
7. The Execution of the Warrant
7.1 It is unfortunate that such a lengthy period of time has elapsed since the events giving rise to these proceedings. It is undoubtedly the case that in the ten and a half years that elapsed between the events in question and the giving of evidence before the court, memories have faded.
7.2 In assessing the evidence I should state that I found Ms. Osbourne to be a witness whom, in my view, gave an account of the events as she now believes them to have occurred. Nothing that I have to say should be taken as implying that she, in any way, sought to mislead the court. However, there are a significant number of matters in the accounts given both by her, and certain of her witnesses, at various stages throughout the process, which must cast doubt on whether the account now given to the court actually reflects what occurred on the occasion in question. In a reply to particulars dated 4th June, 2003 (in response to a request as to the basis upon which it was contended that the Gardaí concerned were actuated by malice) the following was stated:-
“The Gardaí proceeded to kick and smash in her hall door, notwithstanding the fact that she was standing beside them holding the key to same and requesting them desist so that she could open the door for them.”
7.3 In evidence at the trial it was clear that the Gardaí had entered into Ms. Osbourne’s premises quite some period before she arrived at the door. There was no evidence which substantiated that complaint as made in the reply to particulars to which I have referred. Nor was any adequate explanation given as to how such an assertion could have been made if it were not on the basis of clear instructions from Ms. Osbourne to that effect.
7.4 Secondly, there is a clear conflict of evidence between the account given by Ms. Osbourne and that given by Ms. Merrigan. It appears to be common case that Ms. Merrigan was alerted to the fact that her son was being pursued by the Gardaí at no. 44/45 Fitzgerald Park soon after the incident began to develop. It is equally common case that she went to no. 45 and was permitted to enter by a Garda who was hopeful that she might exercise a calming influence on her son. On her account, however, Ms. Osbourne was already in the property before she arrived. However, both Ms. Osbourne and Mr. Michael Kenny (who gave evidence on her behalf) stated that Ms. Osbourne arrived after Ms. Merrigan had gone in. Indeed it was a central feature of Ms. Osbourne’s evidence that, when she went into her dwelling, the first thing she saw was Ms. Merrigan attempting to protect her son from the two Garda in question. I am also satisfied, on the consistent Garda evidence, that a crowd, at least a significant number of whom were hostile to the Garda operation, gathered outside no. 45 while the incident was occurring inside. I am satisfied that physical abuse was used against the Gardaí as they left with Mr. Merrigan under arrest. In those circumstances I also find Mr. Kenny’s account unsatisfactory by virtue of his denial of any such hostility or physical action on the part of the crowd against the Gardaí.
7.5 In all the circumstances I am not satisfied that I can place reliance upon the account of Ms. Osbourne and her witnesses where same is divergent from the account given by the Gardaí. I am prepared to accept that Ms. Osbourne now believes that she suffered her injuries in the manner which she described in evidence. I am not satisfied that that is in fact what occurred. There is little doubt on the evidence that Ms. Osbourne is of a nervous disposition. There can be little doubt, therefore, that the whole event was of a most traumatic nature for her. In those circumstances I am satisfied that she has come to believe that she suffered her injuries while being manhandled by Gardaí within her dwelling. As a matter of probability I am satisfied that what in fact occurred was that she was outside of her property attempting to gain access and came to be injured in the course of the hostile physical action being taken by other persons against the Gardaí as they attempted to leave.
7.6 In those circumstances it does not seem to me that the manner in which the warrant was executed could give rise to any claim in damages on the part of Ms. Osbourne. Given that I have also concluded that the presence of a technical defect in the circumstances leading to the making of the warrant does not, either, give rise to a claim in damages, it seems to me that her claim must fail.
Grant v Roche Products
[2008] I.E.S.C. 35
JUDGMENT of Mr. Justice Hardiman delivered the 7th day of May, 2008.
In this action the plaintiff claims, on behalf of himself and of the other statutory defendants of Liam Grant Junior, deceased, and on behalf of the estate of the said Liam Grant Junior:
“Damages for mental distress, loss, damage and expense suffered by the plaintiffs and the statutory dependents by reason of the negligence, breach of duty and breach of statutory duty of the defendants and each of them their servants or agents”.
The action is, therefore, what is often referred to as a wrongful death claim. The first to fifth named defendants, inclusive, are referred to below as the “Roche defendants”. The first-named defendant is a limited company having its registered office in Clonskeagh, Dublin, and was at all material times engaged in the promotion and distribution of a drug known as Roaccutane on its own behalf and on behalf of the second, third and fifth named defendants. The second-named defendant is a company incorporated in Switzerland which was at all material times the parent company of the first, third and fifth defendants. The third defendant is also a limited liability company incorporated in Switzerland. The fourth defendant is a limited liability company incorporated in England and is the manufacturer of the drug known as Roaccutane. The fifth-named defendant is also a limited liability company incorporated in England and was at all relevant times the Product License Authorisation holder of the drug known as Roaccutane.
The Roche defendants are the moving parties on the present application.
The sixth-named defendant is a statutory body corporate established under the Irish Medicines Board Act, 1995 and having the functions set out in that measure. The seventh-named defendant is a consultant dermatologist carrying on practice in a Dublin hospital and who was at all material times a person permitted to prescribe the drug Roaccutane. This right was limited to consultant dermatologists.
The factual background.
The factual background to this case, and therefore to this application, is a tragic one.
The plaintiff and his late wife had four children, three boys and a girl. The deceased Liam Grant Junior was at the time of his death a twenty year old second year student of Electrical Engineering in University College, Dublin. He had no history of depression and is said – without contradiction – to have been a pleasant outgoing relaxed and genial person who was happy in his life and his studies. There was no family history of depression. He did however suffer from acne and consulted his general practitioner about this. After several visits and reviews the general practitioner referred him to the seventh-named defendant, a consultant dermatologist. It was she who prescribed him Roaccutane, to be taken orally on a four month course. In the month following this prescription the deceased became withdrawn and isolated. On or about the 15th June, 1997, during the final week of the course of prescribed medication, the deceased took his own life.
The plaintiff says that the general practitioner was totally surprised at this tragic development and stated that the deceased was the last person she would have expected to commit or contemplate suicide. She further expressed concerns to the plaintiff about the drug Roaccutane and referred to depression as a side effect of it. As a result of this the plaintiff has commenced an elaborate and expensive process of investigation into the drug and the scientific literature about it, as well as its regulatory history.
The plaintiff claims that depression, suicidal ideation and suicide itself are recognised side effects of the drug Roaccutane. He claims that Roaccutane is a defective product when used for medical treatment in the manner intended by the Roche defendants and that they were negligent and in breach of duty in the various ways set out in the Statement of Claim. The plaintiff has himself researched the nature and history of the drug Roaccutane and has retained others to do so for him. He has over the years obtained a considerable volume of documentation. An example of this, chosen more or less at random, is a:
“Medical Officer’s Review
NDA briefing psychiatric adverse effect”.
This document is dated the 15th April, 1998, and refers to Roche Pharmaceuticals as the “sponsor” of the drug there described as “Accutane”. The document commences with a summary which states:
“In May, 1997, we discussed with the sponsor our increasing concern regarding the seriousness of psychiatric adverse events being reported with Accutane use (see attached memorandum dated May, 1997, which includes initial consult from Pharmaco Vigilence). Special emphasis was placed on the pattern of the events and the cases with positive de-challenge and/or re-challenge. At the time of the Tele-conference most of the sponsor participants did not agree that the reports reflected effects of Accutane, instead they felt that the reports reflected underlying psychiatric disease in the population being treated. Nonetheless, the sponsor agreed to investigate further and reply to our concerns in a timely manner.”
It seems clear from the documentation assembled that, whatever the validity or lack of it attaching to the plaintiff’s specific allegations against the defendants, there has been for a considerable time a volume of discussion in scientific and regulatory circles on the topic of adverse psychiatric events associated or allegedly associated with the drug in question in these proceedings, as well as alleged birth defects associated with its use by pregnant women.
The present motion.
The plaintiff’s proceedings continued with the delivery of a statement of claim on the 6th July, 2000, followed by a long and detailed notice for particulars by the Roche defendants, replied to in September, 2001. On the 8th February, 2002, the Roche defendants delivered a defence which is a full denial of liability and of all the plaintiff’s allegations. Specifically there is a denial that Roaccutane “caused or contributed to the risk of severe depression or psychiatric disorders or suicidal ideation or suicide as alleged to at all.”
On the 18th October, 2004, the solicitors for the Roche defendants issued a notice of motion claiming:
“An order pursuant to the inherent jurisdiction of the Court staying the proceedings herein or, alternatively, restraining the continued prosecution of the proceedings on the grounds that, in light of the open offer made to the plaintiff by solicitors for the first, second, third, fourth and fifth named defendants by letter dated the 13th October, 2004, the relief sought by the plaintiff in the proceedings has been offered to him by these defendants and in those circumstances the continued prosecution of the proceedings would be an abuse of the process of the court.”
This application was grounded on the affidavit of Mr. Roderick Burke, Solicitor, in this he refers to the extensive discovery which has been made in the case and to further discovery which may be anticipated. He says that on reviewing this:
“It became apparent to my firm and to the Roche defendants that the discovery ordered by the Master could be even more extensive than that previously estimated. Furthermore it became apparent that even on the basis of the discovery ordered by the Master any trial of the proceedings could last for many months and would be extremely time consuming and involve enormous expense. In those circumstances following a careful review of the plaintiff’s claim, the Roche defendants instructed my firm to write to the plaintiff solicitors an open letter agreeing (without prejudice to liability) to pay the plaintiff all of the damages which he would be entitled to recover in the proceedings, comprising the damages for mental distress pursuant to s.49 of the Civil Liability Act, 1961 (as amended) and the Special Damages claimed in the proceedings together with the plaintiff’s costs to be taxed in default of agreement. My firm wrote to the plaintiff solicitors in those terms on the 7th September, 2004. It was made in that letter that the offer was being made by the Roche defendants in full and final settlement of all claims by the plaintiff against all of the defendants and strictly without admission of liability. The letter stated that the Roche defendants would also pay the costs of the other defendants to be taxed in default of agreement.”
The letter was exhibited.
The plaintiff solicitors rejected the defendants’ offer, describing it as “a cynical attempt to avoid a public trial in relation to [the Roche defendants] wrongful conduct concerning the drug Roaccutane”.
The plaintiff solicitors said:
“As your clients are aware our client has spent the last seven years of his life investigating the drug in question and your client’s actions in relation thereto and in particular the manner in which your client went about the clinical trials/testing, obtaining of relevant regulatory approval and subsequent dealings with regulatory authorities, handling/mishandling of adverse reaction reports and dealings with persons making complaints concerning same. Our client has also had to occur substantial expenditure in relation to scientific investigations/research into the adverse side effects caused by Roaccutane including depression, suicidal ideation and suicide.”
The plaintiff solicitors went on to make other, legal, points including that the letter of offer “does not constitute either a lodgement or tender within the context of these proceedings” and that “the writing of such a letter or reliance on same in these proceedings on any issue as to costs is not provided for by statute or by the rules of court.” They also said:
“On a very basic level the letter does not have any effect as it contains no offer of a specific sum in settlement of these proceedings. We were about to furnish you with the particulars of special damage and these are enclosed by way of separate correspondence.”
By a further letter of the 13th October, 2004, the defendant solicitors offered a total sum of €30,990.22 in respect of the plaintiff’s claim for damages being €25,394.76 being the maximum amount payable for mental distress pursuant to s.49 of the Civil Liability Act, 1961, as amended and the sum of €5,595.46 in respect of funeral expenses. “In addition, as already advised, our clients will pay your clients costs to be taxed in default of agreement”.
The defendant solicitors went on:
“We further confirm that the offer of settlement is made on behalf of the Roche defendants set out in our letter of the 7th September, 2004, in full and final settlement of all claims by your client against all the defendants in the proceedings to the above action and is strictly without admission of liability. The Roche defendants will also pay the costs of the other defendants to be taxed in default of agreement.”
The defendants also disputed whether the plaintiff’s (very considerable) expenditure on research and explorations of scientific literature are properly classed as special damages, preferring to regard them as costs to be recovered or not at the discretion of the Taxing Master.
Statutory background.
Part IV of the Civil Liability Act 1961, is entitled “Fatal Injuries”. Both sides to this motion rely on the terms of the sections constituting this Part in support of their respective claims. It is accordingly convenient to set out part of these sections here.
Section 47 relates to definitions. Section 48 states as follows:-
“(1) Where the death of a person is caused by the wrongful act of another such as would have entitled the party injured, but for his death, to maintain an action and recover damages in respect thereof, the person who would have been so liable shall be liable to an action for damages for the benefit of the dependents of the deceased.
(2) Only one action for damages may be brought against the same person in respect of the death.
(3) The action may be brought by the personal representative of the deceased or if at the expiration of six months from the death there is no personal representative or no action has been brought by the personal representative, by all or any of the dependants.
(4) The action by whomsoever brought, shall be for the benefit of all the dependents.
(5) The plaintiff shall furnish the defendant with particulars of the person or persons for whom and on whose behalf the action is brought and of the nature of the claim in respect of which damages are sought to be recovered.
(6) The action shall be commenced within three years after the death.”
Section 49 states:-
“(1)(a) The damages under section 48 shall be –
(i) the total of such amounts (if any) as the judge shall consider proportioned to the injury resulting from the death to each of the dependants, respectively, for whom or on whose behalf the action is brought, and
(ii) subject to paragraph (b) of this subsection the total of such amounts (if any) as the judge shall consider reasonable compensation for mental distress resulting from the death to each of such dependants.
(b) The total of any amounts awarded by virtue of sub-paragraph (ii) of paragraph (a) this subsection shall not exceed €20,000.
(c) Each amount awarded by virtue of paragraph (a) of this subsection shall be indicated separately in the award.
(d) Subparagraph (ii) of paragraph (a) of this subsection shall have effect only in respect of a death occurring within three years after the passing of this Act.
(2) In addition, damages may be awarded in respect of funeral and other expenses actually incurred by the deceased, the dependants or the personal representatives by reason of the wrongful act.”
The remaining subsections are not relevant.
Staying, rejecting, or restraining proceedings.
The Roche defendants, as the plaintiff has trenchantly pointed out, have not taken any of the specifically recognised procedural steps open to a defendant in their position (that is, one willing to pay the entire of the plaintiff’s claim) and set out in the Rules. Specifically the defendants have not either lodged money in court nor made a tender. The plaintiff points out that, even if they had lodged money in court they would not have been in a position to compel the plaintiff to take up the money in settlement of the proceedings, other than by threatening him with adverse consequences in costs if he failed to “beat the lodgement”. Since the Roche defendants are certainly prepared to part with what they regard as the full value of the plaintiff’s claim, it seems inescapable that their reason for not lodging is that they do not believe that the plaintiff would take up the lodgement but that he would continue with the action.
However, the fact that the Roche defendants are compelled to invoke the inherent jurisdiction of the Court in circumstances for which they admit there is no direct precedent in the case law, does not mean that the Court lacks an inherent jurisdiction to stay, reject or restrain proceedings on the ground that they have become pointless. The most recent Irish authority in this connection arises in the different context of Henderson v. Henderson (1843) 3 Hare 100 abuse of process. That relates to a situation in which a party seeks in a new proceeding to agitate a point which he could have, but did not, agitate in previous proceedings. That is not this case, but the statements of principle supporting the existence of Henderson abuse of process are not without relevance. They were, as it happens, considered in some detail by this Court in A.A. v. Medical Council [2003] 4 IR 302. There, at p.316, the Court favoured the approach of Lord Bingham in Johnson v. Gore Wood & Co. Ltd. [2002] 2 A.C.1 where he said at p.31:-
“… a broad merits based judgment which takes account of the public and private interests involved and also takes account of all facts of the case, focussing attention on the crucial question of whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”
I would adapt that citation to the facts of this case by substituting for the last phrase “… by seeking to raise before it an issue whose resolution would be otiose, improper or oppressive”
In that case, the Supreme Court also cited with approval a dictum of Lord Bingham in Gairy v. Attorney General of Granada [2002] 1 AC 167. There, speaking of the power of the Court to intervene to stop or restrain proceedings he stated at p.181 that the principles on which the courts acted are:-
“… rules or Justice, intended to protect a party (usually, but not necessarily a defendant) against oppressive and vexatious litigation.”
This Court continued in A.A. at p.317:-
“Rules or principles so described cannot, in their nature, be applied in an automatic or unconsidered fashion. Indeed, it appears to me that sympathetic consideration must be given to the position of a plaintiff or applicant who on the face of it is exercising his right of access to the courts for determination of his civil rights or liabilities.”
Notwithstanding this, the Court in that case found against the applicant on the basis that he might have raised the point which he was seeking to agitate (a lack of legal aid for a person such as himself in proceedings before the Medical Council) in previous proceedings which he had taken against the Council. But he did not do so with the result that the resolution of the complaints against him had been significantly delayed.
The Court went on to consider certain cases from the European Court of Human Rights on the limitation of access to the courts. In Ashingdane v. United Kingdoms (1985) 7 EHRR 528 at p.546 the European Court of Human Rights said:-
“… the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals.”
Considering the nature of permitted limitations on the right of access to the courts, the same Court said in Tinnelly and Sons Ltd. & Ors. v. United Kingdom (1999) 27 EHRR 249 at p.271, quoting from the judgment of Fayed v. United Kingdom (1994) 18 EHRR 393:-
“… a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the ends sought to be achieved.”
Against that background, I propose to consider the issues in the present case.
The Roche defendants case.
On behalf of these defendants Mr. Maurice Collins S.C. said that this case featured an open offer. It was not, he conceded a “Calderbank” offer, and neither was it a tender or lodgement. He agreed that the lodgement/tender process had been in existence for a long time but said that its consequence is ex poste facto because the issue as to costs can only arise subsequently, after judgment. The effect of such procedures, said Mr. Collins, is to penalise a plaintiff who rejects a proper offer, even one tendered without admission of liability. That fact, said Mr. Collins, tended to suggest that there was not an unqualified right of access to the courts. If there were it would be improper to penalise a party for refusing to accept a proper offer.
Mr. Collins went on to submit that this case is “quantifiable to a unique degree”. This was because the proceedings were neither more nor less than a statutory action in which statute (s.49 of the Act of 1961) provided for all the damages which could be recovered. This must necessarily imply that the plaintiff’s right to litigate was qualified: he had a right to litigate only to recover the sums which, by statute, were all that could be awarded to him. This is precisely the same principle as underlies the lodgement procedure, Mr. Collins contended.
Mr. Collins said that he was relying both on the inherent jurisdiction of the Court to strike out reject or stay an action and on the proposition that the proceedings, if continued, would be an abuse of process. But he wished to emphasise that his clients were not alleging an abuse of process in the sense of an improper purpose or ulterior motive. There was none such in the present case, he conceded.
The principal authority relied upon by Mr. Collins was McSorley v. O’Mahony (unreported, High Court, Costello J., 6th November, 1996). This was a case where the plaintiffs sought to sue the defendant, their former solicitor, in respect of, inter alia negligence and breach of contract in relation to the purchase of a property from Cork Corporation. However, they had in previous proceedings had recovered appropriate damages for their misfortunes from Cork Corporation in relation to the attempt to purchase the property from another party. In those circumstances, the proceedings against Mr. O’Mahony were stayed. The learned judge said at pp 20 and 21:-
“In my opinion this action should be stayed on the ground that it is vexatious and an abuse of the courts process. When instituted the cause of action arose from Mr. O’Mahony’s alleged wrongful act in refusing to hand over the title deeds to the premises so that the sale could be completed. That cause of action no longer exists and only the question of costs remains to which I will later return. The second cause of action is the claim for damages arising out of the purchase of the Pearse Square premises. The plaintiff can obtain no benefit from maintaining these proceedings for the purpose of obtaining an award against the defendant. The Cork Corporation is not insolvent and can pay the damages already awarded by the High Court or as may be found by the Supreme Court should the appeal proceed and be successful. It is an abuse of the process of the courts to permit the court’s time to be taken up with litigation which can confer no benefit on a plaintiff. It is also an abuse to permit litigation to proceed which will undoubtedly cause detriment to a defendant and which can confer no gain on the plaintiff.”
This, indeed, is a compendious statement of the principles upon which the Roche defendants rely. Mr. Collins submitted that the present proceedings are vexatious and an abuse of process because the plaintiff can obtain no benefit from maintaining proceedings “for the purpose of obtaining an award against the defendant.”
Mr. Collins stated, however, that the plaintiff was obviously desirous of having a determination of liability apart from any question of damages. That is, in statutory terms, he was desirous of obtaining a finding that the death of Liam Grant Junior had been caused by the wrongful act of the defendants or some of them. Mr. Collins conceded that the statute spoke in terms of a death caused by a wrongful act of another person but he said that that was merely a statutory precondition to obtaining an award of damages and the plaintiff’s action in maintaining the proceedings after it had been offered the full measure of damages amounted to turning a statutory precondition into an end in itself. He could not do this because it is an abuse for precisely the reasons given by Costello J. in McSorley. Nor was there any other form of independent action that could be brought for the same purpose, said Mr. Collins.
Mr. Collins said that the values which should move the court to stay these proceedings were precisely those underlining the distinction between a public and a private inquiry. This was a private law action. In a submission which was central to his case Mr. Collins said that “Private law is wholly about what financial remedy is available. It was about obtaining what was called in McSorley a “tangible benefit” for the plaintiff and it was about absolutely nothing else. In further discussion of the topic, Mr. Collins agreed that there was no authority for these propositions but he said they followed inevitably from first principles. In a case such as this, said Mr. Collins, damages are not only the prime concern, they are the only legitimate concern. Insofar as the law might be conceived as having a social role (this possibility had been mooted in argument by the Chief Justice) that role was wholly a matter for “criminal or regulatory law”. Mr. Collins was anxious to stress that he was relying on the test, derived from McSorley of there being “no tangible benefit” to be got from pursuing the action. He was not relying on the proposition that the proceedings were “completely outside the ambit” of the statutory provision which gave rise to them, another well established ground for staying proceedings.
The plaintiff’s case.
On behalf of the plaintiff, Mr. Paul Burns S.C. said that the plaintiff was seeking the vindication of personal rights in accordance with Article 40.3.3 of the Constitution. One way in which the State met its constitutional obligation to vindicate those rights was by the provision of suitable forms of civil action. There was no authority for the proposition that this role is in some way limited to criminal law. The role of a civil action is more than the allocation of damages; it is one of the ways in which rights are vindicated. The terms of s.48 (1) of the Civil Liability Act 1961 meant that an action under Part IV was, amongst other things, an inquiry into accountability for the death because damages could only be awarded “where the death of a person is caused by the wrongful act of another.” Mr. Burns submitted that the Act had to be viewed in the context of the Constitution and, nowadays, of the European Convention on Human Rights. The constitutional and convention provisions relied on are set out below. Mr. Burns pointed out that “there has to be a mechanism” for the vindication of the rights provided in those sources and that any such mechanism must provide for:
(i) A judicial process which
(ii) Featured a determination of liability, and;
(iii) A pronouncement of liability.
Having regard to the fact that a coroner’s inquest, pursuant to the Coroner’s Act 1962, was specifically prohibited by statute from blaming or exonerating any person in relation to a death, it was clear, said Mr. Burns, that the Oireachtas regarded Part IV as providing for these matters.
Mr. Burns indignantly enquired “Where’s the justice of the situation?” This point, though somewhat rhetorically raised, is not of course one which the Court can ignore. Mr. Burns referred to the State’s obligation “in the case of injustice done” to vindicate, inter alia, the right to life of all citizens including the late Liam Grant Junior. How is this to be done if the State provides no mechanism for enquiring into liability except as a precondition to an award of damages. If such a procedure could be bought off by simply paying the very restricted amount permitted by way of damages in those circumstances, that would be, submitted Mr. Burns a “rich man’s charter”, to subvert the vindication to the right of life.
In this connection, Mr. Burns relied on Powell v. United Kingdom (2000) 30 EHRR CD 362 a judgment of the European Court of Human Rights of the 4th May, 2000. There, relatives of a deceased child complained that United Kingdom Law provided for no adequate investigation into their child’s death. But the Court referred to the fact that they had settled a civil action for wrongful death in the following terms at p.CD. 365:-
“Of greater significance for the Court is the fact that the applicants settled their civil action in negligence against the responsible health authority and did not pursue individual claims against the doctors. In the Court’s opinion, the applicants by their decision closed another and crucially important avenue for shedding light on the extent of the doctor’s responsibility for their son’s death”.
The Court continued at p.CD365 that:-
“Having regard to the above considerations, the Court finds that it is not open to the applicants to complain under Article 2 of the Convention that there was no effective investigation into their son’s death. In its opinion, where a relative of the deceased accepts compensation in settlement of a claim based on medical negligence he or she is in principle no longer able to claim to be a victim in respect of the circumstances surrounding the treatment administered to the deceased person or with regard to the investigation carried out into his or her death.”
Mr. Burns submitted that that passage clearly indicated that the civil proceedings were seen as part of the State’s machinery (which was obliged to provide under the Convention) for “shedding light on the extent of the doctor’s responsibility,” i.e. responsibility for the death.
Mr. Burns also relied on the decision of the English Court of Appeal in R (Takoushis) v. Inner North London Coroner [2006] 1 WLR 461 at p.493:-
“… where a person dies as a result of what is arguably medical negligence in an N.H.S. hospital, the state must have a system which provides for the practical and effective investigation of the facts and for the determination of civil liability. Unlike in the cases of death in custody, the system does not have to provide for an investigation initiated by the state, but may include such investigation. Thus the question in each case is whether the system as a whole, including both any investigation initiated by the state and the possibility of civil and criminal proceedings and of a disciplinary process satisfies the requirement of article 2 as identified by the European Court in cases to which we have referred, namely (as just stated) the practical and effective investigation of the facts and the determination of civil liability”. (Emphasis added)
Having regard to the fact that one of the defendants is the Irish Medicines Board, a State statutory body charged amongst other things with the investigation and approval of the medicines to be used in medical practice in the State, Mr. Burns submitted that the obligations of the State in relation to the death of Mr. Grant Junior are those described in these passages. He emphasised that both the English and the Strasbourg jurisprudence is quite inconsistent with regarding the civil proceedings as purely a money distributing exercise and, on the contrary, they are regarded (at least where there is a public element involved in the circumstances leading to the death) as part of the investigatory process to which the deceased’s relatives are entitled, as is the “determination of civil liability.”
Secondly, Mr. Burns submitted that the question of whether the very considerable expenses incurred by the plaintiff in the investigation of the circumstances of his son’s death are recoverable, or are recoverable as special damages as opposed to under the heading of costs, is itself a justiciable issue.
Mr. Burns addressed the case of McSorley upon which Mr. Collins had principally relied. He said, firstly, that the death of a human being, which was what is in question here, was quite a different proposition to the allegedly defective execution of a conveyancing transaction. There was, at least in Convention jurisprudence, an established right to a proper inquiry in the former case. In any event, he pointed out, in McSorley there had already been a full hearing on the merits. What was in issue there was a multiplicity of proceedings. This did not arise here: the Roche defendants were attempting to abort the only hearing which, on their own case, there could ever be.
Finally, Mr. Burns emphasised strongly that the present application took no recognised form but was “made up”. He also emphasised, which is obvious, that the lodgement procedure could not abort the proceedings: it merely put the plaintiff on a considerable risk if he was overoptimistic on liability or overvalued his claim. That was a balancing of the rights, public and private, which are involved in civil litigation. But what was proposed here was a total destruction of the plaintiff’s rights, not a balancing. Mr. Burns accepted that there was a public interest as well as a private interest in litigation and that there were many circumstances in which it was proper for the courts to stay or strike out proceedings. But this case, said Mr. Burns, was a case of a real controversy which should be litigated in the public interest as well as in the Grant family’s private interest.
Reply.
In reply, Mr. Collins S.C. invited the court to start its deliberations with a question: what does the section provide? The answer, he submitted was “damages” for the relatives of the deceased. In other words, the section provided an action for the recovery of damages and for nothing else.
He submitted that the money spent on scientific investigation was clearly not special damages but costs. Returning to his main theme he said that s.48 of the Act of 1961 did not provide for an investigation but was merely a precondition to the recovery of damages. He said that sections 48 and 49 simply are not capable of being interpreted in any other way.
In another important submission, Mr. Collins submitted that the Roche defendants “are not caught by Article 2 (of the Convention) because they are not a public body”. The Convention, he said, as applied to this case was merely a “cul de sac”.
Finally, Mr. Collins acknowledged the existence of the lodgement rules and the fact that they had not been operated by his clients in this case but said that the feature was not conclusive.
The High Court judgment.
In his judgment of the 27th May, 2005, Finnegan P. (as he then was) may be said to have found the following:
(a) An award of damages is not the only object of a claim;
(b) There is a jurisdiction to strike out proceedings for abuse of process occasioned by the institution or maintenance of an action without cause or for some improper or wrongful motive;
(c) The plaintiff in this case wishes to establish that the death of his son was caused by the wrongful action of the defendant. Consequently, he is not seeking to “effect an object not within the scope of the process”;
(d) As the determination of liability is one of the objects of the proceedings, and as there is no admission of liability, the plaintiff is not acting in abuse of process;
(e) The plaintiff’s right of access to the courts is constitutionally guaranteed;
(g) A risk that the defendant might not recover his costs against the plaintiff is not a factor to be taken into account;
(h) The constitutional rights of the plaintiff take precedence over the consequences in terms of costs for the defendant;
(i) No costs/benefit analysis should be carried out;
(j) The Irish system of procedure penalises in costs a plaintiff who fails to accept a sufficient sum paid into court or tendered.
Decision.
(a) The Court’s approach.
For the reasons set out earlier in this judgment, there is no doubt that a court has a jurisdiction, in a suitable case, to restrict access to the courts by striking out, rejecting or restraining a claim which is pointless, vexatious, or an abuse of process. The case of A.A. v. Medical Council, cited above is an example of such a case.
Although the point is not significant in this case, I do not see any reason to consider that this entitlement is limited to the Superior Courts bur rather consider that it applies to any court properly seized of a dispute. But this issue was not fully argued.
In the case of Barry v. Buckley [1981] I.R. 306 it was held at p.308 that this inherent jurisdiction to strike out is one that should be “exercised sparingly and only in clear cases”.
In Sung Fat Chan v. Osseous Ltd. [1992] 1 IR 425 McCarthy J. said at p.428:-
“Generally, the High Court should be slow to entertain an application of this kind and grant the relief sought. Experience has shown that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated at earlier stages of the proceedings.”
I believe that any lawyer of experience would endorse the dictum just cited of McCarthy J. It is clear from a brief perusal of the documentation gathered in the present case that material whose existence could hardly have been suspected at the time of the institution of the proceedings has in fact come to light.
In D.K. v. King [1994] 1 I.R. 166 Costello J. emphasised that the Court should be reluctant to strike out a case at an interlocutory stage and that in deciding whether to do so a court should not adjudicate on questions of fact or controversial legal issues raised by those proceedings. It should confine itself to considering whether the issues raised were frivolous or obviously unsustainable. To the same effect is the judgment of Murphy J. in Conlon v. Times Newspapers Ltd. [1995] 2 I.L.R.M. 76. There, the learned judge contrasted an application during a trial to withdraw a case from the tribunal of fact and an interlocutory application to have the same action struck out. He stated at p.80:-
“It does seem to me that the preference in any case should be that unless these matters [i.e. that the plaintiff’s claim is clearly unsustainable or that it is bound to fail] are clearly established, that a plaintiff in every case should be afforded the opportunity of having his case fully heard by a judge and more particularly, a jury, where that is an appropriate remedy”.
The case of A.A. v. Medical Council has been already cited in this judgment, including a general statement to the effect that the Court’s inclination must be to permit a plaintiff to exercise his right of access to the courts. In a similar vein, Murray J. (as he then was) said in Jodifern Ltd. v. Fitzgerald [2000] 3 IR 321 at pp.334 and 335:-
“It seems to me that if on the basis of the undisputed facts there remains a a substantial issue or issues of law as to whether the plaintiff is entitled to some or any of the relief’s sought, the proceedings can hardly be said to constitute an abuse of the process of the Court. It may indeed be that since the factual issues are the basis of the plaintiff’s claim has been identified, that the legal issues arising are susceptible of judicial determination. For this reason it may be tempting, in the interest of economy of litigation, to do just that. However, to proceed (at least in the absence of agreement between the parties) to make a final determination of such issues in an application to stay or dismiss proceedings for abuse of the process of the court “would deprive the plaintiff of the due process of plenary proceedings before the court.”
It would clearly be wrong for this Court, hearing an appeal from a decision on an interlocutory motion, to express any opinion on the merits or likely outcome of the case. However the Roche defendants’ action in bringing this motion compels and permits me to say that, on the basis of the information before the Court, I do not consider that the plaintiff’s claim is clearly unsustainable or that it is bound to fail. I am compelled to add, for the plaintiff’s attention (for it will be clear without further explanation to his lawyers) that this state of mind is as far as can be from a belief that the plaintiff is bound to, or likely to, succeed. It is simply not possible to come to this conclusion. If the plaintiff’s action is permitted to proceed he will be taking on difficult proofs against a well resourced and determined group of defendants in the Roche Companies who have every reason to resist his claim. He is taking on a considerable risk, hard to quantify precisely at the moment, and risking enormous financial losses but I could not hold, on the evidence before us, that his claim is bound to fail, which is one of the established grounds on which a claim can be dismissed at this stage.
Abuse of process?
Firstly, there can be no doubt that the onus of establishing abuse of process is on the defendants who seek to stay the proceedings because of it and this onus is “a heavy one”. (See Goldsmith v. Sperrings Ltd. [1977] 1 WLR 478, per Lord Denning M.R. at p.498):-
Secondly, the classic and long established definition of an abuse of process is that of Isaacs J. in Varawa v. Howard Smith Company Ltd. (1911) 13 C.L.R. 35 at 91:-
“In the sense requisite to sustain an action, the term ‘abuse of process’ connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court has asked to adjudicate, they are regarded as an abuse of process for this purpose…”
This dictum was adopted by the High Court of Australia in Williams v. Spautz (1992) 174 C.L.R 509. In that case, Brennan J. said:
“… if there be a reasonable relationship between the result intended by the plaintiff and the scope of the remedy available in the proceeding, there is no abuse of process. If there be mixed purposes – some legitimate, some collateral – I would restate his Lordship’s test [i.e. Bridge L.J. in Goldsmith] that ‘but for his ulterior purpose, [the plaintiff] would not have commenced proceedings at all.’ So expressed the tests cast on the other party an onus of proving what the plaintiff would not have done if he had not formed the intention of obtaining a collateral advantage. That onus may be impossible to discharge”.
In the present case, as is set out in the summary of the appellant’s arguments earlier in this judgment, the Roche defendants have disavowed the Varawa test. I believe that they had no option but to make this concession. Having regard to the terms of s.48 of the Act of 1961 I cannot see how an intention of establishing that the death of the deceased was caused by the wrongful act of the defendants could be described as “outside the ambit” of the legal claim created by the statute. It was further expressly conceded that the plaintiff here has no ulterior or improper purpose.
Instead of this traditional and well established test, the Roche defendants say that they can meet the less onerous test derived from the judgment of Costello J. in McSorley, cited above. This is the test that there is quite simply “no tangible benefit” which the plaintiff can hope to gain by pursuing the proceedings. They are therefore, it is submitted, pointless and thus an abuse of process. In another sense they are moot by reason of this lack of tangible benefit.
I cannot hold that a determination as to whether the death of the deceased was caused by the wrongful act of the Roche defendants, or any defendants, will not confer a tangible benefit on his father, the plaintiff, and those others for whose benefit the action is brought. It is quite contrary to any holistic view of human nature to fail to acknowledge that each and every one of these people will benefit from a resolution of the suspicions which they clearly hold, that the deceased was led to take his own life by the ingestion of a prescription drug known or believed to be associated with grave adverse psychiatric consequences. Moreover, where a very young man has died by his own hand, there is a manifest benefit to his father and other relatives in establishing, if it be the case, that his death had an exogenous cause and was not the result of a free decision on his part. The overwhelming majority of humanity, including the “reasonable man” beloved of the law, would recognise this instinctively and in my view correctly.
Article 40.3.2
I consider that Mr. Burns S.C. is self evidently correct in his submission that the construction of Part IV of the Act of 1961, like any statute, must be approached in the context of the Constitution. The plangent words of Article 40.3. in relation to the right to life are almost too well known to require quotation:
“(1) The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
(2) The State shall, in particular, by 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 appears to me to require that the right to life of each individual citizen, including the late Liam Grant Junior, be vindicated. Since he is unfortunately deceased in circumstances alleged to amount to a statutorily actionable injustice, it appears to me that his right to life can be vindicated only by hearing, in accordance with law, the plaintiff’s statutory claim that his son’s death was caused (in the words of the Statute) by the “wrongdoing” of the defendants’ and accepting or rejecting that proposition after a proper hearing. It is this hearing of an established statutory form of action that the Roche defendants seek to prevent. It is however the only legal step capable of providing vindication for an alleged injustice “by its [i.e. the State’s] laws”.
The foregoing appears to me to follow from an analysis of the constitutional article quoted above, both in its primary, Irish language, formulation and in English. It will first be noted that the obligation to “vindicate” the life of the citizen arises “in the case of injustice done”. Accordingly, the word “vindicate” has to be construed if possible in a manner which connotes an appropriate response to an “injustice”. That injustice is alleged to be the bringing about of the death of the deceased by an act of “wrongdoing”, to quote the statutory phrase. There is in fact no difficulty in so construing the term, if one has regard to the ordinary and natural meaning of the word “vindicate” as set out in the Oxford English dictionary. There, the word, which is a transitive verb, said to derive from the Latin vindicare which is defined as meaning to claim, to set free, to punish, or to avenge. The English term is given the following meanings:
– avenge, revenge,
– take revenge (on a person) for a wrong,
– claim, assert, or establish the possibility of,
– clear of blame, justify by evidence or argument,
– establish, assert, or maintain,
– defend against encroachment or interference.
In this light, it seems to me that, a proper construction of the Article involves a consideration of the primary or Irish language version as well as the English text. In this connection I wish to acknowledge the invaluable assistance to be derived from “Bunreacht Na hÉireann, a study of the Irish text” by Mr. Michéal Ó Cearúil, (The All-Party Oireachtas Committee on the Constitution, The Stationary Office, Dublin 1999). This remarkable feat of scholarship is indeed, in Tennyson’s phrase, “a work of noble note”. The author points out that the matter expressed in English as “and, in the case of injustice done, vindicate…” which is found in the middle of the English subsection, is found at the end of the Irish version where the same thought is expressed as “agus iad a shuíomh i gcás éagóra” which means “and vindicate them in case of injustice”. The pronoun “iad” (them) refers to “beatha agus parsa agus dea-chlú agus maoinchearta an uile shaoránaigh” (the life and person and good name and property rights of every citizen).
Here, attention must focus on the use of the term “a shuíomh”, translated as “vindicate”. It will be noted that the same word is used in the preceding sub-Article, 40.3.1, where it is translated by Mr. Ó Cearúil, literally, as “assert”. The word may also be found in Article 12.3.1: 12.10.7 and 14.1, where it expresses the notion “is established” or “shown”.
The official publication Téarmaí Dlí, translates “Cúis, ceart, a shuí” as “to establish a case, a right”. Dinneen’s dictionary translates the term as “I set, plant, arrange, dispose, prove, certify, establish, or station (as guards)”. Other meanings cited in Mr. Cearúil’s work include “fixes, assesses, imposes”, the latter term specifically of laws or legal consequences.
In light of the foregoing, and bearing in mind the primacy of the Irish text in the event of deviation, it seems to me that the term “a shuíomh” or “vindicate” is best rendered, and in a manner which is harmonious as between the Irish and English versions, by a combination of two of the Oxford English Dictionary definitions those of “defend against encroachment or interference” and “clear of blame, justify by evidence or argument”. If this meaning is applied to a process which is intended to be a remedy or vindication for an injustice, then it seems to me to require the three characteristics of vindication which were asserted by Mr. Burns in this case i.e.:
“(i) A judicial process which
(ii) Featured a determination of liability and
(iii) A pronouncement of liability.”
It will be noted that, by the terms of the Article quoted, the function of protection or vindication which was imposed as obligations of the State is to be “carried out by its laws”. It is, therefore, to the body of law in force in the State, i.e. statute law, common law, and law deriving from any other legitimate source such as the European Convention on Human Rights, that one must look to for the mechanism of vindication. It is, accordingly, necessary now to turn to Mr. Collins’s contention that such vindication cannot be found in the civil law of the State, in this case the law of tort, but must be sought exclusively in the “criminal or regulatory law”.
I wish specifically to reject a central proposition upon which the Roche defendants relied, that the vindication of personal rights is a matter only for the “criminal or regulatory” law and not civil law. This highly artificial distinction has no basis in the Constitution or in the law itself. Above all, it does not conduce to justice which, by Article 34.1 of the Constitution is what the courts are to administer. On the contrary, it has been recognised at least since Meskell v. Córas Iompair Éireann [1973] I.R. 121 at pp.132 and 133 that constitutional rights are capable of enforcement by action, “even though such action may not fit into any of the ordinary forms of action in either common law or equity” thereby plainly and necessarily establishing that the ordinary forms of action may be used to enforce such rights where possible. Still more explicitly than the dictum of Walsh J. quoted above is that of Henchy J. in Hanrahan v. Merck Sharpe and Dohme (Ireland) Ltd. [1988] ILRM 629 when he said at pp. 635 and 636:-
“I agree that the tort of nuisance relied on in this case may be said to be an implementation of the State’s duties under those provisions Article 40.3.1 and Article 40.3.2 of the Constitution as to the personal rights and the property rights of the plaintiffs as citizens.”
This is an absolutely express statement of the role of the law of tort in implementing the State’s duties under Article 40.3 and the personal rights Articles of the Constitution.
In a discussion of the “Role of the Law of Tort in the protection of constitutional rights (in Hogan and White, J.M. Kelly: The Irish Constitution, 4th Ed. (Lexis Nexis, Butterworths 2003) at p.1313, it is considered that “… the courts may either modify the definition of a tort or permit the plaintiff to sue directly for infringement of constitutional rights”. It may take this novel step “where an existing tort is ineffective to protect constitutional rights…”.
There is thus authority both judicial and academic for the proposition that the law of tort is, at least in certain circumstances, an important tool for the vindication of constitutional rights, and no authority whatever for the proposition that it is concerned exclusively for the allocation of damages and with nothing else whatsoever. That contention, as we have seen, was central to a defendant’s case in this motion.
Indeed, it seemed to me as the argument went on that the Roche defendants’ case on abuse of process gradually refined itself almost out of existence. As we have seen, Mr. Collins declined to rely on the Varawa test because he conceded that the object of the plaintiff in maintaining these proceedings could not be described as “completely outside the ambit of the statutory claim.” But equally, Mr. Collins wished to emphasise that his clients, the Roche defendants, were not alleging any improper purpose or ulterior motive against the plaintiff, Mr. Liam Grant Senior. In doing so, it appears to me, the Roche defendants debarred themselves from relying on another traditional species of abuse of process, an ulterior improper or collateral motive. They were therefore driven to advance two alternative arguments. The first was that this action was a private law action and private law is wholly concerned with what remedy is available: it is concerned with nothing else whatever. Secondly, they relied on the “no tangible benefit” argument which they said arose from the judgment of Costello J. in the McSorley case.
I have already indicated that I would reject the view that civil, as opposed to “criminal or regulatory” law has nothing to do with the implementation of the State’s duty to vindicate personal rights. I believe it to be absolutely contrary to established authority and to the opinion of the legal academic exponent of the Constitution, the late Professor Kelly. I have already discussed to some extent the McSorley case, in the course of summarising the arguments for the Roche defendants, above. I wish to say by way of summary that that was a case where, in the plaintiff’s view, there were two concurrent wrongdoers, Cork Corporation and Mr. O’Mahony, Solicitor. They sued the first of these and obtained an order for the payment of a specific sum with which they were apparently dissatisfied. They then proceeded to sue the other alleged concurrent wrongdoer in the hope, apparently, of getting a larger bite of the cherry. In my view, the form of abuse exhibited on those facts is abuse by multiplicity of proceedings. I believe that the facts of the McSorley case provide no useful analogy whatever to those of the present case. Here, the plaintiff, so far from multiplying proceedings, has sued seven defendants in the one set of proceedings, which in my opinion is proper procedure on his part.
I also wish to reiterate that I do not accept that the finding that a death was caused by the wrongful act of another person is a finding which confers no tangible benefit on the relatives of the deceased, in circumstances such as the present, for the reasons set out above.
Expenditure.
We have already seen, in the quotation from the Act of 1961, that a person entitled to sue for the wrongful death of another may recover funeral expenses and “other expenses actually incurred”. There is, in my opinion, a bona fide and justiciable issue between the parties as to whether the considerable and expensive research engaged in by the plaintiff preparation for the inquest into the deceased’s death is expenditure recoverable under the statute. It is clearly expenditure which would not have arisen but for the death of the deceased and which was foreseeable and appears to me, at least arguably, thus to be recoverable. The plaintiff’s case may derive some support on this point from the judgment of Barington J. in Condon v. CIE & Ors. (unreported, High Court, Barrington J., 16th November, 1984). But I do not intend to decide this issue or to consider the cases cited on it, for the reasons given by Costello J. in D.K. v. King, cited above. It is sufficient to say that the existence of that or any other justiciable issue between the parties in my view of itself would preclude an order striking out the proceedings at present.
Conclusion.
I would dismiss the Appeal and affirm the Order of the High Court.
Mulligan v Governor of Portlaoise Prison
[2010] IEHC 269, MacMenamin J.
JUDGMENT of Mr. Justice John MacMenamin delivered the 14th day of July, 2010.
1. On 29th July, 2001, the applicant was arrested and charged with membership of the Real IRA. He was convicted in the Special Criminal Court of that offence on 20th December, 2002, and was sentenced to a period of five years imprisonment, back-dated to the date of his arrest and subsequent detention. The applicant was ultimately released on 27th April, 2005. He served his sentence on the E Wing in Portlaoise Prison.
2. In 2004 the applicant was appointed as a spokesman for the Real IRA group of prisoners. An issue arose as to whether a fellow prisoner should have been extended compassionate leave so as to attend the funeral of a family member. The group considered that there had been a breach of an understanding with the authorities on such questions and engaged in a campaign of protest.
3. As a result of this campaign, on 20th May, 2004, the applicant was subjected to disciplinary proceedings. It was determined that he was to lose a series of privileges, be placed in closed confinement for 28 days, and be denied phone calls or visits, save for legal visits. The applicant claimed that, during this period, he was confined in his cell for a total of 22 hours a day, and denied free association with other prisoners. He asserted that these conditions were particularly onerous on him by reason of a pre-existing susceptibility to colorectal medical complaints described later.
4. These judicial review proceedings were originally initiated by the applicant on 26th July, 2004. The “close confinement” issue was resolved without a full hearing in 2005.
5. The remaining and central issue now, is the applicant’s contention that the absence of in-cell sanitation, alleged unhygienic conditions and the necessity to engage in “slopping-out procedures” gave rise to a violation of his constitutional or ECHR rights. He says the prison regimen caused or rendered symptomatic his pre-existing susceptibility to colorectal complaints. He seeks declarations that the respondents’ breaches of duty give rise to remedies by way of declaration and damages.
The general headings of the case
6. The case falls for consideration in two ways. First, the applicant seeks a declaration that his detention was a violation of rights under Article 40.3.1 of the Constitution of Ireland, including his personal right to bodily integrity, his right not to have his health placed at risk, and his right not to be subjected to torture, inhuman or degrading treatment or punishment.
7 The applicant claims alternatively that the prison conditions gave rise to violations of his Article 3 and Article 8 rights under the European Convention on Human Rights (ECHR) engaging respectively, questions of inhuman and degrading treatment, and the right to private life.
8. The fact that the applicant had no in-cell sanitation is not in dispute. But as will be explained, an assessment of the issues necessitates an analysis, not only of this one fact, but also the overall conditions to which the applicant was exposed during his term of detention.
Background
9. The main time framework of this case is between 24th July, 2001 and 27th April, 2005. The case does not concern subsequent events. But prior to 2001, a number of international and domestic expert reports called into question prison accommodation and standards in Ireland, in particular, in the context of overcrowding. The lack of in-cell sanitation and the practice of “slopping-out” were also criticised. As far back as 1993, the European Committee for the Prevention of Torture, Inhuman and Degrading Treatment or Punishment (CPT) was sharply critical of these procedures in Irish prisons. These same concerns were repeated in later reports from that organisation. On repeated occasions from 1997 to 2003, the Visiting Committee to Portlaoise Prison drew attention to the issue. In the year 2000, the Committee drew attention to assurances that were given by the Prison Service that remedial construction work would be carried out: they observed that the failure by the Prison Service to carry out works in accordance with assurances given was “totally unacceptable”. The deep concern and frustration of the Committee at the lack of progress is repeated in a number of contemporaneous reports.
10. In the 1990’s various committees formed under the aegis of the respondents, accepted the need for in-cell sanitation in prison accommodation. One such committee formed by the Department of Justice noted that the installation of in-cell sanitation in all places of detention was planned to be completed by 1999.
11. Organisations such as the CPT investigated prison conditions in many European States. A number of such cases were brought before the European Court of Human Rights (“ECHR”) in Strasbourg. Case histories there involved conditions which could only be described as being near to sub-human. The Strasbourg jurisprudence, considered later in this judgment, outlines the circumstances in which such detention and conditions have been held to constitute violations of Articles 3 and 8 ECHR.
12. United States courts have had to consider whether prison conditions constituted cruel and unusual punishment prohibited under the Eighth Amendment. United States jurisprudence has involved a consideration of an “objective” component (was there a sufficiently serious deprivation of rights); and a subjective element (was the deprivation brought about in wanton disregard of the inmate’s rights). The purpose of such criteria were to measure the impugned conditions of confinement against “the evolving standards of decency that mark the progress of a maturing society” (Rhodes v. Chapman 452 U.S. 337 (1981). To show deliberate indifference, the subjective aspect of the Eighth Amendment test, plaintiffs must also show that the officials had actual knowledge of impending harm which was easily preventable (DesRosiers v. Moran 949 F. 2d. 15, 19 (1st Cir. 1991).
13. As will be seen many of the same themes resonate through cases brought under our Constitution, the ECHR and the United States Constitution. The jurisprudence often considers both the “specific” issues referable to an individual and those more generally referring to a group or class of prisoners.
Features of the claim
14. As a preface, it is useful first to identify a number of features of this case prior to outlining the evidence.
(i) It is necessary to emphasise that the matter in question here is a purely legal question. The constitutional and legal tests are defined by legal authority. The rights in question are legal and constitutional rights also as defined and identified in established case law. It is self-evident that the practice of slopping-out was unpleasant, caused resentment among many prisoners; and was seen by many people as repugnant by today’s standards.
(ii) The applicant’s case is both “general” and “specific”; he seeks to impugn aspects of the general prison regime and also refers to their alleged particular physical and psychological consequences upon him.
(iii) This is a single, inter-partes claim; not a form of class action. Such a concept is not recognised in Irish law.
(iv) The causes of action upon which the applicant relies in the first part of the judgment are alleged constitutional “wrongs” having a “vertical” effect, that is, in the context of an action by a citizen against state authorities. The judgment will therefore consider the applicability of defences available under the general law of torts.
(v) The applicant’s pre-existing medical history is relevant. He received colorectal treatment for an anal fissure condition as far back as 1988. His disposition to haemorrhoidal symptoms dated as far back as the 1970s. Indeed these medical issues continued to trouble him even after he left prison in 2005, and ultimately necessitated yet further treatment.
(vi) The constitutional and legal issues in question are closely connected to the values of privacy and dignity. The applicant here was in the relatively privileged situation of at all times having a cell to himself, as did all the other Real IRA prisoners on the E2 landing.
(vii) The sanitation, hygiene and ventilation in Portlaoise Prison are also the main focus of the claim. In fact, the applicant favourably contrasted other aspects of the prison regime to that which had obtained in Portlaoise Prison when he served a previous sentence from 25th June, 1977 to 6th November, 1984 for a variety of paramilitary offences, including shooting with intent to murder.
(viii) By its very nature, imprisonment must give rise to a deprivation of certain rights. But any attenuation of rights must be proportionate; the diminution must not fall below the standards of reasonable human dignity and what is to be expected in a mature society. Insofar as practicable, a prison authority must vindicate the individual rights and dignity of each prisoner. As a citizen, a prisoner is entitled to protection of his right to bodily integrity, an unenumerated right established under Article 40.3 the Constitution. He or she is entitled not to have their health placed at risk. As a matter of general principle he or she must be protected against inhuman or degrading treatment.
(ix) Consideration of the material evidence is largely confined to the period prior to, and during the applicant’s period in Portlaoise Prison. To reiterate; subsequent events do not have a direct bearing on the issues the Court must decide.
The nature of the constitutional wrong alleged
15. As a further point of reference it is useful briefly to consider the nature of the constitutional wrong alleged by the applicant. It is that the inhuman and degrading treatment he alleges constituted an actionable wrong or tort under the Constitution. (See Meskell v. C.I.E. [1973] I.R. 121; Kearney v. Minister for Justice [1986] I.R. 116; McHugh v. Commissioner of An Garda Síochána [1986] I.R. 228; and Kennedy v. Ireland [1987] I.R. 587)
16. A number of the rights asserted here are identified and found only within the parameters of the Constitution. Privacy is one example. On the other hand, certain of the rights may be seen as being “sub-constitutional” i.e. such rights (or their correlative duties) while embodying constitutional values, may also be expressed within the framework of the common law, or under Statute. The issues of this case predate the introduction of the Prisons Act 2007 and the inception of the office of Inspector of Prisons.
17. Clearly the respondents owed the applicant a duty of care under the law of tort during detention. The right of bodily integrity is extensively protected in the law of torts also. Prison authorities must not act negligently or in breach of duty to a prisoner or cause him injury by negligence. However there may also be infringements of constitutional rights, not regulated by law, and for which no protection exists other than within the boundaries of the Constitution. Then, as found in Meskell, a right of action and remedy is to be found within the Constitution itself.
The interaction of the Constitution with Statute and common law
18. This case aptly illustrates the manner in which these categories of case may interact and overlap. What arises here is not simply a free standing “Kennedy v. Ireland” privacy right, or the unenumerated right of bodily integrity. Such rights were found to be capable only of constitutional remedy. The claim here has many attributes of a personal injuries claim in the law of torts; specifically, for example, an employee suing an employer for work conditions allegedly exposing him to injury including the re-occurrence of a pre-existing back condition. The facts here require that the rights asserted be considered not a priori, or in the abstract. Such an approach might give rise to a strict or absolute liability which might render injustice. The questions here arise in concrete form. Insofar as the rights are manifested “constitutionally” and in a “tort” context, defences in the law of torts such as volenti non fit injuria, foreseeability and contributory negligence may arise.
19. In Hanrahan v. Merck Sharpe and Dohme [1988] ILRM 629, Henchy J. clearly envisaged that a defendant in a “horizontal” inter partes constitutional tort claim should be entitled to a “tort” defence. He pointed out:
“In many torts, for example, negligence, defamation, trespass to person or property, a plaintiff may give evidence of what he claims to be a constitutional right, but he may fail in the action because of what is usually a matter of onus of proof or because of some other legal or technical defence.” (at p.6.36)
By analogy, a “vertical” action against the State in McDonnell v. Ireland [1998] 1 I.R. 134, the question of time limitations arose, albeit in the context of a wrong not specifically identified under the Statute of Limitations 1957.
20. In McDonnell, the plaintiff claimed that he had been dismissed from his employment and suffered loss under legislation held subsequently to be constitutionally invalid. He had not been reinstated. This claim was rejected on the basis that it had been defeated by the Statute of Limitations 1957.
21. Keane J. observed that for a variety of reasons damage which at first sight might seem to have been wrongfully inflicted may not be properly remediable in tort. He observed that even where so remediable, the proceedings may still require to be brought within the constraints of a different form of action.
22. He held that the finding in Meskell to the effect that constitutional rights carried with them their own entitlement to a remedy for enforcement was consistent with their being protected “by a new form of action in tort”. But then he added that this should be “Provided of course, the form of action thus fashioned sufficiently protected that constitutional right in question” (at p. 158 of the report). Keane J.’s view was supported by O’Flaherty J. and Hamilton C.J.
23. Barrington J. (at p. 148 of the report) did not dissent from the outcome but adopted a different approach. He did not think it necessary to decide whether all breaches of constitutional rights were torts within the meaning of the Statute of Limitations. But one passage from his judgment is particularly relevant reflecting as it does the views of the Court as a whole on the question of the parameters of such a constitutional claim:
“There is no doubt that constitutional rights do not need recognition by the legislature or by common law to be effective. If necessary the courts will define them and fashion a remedy for their breach. There may also be cases where the fact that a tort is also a breach of constitutional right may be a reason for rewarding exemplary or punitive damages.
But at the same time constitutional rights should not be regarded as wild cards which can be played at any time to defeat all existing rules. If the general law provides an adequate cause of action to vindicate a constitutional right it appears to me that the injured party cannot ask the court to devise a new and different cause of action. Thus the Constitution guarantees the citizen a right to his or her good name but the cause of action to defend his or her good name is the action for defamation. The injured party, it appears to me, has to accept the action for defamation with all its incidents including the time limit within which the action must be commence.” (Emphasis added)
24. On the facts, the bringing of this action as a “constitutional tort” must also carry with it other incidents of tort law such as volenti non fit injuria, foreseeability and contributory negligence. A citizen may not “precipitate” a cause of action for a wrong involving aspects of a duty of care without a defendant being able to rely on the defences that might normally arise with regard to the imputation of such duty. A framework or range of tort concepts must come into the balance here. (See W. v. Ireland (No. 2) [1997] 2 IR 141; McMahon and Binchy, Law of Torts 3rd Ed (2000) para 4-25; Binchy, Constitutioal Remedies in the Law of Torts Essays in Honour of Brian Walsh (O’Reilly Ed.) (Dublin, 1992)
The evidence
25. I move then to consider the circumstances of the applicant’s detention and thereafter to assess what were the duties that arose therefrom, both under the Constitution and as an issue under ECHR.
26. Throughout his five year term the applicant was imprisoned in cell No. 38 on the second landing of E Block in Portlaoise Prison (hereinafter “E2”). This Block contained prisoners who belonged to various factions of paramilitary organisations. The “E2” landing was occupied by Real IRA members who had been convicted of various offences. When the applicant arrived in Portlaoise Prison in 2001 there were 16 or 17 prisoners sharing that landing. The number gradually increased until it was necessary to deploy a number of further cells in the previously vacant E3 landing above.
27. On admission to prison, a number of questions were put to the applicant with regard to his medical condition and history. He made no mention of any relevant pre-existing medical problem, nor, specifically, to the prior medical conditions described earlier. His medical records disclosed that he made complaints to the doctor with regard to haemorrhoids on one occasion only, the 16th October, 2001, two and a half months after he was detained and placed in custody.
Accommodation and furnishing
28. The applicant was the sole occupant of his cell. This is an important feature of the case. The cell measured 10 feet by 8 feet. By comparison to some other accommodation described in the national and international jurisprudence it was relatively well furnished. It contained a bed, a bedside locker (essentially a steel filing cabinet), an armchair, a second plastic chair, a number of shelving units made of medium dense fibre, a desktop computer, a television set and VDR machine, a reading light, an electric fan, a radiator, and a window. There was a spy hole placed in the cell door measuring 1.25 sq. inches.
Ventilation
29. But cell ventilation was primitive. At the top of the window there was an opening five inches wide, intended to provide ventilation. The applicant stuffed this gap with clothes and newspapers in order to prevent drafts coming into the cell. Many other prisoners did the same thing to improve air flow. One of the glass panes in the window had been taken out to add ventilation.
30. There were two aluminium sliding sections in the aperture which could be slid open and shut to control ventilation. The aperture and the missing window pane were the only means of ventilation in the cell.
31. The applicant’s complaint was that the ventilation in this cell was inadequate. In itself it gave rise to situations where, on occasion, the cell was either too hot or too cold. This problem could be particularly acute in the context of the absence of in-cell sanitation.
Sanitary facilities
32. The landing was adequately provided with four toilets and one urinal for day time use. Two shower units were available. Each prisoner was provided with a chamber pot for night use, more were available if needed. These pots measured 9 inches in diameter, 6 inches in depth and with a base diameter of 7 inches. The pot had a handle projecting 5.5 inches over the lid and had a capacity of 3.5 litres. This was fixed with a lid. The device was made of heavy plastic. The applicant said he had to defecate in the pot on average three to four times a week. He accepted that the lid mitigated the smell which emanated from it. He said that the odour problem was particularly acute when, on two occasions, he suffered from a stomach bug or diarrhoea.
33. The applicant described defecation as being often extremely painful. He described the process of using the pot in the cell as being awkward. It was necessary to squat and to endeavour not to defecate on the floor, or on the pot itself. The longer he engaged in defecation, the greater the risk that he was exposed either to stomach cramps or diarrhoea. He stated this problem was aggravated if one were to defecate and urinate simultaneously. He said this inherently awkward process was aggravated by his own condition; his embarrassment was increased if he accidentally knocked over the pot. He described the physical and psychological effects on him of using this pot. He felt humiliated as a result of the process. Because of his particular medical problem he found it particularly degrading. The issue became magnified in his own mind to the extent where it “got in on him”.
34. As will be explained later, a particular feature in Article 3 and Article 8 ECHR decisions elsewhere on the absence of in-cell sanitation coupled with other features such as multiple cell occupancy arises. Such profound invasion of privacy or incursions into human dignity does not arise here because of the single cell arrangement.
Toilet facilities
35. There were toilets available on the landing for day time use. The applicant had access to these at any time when he was out of his cell and on the landing. It was not contended these were inadequate in number. However, the applicant felt a degree of pressure on him in using these when it came close to lock up time. This enhanced his feeling of apprehension.
No running water or adequate ventilation in cells
36. The hygiene facilities were below standard. The applicant’s cell did not have running water. He was provided with a small plastic dish of static water for hand washing purposes. There was no storage facility for fresh water in the cell. Once this dish of water had been used, there was no other water available for washing during lock-up period during the nights. Toilet paper was brought into the cells by the prisoners themselves and thrown into the pot after use.
Slopping-out procedure
37. Each morning prisoners who had used the chamber pots would engage in the archaic process of slopping-out. There were two sluice rooms at either end of the landing. There was natural ventilation over each sluice which was relatively effective. However were such sluices now to be installed it would be necessary to ensure full mechanical ventilation to accord with building regulations.
38. On his way to the sluice the applicant had to pass five other cells. He said that prisoners on the landing above could look down on him and that he was exposed to the gaze of other prisoners and prison staff.
39. But the evidence did not establish that E landing was ever overcrowded. There was no real evidence that there was a rush to use the sluice. Prisoners were not subject to a time constraint for slopping-out. They could choose any point in the day for this. All prisoners did not have to slop-out on any one day. I accept the evidence of Chief Prisoner Officer Connolly who testified that he had never noted a queue forming in the E 2 landing sluice area during many years in the prison. It was not established that time-constraints such as meal times created additional problems at the sluice. This was not a situation where each prisoner had a short period of time available to use the sluice.
The sluice
40. Soap, disinfectant and bleach was provided at each sluice. The evidence established that the sluice was in fact both clean and in good order. There was a substantial quantity of bleach provided as disinfectant which was made up and ready for use. There was clear evidence that the prisoners sought to maintain high hygiene standards. The facilities provided were used for that specific purpose, and no other.
41. However, a consultant microbiologist, Ms. Ann Storey, testified that the use of a sluice of this nature could, potentially, give rise to health risks. Such risks could derive from defecation via the faecal-oral route, when diseases were passed from faeces to the mouth by contaminated hands, food, or water.
42. The applicant complained that when emptying the chamber pot some splashing might occur. He said human waste matter might strike his hands, arms, chest or face. At the time he would normally be wearing a pair of shorts and tee-shirt. After using the sluice or the toilets, prisoners had access to a number of sinks so as to wash their hands. At the north end of the landing there were two stainless sinks for hot and cold water outside each of the sluice rooms. These, too, were provided with bleach, disinfectant and hand soap. Two further sinks were available at the south end of the landing. Two further sinks were in the servery area but used for washing utensils only. I accept the evidence that the only way to minimise the risk of such disease is to reduce the possibility of such contact. Such contact may be prevented by the provision of adequate washing facilities; but, clearly, in-cell sanitation would better achieve the objective.
43. I must conclude that the ventilation, sanitation and hygiene regime fell significantly below the standard one would expect at the time.
The medical and psychological evidence concerning the applicant
44. I turn then to deal with the medical and psychological evidence. This is to be seen in the context of the plaintiff’s case that the conditions caused a recurrence of his prior medical condition and had a depressive effect on him.
a) The medical evidence
45. Professor Tom Gorey testified on behalf of the applicant, Mr. Richard Stephens on behalf of the respondents. Both are eminent consultant surgeons with a particular expertise in colorectal disease. Professor Gorey had a particular advantage because he examined the applicant on 28th April, 2005, the date of his release. He carried out a rectal examination and a proctoscopy on that day. He concluded that the applicant at that time had first degree haemorrhoids and a residual posterior anal fissure. I accept this evidence.
46. The case made by the applicant was that he felt himself under significant time pressure when using the toilet facilities when out of the cell. He says that this created a sense of straining and pressure on defecation. He said that this was exacerbated by anxiety at the possibility of having to use the chamber pot at night time, while in his cell.
47. I accept, too, Professor Gorey’s evidence, that in 20% to 30% of all cases, “straining” or anxiety are responsible as a cause of haemorrhoids. The same factors are said to be causative of 70% of cases of anal fissure. However the witness emphasised that these were not causative factors in themselves, but rather factors which gave rise to exacerbation or promotion of a condition to which a patient might already be prone. I regard this caveat as a particularly important piece of evidence as will be explained.
48. The evidence established that the conditions with which the applicant presented were not that unusual; and that perhaps 30% to 50% of the population suffered from bleeding from haemorrhoids at some stage in their lives.
49. Professor Gorey concluded that a regime of detention in a cell over a 12 hour period would as a matter of probability render symptomatic a haemorrhoid or anal fissure condition. He noted that a history of forcible emptying of the bowel as given by the applicant, pointed to a susceptibility to abnormal straining on defecation. He indicated that, if presented with such symptoms, he would have prescribed a high fibre diet of fluids and unrestricted access to toilet facilities whenever necessary as being an appropriate manner in which a competent doctor would recommend that the condition be treated.
50. I do not consider that there was a substantial differentiation between the evidence of Professor Gorey and Mr. Stevens. What is important however, are the contingencies on which this evidence was based. As outside prison: successful treatment is contingent on a patient presenting for treatment, and describing his symptoms fully and in a timely fashion.
b) Psychological and psychiatric evidence
51. The Court also heard evidence from Dr. Brian McClean, a Clinical Psychologist, and Dr. Harry Kennedy, Clinical Psychiatrist.
52. Dr. McClean examined the applicant on the 24th March, 2005 while he was still serving his sentence. He concluded that the applicant had experienced mild and brief episodes of anxiety relating to perceived humiliation and invasion of privacy arising from his complaints. He did not consider these symptoms were clinically significant. He found no evidence of phobia or any generalised anxiety disorder.
53. Dr. McClean’s evidence established that the applicant’s anxiety had generally been mild although it had escalated to being moderate during the 28-day period of close confinement. He described the applicant’s concerns in relation to the issue of in-cell sanitation as being one of mild indignation and clear logical analysis.
54. Professor Harry Kennedy, Clinical Psychiatrist, testified to similar effect. He had the advantage of exploring the applicant’s psychiatric history. He established the applicant had been treated both in 1997 and 1999 for some form of depression. His conclusion was the applicant’s response to having to slop-out was mild, but significant. Professor Kennedy testified for the petitioner in Napier v. The Scottish Ministers 2004, Scots C.S. 100, [2004] SCLR 558; [2005] 1 SC 229 referred to below. Both witnesses commented on the applicant’s stoical and non-complaining personality.
Other aspects of the overall regime in the prison
Day to day routine; leisure and education; recreations
55. A description of conditions must be balanced by an overall assessment of the day to day routine and the educational and leisure facilities.
56. On a typical day the cells were unlocked at 8.30 a.m. After breakfast, prisoners on the E2 landing might participate in either educational or recreational facilities. There was a range of classes available. They were permitted to use the laundry, exercise, take a shower, or go to the gym. At 12.45 p.m., prisoners had the option either of having lunch in a communal area on the landing, or taking lunch to their cell. If they went to their cells they were locked there until approximately 2.00 p.m. when they were released again until 4.00 p.m. In this afternoon period, prisoners were again able to engage in the same activities as in the morning. At 4.00 p.m. prisoners could then take tea either communally or in their cells. From 5.15 p.m. prisoners had access to the same range of facilities as earlier in the day; they might attend night classes, watch television or play pool.
57. In summary, therefore, a prisoner on the E2 landing serving a sentence for paramilitary offences could, if he so chose, spend the entire day outside his cell between 8.30 a.m. in the morning and 8.25 p.m. in the evening.
58. Prisoners had the option to go to the exercise yard on each day. However this right must be seen as being subject to a very significant proviso. It is clear that prisoners from other landings, perhaps as a form of protest, habitually threw human waste human matter in newspapers down into the exercise yard. This was a problem which the prison officers had to address on an ongoing basis. There was no suggestion that prisoners on E 2 landing engaged in this process.
59. There was a prison tuck shop. This allowed the prisoners to place orders in a book. A prison officer brought such ordered items to the landing and gave it to the prisoner.
60. There was a kitchen on the landing where prisoners engaged in cooking and cookery classes. Prisoners were allowed to cook themselves in the kitchen area provided, using ingredients which they had purchased in the tuck shop. The prison kitchen itself, in fact, obtained a “Q mark” for its food.
Education
61. The educational facilities were wide ranging. The applicant commenced an arts degree through the Open University in the United Kingdom. He attended classes in the educational centre on a regular basis. He studied Irish, History, Home Economics, Art and French. He enrolled in the National Education Centre in Dublin City University where he studied on the undergraduate programme in Arts. They had access to various forms of arts and crafts vocational training.
Prisoner – staff relations
62. Overall the relationship between the prison staff and the prisoners during the sentence in question was relatively good. The applicant’s testimony was that this relationship was substantially better than that which had existed during his earlier term of imprisonment. The evidence did not in any way establish that there was an inhuman rigour in the implementation of the regime. For example, the applicant himself testified that there was no hard and fast time for getting up in the morning. Prisoners were permitted to lie on in bed if they wished to do so. By way of contrast to other prisons, there was no “lights out” regime. Thus if a prisoner wished to read on he was permitted to do so.
63. The applicant stated he had no complaint whatever against the prison staff or as to the manner in which they conducted themselves during the period of his sentence. There was no evidence that any prison officer or official passed any remark or made any comment with regard to the “slopping-out” procedure.
64. In this aspect the situation was different from the “impoverished” or poor general regime described in some of the international jurisprudence outlined later.
The respondents’ duty to the applicant
65. It is now necessary to analyse certain “tort” aspects of the claim. The Court must consider first the plaintiff’s own subjective circumstances. He had a significant prior medical history of haemorrhoids and anal fissures. It will be recollected that the applicant was placed in Portlaoise on 29th July, 2001. On 16th October, 2001, the applicant made one single complaint with regard to haemorrhoids. In evidence, he did not recollect having made this complaint at all. There were no other such complaints for the entire period of his detention.
66. This evidence is to be seen in the context of a number of other fairly trivial medical complaints which the applicant did make while imprisoned. At various times he complained of a sore shoulder, a sore throat, sore gums and an ache in one of his arms. There is no record of any complaint which might be directly connected to the sanitation or hygiene conditions.
67. Remarkably the records do not show any other complaint as to the physical (or psychological) complaints which lie at the centre of this case.
68. The applicant claimed he had spoken to a medical orderly about his haemorrhoid condition. He said he asked that creams be ordered to deal with this condition. There was no record of this. Nonetheless, I accept Professor Gorey’s evidence.
69. However, the lack of complaint raises serious questions as to the extent to which the respondents could be “fixed with”, or on “notice” of the applicant’s prior history. The onus was on him to apprise the prison medical authorities. The applicant is clearly an intelligent man. He suffered from no disability in describing his symptoms in Court. He never told the prison doctor about his pre-existing condition.
70. I find the applicant did not raise complaints with the Governor or any other prison officer about this condition either. He indicated that he would have been embarrassed to speak to the Governor. However, this does not explain why the applicant made no complaint to the medical authorities. If he was prepared to seek treatment on 16th October, 2001, it is surprising that he did not do so on other occasions. I must conclude the respondents were never adequately apprised as to his prior condition.
Prisoner complaints regarding in-cell sanitation
71. As described, from early 2003 to early 2004, the applicant was spokesman on behalf of the Real IRA prisoners. He indicated that, at his first meeting with the Governor, he raised subject of in-cell sanitation. His evidence was that the Governor indicated that action was in progress and that the prison authorities hoped to resolve the situation. The applicant testified that the matter had been raised again subsequently, although he could not recollect with whom, and on what occasion.
72. These recollections must be seen in the context of the prison records. Complaints were, for various reasons, meticulously documented. Their accuracy and admissibility as evidence was not seriously in issues. A sole entry recorded a complaint by the applicant about the sanitation situation. This complaint was made on 20th June, 2003.
73. It is true that the applicant was not the spokesman for other periods during his term of imprisonment. However, no other former prisoner was called to testify. Very many other grievances were aired and recorded. There was never any formal protest to the authorities or the Prison Visiting Committee. That Committee had, of course, repeatedly voiced its concerns, as described earlier.
The respondents’ knowledge of the sanitation issue
74. The prison authorities were, however, aware of the sanitation problem. The concerns of organisations and the Visiting Committee were well understood. Very senior officials in the Prison Service undertook in the year 2000 that the sanitation situation in E Block would be addressed. The undertaking was given to Republican prisoners then in E Block. The failure in compliance may be partly explicable in the light of what followed. The Prison Service was well aware of the CPT, and other criticisms going back into the previous decade.
Efforts to address the sanitation question in E block
75. Mr. Brian Purcell is the present Director of the Irish Prison Service. His evidence established that, in pursuance of the Prison Service’s concern the engineering consultants, Clifton Scannell Emerson Associates, surveyed E Block in the year 2000. This was an extensive undertaking and entailed an assessment of the practicability of installing in-cell sanitation in the whole block. The consultant engineers concluded that, due to fundamental structural issues such a project would have cost between ten to fourteen million euros. It might have necessitated giving over vacant possession of the entire block to building contractors for the duration of an extensive refurbishment contract. This of course, must be seen in the context of the fact that E Block was a uniquely high security facility. To give effect to the consultant engineer’s report hypothetically might have necessitated the relocation of the high security offenders during the construction period. But there was no other such facility then available.
76. I accept Mr. Purcell’s testimony that this was seen as not being an economic proposition and, that in fact, there was nowhere else within the State prison system where such high security prisoners could safely be accommodated. It was not established that there was such alternative accommodation actually available within the time frame of this case. A further possible inhibition on the re-development project was the fact that at one point Laois County Council expressed a desire to declare the entire prison as a listed building. This, too, had the effect of placing any projected works further back in the overall priorities. Ultimately the result was that, quite simply, the project was not carried out incrementally, and the authorities were not prepared even to countenance the removal of such high security prisoners to any lesser security facility for an entire refurbishment. However, I am not convinced the respondents ever examined thoroughly the possibility of providing an automatic visual unlock facility. Other possible remedies are considered later in the judgment.
77. One is left with a picture of the issues in question sometimes being the focus of attention, but then gradually slipping down the order of priorities as some new issue arose – often the priority of accommodation of other categories of prisoners. Addressing prison accommodation had many of the aspects of trying to reach an ever receding horizon.
Prioritisation
78. In fact the evidence from the Prison Service witnesses showed they considered that the provision of the other “positive” facilities in E Block rendered the situation a lower priority than providing accommodation elsewhere. Mr. Purcell testified that the Service provided the new kitchen facilities, ordinary educational facilities, crafts, music, access to third-level education, gym facilities, table tennis and snooker. All cells in that block in Portlaoise Prison had televisions. If appropriate to their educational course some prisoners had computers in their cells. While valid, it nonetheless begs the question as to whether this frequently criticised aspect of incarceration in E block would have ever reached the top of the priority list.
Prison renovation and construction from 1994 onwards
In-cell sanitation in other facilities
79. The respondent’s position as to E Block must in fairness be seen in the context of work carried out elsewhere on prison construction prior to, and during the relevant period of the applicant’s incarceration.
80. Mr. Michael Rigney, Director of Estates Management and Information Communication Technology in the Prison Service, testified that, for example, in 1994, just 40% of the 2,138 prisoners in the State had access to in-cell sanitation. By way of contrast, in 2005 of the 3,205 prisoners then held, 74% had access to such sanitation. His evidence must, of course, be seen in the context of the fact that very many prisoners within the prison system did not enjoy the facility of single cells or the extent of privacy which the applicant enjoyed. Clearly even this increase in numbers had necessary consequences in the allocation and prioritisation of State revenues. While all this was true, the E block situation remained unaddressed.
Prison construction
81. That evidence established that from the late 1990s onwards, the Prison Service engaged in an extensive prison construction programme. Castlerea Prison was completed in 1998 providing 152 new cells, all with in-cell sanitation. In the same year the new wing in Limerick Prison was completed which added another 50 cells to the stock. By 1999 Cloverhill Prison had been completed. This provided 194 cells all with sanitation. In the year 2000 the Midlands Prison which had been constructed on the same campus as Portlaoise Prison provided an additional 440 cells, later increased to 500.
82. Within the boundary of the Portlaoise Prison Campus there were also extensive construction works. Mr. Purcell pointed out that two new blocks were added to Portlaoise Prison in the period up to 2004. None of these, however, would have been suitable for the accommodation of Republican prisoners, with their particular high security requirements.
83. Prior to a consideration of the evidence in light of the authorities I should deal briefly with the issue of close confinement imposed as a punishment on the applicant and other prisoners.
The close confinement period of 28 days
84. It is not in dispute that between 20th May and 17th June, 2004, a “disciplinary punishment” was imposed, arising from the dispute with the prison authorities described earlier. The disciplinary sanction imposed on the applicant originally formed part of these judicial review proceedings; but in 2005 was struck out with costs to the applicant, and the issue is to that extent res judicata.
85. However it appears that during this confined regime prisoners were locked in their cell for a period of 22 hours a day. On E 2 landing this necessarily involved being confined without a toilet or running water as there were no such facilities. Instead a facility was put in place whereby prisoners could ring a bell and seek to be unlocked in order to use a toilet.
86. The applicant testified that prisoners were unlocked two or three times a day in groups of two at a time to empty the contents of their chamber pots. However, the availability of this facility depended on a number of circumstances, such as whether other prisoners were out of their cells at any given time. The evidence was that it was not a “given” that such a request would be granted immediately. The applicant said these requests would typically be only of use in order to empty the chamber pot and, he said, it was not possible to synchronise the granting of a request with one’s personal needs. He explained it would be necessary to use the pot all the time in the cell because the time of requirement to use the toilet facilities and the time of release did not necessarily coincide.
87. There was no possibility of using any request system at night time during this period of close confinement. In fact during this period, prisoners were locked up for the night one hour earlier than usual at 7.30 p.m. rather than 8.30 p.m. There is no evidence that the applicant took any step to inform the authorities of his prior condition at this period.
88. I now move to consider the judicial authorities under the Constitution and to analyse the evidence in the light of such authorities. Many, but not all of the decisions arise in the context of Article 40.4 inquiring as to the legality of detention. As will be seen such analysis results in a conclusion that the applicant is seeking to make “new law”. No prior decision of our courts found that any rights violation was such as to render an applicant’s detention illegal. It is necessary to assess why this is so.
The constitutional claim – A prisoner’s right to bodily integrity and not to have his health placed at risk or danger
89. In The State (C.) v. Frawley [1976] I.R. 365 Finlay P. stated at p. 372 of the report:
“The right to bodily integrity as an unspecified constitutional right is clearly established by the decision of the Supreme Court in Ryan v. The Attorney General … Even though it was there laid down in the context of a challenge to the constitutional validity of a Statute of the Oireachtas which, it was alleged, forced an individual to use water containing an additive hazardous to health, I see no reason why the principle should not also operate to prevent an act or omission of the Executive which, without justification, would expose the health of a person to risk or danger.”
The then President continued:
“When the Executive, in exercise of what I take to be its constitutional right and duty, imprisons an individual in pursuance of a lawful warrant of a court, then it seems to me to be a logical extension of the principle laid down in Ryan’s Case that it may not, without justification or necessity, expose the health of that person to risk or danger.”
I am satisfied, therefore, that that a prisoner enjoys a right of bodily integrity and a right not to have his health exposed to risk or danger.
90. However, as Finlay P. pointed out in The State (C) the duty which devolves upon the State is not an absolute. It is not the function of the courts to recommend to the Executive what is desirable or to fix the priorities of its health and welfare policy. The function of the courts is confined to identifying, and if necessary enforcing, the legal and constitutional duties of the Executive. This conscious limitation of rights is found in many of the decisions. The two identified constitutional rights of bodily integrity and health protection in C must, ultimately, be subject to a limitation of practicability.
91. There also arises a further balancing ingredient in assessing a third identified constitutional right established in C and later cases – the “negative” right not to be exposed to inhuman or degrading treatment. For a violation of that third protection it would be necessary to establish an “evil purpose”. In C Finlay P. went on to say at p. 374:
“The question which has given me the most trouble in this case is whether the conditions under which the prosecutor has been and is detained in prison constitute a failure to protect him from torture or from inhuman or degrading treatment or punishment – thus making his detention unlawful. Notwithstanding the harshness of the privations which he has undergone and, to a lesser extent, continues to suffer, I have finally come to the conclusion that those conditions do not constitute such a failure.
I am quite satisfied that the purpose and intention of the restrictions and privations surrounding the prosecutor’s detention are neither punitive nor malicious ….
I must construe the entire concept of torture, inhuman and degrading treatment and punishment as being not only evil in its consequences but evil in its purpose as well. It is most commonly inspired by revenge, retaliation, the creation of fear or improper interrogation. It is to me inconceivable to associate it with the necessary discharge of a duty to prevent self injury or self destruction.”
92. The influence then of the recent ECHR decision of Ireland v. United Kingdom [1978] 2 EHRR 25 Is clearly discernible in this thinking. This passage, and others, recognises that a prisoner has a constitutional right to be protected against torture or inhuman and degrading treatment. This right is to be read as being additional to the right of bodily integrity and protection against health endangerment. The prosecutor in C was a person who suffered from a sociopathic personality disturbance. He was extremely aggressive. He made repeated attempts to escape from his places of detention, including hazardous climbing feats and had a record of swallowing metal objects which had to be removed from his stomach by surgery. Thus, for most of the period of his imprisonment he was kept in solitary confinement and when not so confined he was usually handcuffed for some period. He was deprived of most of the equipment of an ordinary prisoner such as cutlery, a bed with metal springs and a transistor radio.
93. The restrictions on him were both significant, but intent was absent. To the contrary, the authorities’ intention was to protect the prisoner. Finlay P. held that the detention was lawful. This finding, of course, does not derogate from the constitutional rights to which a prisoner is entitled, but rather demonstrated the limitation of such rights by considerations of practicality, the common good or protection of the prisoner himself. The rights in question are not absolute rights.
Rights to be considered objectively: McDonagh v. Frawley
94. As was pointed out by O’Higgins C.J. in The State (McDonagh) v. Frawley [1978] I.R. 131 at p. 135 many of a prisoner’s “normal constitutional rights are abrogated or suspended” during the period of imprisonment. A prisoner “must accept prison discipline and accommodate himself to the reasonable organisation of prison life as laid down in the prison regulations. He cannot demand the medical treatment he thinks he should get, but will be given such medical treatment as the medical officer of the prison thinks appropriate”.
The State (Richardson) v. Governor of Mountjoy: overcrowding, insanitary conditions, and slopping-out
95. The constitutional rights of prisoners was further considered in The State (Susan Richardson) v. The Governor of Mountjoy Prison [1980] I.L.R.M. 82. There were certain resemblances between the facts in Richardson and the instant case.
96. The prosecutrix was a convicted prisoner who applied for an inquiry under Article 40.4 of the Constitution into the conditions relating to toilet facilities in the women’s section of Mountjoy Prison. She alleged the prison authorities had failed to have proper regard to her rights to health, privacy and human dignity. Evidence was given that each morning women prisoners, whose number averaged 16, engaged in a slopping-out procedure. The prisoners used a cold water tap over the sink to rinse the chamber pot, clean it with steel wool and then empty the water into the toilet bowl. However the prosecutrix claimed that due to pressure of time to finish slopping-out before breakfast, some prisoners emptied chamber pots into the sink in which they were to wash themselves and that she had seen the remains of human waste in the sink. She had made a verbal, though not a written, complaint to the prison officers and members of the Visiting Committee regarding these conditions. She also complained that the toilet doors consisted of opaque glass and could not be locked from the inside. In evidence, the prison medical officer stated that he would be concerned if each prisoner had to undergo the slopping-out procedure in an average of two minutes and were human waste to be poured into the sink.
97. Barrington J. held that only in the most exceptional circumstances would a court accede to an application by a convicted prisoner for an inquiry under Article 40.4 of the Constitution where this related to conditions of confinement. He observed that such exceptional circumstances would exist if the authorities intended to do nothing, or were unable to rectify the conditions of detention which were a serious danger to a prisoner’s life or health. He held that a convicted person undergoes a recognised form of punishment while in prison, one of the incidents of which, in addition to the loss of personal liberty, is that the prisoner must submit to, and is entitled to, the protection of the applicable Prison Rules; but the prisoner retains some constitutional rights. He found that while a prisoner had a constitutional right to privacy, this was circumscribed and limited by the institutional environment in which a prisoner must live, and that the requirements of security would justify the construction of toilet doors in such a way that they could not be locked from the inside. Finally, he held that, as a prisoner, the prosecutrix was not in a position to take the steps necessary to protect her health; therefore, the State was obliged to take such steps; that the 1947 Prison Rules recognised the link between hygiene and health; that the slopping-out process made it inherently probable that human waste would appear in the toilet sink; that this procedure failed to respect the prosecutrix’s health; and that she would be entitled to relief by way of mandamus; but since the authorities were willing to alter the regime the necessity for making an order did not arise.
98. Barrington J. quoted with approval the dictum of White J. in the United States Supreme Court of Wolff v. McDonnell [1974] 418 U.S. 539 that there is no “iron curtain between the Constitution and the prisoners of this country”. The judge specifically criticised the way that the slopping-out procedure was implemented as unhygienic and a health hazard. He noted that there was no technical problem to putting the hygiene issues right. He drew attention to the fact that those practices had continued for at least nine years. Insofar as a prisoner had a right to privacy, he held that such a right was circumscribed and limited by the institutional environment in which a prisoner must live and by considerations of security and good order. Relying on the dicta of Finlay P. in The State (C.) v. Frawley, he re-emphasised that there is an obligation on the State to protect the health of a prisoner. The evidence established that the Governor had taken steps to remedy the complaints when they were brought to his attention.
99. I interpret passages from the judgment as recognising that in an appropriate case a court has jurisdiction to actually direct improvements in prison conditions where warranted to vindicate a constitutional right, and where the vindication of such right is not constrained by boundaries such as practicability. Thus, for example, were it to be established that there was an ongoing and serious threat to a prisoner applicant’s health, the vindication of that constitutional right could warrant a court in intervening by way of mandamus. The protection and vindication of that right might then have to be balanced against other constitutional provisions.
Brennan v. Governor of Portlaoise Prison
100. The principles identified in Richardson were also adopted and applied by Budd J. in Brennan v. The Governor of Portlaoise Prison [1999] 1 ILRM 190, where that judge specifically found, again in the context of an Article 40 enquiry, that to render detention illegal, an applicant must show that the conditions under which he is held constitute inhuman or degrading treatment or conditions which seriously endanger his life or health, and that the authorities were unwilling or unable to rectify such conditions. I interpret both Richardson and Brennan also as identifying and approving the prisoners’ right to be protected against inhuman and degrading treatment as well as the other identified rights.
Reasonableness and practicality
101. As demonstrated by the authorities already cited, the rights enjoyed by a prisoner are not unrestricted. The limitation on rights was explained in Murray v. Ireland [1985] I.R. 532, where Costello J. specifically held that a restriction on prisoners’ constitutional rights (in that case to beget children), was a reasonable consequence of the State’s power to imprison and was constitutionally permissible. He held the State, as guardian of the common good, was empowered by the Constitution to restrict rights in certain circumstances. The rights which may be exercised by a prisoner are those which do not depend on the continuation of his liberty, and which are compatible with the reasonable requirements of the Prison Service or which do not impose unreasonable demands on it.
102. He observed at p. 542:
“When the State lawfully exercises its power to deprive a citizen of his constitutional right to liberty many consequences result, including the deprivation of liberty to exercise many other constitutionally protected rights, which prisoners must accept. Those rights which may be exercised by a prisoner are those: (a) which do not depend on the continuance of his personal liberty (so a prisoner cannot exercise his constitutional right to earn a livelihood) or (b) which are compatible with the reasonable requirements of the place in which he is imprisoned, or to put it in another way, do not impose unreasonable demands on it. This accords with a view expressed by the American Supreme Court in Wolff v. McDonnell [1973] 418 U.S. 539 …”
However he continued:
“I do not think that the plaintiffs’ claim, that they be permitted to leave prison from time to time to exercise their right to beget children, is a valid one as it is clearly incompatible with the restriction on their liberty, which is constitutionally permitted by their imprisonment. What remains then to consider is the claim to exercise his right in prison and the practical consequences involved in it. For if the plaintiffs’ right to beget children cannot now be exercised without putting unreasonable demands on the prison service, the restriction on its exercise cannot be constitutionally invalid as it is a reasonable consequence of the lawful exercise of the power of the State to imprison them.”
In Murray, therefore, Costello J. held that assertion and reliance on constitutional right may be limited constitutionally; such rights must be dependent upon limitation flowing from imprisonment, practicality, and a requirement not to impose unreasonable demands on the Prison Service.
Holland v. Governor of Portlaoise Prison: restriction on rights must be proportionate
103. More recently, in Holland v. Governor of Portlaoise Prison [2004] 2 IR 573 the applicant sought to quash a decision of the respondent prohibiting him from obtaining access to members of the media by way of correspondence in the hope of interesting and encouraging them to investigate an alleged miscarriage of justice concerning himself.
104. McKechnie J. pointed out that Prisons Rules must be construed and applied in such a manner as respected and vindicated the constitutional rights of a prisoner and which upheld the principles of natural justice. He held that by virtue of a sentence of imprisonment being imposed, and on being served by a prisoner, that person for the duration of his sentence had to suffer not only interference with the exercise of his constitutional right to liberty but to suffer such other restrictions on constitutional rights as were necessary in order to accommodate the serving of that sentence. Subject to this however, he held that all other rights should be capable of exercise by him in the context of his incarceration. Given that the right then in issue, (free communication) was constitutionally based, he concluded that any permissible abolition, even for a limited period, or any interference, restriction or modification on the right in question should be construed, with the onus of proof being on him who asserted any such curtailment. Importantly, McKechnie J. also observed at p. 594:
“One can, of course, add that several other rights also continued to be enjoyed by such a person, including the right to life, to bodily integrity, the negative right not to be tortured or to suffer any inhuman or degrading treatment …. the right, as Barrington J. said in the The State (Richardson) v. Governor of Mountjoy Prison [1980] I.L.R.M. 82 to practice one’s religion and the right to natural and constitutional justice. This enumeration is indicative only and is not in any way exhaustive.”
It will be seen again, therefore, that the protection against inhuman and degrading treatment or torture is defined or interpreted in that judgment as being a “negative right” but capable of separate recognition under the Constitution.
Identification and analysis of the rights
105. Clearly then the rights asserted by the applicant in this case cannot be absolute. Having analysed the wide range of facts in the case, I am not satisfied that the established norms of tort law are adequate fairly and justly to address the range of issues which arise. The tort of negligence in itself, for example, would not be sufficient to encompass the issues in question nor would any other nominate tort.
106. The questions which arise in this case are not simply “tort” concepts they go further into the realm of rights only protected under the Constitution such as those identified. “Slopping-out” is not encompassed in the law of tort, nor are inadequate ventilation or substandard hygiene conditions.
107. Primarily the applicant’s case is reliant on asserting constitutional rights in tort form – but, as a corollary, the defendant is entitled to assert that no such rights have been violated, that such rights are limited, or where appropriate, to rely on defences arising in the law of torts. On the facts of this case, I consider that the invocation of the alleged violation of constitutional rights must entail other incidents; the defences in tort law such as causation, consent and foreseeability. There are, too, other “tort” aspects to this claim; the applicant seeks a redress (including damages) for an alleged past wrong (involving injuries), not the vindication or protection of a right in being (see McDonnell v. Ireland Keane J. at p. 159).
108. The following unenumerated constitutional rights arise: (i) protection against inhuman or degrading treatment; (ii) the right to protect life and health from serious endangerment; (iii) the right to privacy; (iv) and bodily integrity. These are considered below sequentially but as numbered here. To this general identification I would add:
(a) The right to bodily integrity necessitates that the Executive should protect the right to health of persons held in custody as well as is reasonably possible in all the circumstances (The State (C) v. Frawley);
(b) There is also a right, be it framed negatively or positively not to be exposed to inhuman or degrading treatment. Here a material consideration in determining the constitutional status of the matter complained of is the purpose and intention of the restriction and privations; in particular whether they are punitive, malicious or whether they are evil in purpose (The State (C) v. Frawley);
(c) A further relevant consideration is whether there is evidence that State authorities are taking advantage of detention to violate constitutional rights or to subject the applicant to inhuman or degrading treatment (The State (Richardson) v. Governor of Mountjoy Prison);
(d) The conditions of detention must not be such as to seriously endanger a prisoner’s life or health (Richardson);
(e) If the conditions of detention are potentially life or health threatening, a court should ask whether there is evidence that the authorities are for some legitimate reason unable to rectify the conditions (Richardson);
(f) There is a right of privacy subject to limitations imposed by detention;
(g) A court must enquire the extent to which considerations of security, including the protection of prisoners themselves, requires a limitation of their rights (Richardson);
(h) A court should enquire as to the extent of complaints made by a prisoner or other prisoners (Richardson);
(i) A court must assess the extent to which the vindication of a claimed right would be practical (Murray v. Ireland);
(j) A court must establish the extent of the burden which might be placed on the authorities in the vindication of the right claimed; whether the burden is in all the circumstances proportionate to the right asserted in the overall context of the prisoner’s conditions of detention (Murray);
(k) There is a right of freedom to communicate; the limitation of which is subject to the principle of proportionality as must all such limitations on a constitutional right. Other constitutional rights may also arise in the future (Holland);
(l) A court must establish the extent to which, on the facts of this case the nature of the constitutional wrong asserted necessitates the application of other principles applicable to the law of torts (McDonnell).
Application of the legal tests to the evidence
109. I have considered these tests both individually and cumulatively enquiring whether the existence of even one, or some, of the “negative” aspects of the detention are such as to weigh the overall balance in the applicant’s favour as against the admitted positive factors. The measure must be proportionate. In this process it is here necessary in consideration of each alleged wrong, to balance the “positive” against the “negative” aspects of the detention. In other circumstances one set of acts alone might be sufficient to constitute a finding that a prisoner’s constitutional right had been violated. This is not such a case, however. What is striking in the instant case is the relatively low level of contemporaneous complaints regarding issues now so closely analysed in this hearing. The tests must be objective. In considering these it will be recollected that the Court is considering this applicant during his period of incarceration; the rights cannot be recalibrated ex post facto because the remedies now sought are a declaration and damages. The rights and the limitations on those rights must be as defined and limited in the decided authorities. I return then to the numeration of the four rights identified earlier.
(i) Protection against inhuman or degrading treatment
110. There was no evidence that the purpose and intention of the restrictions and privations were punitive, malicious or were evil in purpose. Still less was there evidence that the authorities were in any way “taking advantage” of the applicant’s detention to violate his constitutional rights or to subject him to inhuman or degrading treatment. The general regime was not criticised significantly. The contrary is true. There was no evidence of inhuman treatment of him by prison staff. There was no evidence of degradation in the sense of humiliation. There was however, evidence that the facilities fell significantly below the standards to be expected as regards ventilation, hygiene and slopping-out itself. These are considered in more detail below. What is at issue is not simply the fact that these fall below standard, but the extent of this falling below acceptability measured objectively, whether it is counter balanced. On the basis of the evidence regarding the regime as a whole I find that the negative aspects are outweighed on this test. Moreover the essential ingredients of malice, evil purpose, taking advantage, demeaning or humiliating conduct, are all absent. I am unable to find therefore there was a violation of the applicant’s negative right to be protected against inhuman or degrading treatment.
(ii) Serious endangerment of life or health
111. The evidence does not establish that the conditions of detention per se, while clearly demeaning was such as to seriously endanger the applicant’s life or health. The prison authorities provided certain facilities intended to protect health and in order to maintain standards of hygiene. In some, but not all aspects, the practices adopted were not dissimilar to those which might have been found in institutional locations three or more decades ago. I would emphasise, therefore, that the absence of a negative finding on the balance, is not to be seen as a positive finding that all aspects of the prison regime complied with all standards. The negative issues fall significantly below what was to be found in other prisons in the same period of 2000 to 2005.
112. Such findings must be seen in another context. Clearly, from 1995 if not before, the Prison Service itself recognised the necessity to provide proper in-cell sanitation in E Wing. A number of problems obstructed this project. The first was the engineering consultants report and the costs; the second the remarkable action of the local authority in seeking to declare the entire prison campus as a preserved site. But there was, too, a want of focus on this issue.
113. But the situation which applied in E Wing of Portlaoise Prison was not comparable to that which arose in Richardson’s case. Here, there was no evidence of hazardous overcrowding. There were between sixteen and seventeen prisoners on E landing. They were under no time constraint. It was not suggested that the prisoners were misapplying the sanitary facilities provided. There is no evidence of insanitary practices by the prisoners such as would give rise to a risk of health. Insofar as applicable, the facilities were such as would, within their limitations, permit each prisoner to carry out this procedure in a manner which would not put his health at risk.
Adverse findings on hygiene, ventilation and slopping-out
114. It is beyond doubt that certain of the hygiene facilities were primitive and substandard. Specifically, prisoners in their cells should have had clean water and adequate facilities to wash their hands after using a chamber pot on each and every occasion. The absence of wash hand basins in the cell prevented even this elementary step.
115. The cell ventilation was substandard and exposed prisoners to odours when the chamber pots were used. Slopping-out was perceived as demeaning, archaic and humiliating; part of a bygone age. To many, including the Visiting Committee, these aspects of incarceration were unacceptable in this century.
116. However, is this sufficient to tilt the balance as a legal question? The Court can only decide on legal issues. The overall finding, despite the substandard aspects, must be that there was no serious threat to life or health. One must look too, to causation. There was no evidence that the “negative” factors adversely affected the applicant’s health other than inducing the re-onset of his condition. He did not complain of any other type of risk or infection to the prison doctor.
(iii) The right to privacy
117. The applicant found using the pot deeply humiliating. It undoubtedly had a depressive effect. But each prisoner had a private cell. Absent evidence of overcrowding or “doubling up” in cells I am unable to find that the use of the chamber pot in the cell actually violated the applicant’s rights of privacy or human dignity to a degree to give rise to a cause of action. While in many aspects objectionable I cannot find the slopping-out process was substantially invasive of these rights. The degree of invasion was limited to the transfer of the pots to the sluices. I am not convinced that this engages a privacy right to the degree necessary to give rise to a cause of action. The prisoners on E 2 landing enjoyed a level of privacy not available to many other prisoners.
(iv) The right to bodily integrity
118. On the basis of Professor Gorey’s evidence I am prepared to accept that the conditions of imprisonment caused a re-occurrence of the applicant’s complaints. His health and wellbeing were affected.
119. The applicant did not apprise the prison authorities of his medical history. He did not tell them his susceptibility gave rise even to a potential problem. The fact that he had one occurrence of haemorrhoids on 16th October, 2001, did not constitute sufficient “notice” to the respondents. Indeed, the applicant appears not to have recollected this incident. The applicant took no step to otherwise alleviate his own individual situation; whether by apprising the Prison Governor, or the medical authorities of his condition; by seeking special arrangements to be unlocked at night, or by seeking a transfer to another prison facility. Some of these were possible options, in the case of an individual prisoner. Some were actually adopted in the case of other prisoners who made known their problems to the prison medical authorities.
120. Some other potential “remedial” measures which were proposed at the hearing are noteworthy in that none of them were proposed at the time and are post hoc. I cannot now accept the proposition advanced at the hearing in 2010 that chemical toilets were a viable proposition. There is some evidence that the chemical compounds contained in them could have posed a safety hazard. The proposition that “individual” arrangements could have been made for the applicant is reliant on a chain of evidence which is broken. Remedial measures (of whatever type) were not adopted simply because the “special” impact of the conditions on the applicant (which I am prepared to accept) were not foreseeable. Individual arrangements to release the applicant from his cell must be seen in the context of security arrangements as a whole in Portlaoise Prison. Such matters must always be a consideration though they cannot provide an “all purpose” excuse for inaction. An automatic unlocking system was surely a viable and less costly option. No individual arrangements were requested. The point becomes hypothetical therefore.
121. It is difficult to avoid the conclusion that the right of bodily integrity which is sought to be asserted here and the duty sought to be imposed on the respondents was very specifically framed to the particular circumstances of the applicant in his role both as spokesman and member of a political group. He was not an “ordinary” prisoner, who might well have acted very differently.
122. Ultimately, one must conclude that the evidence in fact established that the only likely method in which the general situation in this particular block could be remedied would be by a total evacuation by the prisoners and extensive reconstruction. This was postponed more than once. But the applicant did not avail of any effective method of remediation of his own issues. The right to bodily integrity must be subject to the defences in tort of foreseeability. Even accepting that the conditions caused the applicant’s condition, as I do, this does not establish the applicant’s case. The respondents did not know or could not reasonably have known as to the applicant’s prior medical history. He was under a duty to inform them and put them on notice. He consented to a situation not otherwise reasonably foreseeable. I do not consider the respondents can be held to have committed a constitutional wrong or violation of bodily integrity on these facts. Even if they had, I must conclude they have established a clear and total defence. Seen generally I conclude that the complaints, while real, were not sufficient to satisfy the criteria necessary to constitute causes of action.
Separation of powers
123. A striking feature of the case was the logic of one interpretation of the applicant’s argument. Ultimately on the evidence, it could only be that E Block should have been shut down or demolished and replaced with an entirely new facility. Such broad ordering and allocation of public resources is in general a matter for the Executive.
124. The principle that a court should be slow to become involved in this issue is well established (O’Reilly v. Limerick Corporation [1989] ILRM 181). (See also Sinnott v. Minister for Education [2001] 2 IR 545 and T.D. v Minister for Education [2001] 4 IR 259.
125. I must find, therefore, that the applicant’s constitutional claims fail. The issue of remedies does not then arise.
The claim under the European Convention on Human Rights Act 2003.
126. The parties have agreed that only in circumstances where the constitutional claim fails is it necessary for this court to proceed to a consideration of the second aspect of the applicant’s claim, that is, the alleged violations of Article 3 and Article 8 of the European Convention on Human Rights. It is claimed that there have been violations of Article 3 (prohibition on torture or inhuman or degrading treatment), and/or Article 8 (private life) ECHR.
127. By way of preface, however, it is necessary to point out that with regard to Article 3 claims, in all cases where there has been held to be a violation of which this Court should take notice, the ECHR has been presented not only with specific allegations but with a range of combined or multiple complaints about prison conditions. In no case has the practice of “slopping-out” or the absence of in-cell sanitation, been found, per se, to be a violation of Convention rights. While the terms of Article 3 are absolute there is a high threshold. The actual text is not couched in terms recognised in the common law but refers to factual circumstances. The threshold of seriousness is part of the substantive right rather than a procedural pre-condition. The complaint must attain a minimum level of severity if it is to constitute a violation (Ireland v. U.K. [1979] 80 L.E.H.R.R. 25.)
128. What follows therefore is an analysis of the jurisprudence in accordance with s. 3 of the European Convention on Human Rights Act 2003. It is necessary to analyse whether the relevant organ of the State, viz. the respondents, have performed their function in accordance with this State’s obligations under the Convention by reference to the standards identified in the established jurisprudence and not by some form of impermissible “direct” application of the ECHR. Here again it will be seen the applicant seeks to make new law. It is necessary to survey a number of authorities briefly to identify the ingredients of an Article 3 infringement.
Bakhmutsky v. Russia – For violation of Article 3 Rights the applicant must show a minimum level of severity, dignity and undermining of the issues of, cumulative effects and specific allegations
129. Even though this and a number of other authorities post date the events in question, the ECHR principles have not altered. The ingredients necessary for an Article 3 violation were described most recently in Bakhmutsky v. Russia, (Application No. 36932/02, 25th June, 2009,) where the ECtHR observed at para. 88:
“The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour . . . However, to fall under Article 3 of the Convention, ill-treatment must attain a minimum level of severity. The assessment of this minimum level of severity depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim… When a person is held in detention, the State must ensure he is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured …When assessing conditions of detention one must consider their cumulative effects as well as the applicant’s specific allegations … The duration of detention is also a relevant factor.”
DeLazarus v. United Kingdom – a single cell reduce the impact of lack of in-cell sanitation
130. In DeLazarus v. United Kingdom (Application No. 17525/90, 16th February, 1993,) the applicant challenged his conditions of detention as being contrary to Article 3 on the basis of his segregation from other prisoners, together with the general conditions in Wandsworth Prison involving overcrowding, a lack of activity and want of in-cell sanitation.
131. The European Commission on Human Rights dismissed the complaint as manifestly un-founded. This was so even though the Commission accepted that the conditions in the prison had been found by the CPT and the domestic inspection authorities as involving each of these aspects and were extremely unsatisfactory and in urgent need of improvement. However, the Commission specifically noted that the applicant could not complain of overcrowding because he was held in a single cell. More directly the Commission noted that: “this fact must have reduced the difficulties created by the lack of integral sanitation in the cell”.
N.H. v. United Kingdom – Punishment cell with no toilet or running water – slopping-out three times a day
132. In N.H. v. United Kingdom (Application No. 21447/93, 30th June, 1993,) the applicant had been segregated into a punishment cell which contained no toilet or running water and in which he had to slop-out three times a day at which time he had to clean his cleaning utensils and collect drinking and washing water. The Commission again found the application to be inadmissible concluding that the facts did not reach the minimum level of severity required for an Article 3 violation.
Valasinas v. Lithuania – Absence of privacy, balanced by other factors
133. More recently in Valasinas v. Lithuania (Application No. 44558/98, 24th July, 2001,) the ECtHR concluded that no violation of Article 3 existed in respect of the detention conditions of an applicant, whose complaints included the absence of partitions between toilets and the absence of free toilet paper.
134. The Court examined other aspects of his detention including the wide freedom of movement for the prisoner during the day and recreational facilities including television, library books, a recreation yard, listening to music and attending concerts and cinema screenings.
135. This case again demonstrates that the Court will look to the totality of the conditions of detention and that although some aspect of the regime may be sub-optimal, other facets of the prison regime may introduce a balancing element resulting in a situation where the conditions overall do not attain the minimum level of severity for Article 3.
Peers v. Greece – Article 3 violation found – no in-cell sanitation, shared cell room, prison regime
136. By way of contrast in Peers v. Greece (Application No. 28524/95, 19th April, 2001,) the Court held that there was a violation of Article 3 in circumstances where the applicant had to share a cell and engage in toileting in the presence of another person. This is to be seen in conjunction with several other problems regarding the conditions of detention, including inadequate lighting and ventilation and inadequate supplies of toilet paper and toiletries. In Peers the applicant had been detained in a segregation unit in a small cell with one window in the roof which did not open and which was so dirty no light could pass through it. There was an Asian-type toilet in the cell with no screen or curtain separating the toilet from the cell. There was one shower in the unit which contained nine cells with up to three prisoners in each. There was no sink in the cell.
137. The overall conditions in Peers fell very much below those which arose in the instant case Portlaoise Prison. Peers involved a denial of sheets, pillows, toilet paper, toiletries, privacy in using the toilet, shared cell and absence of communication with prison staff. That decision case is simply not comparable to the instant case.
Nurmagomodoff v. Russia – Poor sanitation but comparable to conditions in rural Russia
138. In Nurmagomodoff v. Russia (Application No. 30138/02,16th September, 2004,) the ECtHR declared inadmissible those parts of the applicant’s complaint relating to Article 3, wherein he had complained about the frequent failures of the water supply system in the prison, a lack of sewage system, an antiquated toilet and insufficient shower facilities. The Court observed that it was to be noted that the conditions described were no different from the sanitation facilities in many rural areas of Russia “where villagers carry drinking water in buckets from water-pumps and have toilets in outhouses with sumps”. The ECHR concluded that the situation was not so unsatisfactory as to amount to a breach of Article 3.
Novoselov v. Russia – Overcrowding violation found
139. In Novoselov v. Russia [2007] 44 EHRR 11 a post 2005 case violation of Article 3 was found, but in conditions far more extreme than those obtaining in Portlaoise Prison between 2000 and 2005. The applicant had spent six months in detention in a cell measuring 42 sq. metres which accommodated up to 51 inmates, for whom there were provided 28 or 30 bunk beds. He was afforded less than 1 sq. metre of personal space and shared a sleeping space with other inmates taking turns with them to get a rest. Apart from one hour of daily exercise the applicant was confined to his cell for 23 hours a day. In those specific circumstances the extreme lack of space was seen by the court as weighing heavily as an aspect to be taken into account for establishing whether the detention conditions were degrading.
The Georgian cases: very low hygiene standards, shared cells
140. The conditions which gave rise to an adverse finding in two other post 2005 cases were far more extreme than those found here. In Ramishvili & Kokhreidze v. Georgia (Application No. 1704/06, 27th January, 2009,) the toilet consisted of a narrow pipe in a corner. The applicant had refused to use this facility because of the conditions in the cell. The cell was infested with cockroaches and rats occasionally ran through it. The cell space for the prisoner was also insufficient and he had to share a bed with another prisoner.
Orchowski v. Poland – overcrowding, insufficient space
141. In the most recent decision of the ECtHR, Orchowski v. Poland (Application No. 17885/04, 22nd October, 2009) the Court found a violation of Article 3, but again emphasising the central importance of personal space afforded to a detainee in considering Article 3.
Rainen v. Finland – Objective balancing of all conditions cumulatively
142. While it might be argued that the Court must assess the impact of the prison conditions upon an applicant, in particular, this factor must be placed in an objective balance, counterweighted by other relevant factors such as the other conditions of detention. So therefore in Rainen v. Finland [1998] 26 E.H.R.R. 63 public handcuffing while being taken from prison to hospital affecting a prisoner’s mental state did not attain the minimum level of severity required for a finding of an Article 3 breach, in the context of the overall standards of detention. I turn now to a number of authorities from neighbouring jurisdictions.
143. Illustrative Convention jurisprudence is not confined to Strasbourg decisions alone. The applicant places particular reliance on the following cases as being important persuasive authorities from Scotland and Northern Ireland. These arose under United Kingdom Human Rights legislation.
Napier v. The Scottish Ministers
144. In Napier v. The Scottish Ministers [2004] Scots C.S. 100 [2004] SCLR 558, [2005] 1 SC 229, the Court of Session held that a petitioner was exposed to conditions of detention which were in breach of Article 3 of the European Convention on Human Rights.
145. The petitioner was held for a period of 40 days and while on remand suffered a severe flaring up of an eczema condition which he attributed to the conditions of his detention. The petitioner relied on three principle features of these conditions characterised at para. 6 of the judgment as: “The triple vices of overcrowding, slopping-out and impoverished regime.” Lord Bonomy observed at para 6:
“While I should look at each one individually, in the final analysis they cannot be viewed in isolation, since each one has an impact on, and is affected by, the others. In addition, there were separate chapters of evidence in relation to other particular features of the conditions of detention, such as illumination and ventilation of the petitioner’s cell. Each of the issues thus explored was relevant only in the context of the triple vices.”
146. In Napier the petitioner was exposed to significant overcrowding – most prisoners were held two to a cell. In that cell there were double bunk beds but only one chair. The overcrowding had a significant impact on slopping-out. The evidence established that 15 to 20 prisoners would descend upon the ablutions area at the same time all with their urine bottles, chamber pots, utensils for washing and toiletries. Towels were permitted only in the morning but not at other times. In the judgment the process was described as being a “free for all”. The prisoner spent 20 to 23 hours a day in his cell. The prisoner was constrained to use the chamber pot in the presence of cell mates. The Court found the practice of slopping-out to be chaotic because of the numbers involved and the pressure of time. Blockages and overflows were not uncommon.
147. In that context Lord Bonomy then considered the risk of infection posed to the petitioner by reason of the eczema condition from which he suffered. This was manifest to any observer, and identified with blisters and yellow pus over a wide area of his face.
148. By way of contrast to the instant case, it was noted by a prison doctor within two days of the outbreak. A fax was sent by the petitioner’s solicitor to the Governor of the prison two days later requesting a transfer. Lord Bonomy considered that the actual cause for the outbreak of eczema was the anxiety and stress caused by the circumstances of the detention.
He stated at para 76:
“Of crucial importance to my determination in this case is the effect on the petitioner of the serious outbreak of eczema. It is important to my determination in three respects. Firstly, I have already determined that its resurgence and persistence were caused by the conditions of detention. Secondly, its very presence was a source of acute embarrassment and a feeling of humiliation to the petitioner which he described as causing him a degree of mental stress. Thirdly, the petitioner believed that his infected eczema was caused by the conditions of his detention, in particular slopping-out. His belief that the two were linked was entirely reasonable. He acted immediately to try to secure his transfer to better conditions …”
149. Other further circumstances of the petitioner’s detention in Napier was an inability to get out into the fresh air or even walk around as a diversion; an inability on the part of the petitioner to resist constantly scratching himself and exacerbating his condition and the severe limitations on recreation and time spent outside of:
“…the depressing, stuffy, smelly, gloomy atmosphere of the cell. Many features of the regime seemed designed to stamp a mark of inferiority on the petitioner. He and his cell mates had to make do with only one chair. He had to eat in the cell without getting a chance to wash first …”(at para. 77)
Napier contrasted with the applicant’s case
150. I find this decision of assistance, in fact, as illustrating many of the distinctions which arise. As has been pointed out by authoritative commentators in Napier, the personal effect on the petitioner had a particular bearing (see Hamilton and Kilkelly, “Human Rights in Irish Prisons” [2008] 2, Judicial Studies Institute Journal 58 – 74). The commentators correctly point out that in considering the application of the case law in an Irish context it is important to note that it was the cumulative effect of the conditions of Napier which resulted in success, not slopping-out alone. Napier must be seen then as a case where the absence of in-cell sanitation had a particular obvious and evident impact on the petitioner, rather than supporting the proposition that slopping-out per se is necessarily inhuman and degrading for the purposes of Article 3 in all places and all times. (See R. (Wellington) v. Secretary of State for Home Department [2009] 1 AC 335 where at para 27 of his speech, Lord Hoffman expressly reserved his position as to whether the absence of in-cell sanitation per se constituted a breach of Article 3 of ECHR.
151. Relevant too in Napier were Lord Bonomy’s findings that the respondents could “easily” have installed integrated sanitation facilities and that it had not been suggested that the refurbishment in the detention area could not have been carried out at a significantly earlier date. Lord Bonomy commented at para 89 that: “the respondents took a deliberate decision not to address [the cell conditions] when they had both the resources and the capacity to do so.” In my view this circumstance too is in contrast with the present case where the evidence on the issue of resources and prioritising of particular prisons did not demonstrate a policy tantamount to making a “deliberate decision to ignore the situation”. Napier was of course decided by reference to the United Kingdom Human Rights Act 1998 different in form to the European Convention of Human Rights Act 2003. The distinctions from the instant case do not require repetition.
The Northern Ireland authorities
152. Two Northern Ireland authorities are also of assistance by way of illustration. Again the facts are very distinct from the instant case.
In Re Karen Carson
153. In Re Karen Carson [2005] NIQB 80 Girvan J. found there had been no breach of the applicant’s right under Article 3 or Article 8 arising out of conditions of detention and in particular of want of in-cell sanitation.
154. A critical feature of that decision was that the Northern Ireland High Court, having considered a number of ECtHR cases and the decision in Napier, found that there had been no breach of Article 3 in circumstances where the applicant occupied a cell on her own and: “…thus had a much higher degree of privacy than in the case of Napier or any of the other cases referred to”. The overall regime in the prison was also significantly more liberal than that to be found in Napier. Girvan J. concluded that the fact that sanitation arrangements may not be ideal did not necessarily give rise to a finding that they are degrading. I would respectfully agree. The judge also found there to be no breach of Article 8. He observed at para. 18:
“For the applicant to succeed in establishing that the Prison Service has breached her Article 8 rights it would have to be demonstrated that the overall system in respect of the imprisonment was such that it could be said that the state had in fact in all the circumstances failed to have respect for her private and family life bearing in mind that she was a prisoner lawfully deprived of her liberty. Looking at the circumstances objectively I cannot conclude that overall the circumstances of her imprisonment, including the lack of in-cell sanitation, bearing in mind the toileting and hygiene arrangements which were available to the prisoner pointed, in fact, on the face of it to a lack of respect for her private and family life…” (Emphasis added).
Martin v. Northern Ireland Prison Service
155. More recently, and post 2005 in Martin v. Northern Ireland Prison Service, [2006] NIQB 1, the plaintiff claimed damages for alleged breaches of Articles 3 and 8 of the Convention. Girvan J. distinguished Napier and held there had been no violation of Article 3, but again emphasised that in considering whether a person had been subjected to inhuman or degrading treatment one must consider the totality of circumstances.
156. In Martin, the plaintiff occupied a cell on his own; if he had to use a pot he would have done so in privacy. For a significant part of the day he was allowed out of his cell and had access to ordinary toileting and hand washing facilities. Finally there was an overnight unlock system which, while imperfectly administered on some occasions, in the main enabled most prisoners most of the time to have access to toilets overnight.
157. Girvan J. adopted a different view in relation to Article 8 and concluded that there had been a violation, in particular because of the hostile and uncaring attitude of staff and the Governor of the prison to the manner in which hygiene stipulations were observed and breaches investigated. There was strong evidence of an insensitive and uncaring regime; the authority’s evidence was not reliable.
158. The Court made clear that it was not the lack of in-cell sanitation per se which violated Article 8 rights but rather the manner in which the practice was managed.
Girvan J. observed at para. 35:
“The lack of in-cell sanitation does not of itself establish a lack of respect for the prisoner’s privacy rights under article 8 as I sought to establish in Re Karen Carson. However, the absence of such a facility means that prisoners may have to excrete in circumstances which are in modern conditions somewhat humiliating and distasteful.
If not properly managed and handled with care the practice has the potential to be significantly demeaning to a prisoner in an intimate aspect of his private life.” (at para. 35)
159. On the totality of the evidence, therefore, Girvan J. was prepared to find that there had been a breach of Article 8. Again, I consider the facts of Martin very much distinct from the instant case. There is no evidence of a hostile or uncaring attitude on the part of prison staff or the authorities. The respondent’s evidence was generally not unreliable; the positive aspects of the Portlaoise regime on balance outweighed the negative.
The relevant principles for Art 3 and/or Art 8 breach
160. From the range of ECHR authorities it will be seen that combined multiple and interconnected nexus of alleged violations concerned the establishment beyond a minimum degree of severity of factors such as:
(a) The size of the cell or the amount of personal space available to a prisoner;
(b) The sharing of cells by two or more prisoners;
(c) The sharing of the same bed by prisoners within a cell;
(d) Low standards of hygiene generally within a prison;
(e) The length of time spent in a cell on a daily basis;
(f) Availability of exercise facilities outside the cell;
(g) The unavailability of recreation and education in the prison generally;
(h) Poor arrangements for washing and toileting;
(i) Toileting which had to be done in the presence of others;
(j) Poor ventilation and lighting in the cell;
(k) The particular physical impact of the conditions of a prisoner;
(l) Inertia or indifference on the part of State authorities in responding to complaints or conditions;
(m) Whether the prisoner had to eat in a cell with his or another prisoner’s waste products.
These issues must largely depend on all the circumstances of the case and the cumulative effect of the conditions of detention must be considered. In the successful cases there were found to be few if any counter balancing positive factors as to the prison regime.
Consideration
161. As will be seen from this brief survey of case law, each case very much depends on its own facts. In general, identified ingredients fall to be considered cumulatively. Only in highly unusual circumstances will one single factor be determinative as to whether there has been a breach of Article 3 or Article 8. Certainly there is no jurisprudence from the ECtHR, Northern Ireland, or Scots Courts which makes out the proposition that the absence of in-cell sanitation or “slopping-out” per se constitutes a violation of Article 3. This Court is not empowered to “directly apply” Convention provisions. To seek to create a “new” Convention right is not permissible. The Court must have regard only to established Strasbourg jurisprudence (McD. v. L., [2009] I.E.S.C. 81, Supreme Court, December 2009). Where ECHR violations have been established it has been in circumstances quite distinct from the present proceedings. Violations have been established where there have been what can only be described as extreme conditions of deprivation including the “cumulative vices” of overcrowding, poor hygiene, lack of movement and poor exercise facilities, absent the “balancing factors” described earlier.
162. Napier is distinct from the instant case because of:
(a) The severe physical and mental effects which were evident to the authorities;
(b) notice was given to the authorities of these problems;
(c) the petitioner was constrained to use a chamber pot in the presence of other cell occupants; and
(d) the slopping-out process was found to be “chaotic”;
(e) the overall regime was found to be poor.
163. These circumstances are very distinct from those established on the evidence.
164. Turning then to Article 8 (privacy) the applicant in the present proceedings did not have to share a cell at any stage. He did not make significant complaints as to the manner which the staff dealt with the sanitation issues on a day by day basis – to the contrary. He accepted that even during a punishment period the authorities, insofar as possible, accommodated requests to go to the toilet. He accepted that when necessary a second chamber pot would have been provided. However, there was an adequate supply of soap, disinfectant and bleach for use by all the prisoners, and he was able to purchase air fresheners from the prison tuck shop had he wished. Taking the issues individually and cumulatively I am unable to find there is a breach of Article 3 or in conjunction with Article 8 by reference to any established Strasbourg decision. There is thus no successful point of reference for the applicant. This aspect of the claim also fails and must be dismissed.
Decision
165. The case having failed on both aspects, it is unnecessary to consider what remedies would be applicable in the event of there having been a finding in the applicant’s favour. The application must be declined.
Keating v Crowley
[2010] IESC 29
JUDGMENT of Murray C.J. delivered on the 12th day of May 2010
This is an appeal brought by the second and third named appellants (hereafter the appellants) against an award of damages for the total sum of €214,000 to the applicant/respondent (hereafter the respondent) for loss and damage claimed to have been sustained as a result of the breach of certain constitutional and legal rights. A sum of €100,000 damages has been paid to the respondent as directed by the High Court with a stay on the balance pending the outcome of this appeal.
The respondent’s claim was heard and determined in the High Court as an assessment only the appellants having decided not to contest liability.
The Notice of Appeal lodged on behalf of the appellants is an appeal only on the issue of the quantum of the damages awarded, as is also acknowledged to be the case at paragraph 7. of the affidavit of Miss G. Hodge dated 12th September 2008 and filed on their behalf.
Application by Appellants to amend Notice of Appeal and for a retrial on liability
When this appeal was first listed for hearing as an appeal against assessment of damages only the Court indicated that it was difficult to identify the cause or causes of action in respect of which the State had admitted liability and the legal basis on which the State agreed that it was liable to pay damages to the appellant which they had agreed would be assessed by the Court. This raised questions concerning the jurisdiction or at least the basis in law on foot of which the Court could review the assessment of damages since any assessment of damages depended, inter alia, on identifying the causes of action involved and the causal connection between any wrong admitted to have been committed and the damages or compensation awarded. The Court invited the parties to consider this situation and to make submissions as to how the Court should proceed.
In response the State appellants, as part of their submissions in this regard, applied to this Court by way of a Notice of Motion pursuant to Order 58 Rule 6 of the Rules of the Superior Courts for an Order (i) amending the notice of appeal and (ii) remitting the proceedings to the High Court for a determination of the issue of the liability of the State to the respondent for damages. The additional grounds of appeal which the appellants seek to have included in an amended Notice of Appeal are the following:-
(a) That the learned High Court Judge ought not to have awarded damages to the respondent without first having determined the issue of whether the Courts have jurisdiction to award damages in respect of the passing by the Oireachtas of a law affecting personal rights that is subsequently found to be unconstitutional, and
(b) that the learned High Court Judge ought to have found as a matter of law that the appellants have no liability to the respondent in respect of any infringement of the constitutional rights of the respondent arising solely from the passing by the Oireachtas of legislation and/or implementation and application to the respondent in good faith and without malice of those provisions.
The appellants have also sought “an order remitting the within proceedings to the High Court for the determination of the issue of State liability for damages when rights are affected by acts done pursuant to the provision of an Act of the Oireachtas which is found to be unconstitutional.”
In a Grounding Affidavit supporting the foregoing application the solicitor for the appellants stated, inter alia,:-
“I say and am instructed that the State parties now acknowledge and accept that it is necessary that the issue of State liability for damages when rights are affected by acts done pursuant to the provision of an Act of the Oireachtas which was found to be unconstitutional should be decided before any issue of the quantum of such damages is addressed. I say and am instructed that it is acknowledged that this fundamental jurisdictional matter should be decided in the first instance, prior to any consideration of the issue of quantum of damages. … it is acknowledged and accepted that in circumstances where this fundamental jurisdiction issue was not raised or argued in the High Court, that the interests of justice require that the matter should first be tried and decided by the High Court before consideration by this honourable Court on appeal.” (paragraph 13).
The position adopted by the State, in its submissions to this Court, is that there was no authority of this Court or other basis in law to support the respondent’s entitlement for damages as a consequence of the Court’s earlier conclusion in these proceedings that certain provisions of the Domestic Violence Act 1996 were unconstitutional. It was submitted “No authority was put before the High Court or otherwise notified to the State to support Mr. Keating’s claim for damages. Indeed, any relevant authority is hostile to the case made by Mr. Keating in his damages claim.”
In substance the State now seeks to impugn the decision of the High Court at this stage in these proceedings on the grounds that there is no legal basis for attributing liability to the State for the payment of damages to the plaintiffs for the wrongs which he alleges to have sustained and that the matter should be remitted to the High Court to have the issue of State liability decided.
The respondent in the appeal contends that given the course of the proceedings, and the admission of liability in the High Court that the State is in effect estopped from raising the issue of liability at this stage. He also submitted that it would be an injustice to the plaintiff to permit the issue of liability to be opened at this stage and, insofar as the Court might have a discretion to permit the appellant to re-open the issue of liability at this stage, there are no compelling or exceptional circumstances which would warrant the exercise of that discretion in favour of the State.
The first issue which the Court has to consider, in the light of the appellants’ application, is whether the State should be permitted to amend and extend their appeal so as to impugn the decision of the High Court to award damages on the grounds that the State had no liability even though liability was admitted in the High Court.
If that application is refused, as I consider it should be, the next issue is whether, in the particular circumstances of the case, the appellants’ appeal discloses justiciable grounds of appeal, and only if so, whether they are well founded in whole or in part.
Issue concerning amendment and retrial on liability
The application of the appellants referred to above seeks an amendment of the Notice of Appeal in the form indicated and, in an express acknowledgment that the issue of liability which the appellants now wish to be tried should not in any event be tried in this Court as a court of final appeal but in the High Court as the court of first instance, seeks an order remitting that issue for trial by the High Court.
I think it would be useful to set out at this point the sequence of events concerning the claim for damages.
§ The respondent issued judicial review proceedings with a view to setting aside the interim barring order on the grounds that certain provisions of the Act of 1996 were unconstitutional and subsequently, claimed damages for loss and damage sustained as a result of the unconstitutional making and enforcement of that order against him. The claim for damages was included after the respondent had been permitted to amend the grounds and relief sought in the judicial review. That occurred before the hearing and determination of the constitutional issues;
§ By consent of the parties the issues concerning the constitutionality of the Act of 1996 was heard and determined by the High Court and all issues concerning damages including liability were left in abeyance pending the outcome of the constitutional challenge;
§ This Court allowed the respondent’s appeal against the finding of the High Court in favour of the constitutionality of the Act of 1996 on the grounds that its provisions failed to ensure that an interim barring order, granted ex parte, would expire within a short period of time so that its continuance in force thereafter could only be ordered after a hearing of each party on the merits;
§ The Court remitted the matter to the High Court for the determination of the issues concerning damages, “if any”, to be awarded to the respondent;
§ The respondent served on the appellant, the State, detailed points of claim on the issue of damages;
§ The State served detailed points of defence on the respondent denying liability and damages;
§ The trial of issues concerning damages before the High Court at which, from the outset, the State abandoned its defence on liability and agreed that the matter should proceed as one of assessment of damages only;
§ The appellants appealed to this Court on the issue of the quantum of damages only.
Subsequent to all the foregoing the appellants brought their application to resurrect the issue of the State’s liability in this case and seek a retrial on that basis.
As concerns the application to amend the grounds of appeal so as to pursue a defence of no liability it should first of all be pointed out that this is not an application to introduce new grounds of appeal concerning the determination of the High Court on an issue which has already been challenged on other grounds in the appeal already filed.
Nor is it even an attempt to challenge on appeal an issue which was contested in the High Court. It is an attempt to set up a case of liability de novo for the purpose of resisting the plaintiff’s claim in a retrial on grounds which had been conceded at the commencement of the trial in the High Court.
Neither is the application itself grounded on any error of law or fact alleged to have been committed by the trial Judge or any injustice in the conduct of the hearing. The application is made solely because, on further reflection after the Notice of Appeal was lodged, the appellants have concluded that they ought to have maintained the issue of State liability, rather than abandoned it, at the trial. The State has now adopted the view that it is in a strong position to argue that it has no liability in law to the respondent.
In the light of the foregoing the appellants’ application, as indeed they acknowledge in their submissions, falls well outside the ordinary discretion which the Court is normally called upon to exercise if a party seeks to amend a Notice of Appeal.
When the matter came for trial before the High Court all issues, both liability and quantum, were due to be tried by the Court on their merits. By consent the appellants submitted to a determination of the issue of liability in favour of the respondent and in effect invited him to present his case on the basis that he had to tender evidence only for the purposes of an assessment of the amount of damages to be awarded to him.
Absent fraud, or some fundamental issue of justice arising from the conduct of the proceedings, it is difficult to contemplate circumstances in which a party would be permitted, in an appeal or otherwise, to impugn a determination by the High Court of an issue, such as liability, which had been expressly conceded by the party concerned. Of course it is not contended that there was anything in the nature of fraud or fundamental injustice and, in any event, the setting aside of a determination by the High Court on such grounds would require the bringing of separate proceedings before the High Court. (See P. v. P. [2001] IESC76 and In re Greendale Developments (In Liquidation) (No. 3) [2000] 2 I.R. 514).
The appellants acknowledge, as they are bound to do, that the issue of liability could have and (from their perspective) should have, been pursued in the High Court and that it was only on further reflection, after they had lodged their appeal on quantum only to this Court, that they concluded that they should seek to have a trial of the issue of liability.
In short it was intended that the judgment of the High Court, on the basis of the appellants’ admission, would be final and conclusive as regards liability.
Arguments of the Appellant
The appellants submit that it is of fundamental importance to the State as to whether the State may be liable for damages when an individual’s rights are adversely affected by acts done pursuant to the provisions of an Act of the Oireachtas which enjoys the presumption of constitutionality but which is subsequently found to be unconstitutional. While it is accepted in those submissions that as a general principle the Supreme Court will refuse to allow a party to raise an issue on appeal that was not argued before the High Court, it is submitted nonetheless that there are exceptions to this principle even if those exceptions are very limited.
For the foregoing proposition the appellants relied on the judgment of Finlay C.J., in KED v. MC [1985] I.R. 697, 701 where he stated:
“It is a fundamental principle, arising from the exclusively appellate jurisdiction of this Court that in cases such as this that, save in the most exceptional circumstances, the Court should not hear and determine an issue which has not been tried and decided in the High Court. To that fundamental rule or principle there may be exceptions, but they must be clearly required in the interests of justice.” (emphasis added). The appellants submitted that the exceptional circumstances in this case which would entitle them to succeed in their application include the following:
” The fact that the issues affect the doctrine of separation of powers inherent in the Constitution;
The fact that the issues go to the jurisdiction of the Courts to award any damages at all in this case;
The legal significance and novelty of the issues involved;
The likely importance of the issues in future cases;
The absence of any serious prejudice to the respondent.”
In their written submissions the appellants stated that it was fully accepted that the State “should bear responsibility for any costs incurred by the respondent arising from the State’s failure to raise the liability issue in the High Court in the first instance.” This it was submitted removed the only real prejudice that the respondent could suffer if the matter was remitted to the High Court for a re-trial on the issue of liability.
I would first observe that the facts and circumstances of KED v. MC were quite different to the situation in the present case. In that case the appellants (where the Court refused to hear the issue) sought to raise for the first time in the Supreme Court a mixed question of law and fact which had not been raised or decided in the High Court. In the present proceedings the liability of the State was expressly put in issue and decided on the basis of an express admission of liability by the State. On foot of that admission the High Court determined that the State was liable to the appellant and awarded damages accordingly.
It would not be really correct to treat this case as one in which the issue of liability was simply not tried and decided. It was not tried as an issue because the State took the position that there was no argument which could be made against its liability to the plaintiff and that the issue should be determined on that basis. In that sense the issue was decided.
The terms of the High Court order included the following:
“There being no denial of liability in the points of defence herein except as to damages
the Court doth reserve judgment herein
and the same coming on accordingly for judgment on this day
the Court doth find that the respondent was negligent
the Court doth assess damages under the following headings.”
The order then went on to recite the damages awarded under the various headings. These are referred to in detail later in this judgment. The reference to a finding of negligence against the appellants is obviously intended as a reference to the Court’s determination on the issue of liability for the wrongs alleged by the respondent.
There may indeed be, as Finlay C.J., stated, “most exceptional circumstances” where the Court would hear and determine an issue which has not been “tried and decided” in the High Court if that is clearly required in the interests of justice. The liability of the State, having been in contention between the parties until it was conceded, was an integral part of the decision of the High Court. In any event, even if the principle stated by Finlay C.J., were to be applied in this case I do not think that the appellants have in any sense established that the re-opening and retrial of these proceedings are required in the interests of justice.
Undoubtedly the principles of law of general importance arise as regards any State liability to individuals where the application of an Act of the Oireachtas has caused them adverse consequences and that law is at some later date found to be unconstitutional.
However these proceedings are the respondent’s proceedings in which he sought and obtained an award of damages against the State. The problem which has arisen in this appeal is that the principles of law according to which liability was conceded and thus found in favour of the respondent were never stated nor are they readily discernible. The State now wishes to say that there is no basis in law at all for such an award. To determine the principles of law to be applied would involve a substantial hearing and extensive legal argument.
In those circumstances and since the High Court did not have to address any legal principles, because it was not required to do so, on foot of which the liability of the State might arise it is not a precedent in law for other cases on the issues which the State refer to in their submissions and which I have cited above. The decision in this case only binds the parties to these proceedings. These are issues which it is open to the State to litigate in other proceedings according as they might arise. The State chose not to do so in this particular case and in my view it would be wholly unjust to a plaintiff who had proceeded against a defendant in his claim for damages for an assessment only, the defendant having so agreed. If a defendant were to be permitted to change his or her mind after the High Court decision (and indeed after it had lodged its Notice of Appeal) and seek to have a retrial of the whole matter which, depending on the precise determination on the question of liability, could also involve a retrial on the question of damages.
One cannot lose sight of the fact that the respondent exercised his constitutional right of access to the Courts to have certain issues, including his claim for damages determined in accordance with law. The State had every option to defend the claim on all issues. He succeeded in his action and the damages were assessed on the basis of a general admission of liability on the part of the State for the wrongs alleged. Having completed that judicial process before the High Court it is somewhat cavalier, to say the least, for the State to argue that his legal costs to date are the only prejudice which he would suffer if the judgment of the High Court was set aside and the matter remitted for trial de novo on the issue of liability. To accede to the State’s application would be to deny the respondents the rights and benefits of a judgment of the High Court, even if subject to an appeal in question.
The situation in which the State finds itself is entirely of its own making and in my view it would be unconscionable to set aside the order of the High Court on the question of liability because the State wishes to raise that issue at this stage when it could have done so in the court of trial. The respondent would lose the benefit of the order of the High Court on this issue which is not impugned by the appellants on any ground of error or defect in the judicial process.
Apart from the principle that “the finality of proceedings at the level of trial and possibly more particularly at the level of ultimate appeal is of fundamental importance to the certainty of the administration of law,” (Hamilton C.J., In re Greendale Developments Limited (In Liquidation) (No. 3) 200 2 I.R. 514) to deny the respondent the benefits of determination of the issue of liability by the High Court on the grounds advanced by the appellants would be a denial of justice.
As mentioned above it was clearly the intention of, and accepted by, both parties that when the trial on the assessment of damages took place in the High Court that the decision would finally determine the issue of liability between the parties in this case.
In that light the issue of liability between these parties can probably be regarded as being governed by the principle of res judicata. On that ground the appellants would be estopped per res judicatum from raising again the issue of liability in this appeal. The result would be no different if one were to adopt the view expressed obiter in Bradshaw v. M’Mullan [1920] I.R. 424, that estoppel arising from a judgment by consent was more properly characterised as an estoppel by conduct as noted in Civil Procedure in the Superior Courts, Delaney and McGrath, Sweet and Maxwell, 2001 (at p. 651).
In any event I am satisfied that to grant the application of the appellants to amend the Notice of Appeal with the view to re-opening the issue of liability would be to permit an abuse of the process of the Courts. In the judgment delivered in this Court in In The Matter of Vantive Holdings & Ors., (The Supreme Court, Unreported 14th October, 2009) express reference was made to the inherent jurisdiction of this Court “to protect the integrity of the due process of the administration of justice and the finality, in principle, of a judicial decision.”
In that case it was noted that the petitioner “had an opportunity to present to the Court all the evidence at its disposal which was material to having the application decided in its favour… it deliberately chose not to do so … . On that basis it permitted the application to be heard and determined by the High Court and on appeal by this Court.”
The attempt by the petitioner in that case to bring a second petition on foot of material evidence which was deliberately withheld in the course of the proceedings concerning an earlier petition was held to constitute an abuse of the process of the Court. It was observed in that judgment that “to permit the petition to proceed, unless there are exceptional excusing circumstances, would undermine the integrity of the proper and efficient administration of justice and the principle of finality.”
In this case the appellants deliberately refrained from pursuing the issue of liability but now wish to re-open the case and raise that issue in a second hearing before the High Court.
In this case there are of course no excusing circumstances, and apart from or in addition to, the question of the appellants being estopped from raising the issue of liability, I am in any event satisfied that it would constitute an abuse of the process of the Courts to permit them to do so.
Accordingly the application to amend the Notice of Appeal and have the matter remitted to the High Court on the issue of liability should be refused.
The Appeal
I now come to the issue as to how the appeal brought by the appellants on the issue of damages should be determined. Before addressing that issue I think it is appropriate in this context to set out certain details concerning the course of these proceedings, the earlier decision of this Court on the question of constitutionality, the nature of the damages claimed and the damages awarded.
Relevant dates concerning District Court proceedings
6th November 1998: (a) District Court made an interim order pursuant to s. 4 of the Act of 1996 barring the respondent from the family home until 3rd February 1999 without leave of the Court.
(b) Summons issued by the District Court requiring the respondent to attend at the District Court at 2 p.m. on 3rd February 1999 to answer the application of his wife for a barring order in respect of the family home.
8th November 1998: date on which the respondent became aware of the making of the barring order and initiated an application to the District Court seeking an order terminating the barring order.
15th November 1998: respondent arrested, detained and subsequently charged with a breach of the barring order when he refused to leave his wife’s home at the request of the Garda Siochana.
16/17 November 1998: respondent released from custody on bail relating to the offence of breaching the interim barring order.
23rd November 1998: return date for application made by the respondent to have the interim barring order discharged pursuant to s. 13 of the Act of 1996. (application not proceeded with).
3rd February 1999: order of High Court granting leave to apply for judicial review and date on which interim barring order was due to expire.
The Supreme Court Finding of Unconstitutionality
It is important to note that the primary ground on which the respondent attacked the constitutionality of the relevant provisions of the Domestic Violence Act 1996 was the jurisdiction granted to the District Court to grant to a spouse in an ex parte application, an interim order barring the other spouse from the family home and thus without giving that other spouse an opportunity to be heard at that stage. This, the respondent claimed, was a denial of a right to a fair hearing and in breach of his constitutional rights.
In its judgment on the constitutional issue this Court rejected that claim but held that the relevant provisions were unconstitutional because of the failure of the Act to ensure that an interim barring order made ex parte would only remain in force for a short period of time after which its continuance could only be determined by a full hearing on the merits with both parties being heard.
The Court referred to subsection 4 of s. 4 of the Act of 1996 which had the effect that the interim barring order continued in force until “the determination by the Court of the application for a barring order”. As a consequence of the latter provision there was no statutory time limit on the effect of an interim barring order granted ex parte pursuant to s. 3 and such an order could continue in force until such time as the original applicant saw fit to seek a long term or permanent barring order or the person the subject of the barring order made an application for its discharge. In the latter case the onus would be on the applicant, the spouse who had been barred.
In this particular case the District Court, when it issued the interim barring order did specify a date for the hearing of the barring order application as such and the summons required the respondent to attend the District Court on 3rd February 1999 almost three months after the making of the interim barring order.
Again on the facts of this case the respondent himself had indeed initiated, on 8th November 1998, an application to the District Court seeking an order terminating the interim barring order and the return date for that application was the 23rd November 1998. However in such an application the onus was on the respondent to establish why the interim order should be discharged.
In this context the Court stated:
“Seen in that context the failure of the legislation to impose any time limit on the operation of an interim barring order, even when granted ex parte in the absence of the respondent, other than the provision that it is to expire when the application for an interim barring order is itself determined, is inexplicable. While in the present case, the District Judge fixed the hearing of the application for a barring order for a date three months into the future, the Court notes that the statute nowhere imposes on the District Court any obligation, when granting an interim barring order, to limit its duration in time. If no date is fixed for the hearing of the application for the barring order itself, as distinct from the interim barring order, it would be a matter for the applicant for the interim barring order to bring the matter before the District Court again. Manifestly, he or she will have little incentive to do so while the interim order remains in force.
It is undoubtedly the case that the respondent may apply to the Court at any time to have the interim order discharged or varied. No reason has been advanced, however, presumably because there is none, as to why the legislature should have imposed on respondents in this particular form of litigation, with all its draconian consequences, the obligation to take the initiative in issuing proceedings in order to obtain the discharge of an order granted in his or her absence, which it may be, should never have been granted in the first place. [It has not been demonstrated that the remedy of an interim order granted on an ex parte basis would be in some sense seriously weakened if the interim order thus obtained were to be of a limited duration only, thus requiring the applicant, at the earliest practical opportunity, to satisfy the Court in the presence of the opposing party that the order was properly granted and should now be continued in force.
The Court fully appreciates the considerations which the Executive and the Legislature would have had in mind in providing for the granting of interim barring orders on an ex parte basis. In the many cases where the spouses are still living together and one is being subjected to violence by the other which may also extend to the children, it may simply not be practicable for the application to be made on notice to the respondent. It is not the existence of a jurisdiction to grant interim barring orders on an ex parte basis which creates a serious constitutional difficulty, it is the manner in which the legislation has provided for the granting of such orders.”] (emphasis added).
The Court went on to draw an analogy with s. 17 of the Child Care Act 1991 where an order made by the District Court, on the application of the Health Authority with regard to the care of a child without notice to a parent could not remain in force for a period exceeding eight days.
In its judgment the Court concluded as follows:
“The Court is, accordingly, satisfied that the procedures prescribed by subsection (1), (3) and (4) of the 1996 Act, in failing to prescribe a fixed period of relatively short duration during which an interim barring order made ex parte is to continue in force deprive the respondents to such applications of the protection of the principle of audi alteram partem in a manner and to an extent which is disproportionate, unreasonable and unnecessary. The appeal will accordingly be allowed, the order of the High Court set aside and an order substituted therefore granting a declaration that subsection (3) of s. 4 of the 1996 Act is invalid having regard to the provisions of the Constitution and an order of certiorari quashing the interim barring order of the District Court.”
As will be seen from the above the constitutional frailty in the Act, as found by this Court, was confined to the failure of the Act to ensure that an ex parte interim barring order would only remain in force for a short period of time such as eight days. It was as a consequence of this frailty, and not because the District Court jurisdiction, which it still has to grant interim barring orders or an ex parte application albeit that the Act is found unconstitutional and the District Court order itself set aside.
The Claim for Damages
Subsequent to the decision of this Court on the constitutional issues the respondent, on 9th April 2003 lodged a document entitled “Points of claim for damages”. These were lengthy and often repetitive but essentially consisted of the following claims:
1. Damages, including aggravated and exemplary damages, for false imprisonment. This related to his arrest on 15th November 1998 for his breach of the interim barring order made by the District Court which was then still extant but subsequently quashed for the reasons explained. The wrongful imprisonment was said to result from the making of the interim barring order in a manner which was contrary to constitutionally guaranteed fair procedures because the respondent was not given an opportunity to defend himself in the ex parte proceedings and/or because it continued in force under the terms of the said Act for an unreasonable period of time which had been held to be unconstitutional.
2. Damages for failing to provide the respondent with his constitutional right to rebut the allegations made by his spouse on the making of the ex parte interim barring order or within a reasonable period thereafter as a result of which he was forced under the sanction of the criminal law to vacate/leave his family home, damaging his parental relationship with his children and his prospect of obtaining custody of his children.
3. Damages for “severe anxiety, mental distress and trauma, loss and deprivation of convenience, financial and economic loss through the consequential loss of his employment and/or loss of his family rights and enjoyment of same” arising from the above.
4. Damages for failure of the defendants to protect and vindicate the respondent’s constitutional rights and in particular to guarantee and protect the family in its constitution and authority by requiring the plaintiff, on foot of the District Court order, to leave the family home.
5. Damages because the respondent’s “good name and character was undermined causing him opprobrium in the eyes of right thinking members of society and in the eyes of his family, relatives, friends, acquaintances including his work mates …”
6. Damages for failing to guarantee or protect the family in its constitution as required by the Constitution due to the failure of the State to provide by law for the immediate accommodation needs of the respondent and his family or financial means so that the respondent could afford suitable alternative accommodation and not be prejudiced when seeking custody of his children and so as to prevent any further damage to his relationship as a parent with his children following the making of the barring order.
7. Damages for failing to respect or protect the respondent and his inalienable constitutional right and duty as a parent to provide for the physical and social education of his children.
8. Damages for unjust attack on his good name “with a consequence of granting of the … barring order … [he] suffered grave and irreparable damage to his good name and character in the minds/eyes of right thinking members of society/public more particularly in respect of his family by whom he was ostracized and further ostracized from the local community where he had lived up to 6th November 1998, from his relatives and friends, including his work mates/colleagues and became the subject of public and private opprobrium and comment …” It was claimed that the aforesaid damage to his good name and character was further aggravated as a result of his arrest for an alleged breach of the barring order and his subsequent charge and detention.
9. Damages for failing to protect and vindicate the respondent’s constitutional property rights by barring him from his home. Damages because “the respondents [that is to say the Judge of the District Court, Ireland and the Attorney General] and each or any of them … issued an interim barring order, invalid having regard to the provisions of Bunreacht na hEireann which order by its inherent nature wronged the plaintiff/applicant and caused profound personal injury and substantial and continuing loss and damage to him and the plaintiff/applicant claims damages.” (phrase in parenthesis inserted).
All the points of claim for damages were responded to in “Points of defence on behalf of the second and third named respondent” in which liability in respect of all or any of the claims for damages was denied. Thus both liability and quantum were put in issue in the points of defence at this stage but liability was subsequently conceded by the State at the trial.
The Damages Awarded
The damages awarded to the respondent were made by the learned High Court Judge under the following headings:
(i) Loss of convenience of housing from 6th November
1998 to October 2002 €12,000
(ii) General inconvenience and effect on the respondent due
to absence of adequate housing €45,000
(iii) Unlawful arrest, custody and false imprisonment €20,000
(iv) General damages for loss of an amenity to work as
a handyman €12,000
(v) Loss of constitutional right to enjoy children and marital
privacy:
Past: €40,000
Future: €10,000
(vi) Loss of reputation and good name €50,000
(vii) Emotional and psychological suffering €25,000
_______
Total: €214,000
Decision
The appellants have a right of appeal to this Court but if they are to succeed they must in the first instance establish that they appeal on grounds which have a justiciable legal basis which would permit this Court, inter alia, to review whether the High Court was correct in law making the assessment of damages which the appellant seek to impugn.
As can be seen from the points of claim the respondent sought damages for the global consequences, one might say, in his personal life alleged to flow from the interim barring order made by the District Court and his arrest by the Gardaí for an alleged breach of that order. At no stage has the case been made that there was any malice or lack of bona fides on the part of the appellants. The evidential case made in the High Court by the respondent for damages for these global consequences which he claimed to flow from these two events were grounded on the admission of liability by the State for the wrongs alleged. There is one point concerning the State’s admission of liability which may require clarification and I will refer to it later. At this point, while I do not think it is necessary for the purpose of the issue under consideration to review extensively the factual circumstances of the case and in particular all the evidence given by or on behalf of the respondent at the trial some general observations on the scope of the damages awarded may be useful.
The interim order was made on the ex parte application of the respondent’s wife alleging abuse, including physical abuse, often associated with excessive drinking, on his part over a period of 1½ years prior to the application to the District Court. The respondent has substantially denied the allegations (and there has been no decision resolving that conflict of fact) but that was the basis on which the District Court order was made. It is now common case that the respondent and his wife were never reconciled and they are unlikely to do so at any stage.
As regards the first two items of damage referred to above, namely those related to housing, the High Court, having noted that the house in which he lived with his wife was a Corporation house in which the respondent was a joint tenant concluded that it would have been unreasonable for him to surrender his joint tenancy for the purpose of seeking other accommodation from the Corporation prior to the Supreme Court decision of 9th October 2002 and awarded him €12,000 “in terms of the loss of rent, loss of convenience of housing up to the 9th October 2002”. As regards the second sum for housing the learned High Court Judge stated “In terms of allowing a reasonably liberal figure of years for getting on to the housing list going by the bed and breakfast/hostel route I consider that it is a much more challenging and serious downturn of the plaintiff’s situation and very intrusive of his rights and his culture and his personal self esteem and pride and also challenging to his health. On that basis, even though it might be notional in the outturn of events, I consider that if he were brave enough to face into that, a modest figure to compensate him for that would be €15,000 a year and that by 3 years into the future amounts to €45,000.”
The next head of damage was that awarded for arrest, custody and false imprisonment. This claim for false imprisonment was not advanced on the basis of the classical common law tort. Here it was acknowledged that at the time of the arrest the Gardaí had the statutory power to do so for breach of a then extant District Court Order made under provisions which were subsequently found to have been unconstitutional.
As regards the “loss of an amenity to work” the learned trial Judge found that the respondent had not established a claim for loss of earnings as such but as a person who, as a result of the proceedings in the District Court, had, as he found, come to be regarded as somewhat of a pariah and he was not asked to do the kind of handyman jobs which neighbours and others in the community used to ask him to do. Allowing for a “fade factor” the learned trial Judge awarded him the sum referred to above namely €12,000 not as a loss of income but as a loss of amenity of life.
As regards the loss of the constitutional right to enjoy children and marital privacy the learned trial Judge stated at page 27 of his decision: “In terms of the poor access, access into the house; the publicly perceived rift between himself and the children and that is a past element, which is mainly in the past, but will also persist into the future until things settle down, but it is mainly in the past and accordingly I award €50,000 in respect of that item, €40,000 for the past and €10,000 for the future totalling €50,000.”
As regards the plaintiff’s loss of good name the learned trial Judge noted that “This arises on a constitutional basis, it cannot be defined nor is it pleaded as a matter of defamation because the ingredients of the defamation seem to be lacking here”. On the basis that his relationship with his brothers and with other people suffered and that people avoided and shunned him arising from the District Court proceedings, including the making of the barring order, the learned trial Judge determined that he should be compensated in the sum of €50,000.
In making the award for emotional and psychological suffering the learned trial Judge discounted evidence that the respondent’s alcoholism, suicidal thoughts and apparent attempts by him to end his own life were as a result of the barring order but that the plaintiff was a “poor subject for the onslaught of the unconstitutional order” and some of these difficulties may have been made worse. Accordingly he awarded the sum of €25,000.
It might also be noted that for the purpose of assessing damages the learned High Court Judge had inter alia, ruled that certain mitigating steps that were alleged to be open to the respondent, such as the expedition of divorce proceedings which had been commenced or taking advantage of the hearing fixed for 3rd February 1999 could not properly be considered a failure to mitigate on the part of the respondent because the wrongful acts of the appellants had placed him in difficulties and in a disadvantageous situation in that regard.
It seems to me patent that a crucial element in the assessment of damages in the particular circumstances of the claim in this case is the legal basis for the liability of the State for the purpose of determining the extent to which the State can be held vicariously liable for the order made by the District Court under a law (which was then extant) and a bona fide arrest by the Gardaí under the authority of a law which was then extant for breach of the District Court order. The legal parameters of the cause of action would also be crucial in determining such issues as a causal connection between the wrong complained of and the damages sustained or remoteness of damage.
Such difficulties have now been fully acknowledged by the appellants who of course now say that the learned trial Judge could not have decided the issue of damages without determining the legal basis for the liability of the appellants something for which, for the reasons outlined earlier in this judgment, he can hardly be faulted in the light of the attitude of the State.
Assuming, as one must for present purposes, that the course of events in the respondent’s personal life were attributable to some wrong on the part of the State, and not stemming from any inherent or inevitable difficulty arising from a de facto breakdown in the respondent’s marital relationship, they are nonetheless alleged to be attributable to:
(a) An order made by a judge of the District Court under a law then extant but subsequently set aside not because its jurisdiction to grant an ex parte interim barring order was unconstitutional as such but because the relevant provisions of the Act failed to limit the continuation of such an order to a short period; and
(b) his arrest by the Gardaí, acting bona fide under the law as it then stood, for a breach of that order.
Before addressing these issues further there is one aspect concerning the State’s admission of liability which I wish to clarify.
At one stage it was suggested that the State had admitted liability only for such consequences as occurred between 8th November 1998 and 3rd February 1999. That is to say from a reasonably short period after the making of the interim barring order and the date when the interim barring order was due to expire as specified in the order of the District Court. That incidentally was also the date on which liberty to bring judicial review proceedings was sought and the proceedings before the District Court were stayed by order of the High Court.
There is no doubt but that the respondent’s proceedings proceeded before the High Court on an admission of liability and he was permitted to give and call evidence as to the global consequences of which he complained effectively without objection. In the course of submissions to the trial Judge on issues concerning damages counsel for the State at one point suggested that damages be limited to the dates referred to above but went on to confine his submissions to saying that no damages should be awarded to the respondent for loss arising from lack of accommodation or being out of work after 3rd February 1999 since that was the date when the interim barring order expired and any damage or loss sustained by the respondent after that date could not be said to have been caused by the making of the interim barring order. It was open to the respondent, it was submitted, to go into that court on that date and have a hearing on the merits. This was not so much a denial of liability of the wrong caused to the respondent but an argument addressed to the causal connection between the wrong admitted and the damage claimed to have been sustained or to put it alternatively, the remoteness of damage. This in fact was the approach of counsel for the State on that issue in the High Court and in the course of his submissions he indicated to the learned trial Judge that he should examine what the State did wrong then what flowed from that wrong since there must be cause and effect as he put it.
I do not propose to analyse the learned trial Judge’s ruling or approach to this question except to say that he found that the wrongs admitted to have been committed by the State, that is to say the making of an interim barring order and his arrest for breaching the barring order of the District Court, had put him in a position that he was so disadvantaged from defending his position in the District Court that the State could not rely on that opportunity to appear in court as a ground for limiting the damages to which he was entitled.
This, I would add is an example of the difficulty that this Court would face in endeavouring to review that decision by the High Court since the legal criteria on foot of which the State admitted it was liable were never identified either by the State in admitting liability or the High Court Judge when awarding damages (since he had no need to do so). Even if this Court found some fatal flaw on the face of the reasoning of the learned trial Judge on this point the Court would still find it difficult if not impossible to assess what the damages should be without reference to some legal criteria or the identification of a known wrong on foot of which liability was admitted. (Remitting the matter to the High Court would only be meaningful if the liability issue was re-opened and for reasons stated above this cannot be done).
The Merits of the Appeal
It is important to recall, though previously noted, that the appellants in their submissions have accepted that there was a fundamental deficiency in the legal basis for their appeal on the issues concerning the assessment of damages. In their submissions the appellants acknowledged:-
“I say and am instructed that the State parties now acknowledge and accept that it is necessary that the issue of State liability for damages when rights are affected by acts done pursuant to the provision of an Act of the Oireachtas which was found to be unconstitutional should be decided before any issue of the quantum of such damages is addressed. I say and am instructed that it is acknowledged that this fundamental jurisdictional matter should be decided in the first instance, prior to any consideration of the issue of quantum of damages. … it is acknowledged and accepted that in circumstances where this fundamental jurisdiction issue was not raised or argued in the High Court, that the interests of justice require that the matter should first be tried and decided by the High Court before consideration by this honourable Court on appeal.” (paragraph 13).
Moreover at the hearing counsel for the State conceded that if the Court were to proceed with the hearing as an assessment of damages that would be unsatisfactory because the basis for the award would not have been identified.
I think the approach fairly expressed at this stage by the appellants above is correct as regards the issues in the appeal on the quantum although the matter cannot now be remitted to the High Court for the reasons already stated.
It is undoubtedly the case that in certain circumstances the State is liable to pay compensation to individuals for breach of their constitutional rights. This may be particularly so when the State at the time the damage was caused, were acting unlawfully or with malafides or in misfeasance of public office.
It is an altogether different matter to determine the liability of the State, including its vicarious liability, for acts bona fide done by a Judge exercising his jurisdiction under a law which at the time enjoyed the presumption of constitutionality or other bona fide exercising statutory powers which also enjoyed such a presumption.
In the ordinary course of events a trial for damages only proceeds on the basis of an admission of liability for a known tort or other wrong known to the law and sufficiently identified in the pleadings. This permits a court to assess damage by reference to the established legal parameters of the wrong in question. Thus identifying the tort or cause of action is of fundamental importance enabling as it does issues concerning vicarious liability and remoteness of damage to be resolved by reference to an established body of law or discernible principle. Where a new point of law arises or indeed where a plaintiff asserts a novel right to damages such issues can be argued and determined in the court of trial. If resolved in whole or in part in favour of a plaintiff and damages assessed then, on appeal, this Court is in a position to review the decision of the High Court, including the assessment as to damages, having regard to the legal basis on foot of which the High Court awarded damages.
As has been seen the wrongs alleged by the respondent against the State have been framed under the general rubric of breach of constitutional rights. Generally speaking it can be said that such rights are vindicated through the establishment of well established remedies and causes of action known to the law. Certainly it may be the case that established causes of action may not provide an adequate remedy so as to properly vindicate the breach of the constitutional right. In such circumstances the Courts have jurisdiction to provide a remedy, even if in another form, in order to ensure that a right is vindicated where other necessary criteria for establishing legal liability are established.
Certain dicta of Barrington J., in McDonnell v. Ireland [1998] 1 IR 134 seemed to me particularly relevant in this context. That was a case in which the Court as a whole had great difficulty, to say the least, in identifying what, if any, cause of action the plaintiff had in claiming damages for the adverse effects of a statute subsequently found unconstitutional. Because the parties had agreed liability and damages the Court was able to deal with a net contingent issue, namely, whether the statute of limitations applied which it held it did, whatever “the amplitude” of the cause of action. Unlike this case identifying the amplitude of the cause of action was not necessary for the purpose of deciding the point at issue. In that case Barrington J., in his own judgment agreeing with the result made reference to the remedies available for breach of constitutional rights and observed:
“No doubt also there have been cases where the common law provided no adequate remedy for a breach of constitutional rights and where the Courts had been prepared to fashion a remedy on the principle of ubi jus ibi remedium.”
Barrington J., went on to cite Walsh J. in Byrne v. Ireland [1972] I.R. 241 and in Meskell v. Coras Iompair Eireann [1973] I.R. 121 at 132 in support of that view and I do not think it is necessary to cite those particular extracts but as Barrington J., went on to observe
“… in the passages quoted, Walsh J., was dealing with special or exceptional cases where the general body of the law provides no appropriate remedy.
He later went on to state:
“The general problem of resolving how constitutional rights are to be balanced against each other and reconciled with the exigencies of the common good is, in the first instance, a matter for the legislature. It is only when the legislature has failed in its constitutional duty to defend or vindicate a particular constitutional right pursuant to the provisions of Article 40.3 of the Constitution that this Court, as the court of last resort, will feel obliged to fashion its own remedy. If, however, a practical method of defending or vindicating the right already exists, at common law by statute, there will be no need for this Court to interfere.”
…
“There is no doubt that constitutional rights do not need recognition by the legislature or by common law to be effective. If necessary the Courts will define them and fashion a remedy for their breach.”
“But, at the same time, constitutional rights should not be regarded as wild cards which can be played at any time to defeat all existing rules. If the general law provides an adequate cause of action to vindicate a constitutional right it appears to me that the injured party cannot ask the court to devise a new and different cause of action. Thus the Constitution guarantees citizen’s the right to his or her good name but the cause of action to defend his or her good name is the action of defamation. The injured party, it appears to me, has to accept the action for defamation with all its incidents including the time limit within which the action must be commenced. Likewise the victim of careless driving has the action of negligence by means of which to vindicate his rights.” (emphasis added).
As a matter of general principle I think what Barrington J., stated is correct. For example the respondent in this case has done, as regards his claim for general loss of reputation and good name, exactly what he deprecated. Nonetheless the State admitted liability for damages for loss of reputation and for reasons set out earlier in this judgment are not now entitled to repudiate that admission of liability so as to recommence the proceedings on that issue. On the other hand this Court is hardly in a position to review the award of damages for damage to the respondent’s good name arising from the matters which he complains of unless the legal criteria according to which damages should have been awarded or can be assessed are discernible. In so saying I do not purport to give a definitive ruling on whether the respondent could have a cause of action in this respect since this is not the issue before the Court. If an issue as to whether there was a right to damages for breach of a person’s constitutional right to a good name existed independently of any remedy afforded by an action in defamation then the legal basis on which any such issue was resolved in the court of first instance would be open to review in the ordinary way including any damages awarded. A court of appeal is not in a position to treat an assessment of damages in the abstract without reference to the legal parameters of the cause of action as an issue which is justiciable on appeal. This consideration also applies to the other claims for which the respondent was awarded damages.
In the light of the foregoing considerations and the manner in which the State admitted liability it is simply impossible for this Court to embark on a consideration of heads of damage or their quantification. To attempt to do so would require the Court to endeavour to make a range of speculative assumptions as to the scope of the liability of the State, and indeed the very principle of such liability, for the adverse effects on individuals generally of a statute declared to be unconstitutional. To endeavour to address issues concerning the review and quantification of damages when the High Court has not identified any legal basis for liability in this case due to the general concession made by the State, would be, at best a dubious exercise in the abstract.
For these reasons I do not consider that the State has demonstrated any valid basis on which it can seek to impugn the decision of the High Court and I would dismiss the appeal.
Blehin v Minister for Health and Children
[2010] IEHC 329Judgment of Ms. Justice Mary Laffoy delivered on the 24th day of August, 2010
1. The proceedings, the procedural history and the issue before the court
1.1 The primary relief claimed by the plaintiff in these proceedings, which were initiated by plenary summons which issued on 11th July, 2002, was a declaration that s. 260 of the Mental Treatment Act 1945 (the Act of 1945), as amended, was invalid, having regard to the provisions of the Constitution. The proceedings came on for hearing in this court before Carroll J. in October 2004. Judgment was delivered on 7th December, 2004. The judgment is reported at [2004] 3 IR 610. The Court found that s. 260 was unconstitutional, having regard to Article 6 and Article 34 of the Constitution. That finding was reflected in the order of the Court, as perfected, which also ordered that the plaintiff recover costs against the defendant. The defendants accept that no further order was made in the High Court in the proceedings and no further appropriate remedy was considered by the High Court, it having been agreed between the parties that all matters, other than the issue of the alleged invalidity of s. 260, should be left over.
1.2 The defendants appealed the decision of the High Court to the Supreme Court. The judgment of the Supreme Court was delivered on 10th July, 2008 by Denham J. It is reported at [2009] 1 IR 275. The appeal was dismissed and the order of the High Court was affirmed. However, Denham J. clarified the effect of the decision of the Supreme Court (at p. 281) as follows:
“The High Court found that the whole of s. 260 was invalid. In essence, this was a finding as to the specified grounds of s. 260(1). The decision as to s. 260(2) and s. 260(3) was entirely consequential to the findings as to the specified grounds in s. 260(1) and not an inherent finding on s. 260(2) or s. 260(3). It is on this construction that the order is affirmed, there being no specific infirmity at issue in s. 260(2) or s. 260(3), but rather, the foundations of s. 260(1) which is found to be infirm.”
The order of the Supreme Court, as perfected, dismissed the appeal and affirmed the order of the High Court. It also ordered that the plaintiff recover his costs against the defendants.
1.3 In the judgment of the Supreme Court, Denham J. pointed out (at p. 278) that the Act of 1945 had been repealed by the Mental Health Act 2001 (the Act of 2001). Section 73 of the Act of 2001, the text of which is set out at the end of the report (at p. 282), replaced s. 260. As Denham J. pointed out, s. 73 came into force on 1st November, 2006. However, she commented as follows:
“Thus the issue in this appeal is historic, as it relates to s. 260 of the Act of 1945 which has been repealed. However, it is relevant to the plaintiff, who has a claim for damages outstanding.”
While the issue of the plaintiff’s entitlement to damages if the impugned provision was constitutionally invalid was not before the Supreme Court, this Court must take cognisance of that comment.
1.4 Following the decision of the Supreme Court, the plaintiff brought a motion before this Court seeking to have the proceedings re-entered in this Court for the purposes of hearing his outstanding claims therein. By order made on 17th November, 2008, with the consent of the defendants, the proceedings were re-entered and were subsequently listed for hearing on 27th March, 2009.
1.5 When the matter came on for hearing on 27th March, 2009, the plaintiff appeared in person. When he was opening his case, counsel for the defendants intervened and stated that there was a fundamental issue in the case as to what relief or remedy, if any, flows from the decision of the Supreme Court, indicating that it would be the defendants’ submission that the Court has no jurisdiction to award damages on the basis of the decision of the Supreme Court that the procedural limitation contained in s. 260(1) was unconstitutional. Counsel for the defendants submitted that the issue as to whether the Court has jurisdiction to entertain the claim for damages should be determined first. In fact, the defendants had furnished comprehensive written submissions to the plaintiff on the previous day. In the written submissions, the issue, which it was submitted should be determined by the Court before the matter should proceed further, was formulated as follows:
What relief or remedy (if any), as a matter of law, flows from the decision of the Supreme Court, i.e. whether or not, and to what extent, the declaration as to the invalidity of s. 260(1) gives rise to any further remedy and, if so, the nature of such remedy.
The answer which counsel for the defendants suggested was the correct answer at the end of their comprehensive written submissions was that there is no basis in law for an award of damages following the declaration of the invalidity of s. 260.
1.6 Given that the plaintiff had not had an opportunity to consider the defendants’ contention that he did not have an entitlement to damages, with the consent of the defendants, the matter was adjourned to enable the plaintiff to consider the position. However, the Court raised with counsel for the defendants the appropriateness of arguing such a fundamental point of constitutional law in proceedings in which the proponent was a lay litigant. Arising out of those comments, the defendants suggested to the plaintiff that he should apply for legal aid and that he should revert to the defendants if there were any problems in that regard. However, when the matter was next before the Court, the plaintiff made it clear that he did not want legal representation and that he would represent himself.
1.7 The matter came on for hearing again on 26th June, 2009, when the plaintiff again appeared in person. Initially, the plaintiff contended that the defendants, in applying to have the issue heard as a preliminary issue were out of order, his contention being that the defendants should have pleaded the point as a matter of defence and then should have invoked order 25 of the Rules of the Superior Courts to have a preliminary issue tried. Notwithstanding that, after certain interaction between the parties and the Court, the plaintiff agreed to the issue raised by the defendants being determined by the Court first. Following that, counsel for the defendants, whom it was agreed would make his submissions first, made his submissions on the issue and the plaintiff followed with his submissions. However, as a result of that process, it became clear that the issue was being argued on the basis of legal submissions which were not being given a factual matrix. The absence of an agreed or an established factual basis has blighted the various steps taken in these proceedings and in other proceedings instituted by the plaintiff arising out of the same incidents as have given rise to these proceedings. In the judgment of the Supreme Court, Denham J. stated (at p. 280):
“Unfortunately, because of the history of serial proceedings by the plaintiff, this constitutional issue has been separated from findings of fact. Determinations of constitutionality of legislation are best made on a bed of fact. However, special circumstances have given rise to these proceedings, as referred to earlier in the judgment.”
1.8 In any event, in consequence of the Court’s intervention, the matter was again adjourned to give the parties an opportunity to see whether they could put before the Court an agreed statement of facts relevant to the issues in these proceedings.
1.9 The parties did not agree a statement of facts. The plaintiff submitted a statement of facts dated 6th July, 2009 to the Chief State Solicitor, who prepared a statement dated 27th August, 2009, which set out the facts which the defendants were prepared to agree “for the purpose of preliminary issues of law” in these proceedings. The matter was listed for further argument on 30th October, 2009. While the plaintiff agreed the facts as set out in the defendants’ statement of facts, his position was that the Court should rule on the preliminary issue on the basis of a more expansive statement of facts presented by him. The Court ruled that the facts, as set out in the defendants’ statement, were the only facts which were necessary as a foundation for the Court dealing with the preliminary issue. On that basis, the matter was adjourned for further argument until 17th December, 2009.
1.10 On 17th December, 2009, final submissions were heard from the parties on the issue.
1.11 For completeness I record that, prior to the initiation of these proceedings on 11th July, 2002, the plaintiff had, in 1995, initiated separate proceedings against the defendants in these proceedings [1995 No. 8934P], in which the primary relief sought was a declaration that s. 185 and s. 186 of the Act of 1945 were invalid having regard to the provisions of the Constitution and in which the plaintiff also sought damages for personal injury. The history of those proceedings is set out in a judgment delivered on 16th March, 2009, under Neutral Citation [2009] IEHC 182 on an application by the plaintiff to re-enter those proceedings on foot of a notice of motion of 21st July, 2005, the proceedings having been struck out on 18th March, 1999, when there was no appearance by the plaintiff when a list of uncertified cases was called over by the Court. The application to re-enter was refused and that decision is subject to an appeal to the Supreme Court [2009 No. 154]. In my judgment of 16th March, 2009, I found that the plaintiff had not been precluded by s. 260 from prosecuting the 1995 proceedings.
2. The pleadings
2.1 In his statement of claim, the plaintiff alleged that the defendants had failed, by law, to protect from unjust attack, as best they might, his personal rights, including, inter alia, his right to access to justice. In particularising his allegation, he alleged that the defendants were in breach of Article 40 of the Constitution. In the prayer for relief in the statement of claim, he sought declarations that the defendants had failed, by law, to respect his personal rights guaranteed to him by the Constitution, including his right of access to justice, in breach of Article 40.3 of the Constitution. The plaintiff’s claim for damages was formulated as damages “for infringement of constitutional rights, for personal injury, loss and damage”. In his statement of claim he has alleged that he was involuntarily treated with neuroleptic/psychotropic drugs contrary to his express wishes and has set out what he alleges were the adverse effects of the drugs on him.
2.2 The main thrust of the defence delivered by the defendants was to uphold the validity of section 260, which was dealt with in the first round of the proceedings. However, the defendants denied that they had acted in breach of the plaintiff’s constitutional rights. They also denied that he sustained the personal injury, loss or damage he alleged and, in the alternative, they pleaded that his claim for damages for personal injury, loss or damage was statute-barred.
3. Statement of facts
3.1 The defendants’ statement of facts is prefaced with the statement that “the defendants are strangers to the allegations made by the plaintiff in relation to the incidents and occurrences” and, as I have already indicated, they agreed the facts set out “for the purpose of preliminary issues of law”. The facts and events summarised in the statement fall under two broad headings.
3.2 The first relates to the factual foundation of the plaintiff’s complaints in all of the process initiated by him and sets out the three occasions on which the plaintiff was “escorted” by the Gardaí to St. John of God Hospital in Dublin, and detained there. The periods of detention were from 25th February, 1984, to 16th May, 1984, from 29th January, 1987 to 16th April, 1987, and from 17th January, 1991 to 7th February, 1991. While I understand why the defendants’ legal advisors have been cautious in the terminology which they have used in the statement, the whole basis of the variety of claims which the plaintiff has made in the proceedings since 1995, is that his admissions to, and detention in, St. John of God Hospital were involuntary. The statement also records that, during two of his periods in St. John of God Hospital, the plaintiff was treated with drugs and medications. The plaintiff’s case is that he was improperly treated, in consequence of which he suffered personal injuries. As regards the first heading, therefore, what is relevant is that the plaintiff has had three “escorted” transportations and admissions to, and periods of detention in, St. John of God Hospital, which I assume the Court is entitled to infer, as he contends, were involuntary.
3.3 In between the facts and events which I have classified under two headings there is recorded the fact that on 5th December, 1994 the plaintiff complained to the local Garda Superintendent about the incidents recorded above and about his treatment.
3.4 The events set out under the second heading are the various applications which the plaintiff made to the High Court to seek redress in relation to his transportation and admission to, and his periods of detention, in St. John of God Hospital, and his treatment while there, which were unsuccessful. The applications may be summarised as follows:
(a) An application made on 4th November, 1996, for leave to apply for certiorari by way of application for judicial review, which application was refused by the High Court. An appeal against the refusal was dismissed by the Supreme Court.
(b) Plenary proceedings between the plaintiff and St. John of God Hospital [1997 No. 8982 P] (the 1997 proceedings), which proceedings were struck out in the High Court (Kelly J.) on 3rd November, 1997, by reason of the fact that leave pursuant to s. 260 had not been obtained by the plaintiff. The decision of the High Court was upheld by the Supreme Court on appeal [1997 No. 353].
(c) An application made on 2nd (8th?) July, 1999 under s. 260 for leave to issue proceedings against six named defendants [1998 No. 24 IA] (the 1998 proceedings), two medical practitioners, the plaintiff’s wife and three members of An Garda Síochána, which application was refused in the High Court (Geoghegan J.) The refusal was upheld on appeal to the Supreme Court [Appeal No. 153 of 1999]. The decision of the Supreme Court is reported as Blehein v. Murphy (No. 2) [2000] 3 I.R. 359. The decision of the Supreme Court on an application, which was refused, to amend the notice of appeal to include a new ground of appeal challenging the validity of s. 260 is reported as Blehein v. Murphy [2000] 2 IR 231.
(d) An application made on 6th July, 2000 under s. 260 for leave to issue proceedings against St. John of God Hospital [Record No. 1999 No. 73 IA] (the 1999 proceedings), which was refused by the High Court (O’Sullivan J.). The refusal was upheld in the Supreme Court on 31st May, 2002. As is pointed out in the decision of the Supreme Court in this case by Denham J. (at p. 277), McGuinness J., in her judgment in that case, had refused a late application to amend pleadings to include a constitutional challenge to s. 260 but stated that, if the plaintiff wished to challenge the constitutionality of the legislation, the correct course would be to commence new proceedings by plenary summons. These are the new proceedings.
3.5 Apart from the events which I have summarised above, the decision of the High Court of 7th December, 2004 declaring s. 260 to be invalid, and the decision of the Supreme Court of 10th July, 2008 affirming the decision of the High Court, are also relied on as facts in support of the issue now before the Court.
3.6 Apart from the involuntary nature of the plaintiff’s detention in St. John of God Hospital, which I assume the Court is entitled to infer, the statement of facts does not address the factual complaints which formed the basis of the 1997 proceedings, the 1998 proceedings and the 1999 proceedings, which the plaintiff was unable to prosecute because of the existence of s. 260(1), and on which he grounds his claim for damages in these proceedings. Therefore, to a large extent, the Court is required to determine the issue on a theoretical basis.
4. Basis of decision of Supreme Court on s. 260
4.1 Sub-section (1) of s. 260, as amended, provided as follows:
“No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of this Act save by leave of the High Court and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the person against whom the proceedings are to be brought acted in bad faith or without reasonable care.”
As Denham J. pointed out (at p. 279), the words of that sub-section limit access to the court by requiring a person, when seeking access by way of an application thereunder, to make a case of “bad faith or without reasonable care”, even if neither bad faith nor lack of reasonable care is part of the intended litigation.
4.2 In delivering the judgment of the Supreme Court, Denham J. considered the objective of the Act of 1945 (as stated in the long title, to provide for the prevention and treatment of mental disorders and the care of persons suffering therefrom) and the purpose of s. 260. On the latter point, she stated (at p. 280):
“The purpose of s. 260 was to give a limited protection to persons acting under the Act. This is a legitimate purpose for such legislation. But the section is a restriction of a constitutional right (access to the courts), in the context where the fundamental constitutional right of liberty has itself been restricted. Thus, it is a matter of seeking a reasonable and proportionate process.”
4.3 Having stated that the fact that access to the Court is restricted is not of itself unconstitutional, and having given examples of situations in which the Supreme Court so found, one example being the requirement in legislation to show “substantial grounds” to support seeking the relief sought, Denham J. continued (at p. 281):
“[17] The limitation of access to the court in this case, was not just one of ‘substantial grounds’, it was to situations where the High Court was satisfied that there were substantial grounds for contending that the person against whom the proceedings were to be brought acted in bad faith or without reasonable care. It was a restriction on the administration of justice where several features of the section are important. It placed a burden on the plaintiff, it related to two specified grounds only, it limited access to the courts, it curtailed the discretion of the court in a situation where a balance of constitutional rights is required to be protected.
[18] At issue in the case is the liberty of the plaintiff, an important constitutional right. While the aim of the Act of 1945 was legitimate, the limitation on the right of the plaintiff should not be overbroad, should be proportionate, and should be necessary to secure the legitimate aim.”
4.4 Having quoted the oft cited passage from the judgment of Costello P. in Heaney v. Ireland [1994] 3 I.R. 593 at p. 367 setting out the proportionality test, Denham J. continued (at p. 281):
“In this case the objective of the Act of 1945, as set out above, is legitimate. It is important. But it is not of sufficient importance to override the constitutional right of liberty and the constitutional right of access to the courts, in terms of the section, for the reasons given by the High Court. The terms of the section do not pass a proportionality test, for while being rationally connected to the objective, it is arbitrary (in referring to only two possible grounds of application) and hence unfair. It therefore does not impair the rights involved as little as possible, and so the effect on rights is not proportionate to the object to be achieved.”
4.5 I have already referred to the following factors to which counsel for the defendants attached significance:
(i) the clarification contained in the judgment of Denham J. as to the effect of the decision of the Supreme Court, which limited the declaration of invalidity to subs. (1) only of s. 260 (para. 1.2 above); and
(ii) the fact that Denham J. pointed out that by the time the appeal in this matter was heard and determined in the Supreme Court s. 260 had been replaced by s. 73 of the Act of 2001 (para. 1.3 above).
Subs-section (1) of s. 73 differs from subs. (1) of s. 260 in that it provides that leave “shall not be refused” unless the High Court is satisfied:
(a) that the proceedings are frivolous or vexatious, or
(b) that there are no reasonable grounds for contending that the person against whom the proceedings are brought acted in bad faith or without reasonable care.
Sub-sections (2) and (3) of s. 73 re-enact the provisions of sub-sections (2) and (3) of s. 260 verbatim. Sub-section (2) requires the application for leave to be on notice. Sub-section (3) provides that, if leave is granted, the Court shall not determine the proceedings in favour of the plaintiff unless it is satisfied that the defendant “acted in bad faith or without reasonable care”. Counsel for the defendants submitted that it is open to the plaintiff to avail of s. 73, but made the point that, in order to obtain relief in any substantive proceedings the prosecution of which is permitted under subs. (1) of s. 73, the burden is on the plaintiff to satisfy the Court (presumably in accordance with the usual standard of proof in civil cases – on the balance of probabilities) that the defendant “acted in bad faith or without reasonable care”.
5. Submissions
5.1 The Court has had the benefit of comprehensive written submissions both from counsel for the defendants and from the plaintiff, which were supplemented by oral submissions. The main thrust of the defendants’ submissions was to outline the authorities in which the issue has been considered by the Superior Courts previously.
What I propose to do first is to address the authorities which I consider have a bearing on the issue.
5.2 The authorities in which the issue whether redress over and above a declaration of invalidity of a statute for repugnancy to the Constitution should be available to a successful plaintiff will be considered first in chronological order. These are:
(a) Murphy v. Attorney General [1982] I.R. 241;
(b) An Blascaod Mór Teo v. Commissioners of Public Works (No. 4) [2000] 3 IR 565; and
(c) Redmond v. Minister for the Environment (No. 2) [2006] 3 IR 1.
It is also necessary to note the circumstances in which that issue did not fall for analytical consideration either in the High Court ([2005] IEHC 375) or the Supreme Court ([2010] IESC 29) following the decision of the Supreme Court in D.K. v. Crowley [2002] 2 I.R. 74. Finally, as the defendants placed considerable emphasis on the judgment of the Supreme Court in McDonnell v. Ireland [1998] 1 I.R. 134 on the question of the entitlement to damages for breach of a constitutional right where the plaintiff was relying on a previous successful challenge to a statutory provision by another litigant, it will be considered.
5.3 To the extent to which I have not already done so, I will then outline the submissions made which focus on the issue by reference to the declaration of invalidity as to s. 260. However, it is convenient to outline at this juncture some of the basic premises which underlie the position adopted by the defendants. First, it is contended that there was no deliberate attempt by the legislature to violate the plaintiff’s constitutional rights. That cannot be gainsaid. Secondly, it is contended that the law in issue was not addressed to, and did not involve any act or omission, against an individual citizen. That is true, but it was a law which the Supreme Court struck down on the basis that it infringed the constitutional rights of an individual citizen, the plaintiff.
6. Murphy v. Attorney General
6.1 In this case the Supreme Court held that the imposition, in certain circumstances, of tax on a married couple at a higher rate than would be imposed on two single persons enjoying identical incomes constituted a breach by the State of its undertaking in Article 41.3 of the Constitution to guard with special care the institution of marriage and to protect it against attack, but did not infringe the guarantee of equality before the law contained in Article 40.1 because the unequal treatment of the plaintiffs was justified by the difference of social function between a married couple living together and two single people living together. It held, accordingly, that the impugned provisions of the Income Tax Act 1967, by providing for the aggregation of the earned incomes of married couples and thus normally imposing on them tax at such higher rate, were repugnant to the Constitution and invalid. Further, the Supreme Court held by a majority that the effect of its decision was that the impugned provisions were invalid ab initio and had never had the force of law. That latter aspect of the decision of the Supreme Court arose in the context of a question which the Supreme Court considered, at the request of the Attorney General, following the declaration of invalidity. The question was formulated as follows by Henchy J. (at p. 306):
“Where the plaintiffs have paid, or have had deducted from their earnings, income tax collected under statutory provisions which were subsequently declared unconstitutional, can they recover back such income tax. If so, to what extent?”
6.2 Henchy J. considered the implications of an Act of the Oireachtas being declared to be invalid having regard to the provisions of the Constitution. He stated (at p. 313):
“Once it has been judicially established that a statutory provision enacted by the Oireachtas is repugnant to the Constitution, and that it therefore incurred invalidity from the date of its enactment, the condemned provision will normally provide no legal justification for any acts done or left undone, or for transactions undertaken in pursuance of it; and the person damnified by the operation of the invalid provision will normally be accorded by the Courts all permitted and necessary redress.”
6.3 Having given an example of a situation in which the normal outcome had occurred (that the Supreme Court in Re Haughey [1971] I.R. 217, having declared the relevant provision unconstitutional, proceeded by way of ancillary relief to quash a conviction and sentence that had been made and imposed in pursuance of the condemned statutory provision), Henchy J. went on to make it clear that the normal outcome does not apply in every circumstance in the following passage (at p. 314):
“But it is not a universal rule that what has been done in pursuance of a law which has been held to have been invalid for constitutional or other reasons will necessarily give a good cause of action: …. While it is central to the due administration of justice in an ordered society that one of the primary concerns of the Courts should be to see that prejudice suffered at the hands of those who act without legal justification, where legal justification is required, shall not stand beyond the reach of corrective legal proceedings, the law has to recognise that there may be transcendent considerations which make such a course undesirable, impractical, or impossible.”
Counsel for the defendant emphasised the first sentence in that passage. In relation to the second sentence, it is clear from the following paragraph that Henchy J. was there addressing both constitutional and non-constitutional contexts in that he listed various factors which are recognised as being bars to what would otherwise be justiciable and redressable claims: laches, the Statute of Limitations, res judicata and such like.
6.4 Although Henchy J. did point out that, for a variety of reasons, the law recognises that, in certain circumstances, to adopt the terminology used by Griffin J. in his judgment (at p. 331), “the egg cannot be unscrambled”, or should not be, he deliberately avoided any general consideration of the broad question as to when, and to what extent, acts done on foot of an unconstitutional law may be immune from suit in the courts, stating that any conclusion he might have expressed would in the main be obiter. He continued (at p. 315):
“In any event, I think experience has shown that such constitutional problems are best brought to solution, step by step, precedent after precedent, and when set against the concrete facts of a specific case. I confine myself, therefore, to the precise question raised. Notwithstanding the invalidity ab initio of the condemned sections, are the taxes collected under them recoverable?”
Counsel for the defendants properly emphasised that Henchy J. made it clear that each case must be examined on its own facts.
6.5 While he advocated, and in that passage practised restraint, it is worth recording the reasons to which Henchy J. pointed as contra-indicating attempting to “unscramble the egg”, which are set out (at p. 314):
“The irreversible progressions and bye-products of time, the compulsion of public order and of the common good, the aversion of the law from giving a hearing to those who have slept on their rights, the quality of legality – even irreversibility – that tends to attach to what has become inveterate or has been widely accepted or acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and other factors may convert what has been done under an unconstitutional, or otherwise void, law into an acceptable part of the corpus juris. This trend represents an inexorable process that is not peculiar to the law, for in a wide variety of other contexts it is either foolish or impossible to attempt to turn back the hands of the clock”
6.6 On the facts, the majority of the Supreme Court found that the plaintiffs, Mr. and Mrs. Murphy, were only entitled to limited recoupment and fixed the date as and from which they were entitled to be repaid the sums collected from them by way of tax invalidly imposed was the first day of the financial year immediately succeeding that in which they had challenged the validity of the imposition of the tax in question. In broad terms, the rationale of that finding was the application of what Henchy J. referred to as one of the first principles of the law of restitution on the ground of unjust enrichment – that the defendant should not be compelled to make restitution, or at least full restitution, when, after receiving the money in good faith, his circumstances have so changed that it would be inequitable to compel restitution. On the facts of the case, he found that the State, in its executive capacity, had received the money which represented the excessive deductions of tax from Mr. and Mrs. Murphy in good faith, in reliance on the presumption of the constitutionality of the impugned provisions. In every tax year until the proceedings were instituted, the State had justifiably altered its position by spending the taxes collected and by arranging its fiscal and tax policies and programmes accordingly.
6.7 The remedy which Mr. and Mrs. Murphy were afforded was in the nature of restitution. However, it is clear from the judgment of Henchy J. that “permitted and necessary redress” will normally be accorded to the person damnified by the operation of the invalid provision, which obviously would include an award of damages in an appropriate case.
7. An Blascaod Mór Teo v. Commissioners of Public Works (No. 4)
7.1 Chronologically, this is the first case in which this Court has had to consider whether the Court may award damages against the State for the adverse effects of the passing by the Oireachtas of an Act which has been held to be invalid having regard to the provisions of the Constitution on the litigant who claims that he is thereby damnified.
7.2 The plaintiffs in that case had been successful in a challenge to the constitutionality of provisions of An Blascaod Mór National Historic Park Act 1989. In An Blascaod Mór Teo v. Commissioners of Public Works (No. 3) [2000] 1 IR 6, the Supreme Court had held that the Act, a provision of which distinguished between lands on the Great Blasket Island which could be acquired compulsorily for the purposes of the National Park (including lands owned by the plaintiffs), and lands which could not be so acquired (being land owned or occupied by a person who had owned or occupied it since 17th November, 1953, and was ordinarily resident on the Island before that date, or land owned or occupied by a relative of such person) was based on the principle of pedigree, which appeared to have no place in a democratic society committed to the principle of equality, was, therefore, invalid having regard to the provisions of the Constitution. The Supreme Court had further held that there was no legitimate legislative purpose for the unfair treatment of the plaintiffs as compared with persons who owned or occupied and resided on the island prior to 1953 and their descendants. As the distinction was central to the Act, the Act fell in its entirety.
7.3 When the matter came back to the High Court, Budd J., by agreement of the parties, considered, as a preliminary issue, the question whether the Court could award damages against the State for the effects of the passing by the Oireachtas of the Act of 1989, which had been found to be unconstitutional.
7.4 In addressing the issue, Budd J. considered a number of bases on which the State’s liability might be founded. In relation to the contention of the plaintiffs that the State was strictly liable to compensate plaintiffs, particularly a very restricted category of plaintiffs, for loss and damage caused by unconstitutional legislation, having quoted the passage from the judgment of Walsh J. in Meskell v. Coras Iompair Éireann [1973] I.R. 121 to the effect that, “if a person has suffered damage by virtue of a breach of a constitutional right or the infringement of a constitutional right, that person is entitled to seek redress against the … persons who have infringed that right”, Budd J. went on to say (at p. 581):
“The nature of the relationship between a citizen and the State is complicated by the obligations of the State which, through its organs or agents, must engage in such activities as policing, imprisoning and legislating. In the course of making laws, the legislature frequently has to take into account conflicting individual rights and the exigencies of the common good within a process involving balancing and adjusting the scope of rights. There is therefore little justification for a regime of strict liability for an infringement of a constitutional right where such rights are competing and in conflict. In such circumstances ‘ubi ius ibi remedium’ is too simple a formula and strict liability would in many cases be too low and easy a threshold to reach.”
7.5 Later, Budd J. considered the extent to which the State should be liable for legislative acts in the light of the jurisprudence on the liability of the State for executive action and, in particular, the decision of the Supreme Court in Pine Valley Developments Ltd. v. Minister for the Environment [1987] I.R. 23. He quoted the passage from the judgment of Finlay C. J., in which he concluded as follows (at p. 38):
“I am satisfied that it would be reasonable to regard as a requirement of the common good an immunity to persons in whom are vested statutory powers of decision from claims from compensation where they act bona fide and without negligence. Such immunity would contribute to the efficient and decisive exercise of such statutory powers and would, it seems to me, tend to avoid indecisiveness and delay, which might otherwise be involved.”
7.6 Budd J. also quoted the passage from the concurring judgment of Henchy J. in the Pine Valley case (at p. 43) in which he stated that he considered “the exemption of the State from liability in damages for the Minister’s invalid planning permission is not alone not an unconstitutionality but is in harmony with the due operation of the organs of government established under the Constitution”. Budd J. went on to comment (at p. 584):
“The Minister in that case was performing an administrative function but the court appears to have regarded him as having a quasi-immunity in his role of discharging this public duty. It is considered that the members of the Oireachtas enjoy absolute privilege in respect of statements in either House. If the Minister enjoys a quasi-immunity in respect of administrative acts, it seems that only in exceptional circumstances could the State be made liable for damages in respect of invalid legislation where the legislature is involved in the balancing of the protection of the right of private property against other obligations arising from the common good.”
Counsel for the defendants emphasised the last sentence in that quotation. It was submitted that it would be invidious if a less restrictive approach were to be taken in respect of invalid legislation than in respect of the exercise of a statutory power, particularly, where Article 40 requires the State to weigh in the balance conflicting factors.
7.7 Understandably, Budd J. considered the question of State immunity in the context of the decision of the Supreme Court in Byrne v. Ireland [1972] I.R. 241 and pointed out that since that decision the State had frequently been sued and damages had been awarded against the State for breach of constitutional rights and redress had been afforded to the citizen by relief usually modelled on the remedies given in tort. He analysed (at p. 585 et seq.) the approach the courts have adopted to infringements of constitutional rights and identified three different approaches. The first was to proceed on the basis that the definition of the scope of a right prescribes the circumstances in which the right may be exercised, instead of the focus being on the question of the carelessness or intention of the infringer of the right, the strict approach, which Budd J. questioned again, while stating that he did not think that the infringement could be taken in isolation from its context, as the detrimental effect on a person’s right may have to be balanced against others’ rights and the needs of the common good, the point emphasised by counsel for the defendants. The second was to require that there should be proof of intent to infringe the right or negligence on the part of the infringer, which could give rise to difficulty, in that the need for those ingredients might impede the protection for a constitutional right. The third was the pragmatic approach adopted by Henchy J. in the Murphy case – that such matters as the remedies for infringement of rights are best dealt with in the factual context of each case.
7.8 In setting out his conclusion on the issue, Budd J. stated (at p. 590):
“While I do not accept that the Oireachtas has total immunity in respect of legislation, since the courts are specifically given the mandate to review legislation for repugnancy, nevertheless for public policy reasons, it seems to me that there must be considerable tolerance of the legislature particularly when it has to weigh in the balance conflicting rights. …
If the judiciary is to proceed resolutely but cautiously in relation to redress where a claim is brought in a recognised type of suit based on tort when an Act is found to be invalid, then the court should be all the more reticent where the claim is based on the effects of the actual enactment of an invalid Act.
My conclusion is therefore that under Articles 15.4.2o and 34.3.2o of the Constitution the court has jurisdiction to declare an Act invalid and to give necessary and appropriate redress only for such damage as is proved to have flowed directly from the effects of the invalidity without intervening imponderables and events.”
7.9 On the facts before him, Budd J. stated that, having heard cursory evidence, he had concluded that there were a number of imponderables in respect of the heads of damage and that there was a lack of the type of direct causal link necessary. The plaintiffs had never been dispossessed of their property. In the circumstances of the case, Budd J. concluded that the plaintiffs had been largely vindicated by the declaration of invalidity and that redress should not extend to damages.
7.10 Commenting on the decision of Budd J., in J.M. Kelly: The Irish Constitution (Fourth Edition), Hogan and Whyte, having quoted the first and last sentences of the last passage which I have quoted above, state (at para. 4.2.90):
“On the issue of principle, however, Budd J.’s conclusion is surely correct and the ruling itself would seem to be a direct consequence of the nature of the prohibition [on enacting any law which is repugnant to the Constitution or any provision thereof] contained in Article 15.4. The scope of this jurisdiction will surely be tested in the future by reference to cases presenting more problematic facts.”
7.11 In a further commentary on An Blascaod Mór case, in the context of considering whether damages may be awarded against the State for breach of constitutional duty, it is suggested in Kelly that the analogy drawn in An Blascaod Mór with the Pine Valley decision and the conclusion that only in exceptional circumstances could the State be liable in respect of invalid legislation where the legislation is involved in balancing the right to private property against other obligations arising from the common good may be questionable (para. 8.2.73). It is pointed out that the rationale which underlies the Pine Valley decision – that a Minister might be dissuaded from taking forthright action by threat of litigation – scarcely applies to the Oireachtas, especially where members enjoy personal immunity from suit. The conclusion of Budd J. that damages could be awarded in respect of an unconstitutional statute only for such damage as is proved to have flowed directly from the effects of the invalidity, if correct, it is suggested, on analysis may mean that a private citizen cannot recover for breach by the State of a constitutional imperative (which is not at issue in this case), or even for a breach of what would normally be regarded as a personal constitutional right – an analysis which the authors seem to question (para. 8.2.74).
7.12 An important feature of the decision of Budd J., in my view, is that, on the basis of the manner in which he conducted the trial, he was in a position to be satisfied that the plaintiffs had been largely vindicated by the declaration of invalidity. As a matter of fact, it is not possible to reach the same conclusion in this case at this juncture.
8. Redmond v. The Minister for the Environment (No. 2)
8.1 It is probably debateable whether the Redmond case presents “more problematic facts” than An Blascaod Mór case.
8.2 In the first round of the Redmond case, this Court (Herbert J.) had ruled that certain provisions of the Electoral Act 1992, and of the European Parliament Elections Act 1997, were unconstitutional insofar as they required candidates for general or European elections to pay a deposit. That decision is reported at [2001] 4 IR 61. In the second round of Redmond, Herbert J. stated that he was unable to accept the argument advanced on behalf of the defendants that the Court should either always decline, or should at least be very slow and then only in the most extreme circumstances, to make an award of damages against the legislative arm of the State for the infringement in an Act of the Oireachtas of a right guaranteed by the Constitution.
8.3 Having stated that it had been held by the Supreme Court in T.D. v. Minister for Education [2001] 4 IR 259 that the doctrine of separation of powers required that none of the three institutions of government be paramount, Herbert J. continued (at p.3):
“In my judgment, it is essential in a constitutional democracy such as this State, where a rule or convention of parliamentary sovereignty has no place, that the courts should have the power and be prepared, wherever necessary, to vindicate by ‘all permitted and necessary redress’, to borrow the phrase of Henchy J. in Murphy v. Attorney General . . . including, where justice so requires, by an award of damages, the constitutional rights of anyone, even where the transgression of those rights is in an Act of the Oireachtas passed into law by the votes of the elected representatives of the people and signed by the President. This does not amount to unwarranted judicial activism trespassing on the legislative function of the Oireachtas. No evidence was advanced at the hearing of this issue and I am not prepared to assume that this particular power and, indeed the duty of the courts, would in any way inhibit or interfere with the proper functioning of the legislative arm of the State within its own unique sphere of activity under the Constitution.”
8.4 Later, having referred to, inter alia, the decisions of the Supreme Court in Byrne v. Ireland and in Murphy v. Attorney General, Herbert J. continued (at p.4):
“. . . I am satisfied that this court does have full power to award damages, ordinary compensatory damages or aggravated or increased compensatory damages and even punitive or exemplary damages . . . against the legislative arm of the State for breach of a constitutional right by an Act of the Oireachtas or by a provision of such an Act. However, I do not think that it is reasonably possible or even desirable to attempt to formulate any principles of general application as to the circumstances in which the court might so award damages or as to the type or amount of those damages. In this respect, I adopt what was held by Henchy J. in Murphy v. Attorney General . . . , where he stated, when speaking of such redress and of the sometimes ‘transcendent considerations’ which may render any or some particular forms of redress unavailable, i.e. damages or restitution:- ‘in any event, I think experience has shown that such constitutional problems are best brought to solution, step by step, precedent after precedent, and when set against the concrete facts of a specific case’.”
8.5 In the Redmond case, Herbert J., having recorded that there was no evidence that the impugned legislation had occasioned the plaintiff any pecuniary loss or damage, awarded the plaintiff nominal damages of €130. He analysed and rejected a claim for loss of chance.
8.6 Counsel for the defendants submitted that the decision in Redmond (No. 2) should not be taken as supporting an entitlement to damages arising from invalidity of an Act of the Oireachtas for a number of reasons. First, while the State sought to appeal the decision awarding damages, the Supreme Court refused to deal with it on the basis that what it was being asked to consider was hypothetical, which I assume was predicated on the decision in Redmond (No. 1) not having been appealed. Secondly, it was suggested that the fundamental basis on which the declaration of unconstitutionality was made in Redmond (No. 1) was undermined by the subsequent decision of the Supreme Court in King v. Minister for Environment (No. 2) [2007] 1 IR 296, in which the decision in Redmond (No. 1) was overruled. Thirdly, it was submitted that in Redmond the fundamental issues of principle which were addressed by Budd J. in An Blascaod Mór case were not referred to and, in particular, no explanation was provided for a rule of law which would give rise to a liability in damages for bona fide legislative acts in circumstances where no similar liability arises in respect of bona fide administrative decisions.
9. D.K. v. Crowley
9.1 In D.K. v. Crowley [2002] 2 I.R. 744, the Supreme Court granted a declaration that s. 4(3) of the Domestic Violence Act 1996 (the Act of 1996) was invalid having regard to the provisions of the Constitution and made an order of certiorari quashing an interim barring order which D.K.’s wife had obtained against him on a ex parte application pursuant to section 4(3). The Supreme Court held, inter alia, that the procedures prescribed by s. 4(1), (2) and (3) of the Act of 1996, in failing to prescribe a fixed period of relatively short duration during which an interim order made ex parte was to continue in force, deprived the respondents to such applications of the protection of the principle of audi alteram partem in a manner and to an extent which was disproportionate, unreasonable and unnecessary.
9.2 Subsequently, the matter having been remitted to the High Court, on 29th July, 2005 Abbott J. delivered judgment on the claim by the applicant D.K. against the defendants (Judge Timothy Crowley, Ireland and the Attorney General) for damages for loss and damage as a result of a breach of his constitutional rights and of false imprisonment arising from the making of the interim barring order, which had been quashed by the Supreme Court. The applicant was awarded €214,000 damages.
9.3 At the hearing of this issue, this Court was informed by counsel for the defendants that no issue of principle was decided in the High Court because the State had not raised in the High Court any issue as to the Court’s entitlement to award damages in respect of unconstitutional legislation. However, the issue was raised on an appeal in the Supreme Court and the Supreme Court had reserved judgment on whether the State was entitled to raise the issue on the appeal, it not having raised it before the trial Judge. Judgment had not been delivered in the Supreme Court, when this issue was before this Court, but it has since been delivered.
9.4 Having considered the judgment of the Supreme Court, which was delivered by Murray C.J. on 12th May, 2010, I was satisfied that it was not necessary to re-list this issue for further argument before giving this judgment, in view of the position I propose adopting.
9.5 What the judgment of Murray C.J. discloses is that D.K.’s claim was heard and determined in the High Court as an assessment only, the State appellants having decided not to contest liability. In the Supreme Court, the appellants sought to amend the notice of appeal to include a ground of appeal that the High Court Judge should not have awarded damages to D.K. without first having determined the issue whether the courts have jurisdiction to award damages in respect of the passing by the Oireachtas of a law affecting personal rights that is subsequently found to be unconstitutional and that the High Court Judge ought to have found, as a matter of law, that the appellants had no liability to D.K. in respect of any infringement of his constitutional rights arising solely from the passing by the Oireachtas of legislation and/or implementation and application to the respondent in good faith and without malice of those provisions. The appellants also sought an order remitting the proceedings to the High Court for determination of the issue of the State’s liability for damages. The application to amend the notice of appeal and to have the matter remitted to the High Court on the issue of liability was refused by the Supreme Court.
9.6 In relation to the merits of the appeal, Murray C.J. recorded that it had been conceded by counsel for the State that, if the Court were to proceed with the hearing as an assessment of damages, that would be unsatisfactory because the basis for the award would not have been identified. Commenting that that approach was correct, Murray C.J. continued:
“It is undoubtedly the case that in certain circumstances the State is liable to pay compensation to individuals for breach of their constitutional rights. This may be particularly so when the State at the time the damage was caused, was acting unlawfully and with mala fides or in misfeasance of public office.
It is an altogether different matter to determine the liability of the State, including its vicarious liability, for acts bona fide done by a judge exercising his jurisdiction under a law which at a time enjoyed the presumption of constitutionality or other bona fide exercise of statutory powers which also enjoyed such a presumption.”
The observations in the last sentence, in my view, could be made in relation to the plaintiff’s claim for damages in this case. However, this is not the appropriate time to explore the similarities between the D.K. case and this case in terms of the legal basis of the claim for damages in each. However, the position I have decided to adopt in this case is informed by later observations of Murray C.J. when, having considered the judgment of Barrington J. in the McDonnell case, he emphasised the importance of identifying the legal criteria in a case such as the D.K. case for awarding and assessing the quantum of damages, for example, in the case of damages claimed for loss of reputation and good name. In this case the plaintiff has pleaded that s. 260 has affected his right to his good name. Therefore, it seems to me that there can be no “shortcut” to the determination of the remaining issues in this case and the parties will have to have regard to the observations of Murray C.J.
9.7 Prior to dismissing the appeal on quantum because the State had not demonstrated any valid basis on which it could seek to impugn the decision of the High Court, Murray C.J. stated as follows:
“In the light of the foregoing considerations and the manner in which the State admitted liability, it is simply impossible for this Court to embark on a consideration of heads of damage or their quantification. To attempt to do so would require the Court to endeavour to make a range of speculative assumptions as to the scope of the liability of the State, and indeed the very principle of such liability, for the adverse effects on individuals generally of a statute declared to be unconstitutional. To endeavour to address issues concerning the review and quantification of damages when the High Court has not identified any legal basis for liability in this case due to the general concession made by the State, would be, at best a dubious exercise in the abstract.”
10. McDonnell v. Ireland
10.1 Unlike the plaintiff in these proceedings and the plaintiffs in An Blascaod Mór case and in the Redmond case, the plaintiff in the McDonnell case did not challenge the constitutionality of s. 34 of the Offences Against the State Act 1939, but was relying on a successful challenge some years previously in Cox v. Ireland [1992] I.R. 53, in which the Supreme Court had held that s. 34 was unconstitutional. Under s. 34, whenever a person holding an office in the Civil Service was convicted by the Special Criminal Court of a scheduled offence, for example, membership of an unlawful organisation, he would immediately on such conviction forfeit that office. Mr. McDonnell, who was an established civil servant at the time, was convicted of membership of a proscribed organisation by the Special Criminal Court in May 1974, whereupon he was treated as having automatically forfeited his position. Following the decision in the Cox case, he instituted proceedings claiming that his purported dismissal in 1974 was unconstitutional and had no legal effect. His claim was formulated as a claim for damages for alleged breach of his constitutional rights, invoking his right to earn a livelihood and his property rights. The Supreme Court upheld a decision of the High Court (Carroll J.) that his claim, which on the appeal to the Supreme Court was against Ireland, the Attorney General and the Minister for Communications, was statute-barred. It was held that a breach of constitutional rights is a civil wrong which is remediable by an action for unliquidated damages which, having regard to the flexible and evolving nature of tort law, could be described as a tort and, therefore, was within the ambit of s. 11(2) of the Statute of Limitations 1957.
10.2 By way of general observation, in my view, the decision of the Supreme Court in the McDonnell case, which, unlike the position in this case, was based on a claim made by a litigant who had not successfully challenged the validity of the impugned provision, is of no precedential relevance to the issue which is before this Court. However, some aspects of the judgments delivered in the Supreme Court were alluded to by counsel for the defendants and do give guidance as to the general approach to be adopted on the issue which is now before the Court.
10.3 A point raised by the judgment of Keane J., as he then was, in relation to the Cox case is of interest but, unfortunately, neither the judgments in the McDonnell case nor the submissions made by counsel for the defendants are in any way enlightening on the point. Keane J. pointed out (at p. 152) that in the Cox case, while the High Court (Barr J.), had found that Mr. Cox was entitled to damages in respect of the loss of his teaching post, he had adjourned further hearing on that issue to enable evidence to be adduced as to damages. That part of the judgment of Barr J. was not the subject of an appeal and, in consequence, the Supreme Court was concerned only with the issue of the validity of s. 4 having regard to the provisions of the Constitution. Therefore, it is not clear what ultimately happened to the claim for damages in the Cox case.
10.4 The main argument which counsel for the defendants have developed in reliance on the McDonnell case is based on a passage from the judgment of O’Flaherty J. (at p. 143), in which, having noted the position of the majority in the Murphy case that, when a declaration of invalidity of an Act of the Oireachtas is made, the legislation is void ab initio, O’Flaherty J. went on to consider the practical application of the legislative provision from the time it comes into force until it is declared to be invalid. He stated:
“Members of society are given no discretion to disobey such law on the ground that it might later transpire that the law is invalid having regard to the provisions of the Constitution. Every judge on taking office promises to uphold ‘the Constitution and the laws’; the judge cannot have a mental reservation that he or she will uphold only those laws that will not some day be struck down as unconstitutional. We speak of something as having ‘the force of law’. As such, the law forms a cornerstone of rights and obligations which define how we live in an ordered society under the rule of law. A rule of constitutional interpretation, which preserves the distinct status of statute law which, as such, is necessitated by the requirements of an ordered society and by ‘the reality of situation’ (to adopt Griffin J.’s phrase), should have the effect that laws must be observed until struck down as unconstitutional. The consequences of striking down legislation can only crystallise in respect of the immediate litigation which gave rise to the declaration of invalidity. This is what occurred in Murphy . . . as well as in Cox . . .”
10.5 The obligation of all persons, including the State, to obey the law once it is enacted, it was submitted on behalf of the defendants, is a further reason why there should be no award of damages. To hold the State liable in damages on the basis that a law has been declared to be invalid would put the State in an impossible position. To impose liability in such circumstances would be to establish a far-reaching principle which could ultimately undermine the rule of law and the respect shown for the law.
10.6 As regards a person in the position of the plaintiff who has successfully challenged the validity of a statutory provision, that proposition is not in line with the decision of the Supreme Court in the Murphy case, nor is it in line with the observations of O’Flaherty J., because the plaintiff is in a similar position to the plaintiffs in the Murphy case and the Cox case.
11. The submissions focusing on s. 260
11.1 While, the broad thrust of the submissions made on behalf of the defendants was to analyse and extrapolate from the authorities which bear on the issue which the Court has been asked to determine, in addition to analysing the judgment of the Supreme Court on the substantive issue of the invalidity of s. 260, counsel for the defendants addressed some matters which are specifically related to s. 260.
11.2 It was submitted that the Court should apply the principle adumbrated by Budd J. in An Blascaod Mór case and adopt an approach of considerable tolerance to the legislature in relation to s. 260 because the task of the legislature was to balance competing interests. As regards s. 260 of the Act of 1945, it was submitted that the Oireachtas was self evidently attempting to achieve a balance between the competing concerns of providing proper mental treatment for persons with mental illness and of protecting the rights of such persons, on the one hand, and of protecting those treating them, on the other hand. The provision was self evidently directed towards the common good. Although the legislature got the balance wrong in respect of the pre-conditions for instituting proceedings, that should not form the basis of a claim for damages, it was submitted.
11.3 It was also submitted that the very lengthy period of time which has elapsed since the enactment of the Act of 1945 is a factor to which the Court should have regard. It was also suggested that it was relevant that the objectives of the Act of 1945 generally in the context of Article 40.1 of the Constitution could be regarded to have received the imprimatur of the Supreme Court in Re Philip Clarke [1950] I.R. 235 and more recently in Croke v. Smith (No. 2) [1998] 1 I.R. 101. Indeed, on the basis of the observations made by Murray C.J. in A v. Governor of Arbour Hill Prison [2006] 4 IR 88 (at pp. 129 – 130) as to the Constitution being viewed “as a living document” which falls to be interpreted “in accordance with contemporary circumstances including prevailing ideas and mores”, and that it is entirely conceivable, therefore, that an Act found to be unconstitutional in the twenty first century might well have “passed constitutional muster” in the 1940s and 1950s, in my view, on the basis of the case law on the Act of 1945, it is conceivable that a challenge to the validity of s. 260 would not have been successful had it been brought even a decade earlier than the plaintiff initiated these proceedings.
11.4 It is noteworthy that s. 260 was applied by the Supreme Court, albeit not in contexts in which its constitutional validity was at issue, on a number of occasions, examples relied on by counsel for the defendants being O’Dowd v. North Western Health Board [1983] ILRM 186 and more recently in Murphy v. Green [1990] 2 I.R. 566. In the O’Dowd case the majority of the Supreme Court held on the facts that there were no substantial grounds for the contention that the medical practitioners against whom allegations were made had acted without reasonable care. In the later case, all five Judges of the Supreme Court held on the facts that the plaintiff had not established substantial grounds that the proposed defendant, a medical practitioner, had acted in bad faith or without reasonable care. Although counsel for the defendants did not press this point, it has to be observed that, as regards the factual complaints which form the basis of the plaintiff’s claim in these proceedings, the Supreme Court adopted a consistency of approach in the application of s. 260 before it was declared invalid, as is evidenced by the outcome of the three occasions (outlined in para. 3.4 earlier) on which the plaintiff sought to get leave to institute proceedings governed by s. 260. On each occasion, the decision of the Supreme Court precluded the proceedings being prosecuted. On the last two occasions, in respect of which there are judgments of the Supreme Court, the Supreme Court upheld the decision of the High Court on the basis that the plaintiff had no substantial grounds for contending that the proposed defendants acted in bad faith or without reasonable care.
11.5 The significance attached by the defendants to the substitution of s. 260 by s. 73 of the Act of 2001 was that it was contended that the plaintiff is now entitled to bring proceedings in respect of acts purporting to have been done in pursuance of the Act of 1945 of which he complains. Further, the effect of the declaration of invalidity of s. 260 was compared with the effect of the invalidity of the statutory provision impugned in the Redmond and Cox cases. In respect of the declaration by the Supreme Court of the invalidity of s. 260, it was submitted, that its effect was to give the plaintiff the very right he claimed, which was the right to commence proceedings against persons who had purported to act in respect of the plaintiff in reliance on the Act of 1945. Accordingly, it was submitted, the wrong complained of has been remedied by the declaration of invalidity. That was in contrast to the position in Redmond, where the plaintiff had lost his opportunity of putting himself forward as a candidate at an election and the opportunity once lost could not be revived, or the situation in Cox, where the plaintiff had lost his job as a result of the provision which had been held to be invalid. In this case, it was submitted, the plaintiff has not lost his right to claim damages for the alleged wrongdoing in connection with his detention, but rather the effect of the declaration of invalidity has been to accord him that very right.
11.6 The distinction which the defendants have sought to draw as to the effect of the striking down of s. 260 by comparison to the striking down of other statutory provisions, in my view, wholly ignores the reality of the situation of the plaintiff now. Any action which the plaintiff might have obtained leave to initiate at any time after the decision of the High Court in this case in December 2004, which sought redress by way of damages for events which happened in 1984, 1987 and 1991, would inevitably have been met with a plea that the action was statute-barred. Just a decade ago in Blehein v. Murphy (No. 2), which concerned an application for leave by the plaintiff under s. 260 in relation to the events of 1987 in the 1998 proceedings , Keane C.J. stated (at p. 266):
“It is quite clear that any proceedings which were now instituted would be well outside the limitation period prescribed by the Statute of Limitations, 1957, and that none of the provisions of that Act or the Statute of Limitations (Amendment) Act, 1991, enabling proceedings to be brought outside the limitation period in cases of fraud, mistake or (in the case of personal injuries) lack of knowledge, relied on by the plaintiff, have any application to the facts in this case.”
Keane C.J. did go on to state that it could be said that, in theory at least, if leave were granted, the defendant might contest the action on the merits rather than to plead that it was statute-barred, but, as against that, he stated that it could be argued that the fact that there was an absolute defence available to a defendant because of lapse of time was a ground on which the Court was entitled to refuse leave. In the event, he considered it unnecessary to address that issue because the plaintiff had not established a substantial ground under the provision which was subsequently declared to be invalid. Therefore, the reality is that a declaration of the invalidity of s. 260 did not open the way to enable the plaintiff to get redress by way of damages for the wrongs he alleged were perpetrated against him in 1984, 1987 and 1991 against the third parties whom he alleges perpetrated those wrongs.
12. Conclusions
12.1 It could hardly be open to contradiction to suggest that this case presents “more problematical facts” than An Blascaod Mór case or, indeed, any other case in which the issue which the Court has to determine was considered. In setting out my conclusions on the issue raised by the defendants insofar as I consider it appropriate to reach conclusions at this juncture, I propose to do so by reference to the guidance given by Henchy J. in the Murphy case and with regard to the basis on which the Supreme Court held that s. 260 is invalid having regard to the provisions of the Constitution.
12.2 In essence, what the defendants assert is that the State is immune from liability for any loss or damage which the plaintiff incurred as a result of acts done in purported reliance on the Act of 1945, which he alleges were wrongful and which he was unable to pursue in litigation before s. 260 was struck down on the ground of unconstitutionality. In considering that assertion, I am acutely conscious of the caveat issued by Henchy J. as to the inadvisability of entering on a general consideration of such a fundamental issue of constitutional law. Accordingly, I will deal with the issue against the facts of this case as they are before the Court, although it is doubtful that, constrained as the Court is by having to rely on the defendants’ statement of facts, they can be accurately described as what Henchy J. referred to as “concrete facts”.
12.3 The plaintiff’s case is that he has suffered damage as a result of the application of s. 260 to him and that he is entitled to redress for that damage. The redress which the plaintiff seeks is damages. He has formulated his claim for damages as damages “for infringement of constitutional rights, for personal injury, loss and damage”. As is pointed out in Kelly (para. 8.2.69) it is clear that an action lies in respect of “a breach of a ‘personal’ constitutional right”. The Supreme Court has found in this case that the application of s. 260 to a person in the position of the plaintiff was a disproportionate restriction of his constitutional right of access to the courts, in the context where his fundamental constitutional right to liberty had itself been restricted, and, as such, s. 260 infringed the plaintiff’s personal constitutional rights. In determining whether the plaintiff has incurred damage and whether the damage is redressable, it is necessary to analyse what the effect of s. 260 was on the plaintiff before it was struck down and how, in its application, it impacted on him as set out in the statement of facts.
12.4 The effect of s. 260 was to preclude the plaintiff from instituting civil proceedings against a person or institution for acts done in purported reliance on the provisions of the Act of 1945 save with leave of the Court. On the basis of the agreed facts, s. 260 impacted on the plaintiff in that he was –
(a) precluded from prosecuting the 1997 proceedings against St. John of God Hospital, because the proceedings were struck out for failure to obtain leave under s. 260,
(b) refused leave to issue the 1998 proceedings against six named defendants, which he sought leave to issue under s. 260 in 1999, and
(c) refused leave to issue the 1999 proceedings against St. John of God Hospital, which he sought leave to issue under s. 260 in 2000.
All of those proceedings related to wrongs alleged to have been perpetrated against the plaintiff arising out of the invocation of the provisions of the Act of 1945 in connection with his transportation and admission to, and his detention and treatment in, St. John of God Hospital in 1984, 1987 and 1991. As I understand it, the remedy he would have sought against the intended defendants was damages, although the factual foundation on which he would have sought that remedy is only partially covered in the statement of facts on the basis of inferring that his detention was involuntary.
12.5 In this assessment of the plaintiff’s claim in these proceedings I am not taking into account the judicial review proceedings of 1996 which, prima facie, were not within the ambit of s. 260.
12.6 Such damage, if any, as the plaintiff suffered by the application of s. 260 to him in the instances which I have summarised must be the consequence of being deprived of an opportunity to establish an entitlement to damages against the intended defendants by not being allowed to prosecute those proceedings. If he would have been successful in any or all of the proceedings, had he been allowed to pursue them, then he has been deprived of any damages which he would have been awarded, taking account, of course, of any overlap between the claims in the three sets of proceedings. Necessary redress, to adopt the terminology used by Henchy J., would involve compensation for that deprivation and the resulting loss. As subs. (3) of s. 260 was not held to be invalid per se, in order to be successful, if he had been granted leave, the plaintiff would have had to satisfy the Court in the substantive proceedings that the defendants or one or more of them had acted in bad faith or without reasonable care.
12.7 The foregoing analysis does not take cognisance of whether there may be what Henchy J. referred to as “transcendent considerations” which may render affording redress to the plaintiff (i.e. allowing him to claim damages against the State for being deprived of the capacity to sue intended defendants who had acted in reliance on the Act of 1945 whom he alleges acted wrongfully) undesirable, impractical or impossible. It does not seem to me that it would be either impractical or impossible, as distinct from difficult, to determine whether such redress should be afforded to the plaintiff in these proceedings in which he successfully challenged the validity of s. 260 in accordance with established principles, although such principles would have to be identified. Obviously, in order to succeed in his claim for damages against the State, he would have to prove that, in the proceedings which he was prevented from initiating, he would have established to the satisfaction of the Court wrongdoing in the form of bad faith or want of reasonable care on the part of the intended defendants or one or some of them and also that the damage and loss he alleges he suffered was a consequence of that wrongdoing. While, given the manner in which the issue is now before the Court, whether he would have succeeded is an imponderable, nonetheless, I do not think it can be said that it would be either impractical or impossible to determine whether he would have succeeded against all or any of the intended defendants. Whether it would be undesirable to afford redress to the plaintiff in the unusual circumstances which prevail here is the fundamental question.
12.8 Viewing the plaintiff’s claim for redress consequential on his successful challenge to s. 260 as a claim for damages for infringement of his constitutional rights raises the question whether the plaintiff should be treated any differently, because the infringement of his personal constitutional rights of which he complains arose from the application of an unconstitutional statutory provision to him, than he would be treated if the infringement arose, say, as a result of the actions of somebody for whom the State is vicariously liable. An example of the latter situation is to be found in the actions of prison officers in Kearney v. Minister for Justice [1986] I.R. 116 in breaching the plaintiff’s right to communicate by non-delivery of his mail to him, which led to the first award of damages, which were nominal, for breach of constitutional rights, a case which was followed in the Redmond case. It may be that, in order to answer that question, one is brought back full circle to the fundamental question whether it would be undesirable not to treat the plaintiff differently because of the existence of transcendent considerations.
12.9 In addressing that question, a crucial factor undoubtedly would be the basis on which the Supreme Court decided the invalidity of s. 260 – that the right of the plaintiff which was infringed was his constitutional right to access to the court in the context of his fundamental right to liberty having been restricted, which on any consideration of the hierarchical framework of constitutional rights must be a serious infringement. The nature and extent of the adverse impact on him resulting from such civil wrong as the plaintiff would have been in a position to establish in the litigation which he was precluded from prosecuting would also be a factor. As regards countervailing factors, a matter which could be regarded as being significant would be the status of the Act of 1945 for almost 60 years after its enactment, the presumption that it was constitutionally valid and the manner of its application generally. In the particular context of this case, a significant factor would probably be the consistent manner in which s. 260 was applied by the Supreme Court, from which it would have been reasonable to deduce that s. 260 was “an acceptable part of the corpus juris”. There may be other factors which would be relevant. However, I am of the view that to embark on the task of weighing such factors in the balance, partly in the abstract, would be undesirable. It would also be undesirable to embark on the determination of such a fundamental issue as is raised by the defendants at all, if it is unnecessary to do so.
12.10 It may be, however, that it will not be necessary at all, and at this juncture it is not desirable or appropriate, in circumstances which, in my view, in reality are tantamount to deciding the issue partly in the abstract, to determine whether transcendent considerations exist which render it undesirable that the plaintiff be awarded damages on the ground that the basis of the infringement of his constitutional rights is that a statutory provision which has been found to be unconstitutional was applied to him. If it is not necessary to do so, because there is an answer to the plaintiff’s claim to damages which exclude it at a more basic level than determining whether the plaintiff’s constitutional rights are transcended, as urged by the defendants, for example, by virtue of some statutory provision or rule of common law, in my view, it would be unwise to attempt to resolve such a fundamental issue. In making that comment and the following comments, it is important to stress that I have formed no view as to whether the claim for damages would succeed apart from that issue. For instance, it may be that, aside from the jurisdictional argument raised by the defendants, it is the case that the plaintiff cannot establish that he has suffered recoverable loss by the application of s. 260 to him or that his claim in respect of loss and damage is not maintainable, for example, because he could not have met the requirement of subs. (3) of s. 260, or it can be absolutely defended in these proceedings on some other legal ground, for example, because the claim is statute-barred.
12.11 Further, in the light of the observations of Keane C.J. quoted in paragraph 11.6 above, it would seem that there may be a possible basis on which proceedings which the plaintiff was precluded from prosecuting because of the application of s. 260 to him might have been unsuccessful. That is on the basis of the application of the Statute of Limitations 1957, as amended. As I understand the position, in the substantive proceedings on the constitutionality of s. 260 in this Court and on appeal in the Supreme Court, it was not argued that the defendant had no locus standi to challenge the validity of s. 260 on the basis that any claim he might have had against the proposed defendants in the three actions he sought to initiate would have been statute-barred. It is to be noted that in the 1999 proceedings, in delivering judgment in the Supreme Court, McGuinness J. stated that the plaintiff was in a position to argue that he had locus standi to maintain constitutional proceedings. However, the defendants have pleaded in these proceedings that, if the plaintiff has sustained or suffered personal injury, or loss or damage, his claim is statute-barred by virtue of s. 11(2) of the Statute of Limitations 1957, as amended by s. 3(1) of the Statute of Limitations (Amendment) Act 1991, although the plea seems to be related to the claim for damages for personal injuries only. It seems to me that, before the Court is required to determine the fundamental question to which the issue raised by the defendants gives rise, the issue of the application of the Statute of Limitations to the plaintiff’s claim for damages should be addressed first.
12.12 Accordingly, while at this juncture I am not ruling out the possibility of having to determine the issue which the defendants have asked the Court to determine, I am postponing such determination until the issues of the maintainability of the proceedings which he was precluded from prosecuting and the defences pleaded by the defendants, including their reliance on the Statute of Limitations, assuming the defendants are persisting in that defence, have been considered by reference to the relevant evidence. Having regard to the observations of Murray C.J. in the D.K. case, which I have recorded at para. 9.6 above, I consider that, if the Court has to assess damages, the legal basis for liability of the State will have to be determined by the Court with regard to each head of damages.
12.13 I will hear further submissions from the parties as to how the matter should proceed from here.
McFarlane v Ireland
[2010] ECHR 1272In the case of McFarlane v. Ireland,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Christos Rozakis, President,
Nicolas Bratza,
Peer Lorenzen,
Françoise Tulkens,
Josep Casadevall,
Ireneu Cabral Barreto,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Elisabet Fura,
Alvina Gyulumyan,
Ljiljana Mijović,
Dean Spielmann,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Ledi Bianku,
Ann Power, judges,
and Vincent Berger, Jurisconsult,
Having deliberated in private on 3 March 2010 and on 23 June 2010,
Delivers the following judgment, which was adopted on the last‑mentioned date:
PROCEDURE
1. The case originated in an application (no. 31333/06) against Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish national, Mr Brendan McFarlane (“the applicant”), on 21 July 2006.
2. The applicant was represented by Mr J. MacGuill, a lawyer practising in Dublin. The Irish Government (“the Government”) were represented by their Agents, Ms P. O’Brien and, subsequently, Mr J. Kingston, of the Department of Foreign Affairs.
3. The applicant mainly complained, invoking Articles 6 and 13, that the criminal proceedings against him were unreasonably long and that he did not have an effective domestic remedy in that respect.
4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). On 6 September 2007 a Chamber of that Section decided to give notice of the application to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).
5. On 20 October 2009 the Chamber, composed of Judges Josep Casadevall, Elisabet Fura, Corneliu Bîrsan, Boštjan M. Zupančič, Alvina Gyulumyan, Egbert Myjer and Ann Power and also of Santiago Quesada, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).
6. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court.
7. The applicant and the Government each filed a memorial on the admissibility and merits of the application.
8. A hearing took place in public in the Human Rights Building, Strasbourg, on 3 March 2010 (Rule 59 § 3). There appeared before the Court:
(a) for the Government
Mr J. KINGSTON, Agent,
Mr M. COLLINS,
Mr B. MURRAY,
Ms U. NI RAIFEARTAIGH, Senior Counsel,
Ms M. COOKE,
Ms O. MCPHILLIPS, Advisers;
(b) for the applicant
Mr J. MACGUILL, Solicitor,
Ms A. MCCUMISKEY, Adviser.
The Court heard addresses by Messrs Murray, Collins and MacGuill.
THE FACTS
I THE CIRCUMSTANCES OF THE CASE
A. Background to the case
9. The applicant was imprisoned in Northern Ireland in 1975 for his involvement in a bombing for which the Irish Republican Army (“IRA”) was held responsible. On 25 September 1983 he escaped from prison.
10. In December 1983 a high profile kidnapping in Ireland ended in a gunfight with the security forces. The kidnapped man was released but a soldier and policeman were killed. A forensic report identified fingerprints found on items at the crime scene as those of the applicant. On 7 January 1984 an internal police circular was issued stating that the applicant was wanted on serious charges connected to the kidnapping.
11. In January 1986 the applicant was arrested in the Netherlands. In December 1986 he was extradited to Northern Ireland where he resumed serving his sentence. The Irish police did not interview the applicant about the kidnapping while in prison in Northern Ireland for the reasons later outlined by the Supreme Court (see paragraph 30 below).
12. From 1993 the applicant was granted periods of temporary release during which he visited Ireland. In January 1998 he was released on parole from prison in Northern Ireland.
B. The applicant’s arrest and the criminal proceedings
13. On 5 January 1998 the applicant was arrested in Ireland by the Irish police under section 30 of the Offences Against the State Act 1939, as amended (“OASA”). He was questioned and charged before the Special Criminal Court (“SCC”) with offences relating to the kidnapping: false imprisonment, unlawful possession of firearms and kidnapping (a life sentence was the maximum prison term for the first and third charge). The SCC later noted (prior to dismissing the charges in 2008) that the evidence against the applicant was an admission he had made during his police interviews that he had been at the kidnap location (which admission he had denied in evidence before the SCC) as well as the fingerprint evidence.
14. On 5 January 1998 an official of the Department of Justice, Equality and Law Reform received a printed notice of the report of the applicant’s arrest and he made handwritten notes thereon (“memorandum of 5January 1998”). The applicant submitted that those notes proved that the Irish police had been aware of his presence in Ireland prior to his arrest.
15. He applied for bail and on 13 January 1998 he was released on bail, subject to certain reporting conditions. The Supreme Court later noted that he had to sign on once a month at a police station in Ireland (a 160 km round trip from his home in Belfast) and that he had also to attend on approximately 40 occasions since 1998 at the SCC in Dublin (a round trip of 320 km) during the criminal proceedings against him.
16. On 14 July 1998 the Book of Evidence (statement of the evidence on which the prosecution proposed to rely) was served on the applicant. The Government maintained that the applicant informed the SCC on that date that he might bring judicial review proceedings to prohibit his trial on grounds of delay prior to his arrest.
17. Correspondence took place between the prosecution and the applicant from July 1998 to March 1999 on disclosure by the prosecution of any other relevant evidence not in the Book of Evidence: it concerned correspondence between the Irish and other authorities as regards his whereabouts prior to his arrest in 1998 and matters relating to the fingerprint issue. The case was put in for mention on the SCC list four times between October 1998 and 18 March 1999. On the latter date the disclosure issues were resolved with further disclosure by the prosecution.
18. It was through this disclosure process that the applicant was made aware of the loss (on a date between 1993 and 1998) of the items on which the original fingerprints had allegedly been found (“the original fingerprint evidence”). The forensic report (including photographs of the original fingerprints) was retained and available. The Government submitted that the applicant was informed of this loss on 15 January 1999.
19. A trial date was fixed for 23 November 1999.
1. The first prohibition action
(a) High Court ([2004] IEHC 246)
20. The applicant then took expert advice as to the implications for his trial of the loss of the original fingerprint evidence. In October 1999 the expert advised that the fingerprint evidence could not be comprehensively evaluated from the forensic report retained.
21. On 1 November 1999 the applicant was granted leave to apply for judicial review and, further, a stay on the criminal proceedings against him pending the outcome of the judicial review proceedings. The relief sought by the applicant included a declaration that the delay until 1 November 1999 (mainly concerning the pre-arrest delay) was irreparably prejudicial to a fair trial, a declaration that the loss of the original fingerprint evidence limited his ability to contest the evidence against him as well as an order prohibiting his further prosecution on these bases. The return date for this application was 29 November 1999 and the trial date was vacated. The application was re-listed once a month (from December 1999 to March 2000) and on 5 April 2000 the prosecution filed its Statement of Opposition.
22. On 15 May 2000 the applicant requested voluntary discovery from the prosecution. No substantive response having been received, on 18 July 2000 he filed a notice of motion for such discovery. While the return date for the motion was in October 2000, the parties agreed to adjourn it to the first hearing date (12 January 2001). Neither party attended on that date, due to a misunderstanding, and the motion was struck out. The applicant submitted that he then sent several letters to the prosecution to obtain its consent to re-enter the motion: the Government accepted that one such letter from the applicant (of 29 May 2001) was on the file.
23. The applicant filed a fresh motion for discovery on 2 October 2001 and a return date was accorded (16 November 2001). On the latter date the prosecution agreed to make voluntary discovery and, on 8 February 2002, the prosecution filed an affidavit of discovery listing 93 documents in its schedule. This list included the memorandum of 5 January 1998 but the applicant did not request sight of that document at that point. On 1 March 2002 the applicant’s motion for discovery was therefore struck out on a consent basis.
24. On 11 March 2002 the prosecution applied to re-enter the applicant’s judicial review action and a hearing date was set for 14 March 2003.
25. The applicant then filed a motion for further and better discovery returnable before the Master of the High Court on 14 May 2002. The Master refused the order sought (11 June 2002) as did the High Court on appeal (on 22 July 2002).
26. When the prohibition action came on for hearing on 14 March 2003, a judge was not available to hear the case. It was adjourned to 11 July 2003, when it was heard.
27. On 18 July 2003 the High Court delivered an ex tempore judgment. The High Court made an order prohibiting the trial of the applicant on the basis that the loss of the original fingerprint evidence meant that there was a real or serious risk of an unfair trial. The High Court rejected the applicant’s claim based on the delay: the decision to prosecute was a decision of the prosecuting authorities and depended on the sufficiency of evidence; there were no grounds to suggest that any delay was deliberate; and the decision to prosecute was prompted by new evidence (the applicant’s alleged admission during questioning following his arrest in 1998).
(b) Supreme Court ([2006] IESC 11)
28. On 19 August 2003 the prosecution appealed and the applicant lodged a cross-appeal. On 15 November 2004 the prosecution lodged the Books of Appeal. Since the High Court judge did not formally approve his judgment until 17 January 2005, the prosecution could not file a Certificate of Readiness (that the appeal was ready to be heard) until 27 January 2005.
29. On 2 February 2006 the applicant was granted leave to have his cross‑appeal heard with the prosecution’s appeal. On 16 February 2006 the appeal hearing took place before the Supreme Court.
30. On 7 March 2006 the Supreme Court delivered its judgment allowing the prosecution’s appeal and refusing the applicant’s cross-appeal. As to the lost original fingerprint evidence, there had been a forensic examination of the fingerprints before they were lost and the results of that examination were preserved so that the applicant had not been deprived of the reasonable possibility of rebutting the evidence proffered against him and he had therefore not demonstrated that there was a real risk of an unfair trial. As to the impugned pre-arrest delay, all five judges of the Supreme Court considered that that lapse of time was not such as should give rise to a prohibition order. The court considered it legitimate for the Irish police to have waited for his release from prison to arrest him under section 30 of the OASA. There was insufficient evidence to initiate a prosecution prior to his being questioned. The parameters of any questioning while he was in prison in Northern Ireland would have been entirely different from those applicable to a person arrested under section 30 of the OASA. In this latter respect, he was obliged to at least listen to the questions; the structure and duration of the questioning (subject to the proper treatment of persons in custody) would have been under their control and not under that of other (Northern Irish) authorities or that of the applicant himself; and, in the end, he made some statements during questioning which provided additional evidence and, consequently, a basis to initiate a prosecution. Kearns J partly dissented as regards the loss of the original fingerprint evidence only: in doing so he referred to the advice on the issue of the applicant’s expert.
2. The second prohibition action
(a) High Court ([2006] IEHC 389)
31. Following this judgment, the stay on the criminal proceedings pending the first prohibition action was lifted. On 4 April 2006 the SCC fixed the applicant’s trial for 3 October 2006.
32. On 15 May 2006 the applicant was granted leave by the High Court to seek judicial review and, further, a stay on the criminal proceedings against him pending the outcome of the judicial review proceedings. He sought a declaration and a prohibition order on the basis that the delay since 1 November 1999 (namely, during his first prohibition action) had delayed the criminal proceedings which had, inter alia, violated his constitutional right to a trial with reasonable expedition and exposed him to a real and serious risk of an unfair trial.
33. On 8 November 2006 the High Court refused the prohibition application. It considered that, at best, the evidence demonstrated at most three periods of unnecessary delay by the prosecution during the first judicial review action. However, any increased stress or culpable delay and impact on his right to an expeditious trial did not outweigh the community’s considerable interest in having offences of such gravity prosecuted.
(b) Supreme Court ([2008] IESC 7)
34. The applicant appealed by notice dated 22 February 2007. The Supreme Court heard the appeal on 24 January 2008. On 5 March 2008 judgment was delivered dismissing the appeal unanimously. Fennelly J., Kearns J. and Geoghegan J. delivered separate judgments, with Hardiman J. and Macken J. concurring.
35. Fennelly J. noted that, while the applicant had included in his motion a request for “any further and/or other relief as this Honourable Court deems meet and just”, the only substantive relief specifically and explicitly sought by him was the prohibition of his trial on grounds of delay. Such a prohibition could only be granted if there were a real risk that his trial would be unfair, and this had been rejected in the first judicial review proceedings as regards the delay prior to the preferment of charges and was undemonstrated as regards the length of the first judicial review proceedings.
36. However, Fennelly J. noted that the courts had also recognised the possibility of making a prohibition order for the quite distinct reason that there had been a breach of an accused’s right to trial with “reasonable expedition”. Noting that the judgment of Powell J. in Barker v. Wingo ((1972) 407 U.S. 514) of the Supreme Court of the United States had been influential in the development of the case-law of the Irish courts on the right to reasonable expedition and the consequences of its breach, Fennelly J. stated that “we have now established a consistent approach, particularly in some recent cases”.
37. Referring to the approach of Keane CJ in P.M. v Malone ([2002] 2 I.R. 560) and to the reiteration of that approach by Kearns J. in P.M. v DPP ([2006] 3 IR 172), Fennelly J. considered that it was necessary to consider, firstly, whether the period that it took to dispose of the first judicial review proceedings constituted a violation of the applicant’s right to a trial with due expedition and, secondly, assuming an affirmative answer to that question, whether, having regard to all the circumstances, the Court should make an order prohibiting the Director of Public Prosecutions (“DPP”) from continuing with his prosecution.
As to the first question, Fennelly J. considered that the applicant might have had a legitimate complaint in respect of the delay in approving the High Court judgment (July 2003-January 2005). However, the applicant had taken no steps to expedite the appeal, probably because of the High Court prohibition order. While this delay was significant, in the entire context of the case it did not amount to a breach of his constitutional right to an expeditious hearing of the criminal charges against him.
As to the second question, and even assuming there had been a breach of his constitutional right to an expeditious hearing, the circumstances did not warrant a prohibition order: any delay of 1-2 years was not significant in the trial for offences alleged to have been committed in 1983. As to his anxiety caused by delay, he was, during that period of delay, the holder of an order of the High Court prohibiting his trial and he had carriage of those judicial review proceedings and could have taken steps to accelerate them. In addition, the public interest in pursuing serious crime was crucial and the seriousness of the relevant charges outweighed the added anxiety and length of bail conditions caused by unnecessary delay on judicial review.
38. Finally, Fennelly J. noted that the right to a trial within “a reasonable time” and to a trial “with reasonable expedition” were “indistinguishable”. However, he differentiated between this Court’s finding of unreasonable delay under Article 6 (with an award of just satisfaction), on the one hand, and the balancing exercise a domestic court had to carry out between delay and the public interest in pursuing crime in a prohibition action on grounds of delay (the domestic proceedings), on the other. This Court’s role (and therefore the criteria used by it) was more analogous to the decision as to whether delay violated the constitutional right to expeditious proceedings. He noted the Government’s submission to this Court in Barry v. Ireland (no. 18273/04, § 35, 15 December 2005) to the effect that judicial review was an effective domestic remedy and that “damages might have been available” on judicial review. Having noted this Court’s response to that argument (paragraph 53 of the Barry judgment), he continued:
“74. I made a similar observation in my own judgment in [T.H. v DPP].
These observations are relevant to the interpretation of the judgments of the Court of Human Rights. That court does not engage in the balancing exercise described in the Opinion of Powell J in Barker v Wingo and in the decisions of this Court (such as P.M. v Malone and [P.M. v DPP]. That exercise is neither necessary nor relevant to the decision as to whether to award just satisfaction. Consequently, the decisions of the Court of Human Rights provide useful guidance on the question of whether there has been a breach of the right of an accused person to a trial within a reasonable time or with reasonable expedition. For example, in its judgment in the case of Barry v Ireland …, the Court restated its consistent approach to the assessment of a reasonable time as follows (paragraph 36 of the judgment; citations omitted):
‘The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities……. On the latter point, what is at stake for the applicant in the litigation has to be taken into account.’
75. A further passage from the judgment of the Court also calls for observation. It appears that the representatives of Ireland had submitted to the Court that judicial review, which was available to the applicant in that case, provided an effective remedy in domestic law and that “damages might have been available as a remedy in the judicial review proceedings, if the applicant had sought them.” The Court’s response to that argument (at paragraph [53]) was:
‘There is no evidence that such proceedings would have been capable of providing damages and the Government accepted that there was no domestic legal provision for an award of damages in following proceedings. Although the Government argued that the common law might be flexible enough to provide such a remedy, they did not refer to one precedent even tending to support this argument. Moreover, the judgment of the Supreme Court made it clear that Convention case-law would not cause the domestic courts to fashion any remedies that would not otherwise have been available … .’
76. … in [the Barry] case, as in the present case, no claim for damages had been made. Nor, so far as I am aware, has any such claim ever been made in such a case. In every such case, the accused person, in practice, seeks the remedy of prohibition of his trial. It is clearly not possible for this Court, having an appellate function only, to pronounce in the abstract on whether damages would be available as a remedy, [if they were claimed]. Any such claim would have to be made in the High Court in the first instance. The [European Convention of Human Rights Act 2003] might be relevant.
77. I would also add that the Court may have somewhat misapprehended the remarks of Keane C.J. in the passage of his judgment in [Barry v DPP], which … [the Court] also quoted. Keane C.J. was merely saying that a particular judgment of the Court of Human Rights did not have effect in domestic law. Whether these courts would “fashion remedies” in the light of the case-law of that Court is a quite different matter and would have to await an appropriate case. Again the [European Convention of Human Rights Act 2003] may or may not be relevant.”
39. Kearns J. agreed in the main with Fennelly J.’s judgment. He explained, in addition, the various forms of delay in criminal proceedings:
“This appeal raises serious issues about the effects of delay on the entitlement of the State to prosecute criminal offences. It is an issue which has given rise to much anxious consideration by this Court in recent years, particularly in the context of offences relating to the sexual abuse of children. Evaluating reasons for delay and attributing blame for delay in reporting abuse (complainant delay or pre-charge delay) came to be seen as a far from simple exercise in those cases. …
That was one form of delay. Delay can also arise from the tardiness of the police, either in investigating an alleged crime after it has been reported, or on the part of the prosecuting authorities in bringing an alleged perpetrator before the courts and in taking the necessary steps to prepare a case for trial. The jurisprudence makes clear that this form of delay, called ‘prosecutorial delay’, may also entitle an applicant to relief in the form of prohibition in certain circumstances. This will arise because an applicant is also entitled to a trial with reasonable expedition as part of his constitutional rights under Article 38.1.
Delay may also arise when the State, by its failure to provide adequate resources or facilities for the disposal of litigation, has itself contributed to delay. ‘Systemic delay’ of this nature may overlap to some degree with prosecutorial delay and run hand in hand with it. There may be prosecutorial delay within systemic delay. Equally there may be no blameworthy delay by the prosecution but there may yet be delays within the system to which an applicant has in no way contributed. There may also be judicial delay where the court fails to deliver its judgment or decision within an appropriate time frame. Where systemic delay is established it may amount to an infringement of a citizen’s constitutional right to a trial with reasonable expedition. Such forms of delay may also amount to an omission or failure on the part of the State to comply with its obligations under the European Convention on Human Rights, in particular Article 6 thereof …
In the present case it is claimed that there was both prosecutorial delay and delays within the system which prevented an earlier set of judicial review proceedings being disposed of within a reasonable time. There is no suggestion that there was any form of judicial delay contributing to that alleged delay…..”
40. Kearns J. assessed the criteria by which prosecutorial delay would be measured (a test which he considered reflected that of this Court) and found those principles equally applicable to systemic delay (described as “failures of the criminal justice system”). Prior to applying the test, he made a number of preliminary comments, notably to the effect that degrees of dilatoriness which may have been acceptable in the past could no longer be tolerated since the European Convention of Human Rights Act 2003 (“the 2003 Act”) gave effect in Ireland to the provisions of the Convention: both the constitutional and Convention rights to trial with reasonable expedition had to be “vindicated by being given real effect”.
41. However, that did not mean that the prohibition of a criminal trial had to be resorted to more readily and Kearns J. pointed to the difference between the role of this Court under the reasonable time requirement of Article 6 § 1 and its award of just satisfaction and that of the domestic courts in prohibition proceedings where unreasonable expedition had to be balanced against the public interest in continuing with a prosecution. Given this added element in the domestic prohibition proceedings, prohibition should only be granted exceptionally and where there was an assessed serious breach of the rights under Article 38(1) of the Constitution and of Article 6 § 1 of the Convention. In so noting, Kearns J. referred to other domestic remedies as follows:
“I would accept that a distinction may require to be drawn between breaches of the right which give rise to an entitlement to obtain prohibition and lesser transgressions which may conceivably give rise to some other remedy, such as one in damages. However, any entitlement to a remedy in damages for breach of a constitutional right to an expeditious trial is a matter that will require very full and careful consideration in an appropriate case.”
42. As to whether there was blameworthy delay, Kearns J. hesitated on the same period of delay (noted by Fennelly J.) in approving the High Court judgment but he did not consider that “blameworthy” given the absence of evidence that it deviated from the norm. Accordingly, even given the passage of time since the original alleged offence and a consequent “heightened degree of urgency in advancing this prosecution”, it was not considered that the applicant had established blameworthy prosecutorial or systemic delay. Even assuming he had, Kearns J. was satisfied that there was no demonstrated prejudice to the applicant or impairment of his other rights including the constitutional right to a trial in due course of law. As regards the motion struck out on 12 January 2001, Kearns J noted that the applicant had not done anything about re-entering it for four months and that it had taken eight months to re-enter the motion. As regards discovery by the prosecution in February 2002, Kearns J noted that this affidavit listed 93 documents and was clearly the result of “considerable effort”.
43. Geoghegan J. broadly agreed with those judgments. He considered that no important issue of “systemic delay” arose in the present case and he reserved his view on its nature and relevance for a future case, though noting that the rather new concept of systemic delay was not the same thing as prosecutorial delay. He suggested that an inadequate number of judges would, if anything, be a reason to assess a longer delay as reasonable in the circumstances, although he acknowledged that that view might not accord with the Convention. The Convention’s jurisprudence in Irish cases was not sufficiently clear as to the correct approach to systemic delay and, notably, as to the blameworthiness of a State for systemic delay: could, for example, a State be blamed for diverting limited economic resources to a hospital as opposed to judicial institutions? In any event, the present case was not the appropriate one to examine systemic delay as none of the impugned periods of delay warranted a prohibition order. As to the lapse of time in approving the High Court judgment, he found it unnecessary to consider whether this delay should be taken into account in considering whether a trial should be prohibited because he was “quite satisfied that prohibition would not be appropriate in this case at any rate”.
C. Dismissal of the criminal charges
44. Following this judgment, the stay on the criminal proceedings pending the second prohibition action was lifted. On 14 March 2008 the criminal proceedings were reinstated before the SCC when the trial date was fixed for 11 June 2008. The memorandum of 5 January 1998 (paragraph 14 above) was again disclosed as additional evidence on 16 June 2008.
45. On 26 June 2008, and following a ruling by the SCC that the principal evidence in the case (the alleged admission of the applicant during police questioning) was inadmissible, the prosecution indicated that they did not propose to adduce further evidence and the charges were dismissed.
D. Second application to this Court (No. 25100/08)
46. The applicant introduced a second application to this Court in April 2008 in which he complained under, inter alia, Articles 6 and 13 about the length of the criminal proceedings against him and about the lack of an effective domestic remedy in this regard. Referring to the general time-line of events since 1983, he mainly complained about delay during the first prohibition action. That application has not been joined to the present one.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Irish Constitution
47. Article 35(2) of the Constitution reads as follows:
“All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law”.
48. Article 38(1) of the Constitution provides that:
“No person shall be tried on any criminal charge save in due course of law”.
49. Article 40(3)(1) of the Constitution also provides that:
“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”
B. Courts and Court Officers Act 2002 (“the 2002 Act”)
50. Section 46 of the 2002 Act provides that the Courts Service shall establish and maintain a register of judgments reserved by, inter alia, the High and Supreme Courts in civil proceedings and supervise the delivery of those judgments within prescribed periods. This Act entered into force on 31 March 2005.
C. Working Group on a Court of Appeal, May 2009
51. The background and terms of reference of this Working Group were outlined in its Report as follows:
“In recent years there have been significant changes in Irish society. Ireland’s population has grown from 3.5 million in 1991 to over 4.2 million in 2006. There has been an increase in economic activity and demographic diversity. Changes in social and public policy have occurred. International developments now have a greater impact on Irish affairs and the courts.
These changes have had important implications for the Irish legal system. In particular, the High Court and Supreme Court have experienced a significant expansion in litigation.
Despite the relative success of the courts in introducing procedures to deal with these developments, the current Superior Court structure was not designed to cope with developments of such a profound nature. There has been a need for some time to conduct a strategic review of the current Superior Court structure.
In December 2006 the Government decided to set up a Working Group to consider the question of establishing a Court of Appeal, with the following terms of reference:
‘(a) to review and consider the necessity for a general Court of Appeal for the purpose of processing certain categories of appeals from the High Court.
(b) to address and consider such legal changes as are necessary for the purposes of establishing a Court of Appeal, and
(c) to make such other recommendations as are appropriate for the purposes of ensuring greater efficiencies in the practices and procedures of the Superior Courts.’
52. The Report recommended the establishment of a Court of Appeal in order to, inter alia, eliminate undue delay in processing appeals before the Supreme Court. The Report described the increase in High and Supreme Court litigation and the backlog this had created particularly at the Supreme Court level:
“The Supreme Court has seen a significant increase in the volume and complexity of its appellate caseload. Unsurprisingly, this greater volume of cases has created a backlog of appeals in the Supreme Court. This has led to longer delays in the Supreme Court, with some cases now taking as much as 30 months to get a hearing …. A delay in determining these appeals can cause uncertainty for individuals, for businesses and for government. It can put unnecessary emotional and financial pressure on litigants. It leaves others unsure about the law, which inhibits their ability to organise and plan their affairs. In short, delays create confusion and costs and are bad for business. This situation poses serious problems for the Irish legal system and for Irish society as a whole.”
53. The Report recorded the average delays in obtaining a hearing before the Supreme Court as follows: 2003 (4 months), 2004 (10 months), 2005 (14 months), 2006 (22 months), 2007 (26 months) and 2008 (30 months).
54. Chapter 4 of the Report is entitled “Time-limits and International Obligations” and noted that Ireland had been found in breach of Article 6 of the Convention (McMullen v. Ireland, no. 42297/98, 29 July 2004; Doran v. Ireland, no. 50389/99, ECHR 2003‑X (extracts); O’Reilly and Others v. Ireland, no. 54725/00, 29 July 2004; and Barry v. Ireland, cited above). It noted that a common feature of those cases was that they involved litigation in which the violations of Article 6 were, in large part, attributed to delays occurring as a result of a shortage of judges, relative to the caseload of the courts. This underlined the fact that any logistical difficulties encountered by the courts might result in a breach of Ireland’s obligations under the ECHR.
55. As to Ireland’s efforts to comply with its Convention obligations, the Report continued:
“The increase in judicial appointments to the High Court has alleviated these difficulties at that level. As this chapter has already noted, however, the fact that the two-division Supreme Court is obliged to deal with all Superior Court civil appeals means that there is a significant risk of delays of the sort impugned in McMullen, Doran, O’Reilly and Barry occurring at appellate level.
…
The European Court of Human Rights has identified delays caused by the courts themselves (as a result of logistical pressures) as the key factors offending the requirements of Article 6 in each case. Violations have been found, as in [Price and Lowe v. the United Kingdom, nos. 43185/98 and 43186/98, 29 July 2003], where the courts themselves were held to have acted reasonably in respect of the relevant proceedings. The State is obliged to organise its system to avoid the risk of parties unduly delaying their proceedings. It must also therefore be required to ensure that the structure of the legal system itself does not generate undue delays. The institutional bottleneck at Supreme Court level has just such an effect on our system.”
D. Prohibition orders on grounds of delay
56. In the case of Ivor Sweetman v. the DPP, the Minister for Justice, Equality and Law Reform and the Attorney General ([2005] IEHC 435), the High Court granted a prohibition order to stop a prosecution concerning events which took place in 1966. In so finding, the High Court commented:
“Despite the absence of any explanation for the delays already enumerated it is clear that some part at least of this delay was caused by the overwhelming pressure on the, then, inadequate facilities of the legal system. The government had an obligation to “organise [its] legal system so as to enable the courts to comply [with the requirements of Article 6 § 1] …
… significant improvements have been made in court waiting times through better management and facilities and the systemic delays of that period are now, thankfully, a thing of the past.”
57. On an application for leave to apply for judicial review, the High Court (an on appeal, the Supreme Court) can prohibit a prosecution on the basis of delay considered to constitute a real and serious risk of an unfair trial. This does not exclude the inherent and constitutional duty of the trial court to ensure that there was a fair trial and to stop a trial if matters arose which rendered it unfair (DPP v. O’C [2006] IESC 54).
58. A trial can also be prohibited on the basis of a breach of the right of an accused to trial with “reasonable expedition” (State (Healy) v Donoghue [1976] I.R, Gannon J.).
59. In P.M. v. Malone (cited above) Keane C.J. reviewed recent Irish cases on the subject. He found that “in determining whether the concern and anxiety caused to an accused person is such as to justify the prohibition of his trial on the ground that his constitutional right to a reasonably expeditious trial has been violated, the court, depending entirely on the circumstances of the particular case, may be entitled to take into account, not merely delay subsequent to his being charged and brought to trial, but also delay prior to the formal charge.” He went on to identify as the essential issue being whether, assuming a breach of the constitutional right to a reasonably expeditious trial, the prohibition of the trial was justified. He answered that question as follows:
“Where, as here, the violation of the right has not jeopardised the right to a fair trial, but has caused unnecessary stress and anxiety to the applicant, the court must engage in a balancing process. On one side of the scales, there is the right of the accused to be protected from stress and anxiety caused by an unnecessary and inordinate delay. On the other side, there is the public interest in the prosecution and conviction of those guilty of criminal offences. In all such cases, the court will necessarily be concerned with the nature of the offence and the extent of the delay.”
60. The Supreme Court reiterated that approach in P.M. v DPP (cited above). Kearns J, speaking for a unanimous court, cited the above judgment of Keane C.J. Having done so, he continued:
“I believe that the balancing exercise referred to by Keane C.J in P.M. v. Malone is the appropriate mechanism to be adopted by a court in determining whether blameworthy prosecutorial delay should result in an order of prohibition. It means that an applicant for such relief must put something more into the balance where prosecutorial delay arises to outweigh the public interest in having serious charges proceed to trial. In most cases, pre-trial incarceration will not be an element as an applicant will probably have obtained bail pending his trial. Secondly, while he may assert increased levels of stress and anxiety arising from prosecutorial delay, any balancing exercise will have to take into account the length of such blameworthy delay, because if it is a short delay rather than one of years, the mere fact that some blameworthy delay took place should not of itself justify the prohibition of a trial.”
61. In T.H. v. DPP ([2006] 3 IR 520) the applicant had been charged in 1996 with sexual assault alleged to have occurred in 1995. He was granted leave to seek judicial review as regards a number of issues arising from the prosecution of the case. The High Court dismissed his judicial review proceedings but nevertheless granted a prohibition order on the grounds that the blameworthy delay by the prosecution in conducting the judicial review proceedings had denied the applicant his right to a criminal trial with reasonable expedition. The DPP appealed to the Supreme Court which allowed the appeal finding that, where inordinate delay did not jeopardise the applicant’s right to a fair trial but had caused unnecessary stress and anxiety, the court had to engage in a balancing process between the applicant’s right to be protected from such stress and anxiety and the public interest in the prosecution and conviction of those guilty of criminal offences. Fennelly J., with whom the other judges of the Supreme Court concurred, stated:
“It is important to clear up any misunderstanding concerning the import of such decisions of the Court of Human Rights. The Court does not and did not, in that case, hold that the prosecution had to be stopped. It would be most surprising if a judgment of that Court holding that the prosecuting authorities were “partially or completely responsible” for certain periods of delay had the automatic consequence that a prosecution had to be halted. Such a conclusion would, in any legal system, call for some consideration of the public interest in the prosecution of crime. We know, of course, from other parts of the case-law of the Court that it does recognise the public interest in prosecuting crime (see Kostovski v Netherlands [1989] 12 EHRR; [Doorson] v Netherlands 22 EHRR 330). Thus, the decision of the Court leads to a monetary award. It has no consequence for the pending prosecution.
In brief, the decision in Barry v Ireland adds nothing to the applicant’s claim to have his trial stopped. The applicant has not, at any stage, advanced a claim for damages as part of the relief sought in these proceedings. As in almost all such cases, the principal objective has been to seek to prevent his trial from proceeding.”
62. The later case of J.B. v. DPP ([2006] IESC 66) concerned the accused’s application for an order prohibiting his criminal trial (on numerous charges of sexual assaults on his nieces between 1971 and 1987) on the basis of delay in the institution and prosecution of the charges. He was only partially successful before the High Court and he unsuccessfully appealed to the Supreme Court. Having reviewed the pre-conditions for an order of prohibition and noted that there “may be other remedies”, Judge Denham noted the above-quoted reference of Fennelly J. (in T.H. v. DPP) to Barry v. Ireland and, notably, the sum of money awarded in just satisfaction. Hardiman J. also stated that:
“I do not consider that the arguments advanced on behalf of the defendant and based on the jurisprudence of the European Court of Human Rights, has any relevance in the circumstances of this case. I wish, therefore, to reserve my opinion on the effect of that jurisprudence in a case of this sort until a case arises where this material is of direct relevance.”
63. In Devoy v. DPP ([2008] IESC 13) the accused alleged prosecutorial delay in pursuing firearms and criminal damage charges against him. The High Court (in 2006) granted the prohibition order and the Supreme Court (delivering its judgment in the month following the judgment of the Supreme Court in the present case) allowed the DPP’s appeal.
Kearns J. recalled and summarised the principles governing prosecutorial delay in Irish law (laid down in the above-cited cases of P.M. v. Malone and P.M. v. DPP) as follows:
“(a) Inordinate, blameworthy or unexplained prosecutorial delay may breach an applicant’s constitutional entitlement to a trial with reasonable expedition.
(b) Prosecutorial delay of this nature may be of such a degree that a court will presume prejudice and uphold the right to an expeditious trial by directing prohibition.
(c) Where there is a period of significant blameworthy prosecutorial delay less than that envisaged at (b), and no actual prejudice is demonstrated, the court will engage in a balancing exercise between the community’s entitlement to see crimes prosecuted and the applicant’s right to an expeditious trial, but will not direct prohibition unless one or more of the elements referred to in [the above cited case of P.M. v. Malone and P.M. v. DPP] are demonstrated.
(d) Actual prejudice caused by delay which is such as to preclude a fair trial will always entitle an applicant to prohibition.
…
When applying the test, the court must, however, keep certain considerations in mind. On the one hand, the court must remember that degrees of dilatoriness which may have been acceptable in the past may no longer be tolerated since the European Convention on Human Rights Act 2003 gave effect in this jurisdiction to the provisions of the Convention, including the right under Article 6 to a trial with reasonable expedition. This right must be given real effect.
In the context of prohibition this is not to say that an Irish court must readily or too easily resort to prohibition, whatever about other remedies, when vindicating rights under Article 38.1. Under our jurisprudence, …, prohibition is a remedy to be granted only in exceptional circumstances. The Court does not adopt a punitive or disciplinary role in this context. Further, any court called upon to prohibit a trial must give due weight to the gravity and seriousness of the offence when exercising this jurisdiction. It must analyse the causes for delay with great care, weighing up and balancing the role of both the prosecution and the applicant and their respective contributions to delay. In this context not every delay is significant and not every delay warrants the description of being blameworthy to such a degree as to trigger an enquiry by the court under P.M. v. DPP or Barker v. Wingo. In my view an applicant should ordinarily adduce and place before the court some evidence of what is the norm in terms of time taken for the particular proceedings or the identified process or processes within it which are the subject matter of complaint. This is information which is readily available from the Courts Service with regard to various forms of proceedings.”
Denham J began her judgment noting that the case, raising issues of delay in prosecuting criminal offences, was one of a number of cases which had been decided in the High Court (2006) at a time when the jurisprudence was being clarified by the Supreme Court. Finding that the High Court had not applied the correct test as regards prosecutorial delay, Denham J referred to the restatement of the law in P.M. v. DPP (cited above):
“This test requires that in circumstances where there was blameworthy prosecutorial delay, a further step is required to be taken by the Court, this step was not taken by the High Court. To prohibit a trial, in addition to the finding of blameworthy prosecutorial delay one or more of the interests protected by the right to an expeditious trial must be shown to have been so interfered with as to entitle the applicant to relief. The bar of the test is high because this is a very significant relief – an order prohibiting the public prosecutor from prosecuting an accused.
In this case the second step required by the test was not taken. Indeed the learned trial judge stated that the applicant did not complain of any specific prejudice, and that he did not complain that his right to a fair trial had been impaired by the delay.”
E. Judicial Immunity
64. In Kemmy v. Ireland and the Attorney General ([2009] IEHC 178) the Court of Criminal Appeal set aside the applicant’s conviction for rape and sexual assault on the grounds that the manner in which his trial had been conducted rendered his trial unfair. A retrial was not ordered. However, by that date the accused had served his sentence and had been released. Not being entitled to damages under section 9 of the Criminal Procedure Act 1993 (his conviction was not quashed on the grounds of a miscarriage of justice), he took proceedings against the State claiming essentially damages for a breach of his constitutional right to a fair trial. In dismissing the application, the High Court found that the State could not be vicariously liable for errors which a judge may commit in the administration of justice nor could a plaintiff sue the State on other grounds as regards the failure by the trial judge to ensure a fair trial. In addition, the High Court opined that, in any event, the immunity conferred by law on the judiciary also applied for the benefit of the State when an attempt was made to render the State liable for the wrongs of a judge. The High Court stated:
“I am of the view that many of the reasons which support personal judicial immunity – the promotion of judicial independence, the desirability of finality in litigation, the existence of an appeal and other remedies as well as the public interest – can also support the argument for State immunity in cases such as those before this Court. Indeed it is my view that not to extend the immunity to the State in the present circumstances would represent an indirect and collateral assault on judicial immunity itself.
To make the State liable in such a situation would indirectly inhibit the judge in the exercise of his judicial functions and this, in turn, would undermine his independence as guaranteed by the Constitution. It would introduce an unrelated and collateral consideration into the judge’s thinking which could prevent him from determining the issue in a free unfettered manner. It might, for example, encourage the other organs of government to monitor the conduct of the judges in this regard, thereby resulting in “a chilling effect”.
The fundamental reason for supporting this conclusion, however, is that when the judge is exercising judicial authority he is acting in an independent manner and not only is he not a servant of the State in these circumstances, he is not even acting on behalf of the State. He is not doing the State’s business. He is acting at the behest of the people and his mission is to administer justice. …
… The plaintiff’s case might be advanced to another stage by arguing that the above line of reasoning, which recognises personal immunity for judges and State immunity for the majority of wrongs committed by judges in the administration of justice, does not apply when the constitutional rights of the individual are at stake. I cannot agree. If one were to accept that line of argument one would have to acknowledge that the immunity given to judges personally would also have to yield in such situations. …
In my view, the acceptance of personal immunity for the Judiciary must logically extend to the State when sued directly for judicial error even when a fundamental right is asserted. That this immunity is not specially recognised in the Constitution, is no impediment, since the State immunity in these circumstances is a corollary of the personal immunity conferred on the judges and the State immunity can be inferred from the personal immunity long since recognised by our courts, though not explicitly acknowledged in the Constitution.”
F. Legal Aid
1. The Attorney General’s Scheme
65. This Scheme provides payment for legal representation in cases not covered by the civil or criminal legal aid schemes. It is an ex gratia scheme set up with funds made available by Parliament. Special rules apply which are contained in the Scheme itself including, the following.
66. The Scheme applies to the following forms of litigation: (a) habeas corpus applications; (b) bail motions; (c) such judicial review application as consist of or include certiorari, mandamus or prohibition and are concerned with criminal matters or matters where the liberty of the applicant is at issue; and (d) applications under section 50 of the Extradition Act 1965, extradition applications and European Arrest Warrant applications.
67. The purpose of the Scheme is to provide legal representation for persons who need it but cannot afford it. It is not an alternative to costs. Accordingly, a person wishing to obtain from the court a non-binding recommendation to the Attorney General that the Scheme be applied must make his or her application, personally or through his or her lawyer, at the commencement of the proceedings and must obtain the recommendation at the commencement of the proceedings.
68. The applicant must satisfy the court that he or she does not have the means to pay for legal representation and that the case warrants the assignment of legal representation.
2. Civil Legal Aid
69. The Legal Aid Board provides legal advice and legal aid for non-criminal matters to those who satisfy the requirements of the Civil Legal Aid Act 1995. In order to obtain legal aid, a person must have limited means and merit to their case and their case must not be one of the categories excluded by section 28(9) of the 1995 Act. None of the categories listed excludes an action for damages for breach of the constitutional right to reasonable expedition.
III THE EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (“THE VENICE COMMISSION”)
70. During the preparation of its “Report on the Effectiveness of National Remedies in respect of Excessive Length of Proceedings”[1], the Venice Commission provided a questionnaire to Contracting States. The questions as well as the responses of the Irish Government, in so far as relevant, are set out below[2]:
“4. Is any statistical data available about the extent of this problem in your country? If so, please provide it in English or French.
The Courts Service is responsible for the management of courts. Average waiting times in each court for 2005 are as set out below. Provision is made to accord early hearing dates to urgent and emergency matters. The average times are as follows:
Supreme Court 14 months from lodgement of a certificate of readiness to hearing date (earlier hearing dates are allocated by the court for urgent cases).
…
Judicial Review (excluding asylum) 15 months (cases taking less than 2 hours will be dealt with sooner). …”
“5. Does a remedy in respect of excessive delays in the proceedings exist in your country? If so, please describe it (who can lodge the complaint, before which authority, according to what – ordinary/special – procedure, within what deadline etc.). Please provide the texts of the relevant legal bases in English or French.
Criminal
In the criminal context an accused can take Judicial Review proceedings seeking an order for prohibition against the prosecution on the ground of delay. This application is to be made before the High Court by an accused and must be made ‘promptly’ [Connolly v DPP 15th March 2003, HC, Finlay Geoghegan J.]. The Court has an inherent jurisdiction to prohibit a prosecution where there is unreasonable delay.
Civil
In the civil context defendants may seek an order for dismissal for want of prosecution in circumstances where there has been delay on the part of the Plaintiff. This application is made to the courts.
In O’Donoghue v Legal Aid Board [21st December 2004, High Court, Kelly J.] the High Court held that the applicant in family proceedings could obtain a declaration of breach of rights under Article 40.1.3 and be awarded damages for delay in the State providing her with legal aid. This case was not appealed to the Supreme Court.
Under the [2003 Act] an applicant may apply to the High Court for damages if an organ of State has not fulfilled its obligations under the Convention. Under that legislation the courts are excluded from the definition of organ of State but delay by the DPP or other State agents or agencies might give rise to this remedy.
Under the [2002 Act] section 46, if judgment has not been delivered within a prescribed period the Courts Service will list the matter before the relevant judge and at that time the Judge must fix a date by which time judgment will be delivered.
According to a procedure initiated in 1996 any litigant who has a complaint in relation to delay must address it formally to the President of the High Court. However, the [ECHR] in [O’Reilly and Others v. Ireland, no. 54725/00, 29 July 2004] found that this did not constitute an adequate remedy.
The Courts themselves employ a system of case management and judges seized of a case will set deadlines by which time the parties are required to have submitted or served documents. Legislation, including the Statute of Limitations 1957, stipulates the period in which applicants must take proceedings, before they become ‘statute barred’.”
“7. Is there a cost (ex. fixed fee ) for the use of this remedy?
Generally, costs follow the event of the trial i.e. they are awarded to the winning party. However, awards may be made to a particular party in relation to specific interlocutory proceedings.”
“10. What are the available forms of redress:
– acknowledgement of the violation YES
– pecuniary compensation
o material damage YES
o non-material damage YES
– measures to speed up the proceedings, if they are
still pending YES
– possible reduction of sentence in criminal cases NO
– other (specify what)
In criminal proceedings if Article 38.1 is held to have been breached because of delay, an order of prohibition will be granted directing that the prosecution be restrained. Similarly, in a civil action if a Defendant successfully argues that Article 40.1.3 has been violated by reason of delay the claim will be dismissed for want of prosecution. In a judgment in the High Court a Plaintiff in a civil matter complain successfully about delay and declaration of breach of rights and damages were awarded. In the case of PP v DPP [2000] 1 IR 403] it was held that, although a breach of constitutional rights in the context of criminal proceedings had not been made out, any further delay would not be tolerated and the courts should not permit it to occur.
In criminal proceedings if an accused has been in custody pending trial, the period spent in custody will be set off against a sentence imposed.
11. Are these forms of redress cumulative or alternative?
Generally, proceedings will be restrained where unacceptable delay has been shown to exist. A declaration of breach of rights has been accompanied by an award of damages in a civil case.
12. If pecuniary compensation is available, according to what criteria? Are these criteria the same as, or linked with, those applied by the European Court of Human Rights? Is there a maximum amount of compensation to be awarded?
In O’Donoghue v Legal Aid Board damages were calculated with regard to the loss suffered by the applicant …and stress and upset caused.
13. If measures can be taken to speed up the proceedings in question, is there a link between these measures and the general case-management of the relevant courts? Is the taking of these measures co-ordinated at a central or higher level? On the basis of what criteria and what factual information concerning the court in question (workload, number of judges, nature of cases pending, specific problems etc.) does the competent authority order such measures?
No”
“18. Is there any statistical data available on the use of this remedy? If so, please provide them in English/French.
Not applicable.
19. What is the general assessment of this remedy?
Not applicable
20. Has this remedy had an impact on the number of cases possibly pending before the European Court of Human Rights? Please provide any available statistics in this connection.
Not applicable
21. Has this remedy been assessed by the European Court of Human Rights in respect of Articles 13 or 35 ECHR? If so, please provide reference to the relevant case-law.
The remedy available before this development was considered by the European Court of Human Rights in the cases of [Barry v Ireland, cited above, Doran v. Ireland, no. 50389/99, ECHR 2003‑X (extracts); O’Reilly v. Ireland, cited above; and McMullen v. Ireland, no. 42297/98, 29 July 2004]. In each of these decisions Ireland was found to be in breach of the Convention for failure to provide an adequate remedy for delay.”
THE LAW
I. ADMISSIBILITY OF THE COMPLAINTS
71. The applicant complained under Article 6 § 1 that the criminal proceedings against him exceeded the reasonable time requirement of Article 6 § 1 and under Article 13 about the lack of an effective domestic remedy in that respect. He also made separate complaints under Article 6 § 3(d) and Article 8 of the Convention.
A. Article 6 § 1 (reasonable time) alone and in conjunction with Article 13 of the Convention
72. Articles 6 and 13, in so far as relevant, read as follows:
6(1). “In the determination of … any criminal charge against him, everyone is entitled to a … hearing within a reasonable time by [a] … tribunal…”
13. “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
73. The parties disputed whether there was an effective remedy to be exhausted and thus the admissibility of the complaints under Articles 6 and 13 of the Convention. The Government’s principal submission was that an action for damages for breach of the constitutional right to reasonable expedition should have been attempted by the applicant and that the finding in the Barry judgment, that this remedy was not effective, was incorrect. The applicant argued that that remedy was not effective, relying on the Court’s finding to that effect in the Barry judgment. The Court notes, at this point, that the Supreme Court considered that the rather formulaic request by the applicant in the second prohibition action, for “such further and/or other relief” as the court deemed just, did not amount to a request for damages in addition to the other relief sought. Finally, the parties agreed that a six-year limitation period ran from the last period of relevant delay so that this remedy was not statute barred.
74. The Court recalls that this Court found, in December 2005 in its Barry judgment, that the proposed constitutional action for damages for breach of the right to reasonable expedition was not an effective remedy within the meaning of Article 13 of the Convention. The Government did not request the referral of that case to the Grand Chamber (Rule 73 of the Rules of Court). While the Government now dispute the correctness of that conclusion in the Barry judgment, it has nevertheless been this Court’s position, from before the applicant’s introduction of the present case to date, that the constitutional remedy it is proposed the applicant should have exhausted was not an effective one.
75. In so far as the Government suggested that there had been substantial domestic developments since the Barry judgment which meant that the applicant should have, despite that judgment, attempted the constitutional action for damages, the Court considers this question is closely linked with and should be joined to the merits of the related complaint under Article 13 of the Convention. The Court would similarly join to the merits of the Article 13 complaint the effectiveness of the other remedies relied on by the Government. Furthermore, these issues raise questions of law which are sufficiently serious that their determination should depend on an examination of their merits.
76. No other ground for declaring these complaints inadmissible having been established, the Court therefore declares these complaints admissible.
B. Article 6 § 3(d) of the Convention
77. The applicant also complained under Article 6 § 3(d) about certain matters which he maintained rendered the proceedings unfair. He raised, in particular, the loss of the original fingerprint evidence and the lack of evidence against him other than the police interviews, about which interviews he had various complaints and allegations.
78. The Court notes that the criminal charges against the applicant have been dismissed so that he could no longer claim to be a victim of a violation of the right to fair proceedings. These complaints are, as such, inadmissible pursuant to Articles 34 and 35 of the Convention.
C. Article 8 of the Convention
79. Finally, the applicant complained that his arrest and subsequent pre-trial detention amounted to a deliberate and disproportionate interference with his private and family life as protected by Article 8 of the Convention.
80. The Court notes that the applicant was released on bail in or around January 1998 and he does not submit that he was otherwise in pre-trial detention as a result of the proceedings the subject of this application.
81. His complaints about that arrest and pre-trial detention are, even assuming he had no effective remedy to exhaust, inadmissible as out of time within the meaning of Article 35 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
82. The applicant complained under Article 13 that he had no adequate compensatory remedy for the breach of his right to a trial within a reasonable period of time.
A. The Government’s submissions
83. The Government argued that there were four effective domestic remedies available to the applicant.
84. In the first place, they mainly submitted that he could have taken an action for damages for a breach of his constitutional right to reasonable expedition (separate from, or as an alternative claim within, his prohibition actions) and that the conclusion in the Barry judgment, which found this remedy to be ineffective, was erroneous. Recalling that it was not necessary to demonstrate a certainty of success for a remedy to be considered effective, they mainly relied on a detailed Opinion from an experienced Irish constitutional lawyer and practitioner dated May 2008 to demonstrate the effectiveness of the remedy.
85. The Opinion stated that the constitutional right to trial with reasonable expedition was a recognised part of the right to trial in due course of law guaranteed by Article 38(1) of the Irish Constitution[3]. While certain criminal prosecutions had been stayed on the basis of this constitutional right, damages did not appear to have been previously sought or granted for a breach of that right. Indeed, “reasonable expedition” was the most litigated area of constitutional law in the late 1990s, the cases often concerning late allegations of sexual assault. Virtually every such case concerned an application for a prohibition of prosecution and apparently no claim for damages for a breach of the right to reasonable expedition was referred to in any judgment. However, this was probably explained by the fact that the threshold for granting leave to seek a prohibition order on judicial review was low (an arguable case) and generally a stay on the criminal proceedings would be accorded pending a final decision on prohibition. An accused was clearly more interested in stopping a prosecution than in damages[4] and/or did not wish to jeopardise a request for a prohibition order with an alternative claim for damages.
However, it was “highly probable” (the Opinion also assessed this as “almost certain”) that an accused could sue successfully for damages for such a breach and this was despite the comment of Kearns J., in the Supreme Court in the second prohibition action, that any such entitlement would require careful consideration by the Supreme Court. To support this view, the Opinion relied on “relatively developed jurisprudence” (notably the generally applicable Meskill doctrine) which established the principle of compensation for a breach of a constitutional right and the right to seek damages for such a breach when no other effective or sufficient remedy existed[5]. The Opinion went on to refer in detail to cases where damages had been awarded for a breach of different constitutional rights[6]. This principle was borne out by the case of O’Donoghue v. Legal Aid Board[7], the closest parallel found to the present case: a delay in granting a legal aid certificate for 25 months when the plaintiff manifestly qualified for it was found to amount to a breach of the plaintiff’s constitutional right of access to court and to fair procedures so that she had a right to recover damages for demonstrated loss.
The Opinion underlined the substantive difference, noted by the High and Supreme Courts in the present case[8], between the prohibition of a trial, which required the balancing of the right to reasonable expedition and fairness against a public interest in prosecuting crime, and the less complex issues before this Court under the “reasonable time” aspect of Article 6 § 1 which involved an award of damages for culpable delay. The Opinion stated that the courts would apply the principles governing awards of pecuniary and non-pecuniary damages in tort to an award of damages. In McDonnell v. Ireland href=”#_ftn9″ name=”_ftnref9″ title=””>[9] the Supreme Court treated, for the purposes of the Statute of Limitations, an action for a breach of constitutional rights in the same way as an action in tort. Accordingly, much of the adjectival law governing tort actions applied to constitutional actions for damages. While there was some authority to the effect that a breach of a constitutional right could be actionable per se, without proof of loss[10], in the majority of cases the courts would compensate as in a tort action on the basis of demonstrated pecuniary and non-pecuniary loss. Exceptionally, awards of punitive or exemplary damages might be made[11].
86. Accordingly, the Government argued that, while no one had ever requested damages for a breach of a right to reasonable expedition, the Opinion demonstrated that there was no doubt that such a remedy existed. While hitherto accused persons sought to prevent their trials through prohibition actions, they could have, but did not, seek damages either in separate proceedings or as alternative relief in the prohibition actions. The applicant did not explain why he did not make an alternative claim for damages in his prohibition actions and it was absurd in an adversarial system to suggest that the State (via its courts or the prosecution) should have taken the initiative to offer damages for delay which was excessive but did not warrant prohibition. The fact that no accused had ever sought such a remedy was not dispositive of the matter and did not mean that it did not exist or that there was any legal bar to it.
87. On the contrary, the Opinion demonstrated, in a more detailed manner than in the Barry case, that the Constitution and its remedies were flexible and adaptable, that where there was a constitutional right there was a remedy and that the domestic courts had no hesitation in granting, and no difficulty in calculating, damages for a breach of a constitutional right notwithstanding that damages had never been calculated or awarded for a similar breach. As well as the Opinion outlined above, the Supreme Court indicated in the applicant’s second prohibition action that the question of an action for damages for breach of the right to trial with reasonable expedition was an open one to be examined when raised (Fennelly J. and Kearns J., paragraphs 38 and 41 above). There was therefore sufficient evidence of a remedy in the present case to allow the Court to adopt its approach in D v. Ireland ((dec.), no. 26499/02, 27 June 2006) where, despite there being no statutory or case-law precedent, the Court acknowledged that it was important that the domestic courts (especially in a common law constitutional system) should be afforded the opportunity to test the extent of domestic protection, thereby allowing domestic courts to develop legal and constitutional remedies.
88. In failing to exhaust this remedy and then coming to this Court to suggest that no effective remedy existed, the applicant sought to subvert the principle of subsidiarity and to invert the relationship between national courts and this Court. Three unacceptable risks flowed therefrom. In the first place, it was not for the Court to act as an appellate court in resolving unsettled matters of national law including questions of whether an applicant could seek either or both remedies (prohibition and damages). Secondly, it was not for the Court to resolve disputed issues of fact, including allegations of mala fides as to the date of the applicant’s arrest. Thirdly, this confused the issue of where the primary function lay for the protection of fundamental rights: the Government questioned whether the Court had the competence to review the substance of the domestic courts’ careful assessments of the delays in the present case. In their oral submissions, the Government argued that the Supreme Court had considered and rejected the applicant’s claims that his trial breached his constitutional right to reasonable expedition and, further, the Supreme Court considered that that constitutional right and reasonable time requirement of Article 6 were co-extensive. The Irish courts had already considered the delay complaint and rejected it and, in the absence of any manifest inadequacy in that assessment, this Court should not interfere with it.
89. The Government noted that, while the applicant accepted that there was a right to damages for a breach of this constitutional right, he had asserted, without more, that the Opinion was erroneous and simply suggested that it was unreal to expect a litigant in his situation to make an alternative plea in damages. However, that alternative plea would have entailed no separate proceedings, no extra cost and no additional factual considerations. The applicant was simply asking the Court to speculate.
90. They also underlined that the reference in the Barry judgment (paragraph 55 of that judgment) to a statement of the Supreme Court in that case was misconstrued. That statement was made in the context of a prohibition application, which was substantively different from the “reasonable length” issue before this Court under Article 6 § 1, so that the Supreme Court statement should not be relied upon as evidence against the availability of an effective domestic remedy for damages.
91. The Government accepted in their written and oral submissions to the Grand Chamber that it was “likely” that the proposed action in damages could not be invoked as regards delay “caused by an individual judge in failing to deliver judgment within a reasonable time”, given the important principle of judicial immunity which protected the independence of the judiciary. The principle of judicial immunity was recognised by the common law (inter alia, Sirros v. Moore [1975] QB 118; Deighan v. Ireland [1995] 2 IR 56; Devoy v. DPP and Kemmy v. Ireland and Another, both cited above). Judicial independence was protected by the Constitution, the Convention and the Court’s jurisprudence (Ernst and Others v. Belgium, no. 33400/96, 15 July 2003). The Court should not therefore base a violation of Article 13 on the observance by the State of this recognised principle of judicial immunity. The damages remedy proposed could still be effective with this limited exception. However, in their oral submissions the Government suggested that the applicant should have tested, in the proposed action for damages, the nature, extent and application of the principle of judicial immunity, without which it was not apparent what immunities (of the police, prosecutors or judges) would stand against a claim for damages for delay. The Government rejected the applicant’s reliance on the case of L.L.M. (Plaintiff) and the Commissioner of An Garda Siochana, the Minister for Justice, Equality and Law Reform, the DPP, Ireland and the Attorney General: that case was ongoing and did not concern immunities but rather the question of whether a State owed to a victim of crime a legal obligation in connection with the prosecution of a criminal trial, an issue which raised profound issues as to the relationship between the presumption of innocence of a person acquitted and the right of a victim to a trial.
92. The Government added that States had a margin of appreciation to choose an effective remedy for vindication of the right to trial with reasonable expedition and a remedy could be effective if it provided for ex post facto damages. A successful litigant could claim costs on the basis of the normal rule of “costs following the event”.
93. As to the average length of time for such a constitutional remedy, the Government referred to 6-12 months for the High Court proceedings (assuming there was no delay by the parties and that judges met deadlines). Before the Supreme Court on appeal, a party could apply for priority to the Chief Justice, priority was routinely granted in cases concerning pending criminal trials and, if granted, the appeal could be finalised within weeks/months. If priority was not granted, 34 months was the average time for completion of an appeal before the Supreme Court.
94. Secondly, if the constitutional action were unsuccessful, the applicant would have had an entitlement to claim damages under the 2003 Act and he could have done so, as an alternative argument, during his second prohibition action. The Convention had been incorporated into domestic law by that Act and section 3 of the 2003 Act allowed an individual to take an action for damages as from 31 December 2003, the 2003 Act not being retroactive, as regards a violation of Convention rights by organs of the State.
95. Thirdly the Government maintained that an application for an early hearing date also constituted an effective remedy.
96. Fourthly, they pointed to an application for prohibition as a further effective remedy for an accused in criminal proceedings in circumstances where the delay had caused such prejudice as to create a real risk of an unfair trial. The courts would reserve this remedy for cases of significant delay and with a genuine risk of such prejudice.
B. The applicant’s submissions
97. The applicant maintained that there was no effective compensatory domestic remedy for unreasonable length of criminal proceedings, relying on the conclusion to that effect in the Barry judgment.
98. An accused would be motivated to pursue prohibition orders since, even if a conviction were overturned on appeal outside the narrow confines of a finding of a miscarriage of justice, he would not be compensated for intervening bail conditions or detention. The primary concern of the applicant was to have the prosecution stopped and it was unreal to suggest that he would abandon the prohibition option in favour of an expedited trial based on tainted or insufficient evidence. Even if he could have made a claim for damages as an alternative claim in the prohibition proceedings, it was unreal to suggest that he would have been legally advised to pursue a theoretical damages action.
99. In any event, this did not change the fact that the State had not discharged the onus on them to demonstrate that the constitutional action for damages was an effective one sufficiently certain and normally available both in theory and in practice and with reasonable prospects of success, despite the flexibility of the Irish common law constitutional system.
100. There was no precedent at all for such action. He accepted that there was a constitutional right to reasonable expedition and damages were awarded for a breach of certain constitutional rights but in the years since the Byrne v. Ireland and Meskill v. CIE cases (cited above), no one had ever been awarded damages in his situation. In the many recent domestic prohibition actions, damages had never been suggested as an alternative remedy. To the applicant’s knowledge, the State had never pleaded, in the alternative in prohibition proceedings, that damages were available for prejudicial delay not warranting a prohibition order or that damages would be a lesser alternative to prohibition in cases where there was prejudice or special hardship. Moreover, he had made an alternative claim before the Supreme Court in his second prohibition action (“for any further or other relief as to this Honourable Court deems … just”). However, the first declaration was not responded to by the Supreme Court and his claims of delay in violation of the constitutional and Convention right were rejected. Accordingly, despite the fact that delay was a major issue before the Irish courts and despite the “no right without remedy” concept espoused in the Opinion, no initiatives were taken and no official response was offered, by the DPP or the courts, of the nature now canvassed by the State. Indeed, the Senior Counsel who drafted the Opinion had never canvassed the idea of a damages remedy on behalf of a client even in one of his most recent relevant cases (Sparrow ν Minister for Agriculture, Fisheries and Food & Another ([2010] IESC 6). The Opinion was not supported by the practitioners involved in the relevant field.
101. Moreover, on the facts of his case, such a constitutional action for damages would not have succeeded since the domestic courts, in his prohibition actions, had twice refused to find a breach of his right to trial with reasonable expedition (Article 38(1) of the Constitution) or within a reasonable period of time (Article 6 of the Convention) quite apart from the question of any potential unfairness.
102. Furthermore, there were many relevant legal principles which remained unsettled, notably the extent to which various elements of the State apparatus (police, prosecutors and judges) enjoyed legal immunity from suit for damages arising from the discharge of their official functions. The Opinion did not cover this issue. The recent case of Kemmy v. Ireland (cited above) confirmed that the principle of judicial immunity would exclude an action for damages as regards judicial delay: any action for damages could neither take into account the above-noted delay by a judge for 17 months in finalising his judgment nor other forms of judicial delay. Moreover, in the L.L.M. case (cited above), the plaintiff was an alleged victim of an accused who obtained a prohibition order given the delay in prosecuting the matter and she sought damages against the defendants. Immunity from suit was invoked by respondents. This issue would be tried as a preliminary issue but it might be that the immunity from suit would be held to extend to the DPP and the police.
103. As to the average length of any such constitutional action, without priority being accorded, the applicant argued that proceedings involving the State took longer due to a culture of non-proactivity. He also maintained that the average time for judicial review proceedings before the High Court was 2 years and in the region of 32 months before the Supreme Court (referring to the Report of the Working Group on a Court of Appeal). Moreover, the pressure (particularly on the criminal courts) was such that it was not feasible to suggest that priority could be accorded to a case such as his. Indeed, the Government did not suggest that the duration of his prohibition actions was comparatively excessive: while the Government relied on the above-cited Sweetman case, the courts acknowledged therein unacceptable delays which led to prohibition orders.
104. The applicant underlined that he had limited means (he obtained legal aid for his criminal proceedings). He would not have been eligible for any legal aid or financial assistance for the proposed constitutional action. The Attorney General’s scheme was applicable to judicial review for prohibition but it excluded actions for damages. Moreover, he would risk a substantial costs’ order against him in the event of losing any such action. Even if one could make the damages claim in the prohibition proceedings, any such test claim would be resisted by the State so his costs exposure would remain high. No lawyer would advise his client to take such risks.
105. Accordingly, the applicant considered that the State relied too heavily on the flexibility of the Irish common law constitutional system: equating the flexibility of the system with the obligation to exhaust effective remedies would mean that a violation of Article 13 could never be established as the State could simply invoke a hitherto undiscovered remedy. The applicant therefore argued that the weight of the above-described legal opinion and practice, as well as settled judicial precedent, constituted practical and real evidence of the absence of a remedy in damages and outweighed the theoretical and untested remedy outlined in the Opinion. Accordingly, the applicant argued that there was no effective constitutional remedy in damages available in Ireland for unreasonably long criminal proceedings.
106. As to the 2003 Act, that legislation incorporated the Convention at a lower level than the Constitution. Any remedy under the Act would concern only delay after the coming into force of the Act on 31 December 2003 as the Act was not retroactive. Any proceedings under the Act could not concern delay attributable to the courts since the courts were excluded from the Act’s definition of organs of the State. As to applications to strike out for delay/delay causing prejudice/want of prosecution, he maintained that these had no application to the criminal proceedings against him.
C. The Court’s assessment
1. Relevant principles as regards Articles 13 and 35 § 1
107. The Court reiterates that under Article 35 § 1 it may only deal with a matter after all domestic remedies have been exhausted. Applicants must have provided the domestic courts with the opportunity, in principle intended to be afforded to Contracting States, of preventing or putting right the violations alleged against them. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in the domestic system in respect of the alleged breach. The only remedies which Article 35 § 1 requires to be exhausted are those that relate to the breach alleged and are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness: it falls to the respondent State to establish that these conditions are satisfied (see, among many other authorities, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002‑VIII; and, more recently, Leandro Da Silva v. Luxembourg, no. 30273/07, §§ 40 and 42, 11 February 2010).
108. Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000‑XI).
The scope of a Contracting Party’s obligations under Article 13 varies depending on the nature of the complaint. However, the remedy required by Article 13 must be “effective” in practice as well as in law (for example, İlhan v. Turkey [GC], no. 22277/93, § 97, ECHR 2000-VII). The term “effective” means that the remedy must be adequate and accessible (Paulino Tomás v. Portugal (dec.), no. 58698/00, ECHR 2003-VII).
An effective remedy for delay in criminal proceedings must, inter alia, operate without excessive delay and provide an adequate level of compensation (Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 195 and 204-207, ECHR 2006‑V; and Martins Castro and Alves Correia de Castro v. Portugal, no. 33729/06, 10 June 2008). Article 13 also allows a State to choose between a remedy which can expedite pending proceedings or an post facto remedy in damages for delay that has already occurred. While the former is preferred as it is preventative of delay, a compensatory remedy may be regarded as effective when the proceedings have already been excessively long and a preventative remedy did not exist (Kudła v. Poland [GC], cited above, § 158; Mifsud v. France, cited above, and Scordino v. Italy (no. 1), [GC], cited above, § 187).
2. Application to the present case
109. In the present case, the Government submitted that there were four effective domestic remedies for delay in criminal proceedings. They mainly argued that this Court’s judgment in Barry v. Ireland was incorrect in concluding that an action for damages for a breach of the constitutional right to reasonable expedition did not constitute an effective domestic remedy for delay in criminal proceedings.
(a) Preliminary remarks
110. In the first place, the Court accepts that the extract of the judgment of the Supreme Court in the Barry case (referred to in this Court’s judgment in that case at §§ 53 and 55) is not directly relevant to the assessment of the effectiveness of any constitutional action for damages for delay in criminal proceedings: the Supreme Court was ruling in the context of a prohibition action (where any unfairness/unreasonable expedition must be balanced against the public interest in pursuing a prosecution) which would be substantively different from any action for damages only for culpable delay, a difference underlined by the Government (paragraphs 85 and 90), in previous domestic case law (paragraphs 59-61 and 63) and by the Supreme Court in the second prohibition action (paragraphs 38 and 41 above).
111. Secondly, the Government argued in some detail that, by assessing a remedy which remained untested in a common law constitutional system, the Court would be assessing matters of fact and law and going beyond its subsidiary role in the Convention system.
112. The Court agrees that, by virtue of Article 1 of the Convention, the primary responsibility for implementing and enforcing Convention rights and freedoms is on the national authorities so that the machinery of complaint to the Court is indeed subsidiary to the human rights safeguards of the national systems.
However, Articles 13 and 35 § 1, which have a close affinity with each other, give direct expression to the subsidiary character of the Court’s work (see Kudła v. Poland [GC], cited above, § 152; Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, § 63, ECHR 2009‑… (extracts)). It follows that less than full application of the guarantees of Article 13 would undermine the operation of the subsidiary character of the Court in the Convention system and, more generally, weaken the effective functioning, on both the national and international level, of the scheme of human rights protection set up by the Convention (Kudła v. Poland [GC], cited above, § 155). Accordingly, less than full supervision of the existence and operation of domestic remedies would undermine and render illusory these guarantees of Article 13 and the Convention is intended to guarantee rights that are practical and effective and not theoretical or illusory (Scordino v. Italy (no. 1) [GC], cited above, § 192). Consequently, and contrary to the Government’s submission, the principle of subsidiarity does not mean renouncing supervision of domestic remedies (Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 45, ECHR 2001‑VIII; and Riccardi Pizzati v. Italy [GC], no. 62361/00, § 82, 29 March 2006).
113. It is also true that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law and to decide on issues of constitutionality (Former King of Greece and Others v. Greece [GC], no. 25701/94, § 82, ECHR 2000‑XII; Wittek v. Germany, no. 37290/97, § 49, ECHR 2002-X; Forrer-Niedenthal v. Germany, no. 47316/99, § 39, 20 February 2003; and Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 86, ECHR 2005‑VI). However, in accordance with the Court’s case-law on the interpretation and application of domestic law, the Court’s duty under Article 19 of the Convention is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention so that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (Scordino v. Italy (no. 1), cited above, at § 190).
114. Accordingly, the question to be determined by the Court in the present case is whether the way in which domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention as interpreted in the light of the Court’s case-law (see Scordino v. Italy (no.1), cited above, § 191; Riccardi Pizzati v. Italy [GC], cited above; and Burdov v. Russia (no. 2), no. 33509/04, § 99, ECHR 2009‑…). In the context of Article 13, the Court’s role is to determine whether, in the light of the parties’ submissions, the proposed remedies constituted effective remedies which were available to the applicant in theory and in practice, that is to say, that they were accessible, capable of providing redress and offered reasonable prospects of success (see, among other authorities, Vernillo v. France, 20 February 1991, § 27, Series A no. 198; Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II; and Apostol v. Georgia, no. 40765/02, § 35, ECHR 2006‑XIV).
(b) Damages for a breach of the constitutional right to trial with reasonable expedition.
115. The principal remedy proposed by the Government was an action for damages for a breach of a constitutional right to reasonable expedition. In particular, they argued, relying on the Opinion in support, that there was an unenumerated right to reasonable expedition in criminal proceedings (Article 38(1) of the Irish Constitution), that there was a right to sue for damages for a breach of that constitutional right and that the law of tort would apply to, inter alia, the calculation of any damages awarded. The Opinion (summarised at paragraph 85 above) constitutes a substantial document of some complexity drafted by an experienced practitioner and constitutional lawyer.
116. However, the Court has identified a number of matters which would cast some doubt on the effectiveness of this proposed remedy.
117. In the first place, there is, in the Court’s view, significant uncertainty as to the availability of the proposed constitutional remedy.
According to the Opinion, the constitutional right to a trial with reasonable expedition was recognised as early as 1986 (State (O’Connell) v. Fawsitt, cited above) and the right to damages for breach of a constitutional right was founded on the cases of State (Quinn) v. Ryan and Meskill v. CIE, the latter being decided in 1973. It is undisputed that no accused has ever requested damages for a breach of the constitutional right to reasonable expedition in criminal proceedings, either in a separate action or as alternative relief to a prohibition order. The proposed remedy has therefore been available in theory for almost 25 years but has never been invoked and recent judicial dicta (paragraphs 38, 41 and 62 above) would indicate that the availability of this remedy remains an open question.
The above-described situation is to be distinguished from the time which is accorded by this Court’s jurisprudence to allow a new and specifically adopted remedy for delay to be tested (see the evolution of domestic remedies reflected in Gama da Costa v. Portugal, no. 12659/87, decision of 5 March 1990, Decisions and Reports (DR) 65, p. 136, Paulino Tomás v. Portugal, cited above, and Martins Castro and Alves Correia de Castro v. Portugal, cited above; in Vernillo v. France and Mifsud v. France, both cited above; in Lutz v. France (no. 1), no. 48215/99, 26 March 2002 and Broca and Texier-Micault v. France, nos. 27928/02 and 31694/02, 21 October 2003; and in Berlin v. Luxembourg (dec.), no. 44978/98, 7 May 2002 and Leandro Da Silva v. Luxembourg, cited above. See, more recently, Grzinčič v. Slovenia, no. 26867/02, § 108, ECHR 2007‑V (extracts); and Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII). Moreover, in the recent case of Vinčić and Others v. Serbia (nos. 44698/06, et seq. § 51, 1 December 2009), the constitutional remedy (including a specific constitutional law provision allowing direct access to the Serbian Constitutional Court for human rights complaints) was not considered effective until after the latter court had heard applications and delivered and published judgments on their merits.
118. This uncertainty is also illustrated by the Government’s relatively brief submissions about this constitutional remedy for damages in the above-cited Barry case. It is also demonstrated by the relative complexity of the Opinion required to describe this remedy. The Government’s response to the Venice Commission outlined at paragraph 70 above did not dispel this uncertainty: the Government relied on a prohibition action only as a remedy for delay in criminal proceedings (question No. 5); the remaining other case law, legal provisions and remedies cited in response No. 5 follow the heading “civil” (notably, the case of O’Donoghue v. the Legal Aid Board, the 2002 Act and the 2003 Act); and, while the Government answered positively Question no. 10 as to whether damages were available, their explanations immediately thereafter indicate that such damages concerned delay in civil proceedings only, which conclusion is confirmed by the responses to questions no. 11 and 12.
119. Moreover, two of the judges of the Supreme Court (Fennelly J. and Kearns J.) in the second prohibition action in the present case opined that the right to trial with reasonable expedition (Article 38(1) of the Constitution) and to trial within a reasonable period of time (Article 6 § 1 of the Convention) were indistinguishable. However, they went on to identify only one relevant period of delay (the 17-month delay of the High Court judge in approving the transcript of his judgment) and, further, found that that delay did not breach the right to reasonable expedition, a finding which was made prior to carrying out the balancing exercise inherent in the prohibition action. Geoghegan J. (paragraph 43 above) queried whether the State could be held liable for delay caused by a dearth of judges/budgetary restrictions even if that view might not accord with Convention principles. Having regard to the reasoning of this Court as regards the breach of the reasonable time requirement of Article 6 (notably, paragraphs 151-154 below), it considers that there remains substantial uncertainty as to whether the constitutional and Convention notions of blameworthy delay are indeed coextensive as the Government suggested.
120. The Court recognises the importance, underlined by the Government, of allowing remedies to develop in a constitutional system and, more importantly, in the particular situation of Ireland namely, a common law system with a written Constitution (D. v. Ireland, cited above). However, having regard to the principles outlined at paragraphs 111-114 above and in the absence of a specifically introduced remedy for delay, it remains the case that the development and availability of a remedy said to exist, including its scope and application, must be clearly set out and confirmed or complemented by practice or case law (Šoć v. Croatia, no. 47863/99, 9 May 2003; and Apostol v. Georgia, cited above, § 38), even in the context of a common law inspired system with a written constitution providing an implicit right to trial within a reasonable period of time (Paroutis v. Cyprus, no. 20435/02, § 27, 19 January 2006).
121. Secondly, the Court considers that it has not been demonstrated that this action could constitute a remedy as regards a judge’s delay in delivering a judgment. While the Government suggested that the applicant should have tested this issue in a constitutional action for damages, they accepted in both their written and oral submissions to the Grand Chamber that there was likely to be an exception to the right to damages for a breach of a constitutional right when the delay was caused by the failure of an individual judge to deliver judgment within a reasonable time, given the important and established principle of judicial immunity. While this period of delay was considered relevant – although not blameworthy – in the second prohibition action, the High Court opined in a later judgment (Joseph Kemmy v. Ireland and the Attorney General) that the immunity of suit conferred by law on the judiciary applied for the benefit of the State in the context of an action against the State in damages for the wrongs of a judge. The 17-month period required to approve the High Court judgment and found blameworthy under Article 6 § 1, would not therefore appear to be addressed by this proposed constitutional remedy.
Since this Court holds a State responsible under the “reasonable time” aspect of Article 6 § 1 for delay by judges in delivering their judgments (see, for example, Eckle v. Germany, 15 July 1982, § 84, Series A no. 51; O’Reilly v Ireland, no. 21624/93, Commission’s report of 22 February 1995, §§ 65-66; Somjee v. the United Kingdom, no. 42116/98, § 72, 15 October 2002; Obasa v. the United Kingdom, no. 50034/99, § 34, 16 January 2003; O’Reilly and Others v. Ireland, no. 54725/00, § 33, 29 July 2004; and McMullen v. Ireland, no. 42297/98, § 39, 29 July 2004), a remedy which does not apply to this form of delay cannot be considered an effective one within the meaning of Article 13 of the Convention. The Court is not therefore required to examine whether the benefit of that domestic judicial immunity would extend to other forms of judicial delay or, as the applicant argued, to delay caused by other officers of the court including the prosecution.
In this respect, the Court considers, contrary to the High Court in the Kemmy case, that there is a relevant distinction to be drawn between the personal immunity from suit of judges (also at issue in the Ernst and Others v. Belgium case relied on by the Government) and the liability of the State to compensate an individual for blameworthy delay in criminal proceedings attributable in whole or in part to judges.
122. Thirdly, the proposed constitutional remedy would form part of the High and Supreme Court body of civil litigation for which no specific and streamlined procedures have been developed. The proposed action would therefore amount to a legally and procedurally complex constitutional action for damages in the High Court, with a likely appeal to the Supreme Court which, at least at the outset, would present some legal novelty. The Court has identified two relevant consequences of this, which would also appear to undermine the effectiveness of this remedy.
123. The first consequence concerns the speed of the remedial action. As noted above, particular attention should be paid to the speediness of the remedial action itself, it not being excluded that an otherwise adequate remedy could be undermined by its excessive duration (Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, Series A no. 222; Paulino Tomás v. Portugal (dec.), cited above; Tomé Mota v. Portugal (dec.), no. 32082/96, ECHR 1999-IX; Belinger v. Slovenia (dec.), no. 42320/98, 2 October 2001; and Scordino v. Italy (no. 1) [GC], cited above, § 195).
In this respect, the Court notes that the Opinion considered the O’Donoghue v. the Legal Aid Board case to be the closest parallel to the present. It concerned a complaint about a 25-month delay in according a legal aid certificate: the case contesting this delay began in 1999 (based on the case number assigned by the Central Office of the High Court) and ended with a judgment of the High Court in 2004. The Court has also had regard to the information supplied by the Government to the Venice Commission in the above-described study on average relevant waiting times before Irish courts as of 2005: the delays were noted as 15 months before the High Court on (non-asylum) judicial review (although it is not clear from when this period began to run) and 14 months before the Supreme Court from the date of filing of the Certificate of Readiness, to which periods of time would have to be added the period of execution of any damages awarded. Moreover, the parties agreed before the Grand Chamber that the average waiting time before the Supreme Court on appeal is, at present, in the region of 32-34 months. The Report of the Working Group on a Court of Appeal (May 2009) outlined the average “waiting times” for a hearing before the Supreme Court as 22 months in 2006, 26 months in 2007 and 30 months in 2008. As to requesting damages as alternative relief in the prohibition actions, the second action may have taken less than 2 years but the first lasted approximately 6 years and six months. Given existing delays, notably before the Supreme Court, the Court could not base an assessment of effectiveness of the proposed remedy on an assumption that all actions for damages for delay could be accorded priority.
Accordingly, there is no evidence that the proposed remedy would have been speedier than ordinary civil suits and it thus could have lasted for several years through two jurisdictions (Ilić v. Serbia, no. 30132/04, 9 October 2007). Such a lapse of time would not be reconcilable with the requirement that the remedy for delay (even before a constitutional court) be sufficiently swift (see Belinger v. Slovenia, cited above; Lukenda v. Slovenia, no. 23032/02, § 65, ECHR 2005‑X; and, later, Vidas v. Croatia, no. 40383/04, 3 July 2008).
124. The second consequence concerns the legal costs and expenses burden the remedial action could impose. The Court recalls that, where the organisation of a judicial system leads to delay, it may be reasonable to require litigants to have recourse to a compensatory remedy but the rules on legal costs should avoid placing an excessive burden on litigants where the action is justified. Excessive costs could constitute an unreasonable restriction on access to such a remedy and thus a breach of the right of access to court (Scordino v. Italy (no. 1) [GC], cited above, § 201). The applicant maintained that he was of limited means, that he would not have been eligible for legal aid for a constitutional action for damages and that he would face a substantial costs risk should he be unsuccessful. The Government underlined, as they did to the Venice Commission, that an accused would likely be awarded his or her costs if successful.
The Court notes that the proposed action would be subject to the normal rules of litigation concerning legal representation, court fees and legal costs. While legal representation is not obligatory, as noted above, the remedy would be legally and procedurally complex. A judicial review action would not be covered by criminal legal aid, an action in damages would not appear to be covered by the Attorney General’s ex gratia scheme and the applicant would have to obtain the agreement of the Civil Legal Aid Board that the remedy had merit before legal aid would be granted. The action would, at least initially, be novel and uncertain (paragraphs 117-121): should an applicant be unsuccessful, there was a risk of a costs order against him or her; and, even if damages were pursued as an alternative claim in the prohibition action, there would be separate costs attributable to the damages claim (notably, those of the Attorney General who would be a respondent) and thus any costs’ exposure could be high. The Court considers that the Government have not demonstrated that, in such circumstances, an applicant would not be unduly hampered in taking an action for damages for a breach of the constitutional right to reasonable expedition (Cocchiarella v. Italy [GC], no. 64886/01, § 102, ECHR 2006‑V).
(c) The three remaining remedies relied on by the Government
125. As to an application for damages under the 2003 Act, the Government accepted that this could be invoked only if the constitutional action for damages were unsuccessful. It would therefore appear that the most efficient manner of so applying under the 2003 Act would be as an alternative claim in any constitutional action: however, the latter action risks being lengthy (paragraph 123 above). In addition, the courts are excluded from the definition of “organs of the State” by Article 1 of the 2003 Act: any delay attributable to “the courts” would not therefore be actionable under that Act. Moreover, the 2003 Act did not enter into force until 31 December 2003 by which time the applicant’s proceedings had been in being for almost 6 years and the 2003 Act is not retroactive (Dublin City Council v Fennell [2005] IESC 33).
126. An application for an early hearing date falls to be examined under the substance of Article 6 § 1 rather than under Article 13 of the Convention, for the reasons outlined at paragraph 152 below.
127. As to an application for a prohibition order by reason of prejudice and real risk of unfair trial due to delay, the Court recalls that the applicant did reasonably pursue, although unsuccessfully in the end, two prohibition actions based on delay. A prohibition action could, in principle, be an effective remedy for a complaint about delay causing potential unfairness at trial but, having regard to the additional balancing exercise inherent in prohibition proceedings (paragraph 110 above), it could not constitute an effective remedy to be exhausted as regards a complaint about unreasonable delay within the meaning of Article 6 § 1 of the Convention.
(d) Conclusion
128. In such circumstances, the Court considers that the Government have not demonstrated that the remedies proposed by them, including an action for damages for a breach of the constitutional right to reasonable expedition, constituted effective remedies available to the applicant in theory and in practice at the relevant time.
129. Accordingly, the Court finds that there has been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention, and consequently, dismisses the Government’s objection as to the applicant’s failure to exhaust domestic remedies.
III ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
130. The applicant also complained that his criminal proceedings had not concluded within a reasonable period of time.
A. The applicant’s observations
131. He accepted that he was not aware of the charges until his arrest in January 1998. However, he made detailed submissions to the effect that he was, nonetheless, “substantially affected” by the plan for his prosecution as early as January 1984 from which date he was sought by the police. In his opinion, the Court should look behind Eckle v. Germany (15 July 1982, Series A no. 51), develop the approach begun in Deweer v. Belgium (27 February 1980, Series A no. 35) and accept that there were special circumstances why the length of the criminal proceedings began at the end of 1983/beginning of 1984 namely, the mala fides and conduct of the prosecution prior to his arrest. He argued, making detailed submissions in this respect, that he was deliberately not arrested until he had served his sentence in Northern Ireland and this was not to obtain admission evidence additional to the fingerprint evidence. During that time the original fingerprint evidence was lost. In such circumstances, it would not be acceptable for him to lose the protection of Article 6 § 1 prior to his arrest.
132. Even if the relevant period were to be calculated from January 1998, the length of those proceedings was unreasonable.
133. The applicant argued that the Government’s suggestion, that the delay was due to his prohibition actions, was both legally and factually incorrect. Given the delay prior to his arrest (during which the original fingerprint evidence was lost) and thereafter, it was reasonable for him to have sought prohibition orders and he was not responsible for delays within those proceedings. Indeed, the failure to accommodate such legitimate litigation in a timely fashion was a fault attributable to the State.
In the first place, it was reasonable to await full disclosure and expert advice before issuing the first prohibition action. In particular, he needed to establish the state of the evidence against him before contemplating the first prohibition action. The Book of Evidence was delivered in July 1998 but, due to the lack of statutory regulation of disclosure in criminal proceedings, he had to pursue further disclosure. During that process he was informed that the original fingerprint evidence had been lost and additional disclosure was made in March 1999. It was only after this disclosure process that he could brief an expert to obtain advice as regards the loss of the original fingerprint evidence. He obtained that advice in October 1999 following which he applied for a prohibition order (1 November 1999).
Secondly, he could not be held responsible for delay during the first prohibition action. Following the Statement of Opposition (5 April 2000), he was entitled to seek discovery to usefully pursue those proceedings and he made his discovery request within 6 weeks. Since the State did not make voluntary discovery, he had to issue a motion. He did so within 2 months. Having obtained a return date (13 October 2000) both parties agreed to adjourn it to the first date thereafter (12 January 2001). Neither party appeared on that date due to a misunderstanding. The applicant then pursued the normal procedure and invited the prosecution, by several letters in 2001, to consent to re-entering the motion and, apart from one, his letters were unanswered. He was then obliged to issue a further motion to re-enter the proceedings in October 2001. It was only on the first return date (16 November 2001) that the prosecution agreed to make discovery, which was completed by affidavit on 8 February 2002.
134. The applicant also referred to the following additional delays during the first prohibition action which were attributable to the authorities: the delay (March 2002-July 2003) in fixing a High Court hearing date, there being nothing he could have done to expedite matters as the solution lay in the grant of additional judicial resources; the State was entirely responsible for the High Court judge’s delay in approving the transcript of his judgment (July 2003-January 2005) and he could not have advanced this matter; and the delay in fixing a hearing date before the Supreme Court (January 2005-March 2006) which was relatively quick by that court’s standards of the time and therefore offered no real chance of obtaining an earlier date.
135. Finally, and as regards what was at stake for the applicant, he was on conditional release with reporting restrictions for the duration of the criminal proceedings. Miscarriages of justice apart, there was no means whereby an acquitted accused could obtain compensation for this.
B. The Government’s submissions
136. The Government argued that Convention case-law indicated that the criminal proceedings began, for the purposes of Article 6 § 1, from the date the applicant was first “substantially affected” by the administration of justice namely, the date of his arrest in January 1998. For him to have been so affected prior to that date, he would, at the very least, have to show that he was aware that he was wanted by the police. The Government denied, in any event, the mala fides alleged by the applicant as regards the decision to delay his arrest: he was not arrested until January 1998 as he was unlawfully at large until 1986 and, when he was extradited back to Northern Ireland, the police awaited the end of his sentence in order to avail themselves of the powers of arrest and detention for which the OASA provided. They also denied his related suggestion that his admission during police questioning in January 1998 was an invention.
137. The Government mainly argued that the bulk of the delay in the criminal proceedings was caused by the prohibition actions and, notably, by the first one. Domestic law allowed an individual to institute such actions and they inevitably took time. It would be unfair and wrong in principle to hold the State responsible for delays caused by those actions as they were misconceived and unsuccessful and because the applicant did not pursue those actions diligently.
The applicant could have initiated the first prohibition action earlier. He had two grounds for that action. The first ground was the lapse of time between the relevant offences and his arrest but he could have initiated his action on this issue after the service of the Book of Evidence in July 1998: apart from responding to his disclosure requests, no additional evidence was served thereafter. His second ground was the loss of the original fingerprint evidence but that loss was disclosed on 15 January 1999. Even if he had to wait until March 1999 (when further disclosure was made) to issue the action, there was no reason to wait until November 1999 which was the eve of his trial. The expert opinion he had obtained was not relied upon by him.
The applicant was also responsible for delays during those actions and, in particular, he did not apply sufficient diligence to his discovery application in the first action. Indeed, discovery appears to have been no more than a device to delay because the material discovered was never considered. The applicant issued a letter seeking discovery six months after leave to apply for judicial review was obtained (on 15 May 2000). While neither party appeared on the hearing date (12 January 2001) due to a misunderstanding on both sides, the applicant then delayed 9 months before re-issuing the application for discovery (in October 2001). In the meantime, he wrote one letter seeking the prosecution’s consent to re-entering the matter (May 2001). Discovery was completed by the prosecution in February 2002 and the prosecution, not the applicant, then re-entered the prohibition action. The applicant brought his cross-appeal in the first prohibition action at the last moment (2 February 2006). The Supreme Court commented that the applicant could have, but did not, expedite the first prohibition action. The delay of the High Court judge in approving his judgment did not, of itself, constitute a violation of the reasonable time requirement and otherwise there was no delay in the first prohibition action attributable to the authorities.
138. There was no unreasonable delay in the second prohibition action, the matter being concluded in less than 2 years.
139. Finally, taking account of the complexity of the underlying criminal proceedings and of the associated prohibition actions, the criminal proceedings were disposed of within a reasonable period of time.
C. The Court’s assessment
140. The Court recalls its constant case law to the effect that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant (for example, Sürmeli v. Germany [GC], no. 75529/01, § 128, ECHR 2006‑VII).
141. The Court would clarify one preliminary point. In introducing his complaint under Article 6 § 1, the applicant mainly referred to the period preceding his arrest in January 1998. The application was introduced in 2006, approximately 8 years and six months after the arrest as regards events which had taken place over 22 years and six months previously. In such circumstances, the Court communicated, and the parties responded to, a question under Articles 6 § 1 concerning the reasonableness of the overall length of the criminal proceedings which subsequently terminated in 2008. This is the issue which now falls to be examined by the Grand Chamber.
142. The parties disputed when the criminal proceedings could be considered to have begun for the purposes of the “reasonable time” requirement of Article 6 § 1. The applicant maintained that it was, at the earliest, January 1984 (when he was sought by the police) or 1986, when the Irish police first became aware of his whereabouts following his re-arrest in the Netherlands. The Government argued that the length of the criminal proceedings was to be calculated from the date of his arrest when he became aware of the charges against him (January 1998).
143. The Court reiterates that in criminal matters, the “reasonable time” referred to in Article 6 § 1 begins to run as soon as a person is “charged”. “Charge”, for the purposes of Article 6 § 1, may be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether “the situation of the [suspect] has been substantially affected” (Deweer v. Belgium, cited above, § 46; and Eckle v. Germany, cited above, § 73).
144. The Court considers the applicant to have been “substantially affected” on his arrest on 5 January 1998 when he accepts he was first notified by the police of the charges against him concerning the kidnapping (for example, Reinhardt and Slimane-Kaïd v. France, 31 March 1998, §§ 91-93, Reports of Judgments and Decisions 1998‑II; Etcheveste and Bidart v. France, nos. 44797/98 and 44798/98, 21 March 2002, § 80; and Malkov v. Estonia, no. 31407/07, § 57, 4 February 2010). While police and prosecution activity prior to that date could, in principle, have some relevance to the fairness aspect of Article 6 § 1, the dismissal of the charges means that he can no longer claim to be a victim of any violation of his right to a fair trial (paragraph 78 above).
145. The proceedings ended on 28 June 2008, with the applicant’s acquittal, and thus lasted over 10 years and 6 months.
146. While the criminal investigation would have been sensitive and somewhat complex, the Court does not consider that this explains the overall length of the criminal proceedings against the applicant.
147. As to the applicant’s conduct, the Government mainly argued that his prohibition actions caused the delay and, notably, that those actions were ill-conceived and were neither issued nor pursued with diligence by him.
148. The Court recalls that applicants are entitled to make use of all relevant domestic procedural steps including applying to bring to an end prosecutions on grounds of delay but they should do so with diligence and must bear the consequences when such procedural applications result in delay (Jordan v. the United Kingdom (no. 2), no. 49771/99, § 44 10 December 2002; and Boczoń v. Poland, no. 66079/01, § 51, 30 January 2007).
The Court considers that it was reasonable for the applicant to have pursued the first prohibition action on the basis that the delay since the impugned events and the loss of the original fingerprint evidence rendered his trial unfair. Indeed, he was successful in obtaining a prohibition order from the High Court on the latter basis. It was also not unreasonable to issue those proceedings once satisfied as to the fullness of disclosure in the criminal proceedings (March 1999), during which process he was informed of the loss of the original fingerprint evidence, and once he had obtained advice as regards the feasibility of defending the charges with only the forensic report on that original evidence (contrary to the Government’s submission, that advice was referred to in the domestic proceedings, see paragraph 30 above). However, the applicant has not convincingly explained why obtaining that expert advice took until October 1999.
It was also reasonable that the applicant would request a prohibition order as regards the delay after his arrest (namely, after 1 November 1999 and during his first prohibition action). When he initiated the second prohibition action in 2006, it was almost 8 years and six months after his arrest and almost 22 years and six months following the impugned events. The second prohibition action was based on the claim that the impugned delay also breached his right to a trial with reasonable expedition. The case law of the Supreme Court on the right to reasonable expedition and on the consequences of its breach as regards obtaining a prohibition order was at that point developing (see, for example, the judgments of the Supreme Court in the second prohibition action referred to at paragraphs 36, 39 and 43 above and that of Denham J. in the Devoy case at paragraph 63 above). Furthermore, he had a prohibition order in his favour from the High Court until March 2006 (when the Supreme Court ruled against him) and it was not therefore unreasonable for him to begin his second prohibition action once he was apprised of the rejection of the first one.
The Court does not therefore agree with the Government that the prohibition actions were so ill-conceived, and their initiation so unreasonably delayed, that the duration of those actions, should be attributed to the applicant.
149. As to the applicant’s diligence in the pursuit of the first prohibition action and, notably, his request for voluntary discovery with which the Government mainly took issue, he made this request weeks after the service of the Statement of Opposition. Both parties were responsible for the striking out of the motion on 12 January 2001. However, even if the applicant had written the letters he claimed to the prosecution, the Court, in common with Kearns J. (paragraph 42 above), does not consider justified his failure to re-enter the motion for eight months in the absence of the prosecution’s consent. While the Government argued that the documents later discovered were not considered thereafter, the Court cannot conclude, without more, that discovery served no purpose when 93 documents were disclosed by the prosecution in February 2002 including the memorandum of 5 January 1998. While that discovery process was onerous for the prosecution (Kearns J. at paragraph 42 above), the Government have not detailed why it required 1 year and six months to complete. While the applicant had carriage of the prohibition action, the Government rightly noted that it was the prosecution which re-entered the action following the end of the discovery phase: however, this concerned a two-week period of delay only. There is no evidence of any delay attributable to the applicant in the second prohibition action.
150. While the Court therefore considers that the conduct of the applicant contributed somewhat to the delay, that does not explain the overall length of the proceedings against him.
151. As regards the conduct of the relevant authorities, the Court has noted the particular obligation of expedition on the State when criminal proceedings begin a significant period of time after the impugned events (see, for example, Massey v. the United Kingdom, no. 14399/02, § 27, 16 November 2004) and the following periods of delay have been assessed in light of that obligation:
(i) While the prosecution requested (on 11 March 2002) the re-entry of the first prohibition action, the first hearing date proposed was March 2003 and, following an adjournment due to the unavailability of a judge, it was not heard by the High Court until 11 July 2003 (16 months)
(ii) An ex tempore judgment was delivered by the High Court on 18 July 2003. While the prosecution quickly appealed (August 2003), it could not certify the appeal as ready until the transcript of the judgment was approved by the High Court judge which was done on 17 January 2005 (17 months).
(iii) The appeal was quickly certified as ready (January 2005) but the Supreme Court hearing was not held until 16 February 2006 (13 months). There is no evidence that the applicant’s cross-appeal delayed in any way that Supreme Court hearing.
(iv) The High Court refused the second prohibition action in November 2006. The applicant appealed in February 2007 but the Supreme Court did not hear the appeal until January 2008 (11 months).
152. Three of these periods of delay concerned the fixing of hearing dates. While the Government argued that a request by the applicant for an early hearing date could have constituted an effective remedy within the meaning of Articles 13 and 35 § 1 of the Convention, the Court considers that any failure to apply for an expedited hearing date falls to be examined under the merits of Article 6 of the Convention (Mitchell and Holloway v. the United Kingdom, no. 44808/98, §§ 55-56, 17 December 2002).
As to this submission of the Government as well as their similar suggestions (not raised as separate remedies) that the applicant should have attempted to expedite the approval of the High Court transcript and the proceedings generally, the Court recalls that, in the Mitchell and Holloway case, the Court found that, even if a system allowed a party to apply to expedite proceedings, this did not exempt the courts from ensuring that the reasonable time requirement of Article 6 was complied with, “as the duty to administer justice expeditiously is incumbent in the first place on the relevant authorities”. In Bullen and Soneji v. the United Kingdom (no. 3383/06, §§ 65-66, 8 January 2009) the Court found that even the applicant’s agreement to a later hearing date did not remove the State’s obligation to ensure expedition. Indeed, the Court has found that, even a principle of domestic law, that the parties to civil proceedings were required to take the initiative to progress the proceedings, did not dispense the State from the requirement to organise its system to deal with cases within a reasonable period of time. If a State allows proceedings to continue beyond a “reasonable time” without doing anything to advance them, it will be responsible for the resultant delay (Foley v. the United Kingdom, no. 39197/98, § 40, 22 October 2002; and Price and Lowe v. the United Kingdom, nos. 43185/98 and 43186/98, § 23, 29 July 2003). These principles apply a fortiori where the State is itself a party to the proceedings and responsible for their prosecution (Crowther v. the United Kingdom, no. 53741/00, § 29, 1 February 2005..).
Accordingly, the Court considers that the existence of any possibility or right on the part of the applicant to take steps to expedite did not dispense the State from ensuring that the proceedings progressed reasonably quickly. Indeed, the Government themselves recalled that domestic courts have an inherent jurisdiction to ensure that justice is done and have a constitutional duty to protect constitutional rights, including the right to reasonable expedition.
153. In any event, it is not demonstrated that an earlier hearing date before the Supreme Court could have been accorded to a case such as the applicant’s, not least given that the above-impugned delays pending a Supreme Court hearing were equal to or less than the average waiting times for such hearings at the time (“Report of the Working Group on a Court of Appeal” May 2009, paragraphs 51-55 above). As to the delay in approving the transcript by the High Court judge, the Court does not consider it reasonable to suggest that the onus was on the applicant in this instance. While he had carriage of the overall prohibition action, it was the prosecution’s appeal which was delayed pending the transcript’s approval (Richard Anderson v. the United Kingdom, no. 19859/04, § 28, 9 February 2010) and, furthermore, during the relevant 17-month period he had a High Court order of prohibition in his favour on the basis of a real and serious risk of an unfair trial and it was unrealistic to suggest that he should apply to speed up a prosecution appeal against that order. In this respect, the Court would note that the 2002 Act, which entered into force in March 2005 and which placed the onus on the Court’s Service to supervise the delivery of judgments, does not concern criminal proceedings.
154. In such circumstances, the Court finds that the Government have not provided any or any convincing explanations (Barfuss v. the Czech Republic, no. 35848/97, § 83, 31 July 2000) for the above-described delays attributable to the authorities in the prohibition actions, which added to the overall length of the criminal proceedings.
155. As to what was at stake for the applicant, it is noted that the charges against him were serious and that he bore the weight of such charges and of the potential sentences, for approximately 10 years and six months, during which time he had reporting obligations and was frequently required to attend in Dublin before the SCC (paragraph 15 above).
156. Having examined all the material and arguments submitted and having regard to its case-law on the subject, the Court considers that in the instant case the overall length of the criminal proceedings against the applicant was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
157. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
158. The applicant claimed 15,000 euros (EUR) (or such other sum as this Court would consider appropriate) in respect of non-pecuniary damage given the stress, inconvenience and restrictions experienced by him as well as his inability to plan for his future during the relevant period.
159. The Government contested this claim, arguing that the applicant had not detailed the extent of any distress or upset suffered by him. They submitted, in any event, that damages could only be awarded for delay which was attributable to the State and having regard to the delay for which the applicant was responsible. They considered the applicant’ claim to be excessive and requested that the Court exercise its discretion as it deemed fit, in accordance with its case law and practice.
160. The Court considers that the applicant must have suffered some distress and frustration resulting from delays attributable to the authorities, which cannot sufficiently be compensated by the finding of a violation (see, for example, Mitchell and Holloway v. the United Kingdom, cited above, § 69). It has had regard to all the circumstances of the case, including those factors which must have exacerbated the impact on the applicant of the breaches of the Convention (including the serious nature of the outstanding charges) and those which served to ease that effect (the prohibition order of the High Court which was in place from July 2003 to March 2006 as well as the final dismissal of the charges against him in June 2008).
161. Ruling on an equitable basis, the Court awards him EUR 5,500 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant.
B. Costs and expenses
162. The applicant detailed and claimed EUR 119,775.48 and EUR 12,463 (both inclusive of value added tax) as regards the costs and expenses of the domestic prohibition and Convention proceedings, respectively.
163. As to the domestic proceedings, the applicant submitted that he could have but did not apply for legal costs under the Attorney General’s scheme for his prohibition actions. This was because that scheme is limited, ad hoc in nature and does not, in his opinion, provide equality of arms since the fee rate for representatives acting under the scheme is 20-25% of the normal fee rate of the Taxing Master of the High Court. While he was of limited means, the State applied for their costs to be paid by him in the event that the prohibition actions were unsuccessful, although no bill of those costs has been served on him. As to the Convention proceedings, he submitted that he was prepared to facilitate an examination of his files by an expert or to accept such figure as the Court would consider appropriate.
164. The Government contested the claims. The purpose of the prohibition actions was different from that of the present application. Since he did not apply for costs under the Attorney General’s scheme, he could not claim that all of the costs of those proceedings were necessarily incurred. They maintained that the costs claimed for the present application were unreasonable and they suggested that this Court apply the principles flowing from its case law.
165. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred (in the case of domestic proceedings, in seeking redress for the violations of the Convention found or preventing a violation occurring) and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, for example, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999‑II; Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 28, ECHR 2000-IX; and Roche v. the United Kingdom [GC], no. 32555/96, § 182, ECHR 2005‑X).
166. As to the costs of the prohibition actions and whether or not those actions “sought redress” for the violations established, the Court notes that the applicant failed to apply for costs for legal representation for those actions under the Attorney General’s scheme. He accepts that prohibition actions were covered by that scheme and it is noted that costs are payable in accordance with the Criminal Justice (Legal Aid) Regulations 1965-2000. However, since he did not apply, he has not substantiated that costs would have been refused or that the costs payable would have been so low as to require a supplementary award from this Court. The applicant did not suggest that any costs order in those actions in favour of the State has been pursued against him so that it is unnecessary to make any provision under Article 41 in that respect (Steel and Morris v. the United Kingdom (no. 68416/01, § 105, ECHR 2005‑II). The Court does not therefore find it demonstrated that the domestic costs and expenses claimed were necessarily incurred and it makes no award in this respect.
167. As to the costs of the present application, the Court notes that, even if the substantive issues (duration of criminal proceedings and the availability of an effective domestic remedy) were not particularly novel Convention questions, there was an added round of observations (concerning the submission of the Opinion) before the Chamber as well as further written and oral submissions before the Grand Chamber. While the above-claimed Convention costs related to the proceedings before the Chamber only and while the applicant did not make any specific claim for, or vouch additional work before, the Grand Chamber, the Court’s own files attest to the legal work conducted on the applicant’s behalf through the written and oral phases of the Grand Chamber proceedings. The Court considers it reasonable to award the sum of EUR 10,000 plus any tax that may be chargeable to the applicant in respect of the costs of the Convention proceedings.
C. Default interest
168. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Decides by a majority to join to the merits of the complaints under Article 13 the Government’s objection as to the exhaustion of domestic remedies;
2. Declares by a majority the complaints concerning the excessive length of the proceedings and the lack of a remedy in that respect admissible and the remainder of the application inadmissible;
3. Holds by twelve votes to five that there has been a violation of Article 13 of the Convention and, consequently, dismisses the Government’s objection as to the exhaustion of domestic remedies;
4. Holds by twelve votes to five that there has been a violation of Article 6 § 1 of the Convention;
5. Holds by twelve votes to five,
(a) that the respondent State is to pay the applicant, within three months, EUR 5,500 (five thousand five hundred euros) in respect of non-pecuniary damage plus any tax that may be chargeable;
(b) that the respondent State is to pay the applicant, within three months, EUR 10,000 (ten thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant; and
(c) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 10 September 2010.
Vincent Berger Christos Rozakis
Jurisconsult President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) joint dissenting opinion of judges Gyulumyan, Ziemele, Bianku and Power;
(b) dissenting opinion of Judge Lopez-Guerra.
C.L.R.
V.B.
JOINT DISSENTING OPINION OF JUDGES GYULUMYAN, ZIEMELE, BIANKU AND POWER
1. We do not share the majority’s view in this case. We make no observation on the merits of this claim. In our view, this case is inadmissible for non-exhaustion of domestic remedies and it brings into sharp focus the fundamental importance of the principle of subsidiarity enshrined in Article 35 § 1 of the Convention.
2. It is not contested by the parties that there is, in Ireland, a long established Constitutional right to trial within a reasonable time.[12] Equally, it is not contested that there is a considerable body of domestic case law that demonstrates that damages for a breach of a Constitutional right are readily available (see § 85 of the Judgment).[13] In such circumstances, we find the majority’s approach to be inconsistent with what the Court has previously and repeatedly held, namely, that “as regards legal systems which provide constitutional protection for fundamental human rights, it is incumbent on the aggrieved individual to test the extent of that protection” (see Mirazović v. Bosnia and Herzegovina (dec.), no. 13628/03, 16 May 2006; Vinčić and Others v. Serbia, nos. 44698/06, et seq., § 51, 1 December 2009; and D. v. Ireland (dec.), no. 26499/02, § 85, 28 June 2006).
3. The applicant does not deny that he has never asked the Irish courts to compensate him by awarding damages for the alleged breach of his Constitutional and Convention right to trial within a reasonable time. The only ‘remedy’ he claimed, domestically, was ‘a right to no trial’. When he failed on two occasions to obtain a prohibition order, he then came before the Strasbourg Court with an altogether different and far less radical claim – a claim for damages – even though, in Ireland, damages are a readily available and widely recognised means of redress for an established breach of Constitutional rights. In effect, the applicant has brought one claim before the national courts (prohibition of trial) and a different claim before Strasbourg (damages). The consistent approach of this Court as articulated and reiterated by the Grand Chamber in Selmouni v. France ([GC], no. 25803/94, § 74, ECHR 1999‑V), has been that the complaint which an applicant intends to make subsequently to this Court must first have been made to the appropriate domestic body.
4. In Kudła v. Poland ([GC], no. 30210/96, § 152, ECHR 2000‑XI) the Court confirmed that the purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, “is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court”. Relying on Kudła the majority begins its analysis by concluding that “it follows” that less than a full application of the guarantees of Article 13 would undermine the operation of the subsidiary character of the Court (see § 112 of the Judgment). The starting point of its analysis appears to be, with respect, a conclusion concerning the less than full application of the guarantees of Article 13. How can this Court assess whether there has been ‘a less than full application’ of such guarantees if the national courts have not been asked by the applicant to apply them? What the majority regards as “the question to be determined” in this case is “whether the way in which domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention” (see §114); but no opportunity for the interpretation and application of the domestic law of remedies for ‘length of proceedings’ has arisen because the applicant sought only one outcome – prohibition of trial. Domestic courts are not obliged to order prohibition of trial each time a complaint concerning ‘unreasonable time’ is established. Far less radical remedies, such as, damages are acceptable. Had the majority started its analysis with the relevant test, namely, whether the applicant had done everything that could reasonably be expected of him to exhaust domestic remedies (see Aksoy v. Turkey, 18 December 1996, § 54, Reports of Judgments and Decisions 1996-VI; Isayeva v. Russia, no. 57950/00, § 153, 24 February 2005; and D. v Ireland (cited above, § 84)) it would, inevitably, have concluded that the domestic courts were never given an opportunity of ensuring “a full application of the guarantees of Article 13”.
5. Our fundamental disagreement with the approach of the majority is based on its failure to respect and give meaningful effect to the core Convention principle of subsidiarity. Subsidiarity requires that before this Court proceeds to award damages for any violation of the Convention, the national authorities “must be given an opportunity to put matters right through their own legal system” (see T. v. the United Kingdom [GC], no. 24724/94, § 55, 16 December 1999). For this Court to deprive the Irish courts of the opportunity to determine the applicant’s claim for damages is not just failing to respect subsidiarity; it is assuming the functions of a first instance court. Allowing the national courts to be the first to hear and determine a claim is a fundamental aspect of the principle that the Convention’s ‘machinery of protection’ is subsidiary to theirs in the safeguarding of human rights (see Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV). Not allowing them so to do, is what is liable to weaken the workings of the “machinery’ of human rights protection (see Kudła § 155) not least because a claim for damages brought before this Court is likely to take much longer.
6. Where non-exhaustion is raised, the onus is upon a respondent State to show that a remedy is available, domestically. The State’s submission on the ‘damages’ remedy is, admittedly, more detailed in this case than in Barry v Ireland (no. 18273/04, 15 December 2005). Nevertheless, having raised non-exhaustion, the only standard to be met is that of a “reasonable prospect of success”– not certainty of a favourable outcome (see Pellegriti v. Italy (dec.), no. 77363/01, 26 May 2005). There is before this Court independent expert opinion from a senior practitioner and academic to the effect that a Constitutional remedy is not just probably but “almost certainly” available in Ireland. The applicant has produced no evidence at all to contradict or cast doubt upon this opinion. In a case against the United Kingdom, it was held that even an unfavourable counsel’s opinion on the prospect of success was insufficient to justify a failure to exhaust domestic remedies (see K., F. and P. v. the United Kingdom (dec.), no. 10789/84, 11 October 1984). Why that same obligation to exhaust was not required in this case, where the expert opinion is highly favourable, is difficult to fathom.
7. Having regard to the expert opinion evidence adduced and to the domestic courts’ readiness to award damages for an established breach of Constitutional rights we are satisfied that the test of ‘a reasonable prospect of success’ has been met. The mere fact that damages for an alleged breach of one specific aspect (reasonable time) of one Constitutional right (fair trial) have not been claimed by any litigant is not sufficient to displace the fact that damages are available, domestically, for breaches of Constitutional rights, including, in circumstances where they have not previously been awarded for want of being sought.[14]
8. The rationale upon which the majority considers that an action in damages for breach of Constitutional rights is not effective is based, essentially, upon three grounds:- (i) uncertainty; (ii) ‘judicial immunity’; and (iii) ‘duration’ and ‘costs’.
The ‘Uncertainty’ Argument
9. The majority finds that an action in damages for the alleged breach of the applicant’s Constitutional/Convention right is ‘uncertain’ (see § 117 of the Judgment). Its approach, in this case, stands not only in contrast to the weight of the domestic courts’ jurisprudence but also in contradiction of this Court’s own case law. The potential and importance of the Constitutional remedy in a common law system has already been accepted by this Court. In D. v Ireland (cited above) the unanimous Court was unable to dismiss as ineffective the Constitutional remedy which it considered was available “in principle” to the applicant. It took the view that, having regard to the potential and importance of that remedy in a common law system, it was reasonable to expect the applicant in D. (who had been pregnant and was, allegedly, obliged to travel abroad for an abortion) to have taken certain preliminary steps before the domestic courts towards resolving the disputed uncertainties. By contrast, the Court in this case relieves the applicant of the obligation to have taken any such preliminary steps even though the minimum that might have been required of him was the inclusion into his prohibition pleadings of an alternative claim in damages. This, the majority finds, he could not reasonably have been expected to do. If, in reality, there is any doubt about the availability of damages for the alleged breach of the applicant’s right to an expeditious trial then, in our view and in line with this Court’s own case law, any such doubt should have been resolved by him, domestically, before asking this Court to rule upon the issue.
10. In support of its stance on the “uncertainty” of the Constitutional remedy, the majority refers to answers recorded in a questionnaire compiled by the Venice Commission in preparation of its Report on the Effectiveness of National Remedies in respect of Excessive Length of Proceedings (see § 70 of the Judgment). It strikes us as rather odd that the Judgment fails, entirely, to have any regard to the findings in the actual Report itself. In the light of its own investigations, the Venice Commission concluded that both preventative and compensatory damages are available in Ireland. Further, it found that, in respect of the administrative proceedings, both acceleratory and compensatory remedies are available.[15] The Commission’s findings would indicate strongly that the test for “effectiveness” as set out in the settled case law of this Court has been met. “Remedies available to a litigant at domestic level for raising a complaint about length of proceedings are “effective” … if they prevent the alleged violation or its continuation, or provide adequate redress for any violation that has already occurred (Scordino v. Italy (no. 1) [GC], no. 36813/97, ECHR 2006‑V; Sürmeli v. Germany [GC], no. 75529/01, § 65, ECHR 2006‑VII; and Kudła v. Poland, cited above, §§ 157 to 159).
11. Perhaps the majority’s principal ground for ‘uncertainty’ of the remedy is the fact that no domestic case law has been opened to show that the Constitutional remedy is available in respect of a specific complaint concerning ‘length of proceedings’. It cites a number of cases in which this Court has found a Constitutional remedy not to be effective until after ‘delay applications’ had been heard and judgments on their merits delivered (see § 117). All of the cases cited are distinguishable on their facts and none of them involved a legal system operating within the common law. Thus, their authoritative force for this case is weak. For example, unlike the applicants in Šoć v. Croatia (no. 47863/99, 9 May 2003 cited at § 120 of the judgment[16]) or in Vinčić and Others v. Serbia (cited above) the applicant in this case was not obliged to wait until a “new” Constitutional remedy had been introduced and its effectiveness ‘tested’ by reference to decided cases after a certain period of time. In contrast to the newly introduced remedies in the judgments cited by the majority, there is nothing ‘new’ about the Constitutional remedy in Ireland and there was nothing to prevent the applicant from testing its effectiveness in respect of his complaint at any time.
12. The majority purports to recognise the importance of allowing remedies to develop within a common law system with a written Constitution yet it censures the respondent State for not having “a specifically introduced remedy for delay” (see § 120 of the Judgment), presumably, such as, one that might be required of a State operating within a civil law system. If there is nothing to prevent applicants from seeking damages from the domestic courts now, we fail to see why a specifically introduced remedy permitting them so to do should be required. Such a move towards the ‘micro management’ of a domestic legal system operating within the common law is a worrying erosion of the fundamental principle of subsidiarity and represents a development that diminishes rather than enhances the protection of human rights.
13. The reality is that case law cannot be adduced to show that a remedy is effective if cases testing its effectiveness have never been taken.[17] The domestic courts went to some length to point out that they could not deal with a claim that was not before them. Fennelly J. specifically referred to the fact that the applicant was not seeking damages and that, as with other applicants in a similar position, he had sought only the remedy of prohibition of trial. Given the important public policy considerations arising in an application for the prohibition of a trial on serious criminal charges, it goes without saying that the relevant principles and the appropriate legal test are not the same as those in issue when considering a claim for damages. An entirely different case would have been presented to the domestic courts had the applicant sought damages either instead of or as an alternative to prohibition. Fennelly J. stressed that it was not possible for the Supreme Court, having an appellate function only, to pronounce in the abstract on whether damages would be available if they were claimed. He explained, expressly, that “any such claim would have to be made in the High Court in the first instance”. Such a claim would be determined, per Kearns J. (as he then was) following “full and careful consideration in an appropriate case”. It is difficult to envisage what more can be expected of domestic courts other than to give careful consideration to a claim for damages for breach of the right to an expeditious trial if and when such a claim is made. Short of inducing claimants to sue for ‘reasonable time’ violations, it is difficult to see how cases can be adduced in respect of claims that have not been made.
14. The majority now acknowledges, implicitly, that this Court’s interpretation of comments made by the Supreme Court in Barry v. Ireland was not correct (see §§ 23, 53 in Barry and § 110 of this Judgment). It accepts that the comments were not relevant to the assessment of the effectiveness of the constitutional remedy in damages in that they were made in the context of a prohibition action, the legal test and relevant principles of which, it now accepts, are “substantively different” from an action for damages for culpable delay. That acceptance is welcome but the Court’s misinterpretation of the comments in question would appear to have been rather central to its findings in that case (see § 53 of Barry).
The ‘Judicial Immunity’ Argument
15. The majority’s second ground for rejecting the ‘damages’ remedy is the State’s failure to demonstrate that damages could be obtained in respect of delay in the handing down of a judgment. It relies, exclusively, upon selected extracts from a High Court decision[18] in which that Court found against the plaintiff who had sued the State for an alleged a violation of his right to a fair trial. Having found that there had been no breach of the right to a fair trial because the ‘unfairness’ had been remedied on appeal, the Judge observed that the immunity which the law confers on the judiciary in such situations applies also to the State when an attempt is made to make it directly liable for the wrong of the judge in such circumstances. Not to extend the immunity to the State “in the present circumstances” would represent an indirect and collateral assault on judicial immunity.
16. The majority found that “contrary” to the High Court in the Kemmy case there is a relevant distinction to be drawn between personal immunity from suit of judges and the liability of the State to compensate for delay attributable in whole or in part to judges (see § 121 of the Judgment). Firstly, it should be clarified that the case in question had nothing to do with the issue of State liability for judicial delay. McMahon J. expressly stated that there had been no allegation of delay and that “absent this” the State could not have been faulted. Furthermore, a careful reading of the Judgment illustrates that the ‘distinction’ emphasised by the majority was not, in fact, lost on the High Court Judge. The case before him concerned the question of State immunity for alleged unfairness of trial caused by a judicial error. It was not about State liability for delays in the legal system. In general, such delays tend to occur where a State fails to erect the proper “scaffolding” to support the efficient administration of justice. Such scaffolding may be vulnerable if a State fails, for example, to provide a sufficient number of judges or to have in place an efficient case management system. In Kemmy the High Court Judge specifically distinguished between liability for judicial error (as in the case before him) and liability for what one might call the system’s failure. The extracts cited by the majority (at § 64 of the Judgment) indicate the omission of certain paragraphs. In the paragraphs omitted, the trial judge had expressly stated that “the State may be liable for failing to erect the appropriate scaffolding” thus leaving open the question for determination in an appropriate case.
17. Since the Irish courts have never been asked to determine a claim for damages for unreasonable length of proceedings, they have never had an occasion to develop domestic law on State liability for delays, including, delays in the delivery of judgments. Nevertheless, from a case which had nothing to do with this issue, the majority has extrapolated that respect for the principle of judicial immunity – a fundamental aspect of judicial independence – would stand as an obstacle in a claim for damages against the State for unreasonable delay within the legal system. In so doing, it is interfering with the natural evolution of domestic law in that it is one step ahead of the domestic judges who cannot determine such an issue until it arises in proceedings before them. The underlying philosophy of the doctrine of exhaustion is to ensure that domestic courts undertake the primary obligation of protecting Convention rights. This Court’s function is limited to supervising the domestic law’s compliance with the Convention’s requirements. That allocation of responsibilities must be respected if the machinery of human rights protection is to function effectively. The proper balance between the national and international legal orders is disturbed when this Court anticipates and assumes what the domestic courts might do in cases that have not yet come before them and when it fails to direct applicants back to the domestic courts to test any remedy that offers ‘a reasonable prospect of success’.
The ‘Duration’ and ‘Costs’ Argument
18. Speculation as to the ‘duration’ and ‘costs’ of a claim in damages has led the majority to conclude that the applicant was not obliged to exhaust such a remedy. These are rather novel grounds for waiving the obligation to exhaust. As regards duration, it is only where the remedial procedure itself has been found to take too long (10 years in Vaney v. France, no. 53946/00, 30 November 2004) that the Court has exempted the individual from the obligation to exhaust. There has been no such finding in this case because there has been no attempt to exhaust. Where an applicant has never tested a remedy for which there is, clearly, ‘a reasonable prospect of success’, it is inappropriate for this Court to relieve him of the obligation so to do on no more than a speculative assumption that it might take too long.
19. Reliance upon the ‘costs’ argument is also rather new. An appeal within any legal system almost always costs money but that has never led the Court to waive the obligation to exhaust for applicants who fail to appeal nor to regard an appeal as ineffective for the purposes of Article 13. The Court has already held that lack of financial means does not absolve an applicant from making some attempt to take legal proceedings (Cyprus v. Turkey [GC], no. 25781/94, §§ 352 and 353, ECHR 2001‑IV). In D. v Ireland (cited above, § 100) the Court expressly rejected such an argument which had been raised by the applicant and it found that “the ‘costs’ risk does not, as a matter of principle, constitute a reason to classify a constitutional remedy as generally ineffective”.
20. In our view, this Judgment is both inconsistent with settled case law on exhaustion and unconvincing in its reasoning on the ineffectiveness of the ‘damages’ remedy in Irish law. Furthermore, it stands as an invitation to all who fail to have their criminal trials prohibited in Ireland to simply by-pass the domestic courts and to come directly to Strasbourg for damages even though such applicants could readily include, within their domestic pleadings, an additional and/or an alternative claim for compensation in the event that prohibition is refused. It appears impervious to the express statements of the Supreme Court that careful consideration would be given to a claim for damages for breach of the right to an expeditious trial if and when such a claim is made.
DISSENTING OPINION OF JUDGE LÓPEZ GUERRA
I disagree with the majority’s opinion. In my view, it does not reflect the meaning and importance of the principle of subsidiarity in the procedures before this Court.
General respect for human rights can be guaranteed only if they are effectively protected at the internal State level. In that regard, the role of the national authorities, and especially that of the domestic courts, is decisive and justifies the provision in Article 35 § 1 of the Convention to the effect that the Court “will only deal with the matter after all domestic remedies have been exhausted”. Any tendency of this Court to substitute itself for the national courts in this role will have undesirable effects, negatively affecting the national courts’ position as the common and natural defenders of human rights.
Certainly, one of the rights enshrined in Article 6 § 1 of the Convention is the right to trial without undue delay, and the Court has often stressed that effective remedies must be provided against excessively lengthy proceedings. These remedies can either be preventive (to avoid the undue prolongation of proceedings) or compensatory (to seek redress, if possible, for the consequences of undue delay).
In this case I have strong doubts as to whether the applicant exhausted all available compensatory remedies. He did indeed avail himself of the preventive remedies at his disposal (asking twice for a prohibition of the trial, based on the excessive length of the proceedings). However, he did not apply to an Irish court for any compensatory remedy by which he might have been awarded damages for the undue length of the criminal proceedings. In that regard, the Irish courts did not have (or were not given) the opportunity to render a judgment in this matter concerning possible financial compensation for the undue delay.
The present judgment deals with the question whether a reasonably available remedy existed in Irish law allowing for the possible award of compensation, and it reached the conclusion that such a remedy was not available. I am not convinced that such a remedy did not (or does not) exist. The applicant relies on the Court’s Barry judgment to conclude that there was no effective domestic compensatory remedy for the alleged unreasonable length of the criminal proceedings. Whilst I believe that upholding the Court’s own precedents is a guarantee of legal certainty, as well as a measure to ensure consistency in the Court’s task of protecting the human rights set forth in the Convention, in my view the present case has certain peculiarities that distinguish it from Barry.
I do not doubt that the principle iura novit curia is also applicable, in general terms, to the proceedings before this Court. But, given the peculiar nature of such proceedings, which concern matters affecting all areas of law in a wide array of legal orders, the parties play an important role in providing information on the law in force in the internal legal order which may be relevant in their cases. Such collaboration aids the Court in its
decisions by providing it with better knowledge and understanding of the particularities of each system.
In the present case, I believe that the relevance of the information provided should have been taken into account. In Barry, as the Court recognises in the present judgment (paragraph 120), the Irish Government’s submissions concerning the existence of a constitutional remedy for damages were “relatively brief”. By contrast, in the present case, the Government representation has extensively discharged its onus to justify its affirmation of the existence of such a remedy, accordingly providing a full-fledged Opinion by a renowned specialist on Irish constitutional law. In my view, the reasoning and arguments contained in that Opinion provide sufficient evidence of the existence of a constitutional action for damages in the Irish legal order, a remedy which should have been used by the applicant before turning to this Court.
The information presented by the Government, backed by extensive citations of Irish case-law, demonstrates that: (1) Article 38, paragraph 1, of the Irish Constitution, which establishes that “[n]o person shall be tried on any criminal charge save in due course of law”, likewise protects the right to an early trial; (2) it is a general principle of Irish law that the rights recognised in the Irish Constitution are protected against violation by legal actions; (3) according to the Opinion, in the Irish constitutional order there is now relatively well-developed case-law dealing with awards of damages for breaches of constitutional rights; (4) as a consequence, “it is plain therefore, that such an accused can sue the State (or its agents) for damages where his constitutional right to an early trial has been violated” (see paragraph 29 of the Opinion of Senior Counsel).
In my opinion, the argument that to date there has been no previous case in which damages were awarded for a violation of the right to an early trial does not mean that there is no remedy available for damages in this case. The Irish Government explained that the redress usually sought for this type of violation was the prohibition of trial, not damages. In fact no judgment denying damages for the violation of that right was provided as evidence of the impossibility of seeking damages by way of redress for undue delay.
In sum, it is my view that, on this occasion, the Irish Government have provided enough legal and case-law information for it to be reasonably concluded that a remedy for this situation exists in the Irish legal order – a remedy which the applicant should have used before bringing his claim to this Court. As a result, I would have preferred the Court to apply Article 35 § 1 of the Convention and declare the application inadmissible for non-exhaustion of domestic remedies. In addition, from the allegations of the parties (paragraph 73) it appears that the six-year limitation period in which to file a claim for damages for an alleged breach of constitutional rights had not yet expired, so this possibility still remained open to the applicant.
[1] CDL-AD(2006)036(rev).
[2] CDL(2006)026 entitled “Replies to the Questionnaire on the Study on the Effectiveness of National Remedies in respect of Excessive Length of Proceedings”.
[3] The State (O’Connel) v. Fawsitt [1986] IR 263.
[4] As noted by Fennelly J. in TH v. DPP, cited above, and by Fennelly J. in the Supreme Court (in the second prohibition action) in the present case.
[5] The State (Quinn) v. Ryan [1965] IR 70 (O’Dalaigh C.J., “the court’s powers were as ample as the defence of the Constitution requires”); Byrne v. Ireland [1972] IR 241 (Walsh J., “Where the People by the Constitution create rights against the State or impose duties upon the State, a remedy to enforce those must be deemed to be also available …”); and Meskill v. CIE [1973] IR 121 (Walsh J., “the constitutional right carried within, its own right to a remedy or for the enforcement of it”).
[6] Inter alia, Kearney v. Ireland [1986] IR 116 (prisoner’s right to communicate); Kennedy v. Ireland [1987] IR 587 (journalist’s right to privacy); Conway v. Irish National Teacher’s Association [1991] 2IR 305 (a right to free primary education); Healy v. Minister for Defence, High Court, 7 July 1994, unreported (right to fair (promotions) procedures); Walsh v. Ireland, Supreme Court 30 November 1994, unreported (right to liberty and good name); Sinnott v. Minister for Education [2001] 2IR 545 (right to adequate primary education); Gulyas v. Minister for Justice, Equality and Law Reform [2001] 3IR 216 (right to fair (immigration) procedures); and Redmond v Minister for the Environment (No. 2) [2006] 3IR 1 (electoral rights).
[7] O’Donoghue v. Legal Aid Board, cited above.
[8] see also T.H. v. DPP, cited above.
[9] [1998] 1IR 134.
[10] Redmond v Minister for the Environment (No. 2), cited above, (a nominal sum of EUR 130 since there was no actual proof of loss).
[11] Conway v. Irish National Teacher’s Association, cited above, (a range of exemplary damages were awarded to children who missed school from IR£1500-IR£15.000).
[12] See Article 38.1 of the Constitution.
[13] See, in particular, the list of cases cited at footnote 6 of the Judgment.
[14] Kennedy v. Ireland style=’font-size: 8.0pt’> [1987] IR 587; Sinnott v. Minister for Education [2001] 2IR 545; Gulyas v. Minister for Justice, Equality and Law Reform [2001] 3IR 216; O’Donoghue v. Legal Aid Board [2004] IEHC 413; Gray v. Minister for Justice [2007] IEHC 52; and Herrity v. Associated Newspapers [Ireland] Ltd [2008] IEHC 249
[15] See paragraph 62 of the Venice Commission’s Report where Ireland is listed as one the countries where both general and specific remedies are available. Its finding in this regard is not limited to civil proceedings. See also paragraph 72 of the Report where Ireland is identified as one of the countries where acceleratory remedies co-exist with compensatory ones for administrative proceedings. The ‘proceedings’ in respect of which the majority found delays that breached the ‘reasonable time’ requirement were, in fact, administrative proceedings (judicial review) which the applicant instituted in an attempt to prohibit his trial.
[16] Paroutis v Cyprus, no. 20435/02, 19 January 2006 is also cited in § 120 as authority for the majority’s position “even in the context of a common law inspired system with a written constitution’. This case is readily distinguishable in many respects not least by the absence of settled jurisprudence therein showing an established entitlement to damages against the State for breach of Constitutional rights. By contrast, such an entitlement has been amply demonstrated in the instant case and is supported by independent expert opinion which is unchallenged by alternative expert evidence.
[17] To the extent that any domestic case law is available, it is entirely against the majority’s finding that an action in damages would not be ‘effective’. The High Court in Kelly v Legal Aid Board referred specifically to this Court’s jurisprudence on ‘reasonable time’ when awarding the plaintiff damages for a two year delay in obtaining legal aid in order to institute proceedings. To the extent that Kelly is the only case where damages for delay were claimed and awarded, there is no reason to believe that such a remedy would not be effective if sought by other litigants.
Sullivan v Boylan
[2013] IEHC 104,
JUDGMENT of Mr. Justice Hogan delivered on 12th March, 2013
1. Few things are more important in life than the security of one’s own dwelling and the right to come and go from that abode without interference. It is a right which perhaps most of us take for granted. It is only when that security has been threatened by intruders – such as in the aftermath of a burglary – that we realise that how important that sense of safety, security and a general sense of repose from the cares of the world actually is. It is precisely for those reasons that Article 40.5 of the Constitution safeguards the inviolability of the dwelling: see generally The People (Director of Public Prosecutions) v. Barnes [2006] IECCA 165, [2007] 3 IR 130, per Hardiman J.
2. In this judgment I am now called upon to make an award of damages following a finding by me that the third defendant had gravely infringed the constitutional rights of this plaintiff in my first judgment in this matter: Sullivan v. Boylan [2012] IEHC 389. While the details of the ordeal to which the plaintiff was subjected by the third defendant are recorded in that judgment, it may be helpful if the background facts are briefly recapitulated.
3. The plaintiff, Ms. Sullivan, lives alone in Clontarf, Dublin 3. She engaged the first and second defendants (whom I shall collectively describe as “Boylan contractors”) in December, 2011 to build an extension to her property and to carry out certain refurbishments works. The works commenced in February, 2012 and ceased in May, 2012. By April, Ms. Sullivan had paid €84,000 of the initial contract sum of €91,250. There was subsequently a dispute as to whether certain contracted works had been carried out or whether instead certain additional work had to be performed over and above that which had originally been contracted for. In sum, therefore, the issue is whether Ms. Sullivan owes the Boylan contractors €7,000.00 (approximately) or €20,000.00 (approximately) or perhaps nothing at all.
4. It is clear nevertheless that there is a legitimate argument regarding the existence of any such debt or, if there is a debt, the amount of same. The Boylan contractors decided, however, to put the matter into the hands of a debt collector, Patrick McCartan. It is the latter’s conduct which gave rise to these proceedings and which required to be restrained by injunction.
The Conduct of Mr. McCartan
5. The first contact which Ms. Sullivan had with Mr. McCartan was on 1st August, 2012. She received a telephone call from him during which Mr. McCartan identified himself as someone who worked with financial institutions. He said that he had heard from Mr. Boylan and wanted to hear her side of the story. She had understood Mr. McCartan to be some kind of intermediary, and while Mr. McCartan sought a meeting, Ms. Sullivan indicated that she would get back to him.
6. Ms. Sullivan did not have to wait long for Mr. McCartan. He turned up unannounced on the 3rd August, and appears to have allowed himself through the front door. Ms. Sullivan, whilst surprised, was not taken aback by this because Mr. McCartan did not then behave aggressively. He identified himself as the person who had rung earlier, and she invited him further into the house to show the difficulties which had arisen on the construction works. Mr. McCartan did not say that he was a debt collector but rather indicated that – or, at least appeared to indicate that – there might be some room for a constructive engagement between Ms. Sullivan and Mr. Boylan. Ms. Sullivan was quite happy with that meeting.
7. Matters changed for the worst on the 8th August, 2012, when Ms. Sullivan received an email from Mr. McCartan claiming she owed the sum of €23,783 to the Boylan contractors. The email was in the following terms:-
“I can have Mr. Boylan accept if paid by Friday the sum of €20,000.00 of which payment must be made [directly to a particular bank account]. Failure for this to appear in the account by Friday 12 noon, my instructions are to act immediately and secure judgment and park our vehicle DEBT COLLECTOR fully signage outside your house and place of work. I really would prefer an amicable agreement to settle, however I have a responsibility to my client to collect as per instructions with less interruption from yourself. You do not need any more grief from neighbours and the site of a large van with signage directed and with your details is something that should be avoided. I expect your reply and settlement as per instructions above.”
It was purportedly signed in the name of Greenbank Solutions Credit License 564337 licensed to operate in the UK, Ireland, USA, and Europe.
8. On receipt of this email Ms. Sullivan contacted her solicitor who, in turn, sent a letter to Mr. Boylan asking him to desist. On the 10th August, Mr. McCartan contacted Ms. Sullivan by telephone. She explained that she had instructed her solicitor to handle matters with Mr. Boylan. Shortly after that she received a text message from Mr. McCartan in the following terms:-
“Deirdre you have refused to co-operate, I gave you a week and no reply. I am assuming no payment has been made. I have it made quite clear a full €23k is now required plus 10% our fee or we will expose you on this debt and will get it.”
She received approximately seven further phone calls from Mr. McCartan from the same telephone number later that afternoon, but she did not answer them.
9. Not surprisingly, Ms. Sullivan was extremely distressed by this persistent calling and she sent him a text message asking him to desist from this. Giving evidence before me at the damages hearing on 1st March, 2013, Ms. Sullivan explained that she found this series of threatening phone calls very distressing and frightening and she felt that she was being watched.
10. She then received a further text message from Mr. McCartan in the following terms:-
“My calls and presence will continue. You created the problem and agreed with me. I … will embarrass you to your neighbours if you continue also a charge will be placed on your property and a judgment. Your choice as my client is correct.”
Ms. Sullivan’s solicitor, Mr. MacGuill, then wrote a further letter to Mr. McCartan asking him to desist from this conduct and drawing his attention to the provisions of s. 10 and s. 11 of the Non-Fatal Offences Against the Person Act 1997 (“the Act of 1997”), and indicating that any further direct approaches to her for the sums in dispute would be referred to the Gardaí.
11. Unfortunately, however, Mr. McCartan did not desist. He sent her an email on the 15th August in the following terms:-
“Dear Madam,
Unfortunately for you and your lies this matter is now being in possession and legal charge being obtained immediately please do not insult me with a letter of a so called solicitor with no letter heading or qualifications why has he to hide all you have a minimum of three days to pay or your broader investments and business will be of interest to the Revenue, do not underestimate my knowledge of your hidden undeclared properties and business.”
Ms. Sullivan comments in her affidavit that:-
“I have no undeclared properties and business. I had had issued in relation to foreign property [which] were sorted out with the Revenue Commissioners a number of years ago with the assistance of a tax adviser. I do not know how Mr. Boylan or Mr. McCartan obtained access to that information.”
The harassment nonetheless continued unabated, as another email followed:-
“Dear Madam,
Your non-cooperation adds to our increased demand for payment due to Mr. Boylan. If you decline to acknowledge as from tomorrow as previously indicated we will cause you severe embarrassment, your neighbours have also indicated they will not tolerate increased traffic or nuisance operations causing inconvenience to their access. We are within our rights and failure by you to settle your debt will only add to your discomfort in the area. You owe the money so pay up and save yourself all this embarrassment. We look forward to your early settlement.
Greenbank Collections Licensed Debt Collectors.”
Worse was to follow. On Friday 24th August Ms. Sullivan received an email from Mr. McCartan as follows:-
“We will be in attendance after 4.00pm for full debt otherwise our van will maintain a spot outside your house to highlight your refusal to settle.”
There then followed a text message:-
“We are sitting outside till you come out with payment €25,000 or we start knocking on doors and telling the neighbours.”
12. Ms. Sullivan was extremely alarmed by this, but felt that she had no option but to return home immediately from work. She found a large Northern Ireland registered white van parked directly in front of her house with the signage – “Licensed Debt Collectors” – prominently displayed. Ms. Sullivan recognised Mr. McCartan and spoke to him. She drew attention to the fact that her architect was finalising her report on the disputed works. Ms. Sullivan was very distressed and in her agitated state she called Mr. McCartan a criminal. While it is clear from her affidavit that she was contrite about having made that statement, one must adjudge it to be pardonable in the circumstances given the extreme distress to which she had been subjected. Mr. McCartan indicated that he took exception to her remark and telephoned Mr. Boylan. However, there was an altercation between Mr. McCartan and Ms. Sullivan and a very unsatisfactory subsequent conversation between Mr. Boylan and Ms. Sullivan.
13. As indicated, Ms. Sullivan was extremely distressed as a result of this and drove to Clontarf Garda Station. Ms. Sullivan found the Gardaí very sympathetic and they had not previously been aware of Mr. McCartan’s presence outside her house. They accompanied her back to her house where after discussions with Mr. McCartan the Gardaí indicated that he would leave shortly. The Gardaí acknowledged, however, that they were powerless to stop him coming back. The Gardaí were also plainly of the view that they could take no steps as such to stop Mr. McCartan parking his vehicle with the debt collection signage directly outside Ms. Sullivan’s house.
14. Shortly after he had parked his van outside her house, Mr. McCartan then sent Ms. Sullivan another text in the following terms:-
“Madam, solicitors are money grabbing hoods without the mask. Do not threaten me with an uneducated [solicitor] as most were fraud in the good times. You have till Monday to have €20k in my account or else the Garda said I can park outside if I want. Your neighbours are not impressed and we will be back if you refuse to pay with your name in large print Monday. As for your remark a full apology and I will have you for every euro you may have as I have you taped. Monday?”
(I have redacted some of the coarser language used).
Ms. Sullivan was naturally extremely frightened and shocked to receive this text message. She spoke with Garda Hanrahan of Clontarf Garda Station who had been present earlier that day. While Garda Hanrahan advised her to retain all emails and text messages, Ms. Sullivan formed the view that the Gardaí considered the Mr. McCartan was within his rights in parking the vehicle outside her front door.
15. Matters came to a head on Monday 27th August, 2012, when Mr. McGuill sought undertakings on behalf of Ms. Sullivan from both Mr. Boylan and Mr. McCartan prior to making an application to this Court. The prospect of litigation did not, however, daunt Mr. McCartan in the least. The telephone calls kept coming and on that morning he had sent an email saying that she had “one hour” to contact him with payment as otherwise “the van goes back, and seizure of goods will take place [and] a vigil will be maintained outside your home to let everyone know how deceptive your are.” Further emails along similar lines were sent later that day and, as it happens, on the 28th and 29th August.
16. It was against this background that the application for an interlocutory injunction was first made to me on the following day, Tuesday, 28th August. While I granted certain relief ex parte, the matter was adjourned on a number of occasions to enable the defendants to put their side of the case. Although the Boylan contractors have subsequently given appropriate undertakings to the Court and have terminated Mr. McCartan’s retainer, Mr. McCartan has never appeared and has not been represented at any of these hearings.
17. I accordingly granted the plaintiff an interlocutory injunction restraining Mr. McCartan from effectively watching and besetting her home. I subsequently granted a permanent injunction restraining Mr. McCartan from engaging in such conduct.
18. It is clear that Ms. Sullivan found the entire episode frightening and deeply traumatic. She felt that there was no one to whom she could turn, as her parents were elderly and she did not want to cause them needless anxiety. She lost weight and she was prescribed a mild sleeping tablet by reason of the extreme stress to which she had been subjected.
19. As I observed in the course of the original judgment:-
“… it has to be said that it is, frankly, difficult to speak with moderation in respect of the conduct of Mr. McCartan. His behaviour has, however, been contemptible, irresponsible and outrageous. He has sought to harass, bully, defame, vilify and intimidate Ms. Sullivan and to all but imprison her in her own home. It is behaviour which in a civilised society cannot be tolerated for an instant and it represents conduct which this Court cannot and will not allow.”
The findings in the first judgment
20. In the course of the first judgment I concluded that Mr. McCartan’s conduct amounted to a prima facie breach of ss. 10 and 11 of the Non-Fatal Offences against the Person Act 1997 (“the Act of 1997”) . These sections provide:-
“10(1) Any person who, without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence.
(2) For the purposes of this section a person harasses another where—
(a) he or she, by his or her acts intentionally or recklessly, seriously interferes with the other’s peace and privacy or causes alarm, distress or harm to the other, and
(b) his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other’s peace and privacy or cause alarm, distress or harm to the other.
(3) Where a person is guilty of an offence under subsection (1), the court may, in addition to or as an alternative to any other penalty, order that the person shall not, for such period as the court may, specify, communicate by any means with the other person or that the person shall not approach within such distance as the court shall specify of the place of residence or employment of the other person.
(4) A person who fails to comply with the terms of an order under subsection (3) shall be guilty of an offence.
(5) If on the evidence the court is not satisfied that the person should be convicted of an offence under subsection (1), the court may nevertheless make an order under subsection (3) upon an application to it in that behalf if, having regard to the evidence, the court is satisfied that it is in the interests of justice so to do.
(6) A person guilty of an offence under this section shall be liable—
( a ) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both, or
( b ) on conviction on indictment to a fine or to imprisonment for a term not exceeding 7 years or to both.
11.(1) A person who makes any demand for payment of a debt shall be guilty of an offence if—
(a) the demands by reason of their frequency are calculated to subject the debtor or a member of the family of the debtor to alarm, distress or humiliation, or
(b) the person falsely represents that criminal proceedings lie for non-payment of the debt, or
(c) the person falsely represents that he or she is authorised in some official capacity to enforce payment, or
(d) the person utters a document falsely represented to have an official character.”
21. As I pointed out in that judgment, there can be little doubt but that Mr. McCartan has harassed Ms. Sullivan by “persistently following, watching, pestering, besetting or communicating with her” within the meaning of s. 10(1) of the Act of 1997, not least when she made it perfectly clear to him that such conduct was to stop. While Mr. McCartan was perfectly entitled to assert a demand for payment on behalf of the Boylan contractors, he was not entitled to make demands which by reason of their frequency were calculated – in the words of s. 11(1) of the Act of 1997 – “to subject the debtor or a member of the family of the debtor to alarm, distress or humiliation”. The demands made here were clearly intended to alarm and humiliate Ms. Sullivan. This, indeed, was the entire object of the exercise. Here it may be observed that the act of parking a van with the display sign “licensed debt collector” directly outside her house coupled with the threat to start ringing on the doors of her neighbours speaks for itself.
22. I went on to hold that the third defendant’s conduct had involved a breach of her constitutional rights to the protection of the person (Article 40.3.2) and the inviolability of the dwelling (Article 40.5):-
“The fact, moreover, that Mr. McCartan unblushingly continued with his practice of harassing the plaintiff even after the Gardaí had spoken to him points to the objective necessity for judicial intervention if the plaintiff’s right to secure the protection of her person (Article 40.3.2) and her dwelling (Article 40.5) is to be effective and not merely illusory.
…In the present case it requires little imagination to visualise the acute mental distress which Ms. Sullivan suffered as a result of this this outrageous conduct. The citizen’s right to the security of his or her person necessarily implies that the subjection by unlawful means of any person to what would objectively be regarded as acute mental distress must be regarded as amounting in itself to a breach of Article 40.3.2.
Nor could she find that repose from the cares of world presupposed by Article 40.5 – again to adopt the words of Hardiman J. in O’Brien – in the comfort of her own dwelling. The Irish language text of Article 40.5 (“Is slán do gach saoránach a ionad cónaithe….”) captures and expresses the essence of the English language word (“inviolability”) by stressing the concepts of safety and security of the dwelling. Here again all of this was compromised by the actions of Mr. McCartan. One might ask: who in such circumstances would feel safe in their house if, prior to entering or exiting their own private dwelling, they were effectively forced to run the gauntlet of passing what amounts to a picket bearing unpleasant messages by a menacing stranger, especially where these messages were designed to intimidate and humiliate?”
23. Here the calculated and persistent pattern of Mr. McCartan’s conduct may be emphasised. All of us may be upset by occasional rudeness, brusqueness or even angry words uttered in the heat of the moment and, of course, none of us are ourselves without sin in that regard as well. Such upset must be accepted as part of the give and take of everyday life, even if we do not like it when it occurs. What was objectionable about Mr. McCartan’s conduct – and that which brought it to the point of constitutional transgression – was its persistent, premeditated, unyielding and oppressive character.
The remedies for this unlawful conduct
24. In the light of these findings, it now falls to this Court to devise appropriate remedies in order to vindicate Ms. Sullivan’s constitutional rights which have been so outrageously violated by Mr. McCartan’s quite deplorable conduct. Article 40.3.2 and Article 40.5 are, of course, self-executing provisions which apply to both State actors and private citizens alike. There is absolutely no doubt but that a plaintiff whose constitutional rights have been infringed in this fashion can, in principle, at least, sue for breach of these rights: see, e.g., Meskell v. Córas Iompair Eireann [1973] I.R. 121, per Walsh J., Hanrahan v. Merck, Sharpe & Dohme Ltd. [1988] I.R. 629, per Henchy J. and Grant v. Roche Products Ltd. [2008] IESC 35, [2008] 4 IR 679 per Hardiman J.
25. It is true that in Hanrahan Henchy J. envisaged that this would be done only where the existing tort law was “basically ineffective” to protect constitutional rights. But it is far from clear that the existing law of torts sufficiently or adequately protects the constitutional interests of the plaintiff in the present case. It is true that, as might be expected, there are features of tort law which to some degree cover some of the interests which the plaintiff here seeks to vindicate. The principal nominate torts which might serve for this purpose are, of course, an action in private nuisance and the rule in Wilkinson v. Downton [1897] 2 QB 57. We may consider each of these torts in turn.
The law of nuisance
26. It would be tempting to attempt to shoehorn the plaintiff’s claim within the established boundaries of the law of nuisance. But here it must be recalled that the law of nuisance complements ownership of land and the scope of that tort requires to be understood in that historical context. As Professor Newark explained in his classic article, “The Boundaries of Nuisance” (1949) 65 L.Q.R. 480, 488-489:-
“In true cases of nuisance the interest of the plaintiff which is invaded is not the interest of bodily security but the interest of liberty to exercise rights over land in the amplest manner. A sulphurous chimney in a residential area is not a nuisance because it makes householders cough and splutter but because it prevents them taking their ease in their gardens. It is for this reason that the plaintiff in an action for nuisance must show some title to realty.” (emphasis added)
27. This passage (and perhaps especially the words which I have taken the liberty of emphasising) sums up the conceptual reason why the law of nuisance would be “basically ineffective” in the Hanrahan sense to protect the interests safeguarded by Article 40.5. Nuisance is designed to protect ownership of land, whereas Article 40.5 protects the rights of the residents of a dwelling to security, protection against all-comers and privacy which are all necessary features of the inviolability of the dwelling. These are rights which are enjoyed by all who reside in the dwelling and not simply by those who have legal title to that property. It might be said that whereas nuisance protects the proprietary interests of those with title to the dwelling, Article 40.5 is fundamentally directed at protecting the privacy interests of those who reside in a dwelling against the world at large. Nuisance, in other words, is an established tort relating to land, whereas Article 40.5 is concerned with the protection of the person as it relates to the protection of the security and privacy interests of those resident in a particular dwelling, even if they have no proprietary rights in respect of that dwelling.
28. This is borne out by developments in the United Kingdom within the last twenty years or so, starting with the decision of the English Court of Appeal in Khorasandjian v. Bush [1993] QB 727. In this case an 18 year old young woman had formed a romantic relationship with an older man. When that relationship ended, the older man pestered and harassed her in a most intolerable fashion. In the Court of Appeal one of the issues was whether the courts had jurisdiction to grant an injunction restraining the defendant from endeavouring to contact her by telephoning her at her parent’s home where she resided. A majority of the Court held that it had such a jurisdiction, but it is clear that the reasoning in that case – whatever about the actual result – did not survive the subsequent decision of the House of Lords in Hunter v. Canary Wharf Ltd. [1997] UKHL 14, [1997] AC 655.
29. In Hunter Lord Goff summarised thus the issues in Khorasandjian ([1997] AC 655, 690-691):-
“An injunction was granted restraining the defendant from various forms of activity directed at the plaintiff, and this included an order restraining him from “harassing, pestering or communicating with” the plaintiff. The question before the Court of Appeal was whether the judge had jurisdiction to grant such an injunction, in relation to telephone calls made to the plaintiff at her parents’ home. The home was the property of the plaintiff’s mother, and it was recognised that her mother could complain of persistent and unwanted telephone calls made to her; but it was submitted that the plaintiff, as a mere licensee in her mother’s house, could not invoke the tort of private nuisance to complain of unwanted and harassing telephone calls made to her in her mother’s home. The majority of the Court of Appeal (Peter Gibson J. dissenting) rejected this submission, relying on the decision of the Appellate Division of the Alberta Supreme Court in Motherwell v. Motherwell (1976) 73 D.L.R. (3d) 62. In that case, the Appellate Division not only recognised that the legal owner of property could obtain an injunction, on the ground of private nuisance, to restrain persistent harassment by unwanted telephone calls to his home, but also that the same remedy was open to his wife who had no interest in the property. In the Court of Appeal Peter Gibson J. dissented on the ground that it was wrong in principle that a mere licensee or someone without any interest in, or right to occupy, the relevant land should be able to sue in private nuisance.”
30. In a powerful judgment Lord Goff then proceeded to show how Motherwell v. Motherwell was based on a misunderstanding of earlier English cases regarding the entitlement of a mere licensee to sue in private nuisance. He then said ([1997] AC 655, 691-692):-
“This conclusion was very largely based on the decision of the Court of Appeal in Foster v. Warblington U.D.C. [1906] 1 K.B. 648, which Clement J.A. understood to establish a distinction between “one who is ‘merely present'” and “occupancy of a substantial nature”, and that in the latter case the occupier was entitled to sue in private nuisance. However Foster does not in my opinion provide authority for the proposition that a person in the position of a mere licensee, such as a wife or husband in her or his spouse’s house, is entitled to sue in that action. This misunderstanding must, I fear, undermine the authority of Motherwell on this point; and in so far as the decision of the Court of Appeal in Khorasandjian v. Bush is founded upon Motherwell it is likewise undermined.
But I must go further. If a plaintiff, such as the daughter of the householder in Khorasandjian v. Bush, is harassed by abusive telephone calls, the gravamen of the complaint lies in the harassment which is just as much an abuse, or indeed an invasion of her privacy, whether she is pestered in this way in her mother’s or her husband’s house, or she is staying with a friend, or is at her place of work, or even in her car with a mobile phone. In truth, what the Court of Appeal appears to have been doing was to exploit the law of private nuisance in order to create by the back door a tort of harassment which was only partially effective in that it was artificially limited to harassment which takes place in her home. I myself do not consider that this is a satisfactory manner in which to develop the law… In any event, a tort of harassment has now received statutory recognition: see the Protection from Harassment Act 1997. We are therefore no longer troubled with the question whether the common law should be developed to provide such a remedy.
It follows that, on the authorities as they stand, an action in private nuisance will only lie at the suit of a person who has a right to the land affected. Ordinarily, such a person can only sue if he has the right to exclusive possession of the land, such as a freeholder or tenant in possession, or even a licensee with exclusive possession. Exceptionally…. this category may include a person in actual possession who has no right to be there; and in any event a reversioner can sue in so far his reversionary interest is affected. But a mere licensee on the land has no right to sue.”
The rule in Wilkinson v. Downton
31. Much the same can also be said with regard to Wilkinson v. Downton. In that case the defendant falsely told the plaintiff as a practical joke that her husband had been injured in an accident involving a horse-drawn vehicle and that he was lying prostrate on the ground with his legs broken and that he had summoned her to fetch him. While the plaintiff’s husband returned safely by train from the races at Harlow that evening, the effects on the plaintiff were nonetheless dramatic. She became violently ill, her hair turned white and she seems to have suffered a severe psychiatric illness as a result.
32. The plaintiff sued for damages in an action on the case. Wright J. held the defendant liable on the ground that ([1897] 2 QB 57,58-59):-
“he had wilfully done an act calculated to cause physical harm to the plaintiff, that is to say, to infringe her legal right to personal safety and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification for the act.”
33. Quite apart from the fact that, as McMahon and Binchy, Law of Torts (Dublin, 2000) observe at para. 22.28 the “precise scope of the tort is somewhat uncertain”, the rule in Wilkinson v. Downton protects only some – but by no means all – of the interests safeguarded by Article 40.3.2. This is indeed illustrated by the facts of the present case.
34. An essential element of the tort in Wilkinson v. Downton is that the words were spoken falsely and were calculated to cause physical harm. One might, of course, say that in one sense Mr. McCartan spoke falsely in asserting that monies were due. Critically, however, he believed this to be true and, in any event, it may well be that when their dispute is finally resolved Ms. Sullivan may possibly find herself having to pay a particular sum to the Boylan contractors. But even if he had spoken the truth, it would not in the least have excused his behaviour or avoided an infringement of Article 40.3.2 and Article 40.5.
35. One might equally contend that the actions of the Mr. McCartan were calculated to physical harm to Ms. Sullivan and that they did in fact do so. It would nevertheless be artificial to extend the rule in Wilkinson v. Downton in this fashion. In the latter case the injuria was the acute physical harm which the plaintiff had suffered. It is true that in the present case Ms. Sullivan lost weight and in the end was prescribed a mild sedative to assist her to have sleeping pattern restored.
36. But there the comparisons end, as unlike Wilkinson v. Downton, the claim here is not really for physical injury at all. It is rather for the acute distress caused by the outrageous invasion of her personal space which is the very essence of the inviolability guarantee in Article 40.5. This guarantee is complemented by the protection of the person in Article 40.3.2, the effect of which, if I may venture to repeat what I said in Kinsella v. Governor of Mountjoy Prison [2011] IEHC 235, is that:-
“By solemnly committing the State to protecting the person, Article 40.3.2 protects not simply the integrity of the human body, but also the integrity of the human mind and personality.”
I might further repeat what I said on this point in Sullivan (No.1):
“In the present case it requires little imagination to visualise the acute mental distress which Ms. Sullivan suffered as a result of this outrageous conduct. The citizen’s right to the security of his or her person necessarily implies that the subjection by unlawful means of any person to what would objectively be regarded as acute mental distress must be regarded as amounting in itself to a breach of Article 40.3.2.”
37. Of course, the ancient Roman jurist would have had no difficulty at all in recognising what occurred in the present case as actionable iniuria, a tort which “protected the personality or personhood”: see Birks, “Harassment and Hubris” (1997) 32 Irish Jurist 1, 6. Reflecting this Roman inheritance, most continental civil codes would also readily permit an actio iniuriarum in respect of conduct of this kind.
In some civil law jurisdictions traditional tort law on this subject has, moreover, been supplemented and augmented by the judicial invocation of relevant constitutional guarantees. This has been particularly true in Germany where the Basic Law’s guarantees in terms of human dignity and the protection of the person are in terms very similar to our own constitutional guarantees: see, e.g., Zweigert and Kötz, An Introduction to Comparative Law (Oxford, 1992) at 729-730.
38. All of this is merely to say that the common law might well yet develop unaided to match its civilian counterparts so that in time that the law of nuisance and the rule in Wilkinson v. Downton would be regarded as just distinct sub-rules of a more general tort which protected human dignity and the person. As it happens, save in part for the fact that a statutory tort of harassment was created in the United Kingdom by the Protection from Harassment Act 1997, there might well have been English developments along these lines in the intervening period.
39. Indeed, in his concurring judgment in Hunter, Lord Hoffman may be thought to have contemplated that such might well occur ([1997] AC 655, 707):
“The perceived gap in Khorasandjian v. Bush [1993] QB 727 was the absence of a tort of intentional harassment causing distress without actual bodily or psychiatric illness. This limitation is thought to arise out of cases like Wilkinson v. Downton [1897] 2 QB 57 and Janvier v. Sweeney [1919] 2 K.B. 316. The law of harassment has now been put on a statutory basis (see the Protection from Harassment Act 1997) and it is unnecessary to consider how the common law might have developed. But as at present advised, I see no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence: see Hicks v. Chief Constable of the South Yorkshire Police [1992] 2 All ER 65. The policy considerations are quite different. I do not therefore say that Khorasandjian v. Bush [1993] QB 727 was wrongly decided. But it must be seen as a case on intentional harassment, not nuisance.”
40. This view was shared by Professor Birks in his masterly essay on the topic, “Harassment and Hubris”. As the original essay had been written before the decision of the House of Lords in Hunter and the enactment (in the UK) of the Protection from Harassment Act 1997, he subsequently argued in a postscript to that essay:
“One of the things which the lecture says is that the case of Khorasandijian v. Bush was stretching the limits of the tort of nuisance to make it do some of the work of a tort of harassment, and it argues that the resources lay at hand to do that work more directly and more comprehensively. The new statute, introducing civil and criminal redress, took the pressure off the tort of nuisance, allowing the House of Lords to say in Hunter v. Canary Wharf Limited that Khorasandijian had indeed overstretched the tort of nuisance and was to that extent wrong.”
41. These views were also echoed by Professor Glazebrook who argued (“Wilkinson v. Downton: A Centenary Postscript” (1997) 32 Irish Jurist 46, 48):
“So, if Wilkinson v. Downton is authority for anything, it is for the proposition that it is a tort to cause another anxiety, worry or distress when this is done intentionally, unjustifiably and inexcusably. It is not necessary, as some often suppose, that the anxiety, worry and distress should have resulted in illness. Illness is not part of the cause of action any more than physical injury is part of the cause of action in trespass to the person….”
42. Nevertheless, Lord Hoffmann himself subsequently seemed to rule out the development of such liability in Wainright v. Home Office [2004] 2 AC 406 (a case involving the strip searching of visitors to a prison) when he said ([2004] 2 AC 406, 426) that Wilkinson v. Downton “does not provide a remedy for distress which does not amount to recognised psychiatric injury.”
43. But just because the common law might have so developed or might yet so develop at some stage in the future does not take from the fact that the existing law of torts is still basically ineffective to protect the plaintiff in a case of this kind. It is true that – just as with the UK – our law of harassment has been placed on a statutory footing (s. 10 of the 1997 Act), but in this jurisdiction – unlike the UK Act – this is confined to the criminalisation of such conduct and does not address the question of remedies in tort. The fact that there is no statutory right to recover damages for this wrong simply underscores the basic ineffectiveness of traditional tort law fully to vindicate the constitutional rights to the protection of the person and the inviolability of the dwelling.
44. In the light of these conclusions it is not necessary for me to effect a re-shaping of existing common law rules. It follows, therefore, that for all of the above reasons the plaintiff can nevertheless sue and recover damages in respect of the violation of her constitutional rights as guaranteed by Article 40.3.2 and Article 40.5 given the basic ineffectiveness (in the Hanrahan sense) of the existing common law rules to protect the important interests relating to the protection of the person and the security of the dwelling which are safeguarded by these constitutional provisions. Even if the common law has not (yet) developed a general principle of tortious liability by reference to which the person is to be protected, that it is irrelevant given that Article 40.3.2 of the Constitution articulates such a general principle in clear and express terms. I am accordingly obliged as a result to fashion remedies which will uphold that constitutional right.
The appropriate level of damages
45. It is not easy to calculate the appropriate level of damages in unusual cases of this kind. In Raducan v. Minister for Justice [2011] IEHC 224, [2012] 1 I.L.R.M. 419 I awarded €7,500 to the Moldovian plaintiff who had been falsely detained by immigration officials as a result of a bureaucratic error following her arrival in Dublin airport on a fight from Bucharest. This meant that the plaintiff was unlawfully detained at a detention centre for three days. While the error was bona fide and the plaintiff herself very fairly acknowledged the fact that she was well treated while in prison, the sum was designed to compensate her for the loss of liberty for three days.
46. In the present case the interference with the plaintiff’s freedom was nothing as far-reaching as in Raducan. Nevertheless, whereas the deprivation of liberty in that case was the result of a bona fide mistake contrast, the defendant’s conduct here has been outrageous, contumelious and malicious. The offending conduct, moreover, lasted for a three week period as compared with the three days in Raducan.
47. In Herrity v. Associated Newspapers Ltd. [2008] IEHC 249, [2009] 1 I.R. 326 the defendant newspaper published detailed transcripts of the plaintiff’s private telephone conversations which had apparently been obtained by her estranged husband. The transcripts showed that the plaintiff had a romantic relationship with a Roman Catholic priest and the details of these transcripts were then published by the defendant newspaper to the plaintiff’s immense distress.
48. Dunne J. held that the defendant had thereby violated the plaintiff’s constitutional right to privacy. Addressing herself to the question of damages Dunne J. concluded ([2009] 1 I.R. 326, 347):
“Bearing in mind the facts and circumstances of this case, I am assessing ordinary and aggravated compensatory damages in the sum of €60,000 for the conscious and deliberate and unjustified breach of the plaintiff’s right to privacy and the undoubted and significant distress caused to the plaintiff as a result of that breach. The blatant use of unlawfully obtained transcripts of telephone conversations is such that it seems to me that it could not be condoned in any way whatsoever. The behaviour of the defendant in making use of such material is, in my view, nothing short of outrageous. It will be seldom that a court will award punitive or exemplary damages. However, bearing in mind the comments of Finlay C.J. in [Conway v. Irish National Teachers’ Organisation [1991] 2 I.R. 305], it seems to me that this is one of the rare occasions when the court’s disapproval of the defendant’s conduct in all the circumstances of the case should be marked by awarding such damages. In all the circumstances of this case it seems to me that the appropriate sum to award in respect of punitive damages for the conduct of the defendant in making use of transcripts of telephone conversations obtained unlawfully is the sum of €30,000.
Accordingly, there will be a decree in favour of the plaintiff in the sum of €90,000.”
49. Of course, the invasion of privacy in Herrity was particularly outrageous, not least given that it was committed by a powerful newspaper for commercial gain. This private and intimate information was thereby communicated to a wide audience and, of course, this did not happen in the present case. It must furthermore be acknowledged that Mr. McCartan’s conduct stopped following a court order and to that extent Ms. Sullivan’s rights have already been vindicated by judicial decision. Yet the outrageous conduct of the defendant cannot be ignored, nor are the grave breaches of the plaintiff’s constitutional rights to be lightly overlooked.
50. In the circumstances, I consider that the present case is somewhat closer to Raducan in terms of the effects on the plaintiff’s life and welfare, even if the breaches of constitutional rights in the present case were more sustained and had a longer duration. In these circumstances I will award the plaintiff the sum of €15,000 by way of general damages.
Whether exemplary damages should be awarded
51. In Conway v. Irish National Teachers’ Organisation [1991] 2 I.R. 305, 317 Finlay C.J. envisaged that exemplary damages could be awarded in addition to compensatory damages where it was appropriate “to mark the court’s particular disapproval of the defendant’s conduct in all the circumstances of the case.” Given all that I have said in both the first judgment and in this judgment regarding the oppressive, arrogant and contumelious behaviour of Mr. McCartan, just as in Herrity, it is entirely appropriate that exemplary damages should be awarded. Here I propose to follow the example of Dunne J. in Herrity and to award the plaintiff by way of exemplary damages 50% of the sum awarded as compensatory damages, i.e., the sum of €7,500.
Conclusions
52. For the reasons stated, therefore, I propose to award the plaintiff the sum of €15,000 in respect of general damages, with €7,500 by way of exemplary damages. I will thus award her the sum of €22,500 for breaches of her constitutional rights as against the third defendant.
DF v Garda Commissioner
(No 3) [2014] IEHC 213
JUDGMENT of Mr. Justice Hogan delivered on the 11th day of April, 2014
1. The plaintiff in these proceedings is a 28 year old man who, it is acknowledged, is severely autistic. As the proceedings are presently constituted the plaintiff claims damages in respect of the nominate torts of false imprisonment and assault and battery. Damages are also sought for negligence and breach of duty. The plaintiff further claims for damages for breaches of constitutional rights and for damages for breach of his rights under the European Convention of Human Rights Act 2003 (“the 2003 Act”). The plaintiff also claim damages for breaches of his rights under the Charter of Fundamental Rights of the European Union and under the United Nations Convention on the Rights of Persons with Disabilities 2006 (“the 2006 UN Convention”). The plaintiff additionally seeks declaratory relief in relation to the illegality of the arrest.
2. The defendants now contend that some of these claims should be struck as either unsustainable in their own right or as otherwise merely replicating claims for damages in respect of nominate torts of assault and false imprisonment. To this end they have applied by motion to have the claims based on breach of constitutional rights, breach of the 2003 Act, the Charter and the UN Convention struck out in a summary basis. They also contend that it is inappropriate for a court to grant declaratory relief in aid of these common law and other remedies. I will presently consider these claims in due course, but it is first necessary to sketch out the background facts of the case.
The background facts
3. The incident which gave arise to these proceedings occurred on 24th September, 2010. The plaintiff’s testamentary guardian, Ms. M., contends that on that afternoon Mr. F. had taken up his habitual position outside his grandparents’ house when he was unlawfully arrested by members of An Garda Síochána at about 5pm in the evening and brought to a local Garda station. It is contended that no effort was made by the Gardaí to speak with either his mother or father, both of whom lived close by. I should pause here to say that the plaintiff’s mother sadly died in January, 2012. While she was not living with the plaintiff’s father at the time of her death, both parents were actively involved in caring for him.
4. According to Ms. M., the arrest of Mr. F. and his detention in unusual surroundings caused him acute and unusual distress. The custody records show that the plaintiff had been detained for just under an hour and that he had been arrested under s. 12 of the Mental Health Act 2001. He was released when his father – a registered medical practitioner – attended (along with the plaintiff’s mother) at the Garda station and explained that he suffered from severe autism.
5. The defence filed by the State defendants does not dispute a good deal of this. It is contended, however, that a member of the public saw the plaintiff chase two women with a large stick or a branch of a tree in the general vicinity of the plaintiff’s grandparent’s house, although neither woman was actually struck. The Gardaí were then alerted and, on their arrival, following a minor altercation, the plaintiff was then identified as the individual who had given chase to the two women. When one of the Gardaí involved, a Garda Fallon, attempted to speak to Mr. F., he realised that he was suffering from a mental condition, as he was unable to get Mr. F.’s name or any other pertinent details. Garda Fallon arrested Mr. F. pursuant to s. 12 of the Mental Health Act 2001. Mr. F. was then placed in handcuffs and conveyed by the patrol car to the local Garda Station.
6. Upon arrival at the Garda station at around 5.10 p.m., the Gardaí endeavoured to contact some local general practitioners, but to no avail. Recorded messages in both cases suggested that the general practitioners in question would come on duty again at 6 p.m. It appears, however, that another member attached to the station recognised the plaintiff, although he could not immediately recall his name. This member then made appropriate inquiries and, having satisfied himself as to the plaintiff’s identity, drove to the plaintiff’s house where he spoke with the plaintiff’s mother and informed her of the arrest.
7. The plaintiff’s mother then arrived at the station shortly after 5.30 p.m. and comforted her son. The member in charge, a Sergeant Galvin, was informed by her that her son suffered from severe autism. The plaintiff’s father then arrived about twenty minutes later. On being informed that the plaintiff’s father was a registered medical practitioner who could confirm that the plaintiff did indeed suffer from severe autism, he was released by Sergeant Galvin at about 6.05 p.m.
8. The plaintiff contends that he was subjected to inhuman and degrading treatment by being subjected to “unjustified use of restraints designed to and which did “in fact cause [him] additional and unnecessary suffering.” This, however, is expressly denied by the defendants.
9. This is the general factual background to the proceedings. I have already delivered two judgments dealing with diverse aspects of this case. In DF v. Garda Commissioner (No.1) [2013] IEHC 5 I held that the plaintiff was entitled to jury trial in respect of these claims, with the proviso that all issues bearing on the legality of the arrest were to be determined by the trial judge alone. In DF v. Garda Commissioner (No.2) [2013] IEHC 312 I ruled that the proceedings were to be heard in open court, without any restrictions identifying the plaintiff. A stay was subsequently granted by the Supreme Court in respect of this latter order and it follows that the name of the plaintiff in the present judgment is given in redacted form.
The scope of the pleadings
10. Before determining questions as to whether these claims are sustainable or purely duplicative of subsisting common law claims, is first necessary to examine the ambit of the plaintiff’s pleadings. The relief sought in the plaintiff’s general endorsement of claim takes the form of claims for declaratory relief and damages. The first two declarations sought are pleas, in effect, that the plaintiff’s arrest and detention were both unlawful.
11. So far as the damages claim is concerned, the major claims are for damages in respect of the nominate torts of false imprisonment and assault and battery. Damages are also sought for negligence and breach of duty, but there are also claims for damages for specific breaches of constitutional rights – liberty, bodily integrity and privacy, along with “the personal constitutional rights of the plaintiff which they were bound to protect.” For ease of reference I will treat these compendiously in this judgment as rights deriving from Article 40.3.1, Article 40.3.2 and Article 40.4.1 – essentially, the rights to bodily integrity, person and liberty – even if they are not always quite pleaded in this form.
12. There are also claims for damages for breach of the plaintiff’s rights under the European Convention of Human Rights Act 2003 (“the 2003 Act”); for breaches of the plaintiff’s rights under the Charter of Fundamental Rights of the European Union and under the United Nations Convention on the Rights of Persons with Disabilities 2006 (“the 2006 UN Convention”).
13. A further consideration is that in the light of my judgment in DF (No.1) the present action will be tried by a jury, subject to the proviso that I have ruled that it is trial judge alone who must rule on all aspects of the legality of the arrest. This makes it all the more desirable that the issues raised in the pleadings are determined in an orderly fashion: see, e.g., the comments of Smyth J. in Hanly v. News Group Newspapers Ltd. [2004] 1 I.R. 475 and those of McGovern J. in Doherty v. Minister for Justice [2009] IEHC 246. In this particular context, therefore, it is all the more important that the potential for confusion arising from overlapping and duplicative claims should, where possible, be avoided.
14. I accordingly propose to examine the gist of the individual claims. If the claims simply duplicate or cannot add anything to the well established nominate torts of false imprisonment, assault and battery or if they present no justiciable issue, I propose to strike them out pursuant to the courts’ inherent jurisdiction at this preliminary stage.
15. It is nevertheless important to recall that, as I pointed out in my judgment in Beausang v. Irish Life and Permanent plc [2014] IEHC 1 that:
“….the summary strike out jurisdiction is not well adapted to cases raising novel and difficult issues, whether of fact or law. As Cozens-Hardy M.R. observed in Dyson v. Attorney General[1911] 1 K.B. 410, 414, the summary strike-out jurisdiction should not be applied ‘to an action involving serious investigation of ancient law and questions of general importance.’”
16. I then noted that this latter passage was quoted with approval by Keane J. in Irish Permanent Building Society v. Caldwell (No.1) [1979] I.L.R.M. 273, 276. In that case the defendants contended that the plaintiff building society had no locus standi to challenge the registration by the Registrar of Building Societies of one of the defendants as a building society. To this end the defendant brought a motion seeking to strike out the proceedings on the ground that they were unsustainable by reason of the fact that the plaintiff lacked standing to maintain them.
17. Keane J. refused to take this step, saying that ([1979] I.L.R.M. 273, 276-277) he was not satisfied that:
“On an application of this nature the High Court should finally determine the difficult and complex question of law involved. I think that the plaintiffs are entitled to a full and unhurried consideration of the questions they have posed for a resolution by the High Court and that this cannot, in a practical manner, be achieved within the limitations of a motion such as the present.”
18. While making appropriate allowances for this principle, if, nevertheless, the claim is manifestly duplicative of an established cause of action or, alternatively, it is unsustainable in law, it should nevertheless be struck out at this preliminary stage.
19. These individual claims can now be considered separately.
The constitutional claims
20. It may be here convenient to break down the individual claims and to assess the claims based on specific nominate torts by reference to the individual constitutional guarantees. The governing question in essence is identical in all of these particular cases: can it be said that the nominate tort provides an adequate or complete mechanism for the vindication of individual rights?
The tort of false imprisonment and the claim for damages for breach of constitutional right to liberty
21. The tort of false imprisonment has been summarised thus by Fawsitt J. in Dullaghan v. Hillen (1957) Ir.Jur.Rep. 10, 15:
“False imprisonment is the unlawful and total restraint of the personal liberty of another, whether by constraining him to go to a particular place or confining him in a prison or police station or private place or by detaining him against his will in a public place. The essential element of the offence is the unlawful detention of the person or the unlawful restraint on his liberty. The fact that a person is not actually aware that he is being imprisoned does not amount to evidence that he is not imprisoned, it being possible for a person to be imprisoned in law, without being conscious of the fact and appreciating the position in which he is placed, laying hands upon the person of the party imprisoned not being essential. There may be an effectual imprisonment without walls of any kind. The detainer must be such as to limit the party’s freedom of motion in all directions. In effect, imprisonment is a total restraint of the liberty of the person. The offence is committed by mere detention without violence.”
22. As McMahon and Binchy observe in their magisterial textbook, The Irish Law of Torts (Dublin, 2013) (at 911) these comments of Fawsitt J. represent “an admirably succinct statement of the principal features of the tort.” It is clear from this exposition of the parameters of the tort of false imprisonment that it may accordingly be regarded as a complete and full vindication of the guarantee of personal liberty in Article 40.4.1. Liability for false imprisonment is strict and is not based on notions of fault or negligence. By providing a mechanism for the protection of individual liberty in this fashion the common law may thus be said to give full effect to this particular constitutional guarantee.
23. The claim for damages for breach of the constitutional right to liberty accordingly adds nothing to the common law action for false imprisonment. Adapting the language of Baker J. in PR v. KC [2014] IEHC 126, it may be said that the claim for damages of the constitutional right to liberty “is no more than an ancillary claim or another way…of seeking the same relief.”
24. In these circumstances, with a view to bringing regularity to the proceedings and avoiding unnecessary duplication – especially in a case which will be tried with a jury – the defendants are accordingly entitled to say that this claim for damages for breach of constitutional right to liberty entirely replicates the action for false imprisonment and adds nothing to it. In these circumstances, I will therefore strike out the claim for damages for breach of constitutional right to liberty as it is simply another way of claiming the same relief.
The claims in assault and battery and the actions for damages for breach of constitutional rights to the person, bodily integrity and privacy
25. The tort of battery is summarised thus by McMahon and Binchy (at 898) as “the direct application of physical contact upon the person of another without his consent, express or implied.” The tort of assault is described by them (at 903) as consisting of “an act which places another person in reasonable apprehension of an immediate battery being committed upon that person.”
26. Dealing with the nature of these torts in her judgment in PR Baker J. first quoted with approval from the following passage from the judgment of Fawsitt J. in Dullaghan v. Hillen [1957] Ir. Jr. Rep. 10 at 13, where the court stated the rationale of the tort of assault as follows:-
“Security for the person is among the first conditions of civilized life. The law, therefore, protects us, not only against actual hurt and violence, but against every kind of bodily interference and restraint not justified or excused by allowed cause, and against the present (immediate) apprehension of any of these things.”
27. Baker J. then added that in this respect “the common law may be regarded as a realisation of the constitutional command in Article 40.3.2 that the State must protect and vindicate the person.” The real question, however, in the present case is not whether these nominate torts serve to realise this constitutional commitment – since this much is not in dispute – but rather whether these common law torts can be regarded as providing a complete and full mechanism for vindicating the substance of the relevant constitutional guarantees in all circumstances.
28. As I observed in Kinsella v. Governor of Mountjoy Prison [2011] IEHC 235, [2012] 1 I.R. 467, 471. Article 40.3.2 protects “not simply the integrity of the human body, but also the integrity of the human mind and personality.” In addition, the constitutional protection of the person must also be understood by reference to the Preamble’s objective that the dignity and freedom of the individual may be protected: see here Connolly v. Governor of Wheatfield Prison [2013] IEHC 334.
29. If Baker J. was surely correct to say in PR that the nominate torts of assault and battery may generally be regarded as a realisation of the constitutional command in Article 40.3.2 to protect the person, then the question which arises here is whether there are any circumstances at all in which these constitutional guarantees can be called in aid in order to supplement these torts. Here it must be recalled that the tort of assault requires a prior apprehension of a battery before it actually takes place and that absent this apprehension, no tort of assault is committed: see McMahon and Binchy at 903.
30. This specific limitation might be particularly relevant in the present case given that with the plaintiff’s mental condition it might ultimately transpire at the trial of the action that he lacked the cognitive capacity to have had any understanding of the conduct of the Gardai in seeking to restrain and arrest him, so that the question of any assault would simply not arise. In these circumstances and in view of this particular limitation on the scope of the tort, the plaintiff might be able to show at the full trial of the action that this nominate tort was, in the words of Henchy J. in Hanrahan v. Merck, Sharp & Dohme Ltd. [1988] I.L.R.M. 626, 636 “basically ineffective” to protect his constitutional rights to the protection of the person and bodily integrity.
31. Naturally, it must be stressed that the Gardai maintain that at all times they acted lawfully in arresting the plaintiff and that there was no tortious or other unlawful conduct on their part. That, however, is not the precise question which I have to consider, as my task for the purposes of this particular motion is to consider whether there are any circumstances in which the plaintiff might be able to invoke a constitutional remedy to supplement or augment his reliance on the nominate torts of assault and battery.
32. In view of the fact that such circumstances can readily be identified – at least so far this particular plaintiff is concerned – I will not strike out on a summary basis the claims based on the constitutional rights to the person and the cognate and overlapping rights such as bodily integrity and privacy. This is because it is just possible that the plaintiff will be able to demonstrate at the full hearing of the action that these nominate torts of assault and battery will insufficiently vindicate these constitutional rights to the integrity of the person so far as the manner of his arrest by members of the Gardaí are concerned.
33. In view of these possible uncertainties regarding the interaction of both these nominate torts and the relevant constitutional provisions relied upon by the plaintiff, it is appropriate to have regard to the principles articulated by Keane J. in Irish Permanent regard the summary disposal of complex legal question. This in itself is sufficient to demonstrate that it would be inappropriate to strike out these particular claims.
The claims under the European Convention of Human Rights Act 2003
34. The plaintiff claims damages for breaches of specific provisions of the Convention, including Article 3 (inhuman and degrading treatment) and Article 5 (personal liberty). The inclusion of these claims, however, invites a number of observations.
35. First, the claims under the 2003 Act proceed on the implied premise that the provisions of the European Convention of Human Rights have direct effect in Irish law, the objective breach of which sounds in damages. The Supreme Court has, however, confirmed that the ECHR does not have direct effect in Irish law in this sense: see, e.g., McD v. L [2009] IESC 71, [2010] 2 IR 199, and MD v. Ireland [2012] IESC 10, [2012] 2 I.L.R.M. 305. In fact, strictly speaking, damages can only be claimed under s. 3(2) of the 2003 Act insofar as it is alleged that the plaintiff has suffered loss by reason of a failure of an organ of the State to “perform its functions in a manner compatible with the State’s obligations under the Convention provisions.”
36. Second, s. 3(2) of the 2003 Act makes it plain that any claim for damages under the 2003 Act can only be claimed “if no other remedy in damages is available”. But is plain that many other claims for damages are available in this State to a person who claims that they have been unlawfully arrested and detained: these remedies not only include the nominate torts of false imprisonment and assault and battery, but also the action for damages for breaches of constitutional rights. If the plaintiff was, in fact, subjected to inhuman and degrading treatment – a claim which, in fairness, I should again point out is emphatically denied by the defendants – then, insofar as this claim would not be adequately vindicated on the facts of his case by the nominate torts of assault and battery, he could sue for damages for breach of his constitutional right to the protection of the person in Article 40.3.2. The express constitutional protection of the person necessarily precludes inhuman and degrading treatment of this kind: cf. by analogy my own judgment in Kinsella v. Governor of Mountjoy Prison [2011] IEHC 353, [2012] 1 I.R. 467.
37. As was pointed out in Kinsella, the protection of the person in Article 40.3.2 (including the overlapping right to bodily integrity derived from Article 40.3.1) entails the protection of the integrity of both the mind and the body. Given that the parameters of this constitutional guarantee must also be understood by the Preamble’s commitment to safeguarding the dignity of the individual, it is plain that Article 40.3.2 clearly prohibits all forms of torture and inhuman and degrading treatment, as this would necessarily be inconsistent with the constitutional protection of the integrity of the human mind and body.
38. This is far from a new idea or insight. As Finlay P. observed in The State (C.) v. Frawley [1976] I.R. 365, 374 in the context of the relationship between unenumerated rights under Article 40.3.1 and Article 3 ECHR:
“If the unspecified personal rights guaranteed by Article 40 follow in part or in whole from the Christian and democratic nature of the State, it is surely beyond argument that they include freedom from torture, and from inhuman and degrading treatment and punishment. Such a conclusion would appear to me to be inescapable even if there had never been a European Convention on Human Rights, or if Ireland had never been a party to it.”
39. It has not been suggested that the remedies available under the common law and, where appropriate, the Constitution are in some way inadequate or that they cannot otherwise adequately vindicate the plaintiff’s rights under the ECHR. In this respect, by analogy with the approach already taken with regard with the claim for damages for breach of constitutional right to liberty, the claim based on the personal liberty provisions of Article 5 ECHR adds nothing to the existing claim in respect of the nominate tort of false imprisonment, even if one overlooks the altogether important point that a claim as expressed in that fashion is not, as such, justiciable having regard to the provisions of s. 3 of the 2003 Act.
40. Returning, therefore, to the language of Baker J. in PR it can be said likewise that this claim adds nothing to the nominate tort of false imprisonment. It follows, therefore, that with a view to avoiding duplication and potential confusion, I will therefore strike out this claim as well.
41. Much the same can be said of the claim based on Article 3 ECHR. Insofar as the common law torts of assault and battery offered inadequate protection to the plaintiff’s rights in the present case, every protection in respect of the guarantee against torture and inhuman and degrading treatment is necessarily and by definition subsumed in the concomitant protection of the person in Article 40.3.2 and the protections of bodily integrity in Article 40.3.1. I will accordingly strike out the claim based on Article 3 ECHR as well as adding nothing to the existing claims for damages for assault and battery as well as to the those for breach of constitutional rights which have not themselves been struck out.
The claims based on the EU Charter of Fundamental Rights
42. The plaintiff claims damages for breach of the guarantees contained in Article 3 (physical and mental integrity), Article 4 (prohibition of inhuman and degrading treatment), Article 6 (liberty) and Article 7 (family life) of the EU Charter of Fundamental Rights. It is thus claimed, for example, that the plaintiff’s rights under Article 3 of the Charter were infringed in that he was subjected to “a search of his person in the absence of a medical practitioner and without his parents’ knowledge, authority or consent.”
43. Insofar as the Charter of Fundamental Rights is concerned, it must be recalled that the rights protected by the Charter are engaged so far as Member States are concerned only when the Member State in question is “implementing” Union law within the meaning of Article 51(2) of the Charter. Even taken the broadest possible view of the meaning of the phrase “implementing” Union law, it is well nigh impossible to see how the Charter could come into play in relation to events which are wholly internal to this State and in respect of which Union law plays no role or part.
44. All of this is illustrated by the recent decision of the Court of Justice in Case C-617/10 Åkerberg Fransson [2013] E.C.R. I-000. Here the question was whether the ne bis in idem provisions of Article 50 of the Charter applied to a tax penalty imposed for VAT purposes. The taxpayer in this case had previously paid administrative tax penalties and the issue of whether this precluded the application of further penalties in later proceedings accordingly arose. The critical question which had been raised by the Swedish referring court whether it could be said that Sweden was “implementing” Union law for the purposes of Article 51(1) of the Charter in the course of taking a subsequent criminal prosecution for VAT evasion.
45. A Grand Chamber of the Court of Justice held in essence that the Charter bound Member States “when they act in the scope of Union law” and that this is what the phrase “implementing” Union law in Article 51(1) really means. The Court of Justice then held that Sweden was “implementing” Union law in the present case because “the tax penalties and criminal proceedings to which Mr Åkerberg Fransson has been or is subject are connected in part to breaches of his obligations to declare VAT.”
46. The Court then pointed to specific anti-evasion provisions of the consolidated VAT Directive 2006/112/EC which ensured that Member State are under an obligation to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on its territory and for preventing evasion. Given further that VAT revenue formed part of the Union’s own resources it followed that:
“…there is thus a direct link between the collection of VAT revenue in compliance with the European Union law applicable and the availability to the European Union budget of the corresponding VAT resources, since any lacuna in the collection of the first potentially causes a reduction in the second….It follows that tax penalties and criminal proceedings for tax evasion, such as those to which the defendant in the main proceedings has been or is subject because the information concerning VAT that was provided was false, constitute implementation of Articles 2, 250(1) and 273 of Directive 2006/112 (previously Articles 2 and 22 of the Sixth Directive) and of Article 325 TFEU and, therefore, of European Union law, for the purposes of Article 51(1) of the Charter.”
47. While it is probably fair to say that Åkerberg Fransson represents the outer limits of the “implementing Union law” principle, yet even in that case there was, however, a link between the domestic prosecution in respect of the VAT fraud and the application of European Union law. In the present case there is simply no such link, since under no possible circumstances could it be said that the arrest of the plaintiff pursuant to a purely domestic statute was within the scope of European Union law.
48. For the reasons stated, therefore, it is plain that the claim based on the alleged operation of the Charter is doomed to fail, since under no possible circumstances could it be said that Ireland was “implementing” Union law within the meaning of Article 51(1) – a mandatory pre-condition to the very application of the Charter – by effecting the arrest of the plaintiff pursuant to s. 12 of the 2001 Act.
49. It follows, therefore, that this aspect of the claim is entirely unsustainable and must be struck out pursuant to the inherent jurisdiction of this Court.
The claims based on the 2006 UN Convention
50. So far as the claims based on the 2006 UN Convention are concerned, it must be stressed that the Convention itself has not been made part of the domestic law of the State by a law enacted for this purpose by the Oireachtas in the manner required by Article 29.6 of the Constitution. Given the dualist nature of the Constitution, it is absolutely clear that an international agreement cannot prevail over domestic law, save to the extent that such agreements have been made part of our domestic law: see In re O Laighléis [1960] IR 93. In these circumstances, the 2006 Convention cannot of itself give rise to any justiciable legal rights or controversies.
51. It is true that the situation is different at EU level where the monist tradition prevails. Thus, by virtue of Article 216(2) TFEU where international agreement are concluded by the European Union they are binding on the institutions of the Union and they prevail over inconsistent legislative acts of the Union: see, e.g., Case C-366/10 Air Transport Association of America [2011] E.C.R. I-000. It is equally clear that such union legislation must be interpreted, so far as possible, in a manner consistent with the international agreement in question.
52. The EU has itself by virtue of Decision 2010/48 approved the UN Convention, so that the Convention is thus part of the European Union legal order. The Court of Justice has further confirmed that Directives dealing with employment rights and non-discrimination (such as the Equal Treatment Directive 2000/78/EC) must be interpreted in the light of that Convention: see Case C-335/11 HK Danmark/Ring [2013] 2 CMLR 21.
53. Yet insofar as the Convention is justiciable at all in an Irish court in the absence of legislation giving effect to that Convention as part of the domestic law of the State, it can be only so insofar as the matter raised is within the scope of application of European Union law. That would be the case if, for example, an Irish court was, for instance, called upon in an appropriate case to interpret the Equal Treatment Directive.
54. The circumstances of the present case are, however, some distance from those governed by the Equal Treatment Directive. As I have already pointed out, the present case involves the application of a domestic statute to a set of facts which are wholly internal to this State. No question of the application of European Union law arises.
55. As this case is accordingly governed entirely by Irish law, the 2006 Convention could only be justiciable in the event that there was a domestic law which gave effect to its provisions. Since the Oireachtas has not enacted such legislation, it follows, therefore, that the claim based on the 2006 Convention is doomed to fail and must be struck out pursuant to the inherent jurisdiction of the Court.
Whether the plaintiffs are entitled to declaratory relief
56. The defendants also seek to have the plaintiff’s claims to declaratory relief in respect of the legality of the arrest of struck out. It is true that it has never hitherto been the practice of the courts to grant declaratory relief in aid of claims in tort of this kind at common law. This is doubtless because any award of damages – which will generally be awarded by a jury – is regarded as a sufficient vindication of the wrong done. Furthermore, the premise of any award of damages for, say, false imprisonment is that the plaintiff was falsely detained.
57. To some extent, however, the fact that such relief is never sought in aid of these claims may be an historical accident, reflecting the traditional distinction between the common law remedies (damages) and other equitable remedies (such as a declaration). But for one complication – which I shall address in a moment – there would seem to be no reason in principle why the courts should not now exercise the declaratory jurisdiction in aid of legal rights derived from the common law. It has never been suggested, for example, that a court should not be able to award a declaration in respect of a breach of contract claim, even if damages are also awarded to the wronged party as well.
58. The complication, however, derives from the fact that this trial will also be with a jury, even if by reason of my earlier judgment in DF (No.1), vital parts of the case will fall to be determined by the trial judge. The jury have, however, been given no jurisdiction to award a declaration in respect of claims of this kind. Indeed, it may be noted that in the admittedly special case of defamation, s. 28 of the Defamation Act 2009 now enables a plaintiff to apply to the Circuit Court sitting without a jury for a declaration in respect of the defamatory material in question. Yet no such powers were conferred by the Oireachtas on the High Court when hearing defamation actions with a jury.
59. While this example of statute is not dispositive, it is nonetheless a recent implicit recognition by the Oireachtas of the impracticability of declaratory awards in jury cases. Perhaps another way of looking at this matter is to say that where the plaintiff elects for jury trial in respect of a claim of this kind, he must normally accept the traditional boundaries and limitations of that procedure. It cannot be said that the possibility of a jury award of damages alone is an ineffective remedy for the protection and vindication of the constitutional rights to liberty and the person for the purposes of Article 40.3.2, since, as I have already noted, any such award is premised on the illegality of the arrest or other tortuous conduct complained of so that in that sense the grant of any further declaratory relief in respect of the illegal conduct in question might seem superfluous.
60. Given that this action will be set down for trial with a jury, it follows that the claims for declaratory relief in aid of these common law claims is inappropriate and potentially confusing. The existence of such a claim might suggest to the jury that they have a particular function over and above the determination of the specific issues of fact which they are required to try and to make the ultimate decision – subject to the appropriate rulings of the trial judge on issues touching on the legality of the arrest – as to whether they should award damages.
61. In these circumstances, I will accordingly strike out the claims for declaratory relief.
Conclusions
62. It remains only to summarise my conclusions.
63. First, given the multiplicity of claims brought by the plaintiff, it is appropriate that this court should ensure that the pleadings are presented in a regular and orderly way. This is especially so given that the trial will be conducted before a jury.
64. Second, in view of the fact that the plaintiff is suing for damages for false imprisonment, I will strike out the claim for damages based on Article 40.4.1. The tort of false imprisonment provides a full and complete protection for the constitutional right of personal liberty and the claim based on breach of constitutional rights adds nothing to that claim.
65. Third, it is otherwise in the case of the claims based on a breach of Article 40.3.2 in respect of the protection of the person and allied overlapping claims in respect of the unenumerated bodily integrity under Article 40.3.1 which I will not strike out at this preliminary stage. This is because it is just possible that the plaintiff will be able to demonstrate at the full hearing of the action that these nominate torts of assault and battery will insufficiently vindicate these constitutional rights to the integrity of the person so far as the manner of his arrest by members of the Gardaí are concerned, particularly having regard to the requirement that the tort of assault requires a prior apprehension of a battery before it actually takes place, which, having regard to the plaintiff’s mental condition, he might not be able to satisfy.
66. Fourth, as it has not been established that the remedies available under the common law torts of false imprisonment and assault and battery and, where appropriate, in respect of the remaining constitutional claims are in some way inadequate or that they cannot otherwise adequately vindicate the plaintiff’s rights under the ECHR, I will strike out these claims relying on the ECHR Act 2003 in their entirety. Given the breadth of the protections available in respect both of these common law claims and the remaining constitutional claims, it has not been shown that the claims resting on the 2003 Act can add anything, at least so far as the parameters of the present case is concerned.
67. Fifth, it is plain that the claim based on the alleged operation of the Charter is doomed to fail, since under no circumstances could it be said that Ireland was “implementing” Union law within the meaning of Article 51(1) – a mandatory pre-condition to the very application of the Charter – by effecting the arrest of the plaintiff pursuant to s. 12 of the 2001 Act. It follows, therefore, that this aspect of the claim is entirely unsustainable and must be struck out pursuant to the inherent jurisdiction of this Court.
68. Sixth, the Oireachtas has not made the UN Convention on the Rights of Persons with Disabilities part of the domestic law of the State in accordance with Article 29.6 of the Constitution. It follows that the claims which rely on the 2006 Convention must be struck out as not presenting any justiciable controversy.
69. Seventh, given that the present proceedings will be tried with a jury, it would be inappropriate and confusing to include a claim for declaratory relief, since the jury have no role or function in relation to this remedy. If the plaintiff’s underlying claims are well founded, he will be adequately vindicated by an award of damages. I will accordingly strike out the claims for declaratory relief.
Morrissey & anor v Health Service Executive & ors
[2019] IEHC 268 (03 May 2019)
JUDGMENT of Mr. Justice Cross delivered on the 3rd day of May, 2019
1. The plaintiffs are husband and wife who have one child, Libby, aged seven and a half years. The plaintiffs’ claim is for negligence and breach of duty against all three defendants and also they claim for breaches of Constitutional Rights and/or European Convention Rights arising out of the alleged failure of the defendants to correctly report upon two cervical smear tests. The first test was carried out by the second named defendant in August 2009 in the United States of America and the second test was carried out in August 2012 by the third named defendants in Ireland. The plaintiffs also claim exemplary damages.
2. Cervical cancer is a serious cancer affecting women, which if detected before it develops or indeed at the early stage of its development, can be easily and successful treated. However, if its detection is not until the cancer has significantly developed, the outlook is very poor.
3. As a result of the need to have early detection, the first named defendant, under the title of Cervical Check, organised free cervical tests for women of a certain age. Samples are taken by a patient’s GP using a system known as Liquid Based Cytology which is a relatively new system and less invasive than taking a smear by scraping cells. These tests are regularly repeated depending on the age of the patient. In the first named plaintiff’s case, the test were required to be regularly repeated every three years. The first named defendant originally used Irish laboratories but since 2008 when Cervical Check commenced its national screening policy, they contracted out the testing of the samples to various multinational firms, including those of the second named defendant, Quest Diagnostic Incorporated (Quest) and later, the third named defendants, Medlab Pathology Limited (Medlab). The contracts provide that the tests are to be carried out in accordance with the Bethesda System using the Cervical Check Quality Assurance Guidelines and the Guidelines to Smear Tests.
4. The reason the first named defendant contracted out the vast majority of its tests to the multinational firms was, I accept, that the Irish laboratories could not provide as fast a service as offered by the multinational firms. This ” contracting out ” did, however, result in opposition from the Irish laboratories who voiced concerns about difficulties in supervisions and failures of regulation in the amalgamation of allegedly looser American standards of testing with the Irish recall period for screens of three years as opposed to the American standard which used to require a recall every year. Also, Dr. G. who had previously been in charge of the screening laboratory in St. Luke’s Hospital pointed out as of concern the fact that the United States laboratories had an apparently looser sensitivity than the Irish laboratories in that the laboratories in America reported only 1.4% tests as non-normal compared to 2.4% as reported in Irish laboratories.
5. The contract between the first named defendant and the second named defendant often involves testing in laboratories in the United States. The plaintiff’s test in 2009, was undertaken by the second named defendant in one of their laboratories situated in Grand Rapids. This laboratory was not scheduled under the contract with the first named defendants and accordingly, was not subject to any realistic audit or inspection by the first named defendants. The reason for the second named defendant conducting some of its smear testing in laboratories not referred to under the contract was, according to the second named defendant, that they were under pressure as the number of Irish smears increased and at the same time they had a spare capacity in other non-scheduled laboratories. I am satisfied that conducting these tests outside scheduled laboratories by Quest was unknown to Cervical Check at the time of the plaintiff’s tests and that the second named defendant were not authorised under their contract to utilise any non-scheduled laboratory. The test in 2012 was carried out by the third named defendant in one of its laboratory’s situated in Co. Dublin.
6. Smear tests are not tests for cancer but to determine whether the cells tested are healthy or alarming. When cells are found not to be healthy the fear is that they have been contaminated by the HPV virus which in certain circumstances can lead (in the case of cells from the cervix) to cervical cancer. The HPV virus is present in most adults usually without any consequences. In the majority of cases, the virus is shed due to the normal immune response. A small number of women, however, will continue to harbour the virus of which there are 120 different types and two of these types, 16 and 18, are responsible for over 70% of cervical cancers. Should the body continue to carry high risk HPV after some two to three years, a premalignant Cervical Intraepithelial Neoplasia (CIN) will develop. The pre-cancer may be high grade or low grade. If the pre-cancer is low grade, it may regress but a significant number of high grade lesions will progress if not detected and treated and develop into an invasive cancer. The invasive cancers are typically either squamous cell tumours or glandular cell and tumours. I also accept the evidence of Prof. S. that CIN, or pre-cancer will normally progress to invasive cancer over a eight to twelve year period of time on average, approximately ten years.
7. I accept the evidence of Dr. McC, called by the plaintiff, that the tests are not diagnostic and reject any suggestion by Prof. P, the third named defendant’s expert, in her report, that the purpose of the tests is to diagnose cancer. In her evidence, Prof. P. did clarify her report and accepted that the tests are not diagnostic. This is an important distinction as to the duty of the laboratories in relation to the analysis of the samples. The tests are screening tests. The results of the tests are graded by the screener using either the CIN terminology or the Bethesda system, both of which result in the same consequences for the patient. If the test finds that the cells are healthy, then the patient is referred for routine repeat examination. Where the laboratory finds the cells to be abnormal, then depending upon their condition, the patient is either sent for early repeat screening or else directly to the patient’s doctor for colposcopy and, if necessary, other treatment. I accept also the evidence of all relevant experts that in the event of any ambiguity, the laboratory ought to report the cells as abnormal. Otherwise, the purpose of the screening system could not be achieved.
8. The grades to which a test should be marked, according to the Bethesda terminology are; unsatisfactory/inadequate sample, negative/NAD or ASCUS (borderline squamous cells), low grade SIL, high grade HSIL, squamous cell carcinoma, AGUS/AGUC (borderline abnormalities in glandular cells), glandular neoplasia or broken or damaged slides.
9. The borderline categories of ASCUS or AGUS do not themselves donate either cancer or pre-cancer but do represent a non-negative finding and require at least repeat smears or colposcopy.
10. Though the vast majority of cervical smear tests result in a negative result, the programme of cervical smear testing has resulted in the early diagnosis of cervical cancer in many thousands of women worldwide and has resulted in them availing of life saving treatment at an early stage. The cervical smear testing programme is in itself entirely admirable and is an important aspect of healthcare being provided by or under the auspices of the first named defendant for the public.
11. The present cervical check programme was launched by the first named defendant under the guise of ” Cervical Check ” in September 2008 as part of their national screening service and the purpose of the screening was stated by the first named defendants as being:-
“To carry or arrange to carry out an ongoing national cervical screening service for the early diagnosis and primary treatment of cervical cancer in women…
The aim is to be achieved by the detection of changes in the cells of the cervix before they become cancerous.”
12. The test is made available through GPs and is free of charge. Once the test has been made, and the sample is taken and sent by the GP to Cervical Check, it is transferred by them to one of the laboratories. In the laboratories, the sample must be analysed in what is known as cervical cytology which is a microscopic examination of a single layer of cells scraped from the surface of the cervix.
13. In the laboratory, the procedure is that a slide is made from the sample, all samples are prepared using the Thin Prep Image System (TIS). The slide is examined by a screener who may be a technician or a degree scientist who first must assess the sample for its adequacy. The minimum number of cells on any slide for adequacy, counted as required by the Bethesda System is now fixed at 5,000. Previously, a much larger number of cells were required for the sample to be considered adequate but the figure of 5,000 as tested in accordance with the Thin Prep and the Bethesda system has been approved by peer review. If any abnormal cells are detected, irrespective of the adequacy of the sample, the slide must be classified as abnormal. Most samples will clearly be seen to be adequate on a quick overview but in the event of any doubt, the slide must be assessed for adequacy using the method prescribed by the Bethesda system. After any assessment for adequacy, the screener then looks at the slide methodically examining the cells to test for abnormality at various magnifications. The slide should be sent to a second screener to undertake a confirmatory review. The second named defendant, as a matter of policy, apparently had a full review of each slide to ascertain whether there are any areas of suspicion. The practice of the third named defendant is, as I understand, that if the first screener finds that the slide is negative and no issues arise, there is no manual rescreening but a machine is utilised to analyse the samples using the TIS system. If the first screen, highlighted any areas of suspicion then a full manual rescreening is made. If there are any areas of suspicion these are highlighted on the slide using a marker, then the slide is sent to a pathologist in the lab to report.
14. In the United States, the system for smears was that the laboratories reported results to the medical practitioners who decided upon a course of action but in Ireland and in the contracts entered into by the first named defendant, it was incumbent upon the laboratories when they recorded the results of the screening to also, in accordance with the HSE and Bethesda guidelines, record the appropriate treatment.
15. While the tests are of the greatest importance, it is clear and all sides in this case agree that they are not infallible. Given the nature of present testing, the tests may fail to locate abnormal cells in certain parts of the patient’s body, as the sample may be only taken from certain parts of the cervix. In addition, the analysis is a study by human scientists and the existence of certain precancerous and cancerous or abnormal cells may not be ascertained in the analysis. Accordingly, there is room in the analysis for genuine and non-negligent divergence as to whether particular cells are negative or potentially alarming. To illustrate that fact, a further smear test was undertaken on Mrs. Morrissey in 2014, at a time when she had already developed cancer and when that cancer had been diagnosed, and this test was negative, and no one suggests that the reading was in any way negligent. Accordingly, at the time Mrs. Morrissey already had cancer, the smear was properly recorded as normal.
16. It is accepted by all sides that not every erroneous analysis will amount to negligence, though the extent of any errors that would not be negligent is not agreed. It is, however, agreed that audits of patients who went on to develop cervical cancer who had been previously screened negative, found that, at least, 44% (or 55% depending on whether samples labelled as ” inadequate ” are counted) were incorrectly read at first screening. Of course, this is not to say that 44% of screenings are incorrect, or anything like it. Where a person who has been screened went on to develop cancer before the next screening, given the relatively slow pace of development from HPV to CIN to invasive cancer, it is very likely that those persons would have had abnormal cells on a screening one, two or three years before. It is not surprising that in more in 40% of such cases, this abnormality would have been apparent on the slides. In order to ascertain whether there has been any negligence or breach of duty, each test would have to be assessed individually.
17. The HSE organises follow up tests on a periodic basis every three years for persons of the plaintiff’s age. In the United State, the follow up period for rescreening was every year. As HPV vaccination came to be used in the United States, the follow up period for screening has been gradually extended to the first two and now, it is in some cases every three years. This extension of rescreening times in the United States had a result that the laboratories there had, in certain cases, overcapacity and, therefore, in particular, the second named defendant utilised laboratories, which otherwise would be underused but which were not specified in their contract with the first named defendant to screen Irish slides.
18. In the plaintiffs’ case and in a number of other ones, where cancer was subsequently detected after a previous negative test, the laboratories performed an audit to examine the previous smears and their results. The main purpose of this audit is educational for the screeners and the laboratory to look into the quality of the testing and make any improvements. The majority of women who ultimately contract cervical cancer are persons who have never been screened. The next largest cohort are those who have been screened at least once and then missed the appropriate time for rescreening. It is noteworthy that notwithstanding the issue of retrospective bias, which will be discussed later, audits carried out by the second named defendant which would not have been conducted under a ” blind review ” only resulted in very few results being upgraded, notwithstanding the fact that the persons conducting the audits would have been aware that the patient had subsequently developed cancer. This is suggestive of a very high level of professionalism among the original screeners and the persons conducting audits who clearly approached the screening not in any way influenced by any retrospective bias.
The Plaintiffs
19. The first named plaintiff was born on 29th June, 1981 and the second named plaintiff was born on 1st October, 1978, they were married in 2008 and live in Co. Limerick. The first named plaintiff finished schooling in 1999 and did a diploma in Information Technology at Limerick Senior College and throughout her working career has been employed with UPS, a large multinational corporation. Since 2001 initially as a data analyst and subsequently as a customs solution supervisor, she has been again promoted to grade 14 and has been nominated by her employer for a European Protégé monitoring programme. She has been sponsored by her employer to take a BA through the University of Nottingham and has completed her first year with distinction. She expects further promotion. She is a highly intelligent and motivated person, well regarded by her employers and I accept the proposition that her promotion in the firm was highly likely.
20. The second named plaintiff is a warehouse manager who left school early. He has a history of colitis. The evidence of the second named plaintiff and indeed of Dr. Hillary, the psychiatrist, is that the first named plaintiff plays the leading role in the marriage. Mr. Morrissey referred to Mrs. Morrissey as being his best friend. They are clearly a devoted couple who have one child, Libby, who was born on 20th July, 2011. They had hoped to have more children which, of course, is now impossible.
The Plaintiff’s Smear Tests
21. The first named plaintiff had an initial cervical smear in 2002 which was negative and nothing turns upon it.
22. In 2009, the first named plaintiff underwent a smear on 18th August, aged 28, carried out by her GP. The sample was sent to the second named defendants in the United States of America who are under a contract with the HSE through Cervical Check. The sample was analysed in a test laboratory in Grand Rapids. They reported first of all that the sample was adequate and the result was ” negative for intraepithelial lesion or malignancy “. The plaintiff was advised to have the standard recall three years later. This satisfactory result was communicated to the first named plaintiff by letter dated 1st September, 2009, from the HSE.
23. The next smear was taken, three years later, on 8th August, 2012, aged 31, as part of the same programme and then sent to the third named defendant’s laboratory in Co. Dublin. Again, the report is that the sample was adequate for assessment, that the endocervical component was absent but there was no evidence of neoplasia, i.e. the no evidence of the presence of new abnormal growth tissues. She was again recommended for routine recall and was advised of this satisfactory result by a letter of 13th September, 2012.
The Diagnosis of Cancer in 2014
24. On 27th May, 2014, the first named plaintiff went to her GP complaining of postcoital bleeding and upon examination the GP discovered a lesion in her cervix and she was referred to Dr. S. who performed a biopsy and an MRI scan which disclosed the existence of cervical cancer. The MRI suggested a significant tumour on the cervix. The first named plaintiff was then referred to Dr. H. at the colposcopy clinic in Limerick and he performed a punch biopsy and not, as Mr. M.H. erroneously understood, what is known as a LLETZ procedure (Large Loop Excision of the Transformation Zone) which removes the cervical tissue for examination and treats the changes in the cervix. The biopsy led to a diagnosis of invasive squamous carcinoma of the cervix and the first named plaintiff was advised that surgery would be required and she was referred to Cork University Hospital under the care of Mr. M.H., the surgeon, who treated the first named plaintiff with apparent success and the cancer apparently disappeared.
25. The treatment Mr. M.H. undertook with the agreement of the plaintiff was that of Radical Trachelectomy which is a relatively new surgical procedure first carried out in 1991 and introduced to the United Kingdom in 1994 by Prof. S. which is less invasive than the traditional hysterectomy and which was specifically requested by the plaintiff in order to preserve her fertility. In order to qualify for a radical trachelectomy, each patient must be assessed to determine their suitability. The traditional procedure was a radical hysterectomy and radium/chemotherapy which would have resulted in rendering Mrs. Morrissey infertile.
26. Mrs. Morrissey’s tumour as demonstrated by the images was believed to be less than 2cm. However, after the operation, the histology revealed that it was, in fact, greater than 2.5cm. Trachelectomy is not usually undertaken in tumours of greater than 2cm as there is a greater risk of relapse in larger tumours. However, no criticism is made of Mr. M.H. for his initial decision to undertake a trachelectomy or indeed, for the conduct of the operation he performed.
The Audits
27. In the meantime, unknown to the plaintiffs, the laboratories undertook audits or reviews of the 2009 and 2012 smears. The 2009 slide was reviewed on 11th September, 2014, by the senior staff pathologist of the second named defendant who reported that the original test was incorrect and under the heading the report of ” factors likely to lead to false negative results “, nothing was inserted.
28. The 2012 smear was also reviewed by the medical director of the third named defendant on 31st October, 2014, and this review also found that the original result was incorrect and under ” factors likely to lead to false negative results”, the laboratory listed the fact that the sample was ” scanty “. The 2012 slide was also audited by an independent reviewer in 2015, who also concluded that it had been inaccurately read and referred to the sample as ” scanty “.
29. At some date, at the latest in 2015, the results of the audits were communicated to Cervical Check by the laboratories. It seems that the audits of the two tests on Mrs. Morrissey were not co-related for some time, and that subsequently, a dispute arose between the second named defendant and Cervical Check in which the second named defendant disputed any release of the information in relation to the audits by the HSE and attempted to utilise the disputes resolution system as stipulated in the contracts in order to determine that issue. Both of these matters resulted in delay.
30. In any event, the results of the audits were made available by Cervical Check to the plaintiff’s treating doctor in Cork, Mr. M.H., in June 2016. Mr. M.H. is a consultant working for the first named defendant.
31. The clinical notes of Mr. M.H. referred to the letter of 16th June and indicated this was to be discussed with the first named plaintiff on her next visit on 7th July, 2016. This was not done.
32. Unfortunately, neither the fact of audit or its results were disclosed to the plaintiffs until national publicity in relation to another patient occurred in mid-2018 and the plaintiff herself rang to make inquiries as to whether there had been misdiagnosis in her case. Subsequently, coincidently or otherwise, she was advised by Nurse T. to travel to Cork for a meeting with Mr. M.H. She was advised of the results at a meeting with Mr. M.H. He then apologised to the plaintiffs and indicated that he simply ” forgot ” to tell them.
Mrs. Morrissey’s Follow Up Care
33. In the meantime, however, after the treatment in 2014, the plaintiff returned to Mr. M.H. on a regular basis in 2015 and 2016. She was examined with smears, colposcopy and a vaginal/pelvic examination on each occasion. There was some controversy on this point but I find that she was so examined. No rectal examinations were performed. She was regularly reassured that the cancer had been successfully treated. However, in October 2017, the first named plaintiff had a significant pain on her right leg. She attended her GP in December 2018 and scans including MRIs were carried out on the plaintiff. On 16th February, 2018, Mrs. Morrissey went to the Galway Clinic for an MRI of her pelvis (a procedure which was not available in Limerick). This MRI revealed a 7×7.1cm pelvic side wall mass with bony invasion and enhancement or in the right acetabulum. The cancer had returned. A very serious diagnosis.
34. On 22nd February, 2018, a PET scan was carried out which disclosed a large necrotic mass invading the right iliac muscle and the scan also disclosed cancer in her left breast.
35. The left breast cancer was coincidental and the plaintiff originally in consultation with her breast surgeon decided on a double mastectomy but subsequently she had less invasive surgery as advised by another consultant in August 2019, but the results of this were not satisfactory and a double mastectomy was performed on 14th September, 2019 and the evidence is that the results of this procedure have been entirely satisfactory and any breast cancer has been cured and would not materially affect the plaintiff’s life expectancy.
36. After the PET scan in February 2018, the plaintiff underwent intensive radiotherapy everyday over a period as well as chemotherapy once a week. The radiotherapy was not as invasive as the chemotherapy but resulted in pain and exhaustion.
37. The plaintiff has now completed her radiotherapy of her pelvic area and it is not possible for her to have any more radiotherapy in respect of her cervical cancer. She is still undergoing some radiotherapy in relation to her breast. The prognosis in relation to her cervical cancer is, at most, approximately two years.
The Case
38. The plaintiff’s case is that had the 2009 smear been correctly reported, she would have been referred for further tests within three months or more probably immediate colposcopy which as a matter of probability would have disclosed a precancerous condition which would have resulted in a LLETZ procedure leading to the complete excision of the cancerous cells. This was described as a relatively simple procedure with a less than 5% chance of reoccurrence of pre-cancer development and less than 1% chance of invasive cancer developing. Accordingly, the case is that, the first named plaintiff would not have developed cancer in 2014 nor would have this reoccurred in 2017/18, there would have been no need for the radical treatment she is undergoing and the present ominous prognosis would not arise. She would have had a normal life with her family and her career.
39. The plaintiff further contends that the sample in 2012 was inadequate for testing and that either a second sample should have been taken from the liquid container or more likely the plaintiff returned for immediate retesting. However, the plaintiff also contends that even with its inadequate nature, the 2012 sample, if correctly analysed would have resulted in a non-negative reading. In either event, the plaintiff contends that had the 2012 smear been correctly reported, this would have resulted in either immediate rescreening or in a repeat smear at most six months thereafter which would have led, as a matter of probability to colposcopy which, as a matter of probability in 2012, would have disclosed a high grade lesion in early development and the treatment would have been the same as could have occurred in 2009, with the same benign results.
40. In consequent of these matters, the first named plaintiff claims that she has suffered injuries. She developed cancer, has undergone invasive treatments, the cancer has reoccurred, she has significant pain and interference with all normal aspects of her life including her marital life. She suffered psychologically. She has been deprived of the opportunity of completing her family, of seeing her seven year old daughter grow. She already requires care and is going to require care into the future and modifications for her house. She has a very limited life expectancy.
41. The plaintiffs also claim exemplary damages against the defendants.
42. The case commenced in July 2018 and was then adjourned to September 2018. In September, the plaintiffs applied for an adjournment to allow for a ” blind review ” to be carried out. This, in fact, was not carried out or no evidence was given of any blind review on behalf of the plaintiffs when the case resumed.
43. When the case was resumed on 29th January, 2019, the plaintiff alleged that had she been advised by the first named defendant of the audit results that as a matter of probability she would have in 2016 and 2017, insisted on a number of imaging scans which would have given her, as a matter of probability, an early alert that the cancer was returning and that this could have been treated much more satisfactorily and probably successfully at that earlier stage. She further alleged that it was negligent of the first named defendant not to require regular scans after the 2014 treatment had concluded. These later allegations of negligence arose initially from reports commissioned by experts retained by the second named defendant as part of the issue between the defendants. The reports were furnished to the plaintiff and subsequently the plaintiff’s experts have endorsed those views. The second named defendant later withdrew these reports and did not lead any evidence against the first named defendant and did not in their submissions make any case for a contribution against the first named defendant.
44. On 29th January, I allowed the plaintiff to expand their case against the first named defendant on the above basis, in circumstances I will deal with later.
45. The second named plaintiff claims to have suffered injuries and has been diagnosed as suffering from depression as a result of the misdiagnosis of his wife and in particular, the failure of the defendants to tell his wife of the audit results. In addition, the second named plaintiff claims to have suffered a recurrence of his colitis as a result of stress and loss of consortium.
46. The plaintiffs also claim the costs of the first named plaintiff’s care and loss of earnings that the plaintiff would have accrued throughout her normal lifetime and to the cost of the future care provisions of their daughter, Libby, into the future until she finishes third level education.
47. The plaintiffs claim these damages in negligence and breach of duty and for breach of Constitutional and/or European Convention Rights.
48. Each of the defendants deny liability and loss. The defendants deny causation, pleading that even if the plaintiff’s slides were negligently read, that any alarming feature found in 2009 or 2012, is not related but coincidental to the ultimate cancer as diagnosed in 2014. The defendants contend that the plaintiff’s cancer was on the balance of probabilities not developing in 2009 or 2012, or if it was developing that it was not likely to have been detected on re-screening or colposcopy. The first named defendant admits breach of duty limited to their failure to advise the first named plaintiff of the results of the audit but denies loss. The defendants also plead that the second named plaintiff is not entitled to any damages other than on the basis of the authorities in relation to nervous shock.
49. The first named defendant claims that even if there was negligence in relation to the reading of either of the slides that it has no liability. Further, they claim that if they have any liability in relation to the testing of the slides it is vicarious only and they claim an indemnity or contribution from the second and third named defendants in the event of any findings against the first named defendant. The second named defendant while denying the claim for an indemnity, itself claims an indemnity or contribution against the first named defendant on the basis that the first named defendant ought to have referred the plaintiff for regular screening after her cancer treatment in 2014 and the second named defendant claims that had this been done, her further cancer could have been detected and an early and treatable stage. The second named defendant led no evidence to support these allegations and indeed withdrew the reports of its two experts in this regard, Dr. L. and Dr. O.
50. The fact of any diagnosis of cancer is, of course, extraordinarily upsetting to a patient and their family. The fact that a previously treated cancer has returned is naturally even more traumatic. The fact that this returned cancer is inoperable and untreatable and that any patient, especially a young patient, has now only a very short life expectancy is naturally appalling. The further fact, if it be the case, that had tests carried out on the patient been reported accurately that this cancer and its return could have been prevented is even more distressing. The fact that audits of the previous tests carried out after the diagnosis of the cancer indicated that the screening in 2009 and 2012 were inaccurately reported must be almost unbearable. The fact that the patient was only told of the results of audits after she herself became suspicious as a result of intense publicity given to another case and specifically once she inquired herself as to whether indeed she was also the subject of erroneous reporting is undoubtedly tragic and reasonable grounds for fury and indeed has resulted in public outcry. However, not every tragedy, not every public outcry is inevitably suggestive of a breach of legal duty. Tragedies can and frequently do stem from inadvertence and the size and extent of the tragedy is not evidence of the level, or indeed the existence, of fault. Public outcry in these cases has tended to misstate the issues and not be of any assistance to those given so ominous a diagnosis. Each case must be examined in accordance with the evidence and the well known legal principles to establish whether in the erroneous reporting of the slides, there was negligence.
Issues
51. The issues in this case, as I identified during the trial, are as follows:-
(a) The standard of care.
(b) Were the defendants negligent or in breach of duty in relation to the August 2009 smear test?
(c) Were the defendants negligent or in breach of duty in relation to the August 2012 test?
(d) If the defendants were negligent in relation to the 2009 test and/or the 2012 test, what, if any, are the consequences of same?
(e) Have the plaintiffs a claim for breach of constitutional and/or European Convention Rights?
(f) Was the first named defendant negligent in failing to advise the first named plaintiff to undergo scans and imaging tests in addition to the treatment afforded to her after initial treatment in 2014 and/or did the first named plaintiff suffer any additional personal injuries due to her not being advised of the audit results until 2018?
(g) Is the first named plaintiff entitled to damages for the admitted breach of the first named defendant in failing to advise the plaintiff in relation to the results of the audit?
If liability is established against any of the defendants.
(h) Assess damages:-
(i) Is the second named plaintiff entitled to damages and, if so, on what basis?
(ii) Are the plaintiffs, or either of them, entitled to damages for future care and loss of earnings and other special damages which will arise after the death of the first named plaintiff and, if so, on what basis?
(iii) Are the plaintiffs entitled to exemplary damages?
(iv) The quantum of damages.
(i) The liability of the various defendants.
(A) The Standard of Care
52. A number of different though sometimes similar standards of care have been suggested in this case. The legal standard of care and also the factual standards and criteria to which the screener must adhere are different though interlinked issues. Both must be considered under this heading. The standard of care in medical negligence cases has been classically put in Dunne (an infant) v. National Maternity Hospital [1989] I.R. 91, by Finlay C.J. at p. 109, as being:-
“1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.
3. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.
4. An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent.
5. It is not for a jury (or for a judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant….”
53. Dunne (an infant) was following the earlier decision of O’Donovan v. Cork County Council [1967] I.R. 173, and also a similar test was found to apply to solicitors in the case of Roche v. Peilow [1985] I.R. 232.
54. Allowing for the fact that Dunne seemed to give particular deference to surgeons operating in hospitals, it remains the standard test in relation to professional negligence.
55. The next possible standard is contained in the contractual obligations of the laboratories. The laboratories have contracted with the HSE to conduct their tests in accordance with ” good laboratory practice ” which is defined as:-
“The exercise of that degree of skill, diligence, prudence and operating practice, which will be considered as good practice from a skilled and experienced laboratory of a similar scale and professional standing engaged in the provision of cervical cytology screening and related services.”
56. I do not believe that in practice, the contractual obligations taken on by the laboratories fundamentally alter the standard of care required by Dunne , rather the contract specified this standard in reference to laboratories.
57. I was also referred to the Guidelines for the review of GYN cytology samples in the context of litigation or potential litigation issued by the American Society of Cytopathology and formulated by Prof. A. and others which stipulated that:-
“The standard of care should be that of the reasonable and prudent practitioner. Courts and experts should recognize that a false-negative result by itself is not sufficient proof of negligence. Rather, the courts should evaluate whether the overall Pap-test practices of the laboratory meet the standard of care and whether unbiased blinded rescreening consistently detects significant abnormalities not initially identified by the laboratory.”
58. The Guidelines for the American Society of Cytopathology referred to the universally accepted truth that ” the findings of a false-negative sample is not necessarily evidence of practice below the standard of care”. However, the Guidelines also seek to impose an obligation in all cases for a ” blind review ” and suggest that in the absence of a ” blind review ” it is wrong to impute any negligence on a screener. In this regard, the Guidelines were criticised and rejected in the United States in the case of Adams v. Laboratory Corp of America 760F.3D1322(2014) 25FLA.L Weekly Fed. C197 and I accept the characterisation as submitted by counsel for the plaintiff that the guidelines were prepared by Prof. A. and other members of the American Society of Cytopathology in the light of litigation against members of the American Society of Cytopathology in order to attempt to limit litigation and provide a robust defence basis for screeners accused of negligence in the American Courts. I do not accept these guidelines as in any way setting a legal standard for the Court to operate.
59. It is, of course, as inappropriate for the American Society of Cytopathology to set the legal standard which courts should apply to their professional work as it would be for the Bar of Ireland to purport to define the limits of the liability of barristers in Tort.
60. A paragraph in the American Society of Cytopathology Guidelines states:-
“Atypical cells of undetermined significance represent an equivocal interpretive category with poor inter and intra-observer reproducibility. Therefore, most cases of ASCUS (atypical squamous cells of undetermined significance) and AGUS (atypical glandular cells of undetermined significance) do not represent consistently identifiable abnormalities and a reasonable basis for allegations of practice below a reasonable prudent practitioner standard of care.”
If and insofar as this paragraph suggests that a finding of ASCUS or AGUS can generally be reported as normal without legal criticism it is entirely unacceptable and wrong. Yet, that is the apparent and genuinely held view of the American Society of Cytopathology, all of whose members must attest to follow these guidelines as drawn up by Prof. A. It certainly was the opinion of Dr. P. on behalf of the third named defendant who stated that even had blind reviewers consistently revealed a finding of ASCUS or AGUS that she would not deem it a breach of duty or negligence on the part of the original laboratory to find that slide as negative.
61. While there is much scope for legitimate difference between cytologists as to whether the slides suggest different types of abnormality, these differences should not give rise to any significant problems to the patient as if any abnormality is detected, the patient is to be referred either to colposcopy or a repeat review. What may give rise to much difficulty for a patient, however, is the distinction as to whether the slides are negative or abnormal. If the screener is going to be excused from legal liability in misreading any findings of ASCUS or AGUS cells, and whatever about their alleged ambiguity such cells represent the largest majority of abnormal cells found on screening, prejudged on an a priori basis by Guidelines of the American Society of Cytopathologists to which their members must subscribe, then the function of the courts would be entirely overruled by the determination of a professional body with a vested interest in the outcome.
62. It should be remembered that the vast majority of non-negative reporting of slides in the screening or involved reports of either ASCUS or AGUS. Accepting difficulties in defining what is or is not ASCUS or AGUS, this must not lead us to the conclusion as advocated by the American Society of Cytopathology or its witnesses, to the effect, that in most cases, the mis-description of what are actually AGUS or ASCUS cases is not negligent. Each case falls to be examined on its merits and remembering the words of Dr. Scally in his scoping report of the importance of ASCUS, I cannot accept the American guidelines as setting a factual no more than a legal standard.
63. The purpose of screening is, as previously stated, not to diagnose, that is done by the pathologist and the medical doctors, but to warn of the existence of future potential harm. The pathologist’s professional body in America, also produced a serious of guidelines in relation to liability but they were produced after the Adams v. Laboratory Corporation of America case and are similar to but somewhat less strident than the Society of Cytopathology Guidelines.
64. In her second report dated 12th September, 2018, Prof. P., on behalf of the third named defendant, formulates the question of standards in a slightly different way: the question to answer when reviewing PAP tests in the setting of litigation is ” was the interpretation of the PAP test a reasonable interpretation and would the average competent trained reviewer make the same interpretation under the similar screening conditions “. I believe that this second setting of the standard advanced by Prof. P. is of itself little different from the contractual obligation of the laboratories to the HSE and just as the contractual obligation of ” good laboratory practice “, it can be given a similar meaning as the standard as set by the Supreme Court in Dunne v. National Maternity Hospital .
65. Counsel for the plaintiff relies upon additional standards which are gleaned from the leading case of Penney Palmer & Canon v. East Kent Health Authority Lloyds Law Reports 2001, page 41.
66. The case of Penney Palmer & Canon v. East Kent Health Authority is of the greatest importance. I fully accept the law to be correct as stated by Woolfe M.R. in that case. In Penney Palmer, the Court of Appeal per Lord Woolfe M.R. expressly approved of the legal test for the standard of care in scanning cases as that stated in Bolam v. Friern Hospital Management Committee [1957] 1 WLR 583, which is together with Bolitho v. City and Hackney Health Authority [1988] A.C. 232, the English equivalent of Dunne v. National Maternity Hospital . Insofar as the lower court held that the Bolam test did not apply in the case of cytology, the Court of Appeal disagreed but held that notwithstanding that fact the decision of the lower court was correct.
67. Indeed, Woolfe M.R. went on to quote with approval from the judgment of the original court:-
“The standard which I have to apply is that of a reasonably competent screener exercising reasonable care at the time when the screening took place. I must ignore any advances in screening practice which have occurred since the relevant events. I must also put out of my mind when considering the extent of the screener’s duty of care the fact that all three (claimants) subsequently developed carcinoma.
Equally importantly I must bear constantly in mind that in cases where an exercise of judgment is called for, the fact that with the benefit of hindsight that judgment was exercised wrongly is not itself proof of negligence.”
I agree with these observations which are an important reminder to a court but do not themselves define the legal standard to be applied.
68. That, however, is not the end of the matter. As Woolfe M.R. stated in Penney Palmer :-
“…the Bolam test has no application what the judge is required to do is make findings of fact. This is so even where those findings of fact are the subject of conflicting expert evidence. Thus, in this case there were three questions which the judge had to answer:-
(i) What was to be seen in the slides?
(ii) At the relevant time could a screener exercising reasonable care failed to see what was on the slide?
(iii) Could a reasonably competent screener aware of what a screener exercising reasonable care will observe on the slide treat the slide as negative?”
69. Therefore, before applying the Dunne principles, the starting point must be what was on the slides. This ultimately is a question of fact which must be determined on the balance of probability by weighing the merits of competing expert opinions. However, Penney Palmer does go further than the three questions above referred to and the case endorsed the opinions of all the experts in that case that if there was any doubt in the mind of a screener as to whether the slide was normal, he or she should not classify it as negative. A slide should not be classified as negative unless the screeners had ” absolute confidence ” that it was so.
70. Dr. McK gave evidence that the need for absolute confidence is the practical obligation of screeners when they analyse slides and in this he was supported by Ms. T. and their evidence was not disputed. The ” absolute confidence ” test was also accepted by the second named defendant’s expert, Prof. A., although it must be said with some initial scepticism. The ” absolute confidence ” test was accepted by the second named defendant in their submissions. Prof. P., in her evidence, on behalf of the third named defendant also accepted the need for ” absolute confidence ” though she did appear somewhat unfamiliar with the wording. Mr. F., the expert on behalf of the second named defendant when asked on the “absolute confidence” test said very fairly that one had to be ” confident ” and said in cross examination that he was unhappy as a scientist with the words ” absolute confidence ” though he accepted that it may have some meaning for lawyers. It should be noted that Mr. F. also when referring to ASCUS/AGUS said that one had to be ” confident ” to call a slide in this category. I believe it is fair to categorise the American experts called for the defendants as not being entirely happy with the ” absolute confidence” test preferring instead to rely upon the skill and judgment of the cytotechnologist in relation to their opinion as to what was on the slide.
71. I hold that ” absolute confidence ” is the screeners practical duty in relation to their analysis of what is on the slide and indeed the adequacy of the sample, and the legal issue is whether or not they have carried out that duty in accordance with the Dunne principles. These extra tests set out in Penney Palmer are combinations of factual and legal matters, but I accept that a screening programme especially one such as in Ireland which does not have annual retesting, is inherently deficient if screeners ascribe as normal, results in which they are in any doubt. Accordingly, to ascribe as normal, a slide which the screener has any doubt of that fact even if he legitimately believes it to be normal on the balance of probabilities, is to fall below the Dunne standards required of that screener. Whether the screeners were right not to have any doubt is a matter to be assessed at law in accordance with the Dunne principles.
72. In other words, if there is any room for doubt that the slide was normal and the screener ascribes a normal result to the slide then the screener is in breach of the Dunne principles as he has been guilty of such failure that no professional scanner of equally specialist or general status and skill would have been guilty of if acting with ordinary care. A screening programme cannot operate safely if screeners are left to judge the slides and whether they are safe merely on the balance of probabilities. The dangers of false positives, referred to by some the American experts, and any distress that that might cause are far outweighed in the balance by the dangers of false negatives. Indeed, if the patient is advised that the reason for rescreening or indeed colposcopy is a doubt as to normalcy, any adverse effects of a false positive should be minimal. It should be noted that the fear of false positives together with a fear of not properly ” balancing ” the need of costs with safety seemed to be to the fore in the minds of a number of the defendant’s experts. If the screeners must ” balance ” these requirements when reporting, as stated by a number of the defendant’s experts, there is a clear danger that the screener will not apply the standard of ” absolute confidence “.
73. Just as there is room for difference between two competent screeners as to how a slide should be graded and just as there is some though significantly less room for competent screeners to disagree as to whether a slide should be reported as normal or of concern, where slides are subject to audit, the audit findings must be also treated with some caution. In this regard, I accept the observations in the Public Health Guidance on applying Duty of Candour and Disclosing Audit Results V1.0 September 2016, p. 16:-
“No matter how closely the review tries to reproduce the original screening conditions, the conditions of a review are different – the fact that a review includes records of a patient known to have serious condition, such as cancer, will heighten vigilance and increase reports of abnormality.
Finding discrepancies on review does not imply that the same findings should have been made under routine conditions.
Hindsight has a significant impact on the interpretation of images.
In a number of screening programmes such as foetal anomaly ultrasound, cervical and breast screening, the result is based on interpretation of appearances on a scan, slide or mammogram in circumstances where the boundary between normality and abnormality is not firmly drawn – this may result in debate between experts as to the appropriate classification of the sample or interpretation of the image.”
74. Therefore, to summarise, the legal standard to be applied on the issue of the liability of the defendants is the Dunne test. Questions of fact, however, are for my decision on the balance of probabilities. The questions of fact include what was to be seen on the individual slides. Accordingly, as in Penney Palmer , the correct approach is to determine:-
(i) what was to be seen on each slide;
(ii) whether a reasonably competent screener at the relevant time could have failed to see what was on the slide; and
(iii) whether a reasonably competent screener in the light of what he or she should have observed, could have treated the slide as negative.
Questions (ii) and (iii) above and any issues as to adequacy are to be decided in the light of the ” absolute confidence ” test and thereafter, the test for negligence is as stated in Dunne.
(B) Were the Defendants Negligent or in Breach of Duty in relation to the August 2009 Smear Test
75. In analysing the issue of the slides, both in relation to the 2009 and 2012 slides, one must at a starting point must always keep in mind the issue of retrospective bias. This was accepted by all the witnesses who were asked of it, was adopted by Woolfe M.R. in the Penney Palmer case, it is specified in the English ” Public Health Guidance on Applying Duty of Candour and Disclosing Audit Results “, it was averted to by Dr. Gabriel Scally in his scoping inquiry and frankly does not require the assistance of a learned Prof. of Psychology to advise me on that fact.
76. The object of audits and examinations by experts is to reproduce as closely as possible the original screening conditions. The findings on an audit which is designed for the education of screeners have to be treated with caution. It is, however, also the case that there are potential hazards in any method of evaluation after the fact. Whereas the advocates of a blind review indicated that this was the best way to reproduce the original testing element, it clearly is not the only way and blind reviews have their own potential hazards as outlined in his evidence by Dr. McM. Any reviewer knows that litigation is likely. Also, it may well be, as was the case in the second named defendant’s slide, that a circle exists on a particular area which was highlighted by the original screener for one purpose or another, I believe the best conclusion from all the evidence is that any retrospective analysis of the slides must be treated with caution, that there are certain merits to a blind review though such a review is by no means compulsory and any eminent cytologists such as Dr. D.R. in the Adams v. Laboratory Corporation of America case and Dr. McK. and Ms. T. in this case did not conduct blind reviews and came to their conclusions based upon their professionalism and their analysis of the particular slide. Indeed, Mr. F. analysed the slide on behalf of the second named defendant without himself conducting a blind review and gave evidence as to his opinion.
77. On the other hand, I am asked on behalf of the plaintiff to treat the very concept of a ” blind review ” as something sinister given its origins from Dr. A. on behalf of the members of the American Society of Cytopathology. While I reject the idea that a “blind review” is the only valid method of analysis of a slide or that any non-blind review analysis is somehow invalid and while I recognise the reasons Dr. A. and the American Society adopted the guidelines, evidence of blind reviews cannot be excluded just because of the origin of this process. Because one disagrees with or rejects propositions, it does not follow that findings of conspiracy theories can validly be made. A court must be weary of hindsight bias in any review and must assess the professional opinion of any expert whether conducting a blind review or otherwise and then come to a judgment.
(a) What was to be seen in the slide?
78. The original report found the slide as negative or NAD. The internal audit carried out by the defendant’s laboratory in 2014, found the slide as borderline nuclear abnormalities (glandular) or AGUS or AGC. The review by Ms. T. of the slides in September 2018, found that features of atypical repair/malignant cells are present. The review by Dr. McK. in October 2018, determined the slide as AGC. Mr. F. who gave evidence on behalf of the second named defendant principally in relation to the blind review stated that six of the eight reviewers found the slide to be negative and two in the AGUS/AGC category and that he himself, in a non-blind review would have reported the slide as normal or negative.
79. The issue of what was or was not to be seen on the slide is more objective than how the slide is to be interpreted. I accept the evidence of Ms. T. and of Dr. McM. and the conclusions of those who conducted the audit that the particulars of sensitivity in the slide were common ones and that on the 2009 slide, there were, at the time, cells in the AGUS/AGC category. Dr. McK. gave evidence that the slides contained abnormal cells in that there was a variation and intensity of staining throughout the nuclei’s, variation in size and shape of nuclei, irregularities in the nuclear membrane, bi-nucleation, enlarged nucleoli, discohesive cells with distinctive architecture known as feathering, overlapping nuclei and mitotic features.
80. I do not hold that there was any major difference between Dr. McK’s first and second report. His first report was based on his views of the slide. His second report was based upon the photographs taken by Ms. T. of the slides which served as an aid to the court expounding on what was Dr. McK’s view of the slide. With this in mind he helpfully annotated one of the photographs to demonstrate the areas of concern.
81. I have had the benefit of the photographs taken by Mr. T. and in particular her photograph No. 8 in dealing with the 2009 slide. The cells in Ms. T’s photograph No. 8 which was then annotated by Dr. McK. show cells with a very enlarged nucleus and a variation in nuclear size and shape and nucleoli which were enlarged and variable from cell to cell and also a cell with an irregular nuclear membrane. All of these matters were present on the slide. Mr. F. on behalf of the first named defendant states that these cells could be classified as reactive and normal and indicated that there could be ” other reasons ” for what was seen other than those suggestive of AGUS or AGC. I will deal with that observation subsequently when I consider what a reasonable screener could or should have observed. On the factual basis of what was on the slide, I have no doubt that the cells on the slide were AGUS/AGC, as identified by Dr. McK.
(b) Could a reasonably competent screener at the relevant times have failed to see what was on the slide?
82. The second named defendant’s defence is mainly grounded upon the unreliability of non-blind review and also of the ” grey area ” as described by Mr. F. of the ACSCUS/AGUS categorisation and the degree of hindsight bias on the part of, in particular, Ms. T. and Dr. McK.
83. The independence of the first named defendant’s witnesses was called into question and put in issue by the plaintiffs. A number of the experts called by the second and third named defendants did not include in their reports the declarations as to independence as required by the Irish Statutory Instrument. However, they all swore to their independence and I fully accept that all of the witnesses called on behalf of all of the parties, gave their evidence in an honest manner expressing their genuinely held beliefs.
84. This is not the end of that issue as Prof. A., in particular, was criticised given the fact that he was responsible for drafting the Guidelines of the American Society of Cytopathology which I accept were drafted, in effect, to attempt to limit litigation against cytopathologists in America and, therefore, on a self-serving basis. I accept that his evidence and also the evidence of a number of other American expert was affected by the a priori , though genuine, belief in the Guidelines of the American Society to which as members they had attested, that most cases of ASCUS or AGUS ” do not represents consistently identifiable abnormalities and a reasonable basis for allegations of a practice below a reasonable prudent practitioner’s standard of care”. The same guidelines also stated that slides should be reviewed and evaluated as to whether ” unbiased blinded rescreening consistently detects significant abnormalities not initially identified by the laboratory “. I fear that this a priori view did indeed colour Prof. A’s evidence. Clearly, however, that is not the end of the issue and I must determine whether a reasonably competent screener at the relevant time could have failed to see what was on the slide.
85. Furthermore, Prof. A. stated that where a cytologist sees only a few cells of concern, he is going to be cautious about relying upon them and will want to see more cells before he can interpret them. That view is not easily compatible with the ” absolute confidence ” test which Prof. A. accepted and which the second named defendant endorsed.
86. The plaintiffs further criticise the independence of Prof. A. as an expert on the basis of the reasonably close identification of Prof. A. with the second named defendant. The plaintiffs highlighted joint papers he has undertaken with employees of the second named defendant and also joint ventures undertaken by Prof. A’s university and the second named defendant. I am not of the view that any such involvement had any real effect on Prof. A’s evidence. However, I have been and am critical of the involvement with the American Society Guidelines and the effect they have on the independence of a number of witnesses. This is not to say, however, that the evidence of Prof. A. and the other American witnesses should be disregarded, rather it must be treated with some caution.
87. Mr. F. on behalf of the second named defendant stated that in his view the slide was normal. His observation, of course, was not ” blind ” but was on his evaluation of Mrs. Morrissey’s slide after his screeners had undertaken their blind review. I note also, Mr. F’s reluctance to ascribe to an ” absolute ” confidence standard which candour I acknowledge and commend.
88. I believe, however, Mr. F’s opinion was probably based upon his utilisation of his professional skill and judgment to come to a conclusion on the balance of probabilities as to what was or was not on the slide. Mr. F. referred to the high degree of inter-observer variability in respect of the ASCUS and AGUS categories. He also stated that these categories are not used at all in the United States for proficiency audits or examinations of cytoscreeners. I fear that this opinion, which is similar to the description by Ms. S. on behalf of the third named defendant of ASCUS/AGUS cells as being a ” waste basket ” category together with the Guidelines of the American Society of Cytopathology have all influenced the opinions of the American experts when they dismiss as non-negligent any misreading as ASCUS/AGUS cells. The fact that the categorisation of ASCUS/AGUS is sometimes difficult to define is no reason to excuse from legal liability all, or most, who fail to properly categorise what are the most common non-normal cells. If the screener believes, even subconsciously, that ASCUS/AGUS cells need not be examined with the same scrutiny and subject to the same absolute confidence, then errors are more likely to occur.
89. I believe that the evidence of the American experts must be treated with caution as being, at least, subconsciously affected by the Guidelines of the American Society of Cytopathology and its view on ASCUS/AGUS cells. I find that the evidence of Dr. McK. is not tainted by any such predetermined bias, though, in Dr. McK’s case like the evidence of all reviewers we must be cautious as to any hindsight bias.
90. The duty of the screeners was to adopt the absolute confidence test and having viewed the photograph No. 8 in its original form and as annotated, I accept Ms. T. and Dr. McK’s evidence in relation to the irregularities to be seen on the 2009 slide which were annotated by him at photograph No. 8. Allowing for any retrospective bias, I believe that a reasonably competent screener at the relevant time should not have failed to see what was on the slide. The cells on the slide as evidence in particular by Dr. McK. had clear peculiarities which showed themselves as being other than normal. This ought to have be seen by a competent screener.
(c) Whether a reasonably competent screener in the light of what he or she should have observed, could have treated the slide as negative.
91. This issue is similar to but not identical to the previous one.
92. The second named defendant chose not to call as evidence either by video link or in person, the original two screeners of the slide in 2009, one of whom is still employed by the second named defendant and the other is known. In the absence of the screeners, I was left in a vacuum as to what they did or did not see or how they did or did not appraise the slide. The second named defendant also did not call to give evidence, the person who conducted the internal audit of the slide and I was, therefore, left without his evidence as to the basis he concluded that the slide contained AGUS/AGC cells. This was not satisfactory.
93. Accepting the absolute confidence tests, however, even on the basis of Mr. F’s evidence e.g. ” that there could have been other reasons for what we are seeing here “, the absolute confidence test has not been met. As I stated above, I believe that the American screeners were utilising their professional skill and judgment and recording what they believed as a matter of probability was the case but that they ought not to have treated the slide as negative given the abnormalities as identified by Dr. McK.
94. Accordingly, I hold and decide that the defendants were negligent and in breach of duty in relation to the reading of the August 2009 smear test.
(C) Were the Defendants Negligent or in Breach of Duty in relation to the August 2012 Tests
95. There are significant issues in relation to the adequacy of the sample and what should or should not have resulted therefrom in relation to the 2012 sample. However, it is accepted that even if the number of cells on a slide were deemed inadequate that the slide should still be viewed to ascertain whether any of the cells were abnormal. Accordingly, I shall first address the three questions as to what was to be seen in the slides before, if necessary, dealing with the question of the adequacy of the sample.
(a) What as to be seen in the slide?
96. The original report recorded a negative finding. The internal audit carried out by Dr. C. in October 2014 determined that the slide was in the ASCUS or the AGUS category. The external audit by Dr. McG. carried out by the third named defendant in May 2015, determined that the slide was in the ASCUS category. The initial reviewed carried out by Ms. T. in July 2018, concluded that the slide should have been categorised as AGC and her subsequent review on the slides in September 2018, concluded that the applicant slide should be categorised as AGH, a higher categorisation in the borderline group and Mr. McK. in October 2018, also characterised the slide as AGC. Prof. P. on behalf of the first named defendant indicated that no abnormal cells were identified and blind reviews carried out by Ms. C.S. supported a negative finding.
97. The nature of the blind review carried out by the third named defendant was subject of much controversy in that for some reason which was not explained, the third named defendant married the plaintiff’s slide for the purposes of the blind review with the patient’s details of another woman who was post-menopausal and with a different history and no explanation was forthcoming as to why this was the case. On balance, I do not find that the plaintiffs have established any sinister motive for this irregularity.
98. The third named defendant did not call either of the screeners of the slide who were both based in Co. Dublin to give evidence as to what they found. This is, of course, entirely a matter for the third named defendant but from the court’s point of view was unsatisfactory. Also, the third named defendant failed to call either the person who conducted the internal audit or the external audit of the slide, to give evidence as to why they found the slide to be abnormal. This was also highly unsatisfactory.
99. Ms. S. described the ASCUS/AGUS category as being a ” waste basket “. The categories certainly describe ” indeterminate ” cells which are abnormal if not cancerous or pre-cancerous. As we have seen there is an obligation for the screener in cases of ASCUS/AGUS to have the patient rescreened within a short number of months. As I remarked earlier, I fear that such descriptions as given by Dr. S. result from the Guidelines of the American Society’s view that atypical cells can, in effect, be ignored when discussing liability, a proposition specifically endorsed by Prof. P.
100. Prof. P., as previously stated, having given her evidence as the necessity for blind review confirmed that as far as she was concerned even had there been a blind review and the reviewers had consistently reported ASCUS/AGUS that she would not have held the laboratory negligent as she supported the Guidelines of the American Society referred to above. These Guidelines suggested that any misreading of ASCUS/AGUS cells should generally not be classed as negligent. I believe that Prof. P’s evidence accordingly, must be treated with caution though I fully accept her belief in what she has said, I fear that she did from time to time depart into the realm of an advocate rather than an expert.
101. Returning to what was on the slide, Ms. T. in her initial report indicated that she would make a preliminary diagnosis of AGC based upon her analysis of three areas on the slide. Her second report was more detailed, I do not accept the characterisation that her second report was fundamentally different from the first, it clearly was however the result of further time and she maintained her view that the sample contains abnormal cells displaying features of atypical glandular cells or AGH which is a higher characterisation in the borderline category than AGUS and would require a reference to colposcopy.
102. Dr. McK., however, in his analysis indicated that he would have found only one of the three areas of the slide identified by Ms. T. as being abnormal, to be so. Dr. McK. found this one area to contain AGC or AGUS cells. He found two of the areas described as abnormal by Ms. T. to be normal, one of which contained endometrial cells. Dr. McK. is, of course, to be congratulated as to his candour and his professionalism as an expert in not accepting the characterisation of three areas of abnormality as found by Ms. T. His evidence also, of course, indicates the difficulties of any retrospective analysis. In relation to the 2012 slide and whether it was normal or abnormal, I should, I believe, only consider the one area of abnormality as found by Dr. McK. and ignore the other two areas as found by Ms. T.
103. Dr. McK. went through this one area on the slide identifying its features which suggested AGUS. He found features of hyperchromatism and a certain irregularity of nuclear shape and gave evidence that some of the criteria within the group of cells were sufficient to show that the sample was not negative and not normal. Dr. McK. also gave evidence that the cells on the edge of the group had some nuclear enlargement that it would be sufficient to be considered abnormal. In relation to the centre of the cluster, he said that there was uncertainty as to the nature of the cells due to the inability to see the central part of the group of cells and that applying the absolute certainty test means that the sample could not be classified as negative. I accept the careful and professional evidence of Dr. McK. that on the slide in 2012, there were, in fact, AGC cells to be seen on the slide. This is confirmed by the retrospective audits conducted on the slide.
(b) At the relevant time, could a screener exercising reasonable care have failed to see what was on the slide?
104. The one area of criticism identified by Dr. McK. was described by Prof. P. as being equivalent to attempting to spot one pine tree in a forest of oaks from a height. Notwithstanding my reservations in relation to Prof. P’s evidence which criticisms I have referred to above and will refer to again below, I believe that her characterisation of the one area in dispute in this case was reasonable. A screener is, of course, expected to identify the one pine tree in an oak forest but where the pine tree has characteristics similar to that of the oak forest, questions of liability do arise.
105. The slide was clearly ” scanty “. The offending cells are in one particular area only. I accept that in this case, the suspicious cells are clubbed together and they also bear the characteristics of normal cells. I came to the conclusion that the abnormalities present in the 2012 slide were significantly different from those in the 2009. In 2012, there was one area of abnormality as identified by Dr. McK. in which there were a number of cells clumped together. I am aware that I am forming my judgment on the basis of examining photographs rather than the slide itself but I came to the conclusion that the area of concern to Dr. McK. was not easily distinguishable from the two other areas which Ms. T. thought abnormal but Dr. McK. considered to have been properly assessed as normal.
106. Given the similarities of the abnormal cluster of cells with other cells that are properly classified as normal, I cannot accept on the balance of probabilities, that in 2012, a screener exercising reasonable care should be faulted for failing to see what was on the slide.
(c) Could a reasonably competent screener aware of what a screener exercising reasonable care would observe on the slide, treat the slide as negative?
107. A reasonably competent screener must have ” absolute confidence ” to describe a slide as negative. However, given the similarities between the cells in question and normal cells, I am not satisfied that the plaintiffs have established on the balance of probability that a reasonably competent screener could not have treated this slide as negative and accordingly, the failure to determine that this slide contained abnormal cells was not negligent.
108. Therefore, I find that though the 2012 slide contained abnormal and non-negative cells, the nature of these cells was such that the failure to record them as abnormal was not a breach of duty of care.
Adequacy
109. That, of course, is not the end of the issue in relation to the 2012 slide as the issue of the adequacy of the sample has to be considered. As stated above, under the Bethesda system, a minimum of five thousand cells must be on counted a slide for it to be found to be adequate and if the tester finds less than that amount, he or she must return the slide and arrange for a repeat smear in one to three months. Most slides are obviously adequate and their adequacy can be attested as such by the screener by a brief visual examination and without any formal analysis.
110. In this case, Ms. T. in her report did not refer to the slide as being inadequate, though in her evidence she indicated that it was inadequate but that as she had found abnormalities, this is what she reported. Dr. McK. found the slide unsatisfactory for assessment and the internal and external audits conducted by the third named defendant which both found abnormal cells gave as a reason for the false positive that the slide was “very scanty “. Prof. P. indicated that, after an analysis that she found the slide inadequate for sampling but indicated that a cytopathologist or screener more used to regular screening might well reasonably have determined without any analysis that there were sufficient cells on the slide and she would not fault a finding that the slide was adequate.
111. Dr. McK. and Prof. P. both tested the slide for adequacy utilising the method of testing prescribed under the Bethesda system and, therefore, under the laboratories’ contractual obligations namely viewing the slide on an axis twelve to six or nine to three and magnifying random points on that axis to count the number of cells on the magnified slide and multiply therefrom to ascertain whether the minimum number of cells was present on the slide.
112. Where the screener cannot have absolute confidence as to adequacy from a quick visual inspection then the Bethesda method is the appropriate method of adequacy testing, utilising the Thin Prep Method. Most screeners will have fixed microscopes which can only therefore measure the slide on a thorough basis using the twelve to six or nine to three axis. Utilising any other access would in all probability leave gaps between areas analysed and would, accordingly, not be satisfactory.
113. It was suggested to Dr. McK. that a study had been undertaken in Vincent’s Hospital, Dublin which found more than five thousand cells but it transpired that this study was purposively looking for cells and counting only where cells were found and then the study multiplied the areas where cells were found to achieve a purported total, rather than sampling on a random basis in order to achieve an average as required by the Bethesda System. I find this was not a valid approach. A similar observation can be made in relation to a second search conducted by Prof. P. designed to purposefully search out areas on the slide on which there were cells and to count these. This also subsequently found more than five thousand cells. Prof. P. was also specifically looking for areas in which there were cells rather than conducting a random sample. Initially, of course, Prof. P. had conducted a random search which found the slide to be inadequate for sampling.
114. I accept that Ms. S. in her adequacy review, apparently conducted in accordance with the Bethesda system, found that there was sufficient cells on the slide. In other words, it is possible that a random review carried out in accordance with the Bethesda system would have found sufficient number of cells but on the balance of probabilities, I believe any such random review would have been unlikely to have found the slide to be adequate.
115. Prof. P., on her own initiative it seems, requested Dr. M. a pathologist with a fellowship in cytopathology to subject the slide to a computer analysis using what he described as a Qupad system and this apparently determined that there were, in fact, over 35,500 cells on the slide.
116. When this evidence was put to Mr. McK., he responded that the five thousand cells sufficient for adequacy must be five thousand cells counted and analysed in accordance with the Bethesda system as this number, as assessed by this method, had been subjected to peer review and had been reduced considerably from what had previously been regarded as adequate that accordingly, the fact that a computer had discovered that there were actually over 35,000 cells on the slide, was irrelevant.
117. The plaintiffs further say that the finding by Dr. M. of over 35,000 cells due to his computer analysis is indeed irrelevant as pursuant to the contract, the slide ought to have been assessed utilising the method prescribed in the Bethesda system and that as a matter of probability, an assessment using this method, would have revealed that the slide was inadequate and accordingly, the plaintiff ought to have been referred for repeat smear between one and three months.
118. I accept the evidence of Prof. P. that in most cases, a quick visual glance can be made by the screener of the slide and that no formal test need be made. The original scanners of the slide did not give evidence as to what they saw or did not see or how they tested the slide for adequacy if at all. The third named defendant called two cyto-screeners by video link from the United States of America. These screeners participated in the blind reviews on behalf of Ms. S. Neither of these persons conducted a formal adequacy test, deeming such a test to be unnecessary though both did conduct a formal adequacy test on another slide in the blind review which they both deemed to be inadequate. I should note that one of these screeners, methods of conducting a formal adequacy test does not appear to be in accordance with the requirements of the Bethesda system and Thin Prep.
119. It is clear that the 2012 slide is significantly different from a visual examination from all the other slides I have witnessed. It clearly appears to have significantly less cells on it. The question arises as to whether a screener could have absolute confidence that the slide was adequate without undergoing a full test.
120. I note that Prof. P. felt the need to conduct an examination pursuant to the Bethesda system herself and that she found the slide to be inadequate. I must reject the suggestion of Prof. P. that the reason she subjected the slide to a formal test is that she is less experienced than the screeners and that had she been more experienced she could have passed the slide as adequate and that the failure to conduct a proper analysis cannot be faulted.
121. I fear that in relation to her evidence as to adequacy, Prof. P. clearly adopted the role as an advocate rather than an expert. She first deemed the slide to be inadequate using the prescribed method of testing. She then opined that the screener, who we did not hear from, was not negligent in failing to conduct an adequacy overview. Next, Prof. P. herself conducted a adequacy assessment of the slides purposefully to find areas where there were cells to show how it would have been possible to have found five thousand cells in a review and finally, of her own motion, it seems, she engaged Dr. M. to conduct a computer analysis which established there were over 35,500 cells. Prof. P. was clearly not willing to confine her evidence to what she found and indeed what her ” blind reviewers ” found but set out, as an advocate, to attempt to undermine the plaintiff’s case.
122. The ” absolute confidence ” test must also apply in the case of the adequacy of the slide and in the event of any doubt by a screener, it ought to have been subjected to a test for adequacy. I observed the photographs at the side and heard the evidence of Dr. McM. and I find that the failure to test the slide for adequacy in accordance with the Bethesda system was negligent and a breach of duty. No competent screener could have had absolute confidence without a formal test that the slide was adequate.
123. I accept that it would have been possible to test that slide in accordance with the Bethesda system and to have discovered sufficient cells and this was apparently done by Ms. S. It should be pointed out, however, that the nature of the adequacy test carried out by Ms. S. was not clear and was not referred to in any report, though for the purposes of this decision, I will accept that she did, in fact, conduct a test in accordance with the Bethesda System. However, notwithstanding what Ms. S. happened to find, I believe that it is unlikely that if the slide were subjected to such a test that an adequate finding would have been made. Prof. P. first tested the slide appropriately as did Dr. McK. and also apparently Ms. T. and probably the persons who conducted the audit, whom we have not heard from and who found the slide ” scanty “. Accordingly, I believe that no screener of equal specialist or general status would have, if acting with ordinary care, failed to subject the slide to an appropriate test as to adequacy.
124. It is again unfortunate that the two persons who tested the slide in the third named defendant’s laboratory in Co. Dublin were not made available by the third named defendant to give evidence as to what they did or did not do or whether they considered an adequacy test or whether indeed that they carried one out. One must have to presume that they did not.
125. I also find, as a matter of probability, that had a test been carried out by the screeners in accordance with the Thin Prep and Bethesda System, as outlined above, that it would have resulted in the slide being deemed to be inadequate.
126. Accordingly, the fact that an alternative system of measuring cells by computer subsequently discovered that there are over 35,500 cells on the slide is irrelevant. There has been no study conducted, subjected to peer review or otherwise, to demonstrate that such a computer analysis is suitable or indeed what number of cells found by the computer must be on the slide in order to determine that the slide is adequate. In the case of any doubt as to adequacy, the slide must be treated only under the Thin Prep and Bethesda System. The third named defendant rejects this proposition. It is, of course, possible to conduct an adequacy test using other methods. However, I find that the third named defendant was obliged under the terms of its agreement with Cervical Check to utilise the Thin Prep method as described by Dr. McK. The breach of duty and negligence of the third named defendant is their failure to conduct an adequacy review which are a no competent screener would have failed to do. Therefore, the third named defendant is in breach of the Dunne principles. The adequacy review that the third named defendant were obliged to conduct and would have conducted was the Thin Prep method.
127. Had the test been conducted under the Bethesda System, using the Thin Prep method, in accordance with the guidelines required by the first named defendant and their contract with the third named defendant, as a matter of probability, this slide would have been reported as inadequate and the plaintiff would have been required to be retested between one and three months.
128. Therefore, the defendants were negligent or in breach of duty, as defined by the Dunne principles in failing to have the slide properly tested for adequacy.
(D) What are the consequences, if any, for the plaintiffs of the said negligence?
129. The plaintiff was diagnosed with invasive cancer in 2014.
130. As a matter of probability, HPV infection was present in the plaintiff for ten years and upwards before that time.
131. The scan of August 2009, ought to have been reported as abnormal. The issue of whether the cells were squamous cells or glandular cells and, therefore, were in accordance with the Bethesda Terminology to be listed as ASCUS or AGUS is not of any consequence to the issues in this case as, if the slides had been indicated as being in either category, the plaintiff would, at least, have been advised to a repeat smear in six months time. At best, she would have been referred for immediate colposcopy. In either event, I accept the evidence that had she been screened again six months afterwards, it is likely that these findings would have been abnormal.
132. It is contended on behalf of the defendants that it is possible that the findings on a rescreening would have been normal, that is so. On the balance of probabilities, however, that is unlikely and should, therefore, be discounted.
133. Evidence was given by Prof. A. on behalf of the second named defendant that screening is less effective in the case of younger women. What is defined for these purposes as ” younger women ” was an age between 25 and possibly 35. On this categorisation, and only on this categorisation, Mrs. Morrissey was either borderline or was not in the category of a ” younger woman ” even on the date of the first relevant test in 2009.
134. In any event, many reasons for the difficulty in screening for younger women were given by the defendants. One of these was provided, as a default explanation in studies by epidemiologists and by statisticians and suggested that cervical cancer in younger women developed more rapidly than in the case of older women and accordingly, that the average of ten years for the development was less in the case of younger women. The defendants then built upon this opinion to suggest that the cancer that was found in 2014, might not have been present in 2009 or 2012. This proposition was not accepted by the clinician, Prof. S., and indeed there was no evidence in Mrs. Morrissey’s case that her cancer developed more rapidly than the average. When it was examined, Mrs. Morrissey’s cancer did not bear the characteristics of a rapidly developing cancer and the fact of its reoccurrence after eighteen months or so, did not suggest it to have been particularly rapid in its recurrence either. In this regard, I accept the evidence of Prof. S., who is a clinician. The cancer which recurred apparently arose from nodes left in situ unnoticed by Mr. M.H. where he had performed his trachelectomy in 2014 (and there is no criticism of this fact) and the cancer developed and became invasive but was not particularly rapid in its development. Indeed, at its best, the theory that cervical cancer may develop more rapidly in younger women is merely a hypothesis advanced in the statistical and epidemiological studies to explain the fact that cervical cancer are more difficult to detect in younger women.
135. Without specific evidence that Mrs. Morrissey’s cancer was rapidly developing. The defendants advance what was, in effect, a circular argument: i.e. Mrs. Morrissey’s cancer was not detected in 2009 or 2012, therefore the cancer was not there in 2009 or 2012 and, therefore, it must have been a rapidly developing cancer. In the circumstances, I have decided that the abnormal cells were present to be found on the slides in 2009 and 2012, and this circular argument must fail.
136. I believe that the suggestion that Mrs. Morrissey’s cancer developed rapidly and accordingly, was not present in a pre-cancerous form in 2009, or indeed in 2012, is not supported by any factual evidence. It should be pointed out also that in Prof. A’s joint paper with four other learned authors employed by the second named defendant, which advocated the effectiveness of combining screening with HPV vaccination, and not just proceeding on the HPV vaccination route alone, Prof. A. made no concession or did not even suggest that screening was ineffective, or indeed less effective, in the case of younger women.
137. In the circumstances, I accept the evidence from Prof. S. that as a result of the pre-cancer being detected after the subsequent rescreening and colposcopy, it would have resulted in the LLETZ procedure which would have led to a complete excision of the cancerous cells with as was stated, less than 5% chance of recurrence of precancerous development and less than 1% chance of invasive cancer developing. Accordingly, had there not been negligence in the reporting of the 2009 smear, the serious consequences for the plaintiffs and the plaintiff’s damages as claimed in these proceedings would not have arisen.
138. The plaintiff developed squamous cancer. She did not develop glandular cancer. The abnormalities shown on the slides were glandular and not squamous. The plaintiff contends that glandular abnormalities can co-exist with squamous abnormalities and that the ultimate development of squamous cancer is, therefore, quite possible. The defendants dispute that this is likely. On this point, I accept the evidence of Prof. W. that the same carcinogenic stimulus is affecting the stem cells of the cervix that can differentiate along either squamous or glandular lines and that it is highly likely where one sees glandular pre-cancer that there is an associated squamous pre-cancer.
139. The plaintiffs’ case does not depend on the identity of the cells which ought to have been detected as abnormal in 2009, developing into the cancer that was diagnosed in 2014. Rather, the plaintiffs’ case which I accept, is that had the slide been correctly interpreted in 2009, she would have been rescreened and, as a matter of probability, been referred to colposcopy and as a matter of probability, the colposcopy would have revealed, in its precancerous stage, the squamous cells which ultimately took hold.
140. In relation to the 2012 smear by Medlab, my conclusions are the same. Had the sample in 2012 been tested in accordance with the Bethesda System and Thin Prep, the sample would have been deemed as inadequate and had it been deemed as inadequate, the plaintiff would have had a repeat smear between one to three months. On the balance of probabilities, the repeat smear would have resulted in colposcopy. It follows that the issue that the plaintiff developed squamous cancer and the cells which Dr. McK. described as abnormal were glandular cells in the AGUS category is not relevant. My analysis in relation to the 2009 slide applies, but more importantly in relation to the 2012 slide, the third named defendant is not being criticised in relation to the analysis of the cells in the slide but due to their failure to have the slide adequately tested and found to be inadequate.
141. I find that in those circumstances, the cancer which in 2012 was certainly developing would have been identified and the same procedure undertaken as could have happened in 2009 with the same benign results. Accordingly, the entirety of the plaintiffs’ claims for injuries and loss are also caused by reason of the negligent misreading of the 2012 smear in failing to find that the sample was inadequate as defined by their contractual obligations and failing to ensure that Mrs. Morrissey was retested.
(E) Have the plaintiffs a claim for breach of Constitutional and/or European Convention Rights?
142. Under s. 3(2) of the European Convention on Human Rights Act 2003, the courts may award damages for contravention of a s. 3(1) right by an organ of the State. The HSE is clearly an ” organ of the State ” being a body “… which is established by law …”. The damages available to an injured party are similar to that available to Irish Courts when assessing damages at common law – see Pullen v. Dublin City Council [2009] IEHC 452, per Irvine J. i.e. that a successful claimant should, as far as possible, be placed in the same position as if his Convention Rights had not been infringed. The plaintiffs contend that Articles 6, 8 and 13 are of the Convention are engaged.
143. Damages may also be awarded for breach of constitutional rights against the State – see Green v. Minister for Agriculture [1990] 2 IR 17 per Murphy J. However, damages in this regard are normally against the State for breach of constitutional duty or possibly for breach of fundamental rights. Though the HSE is an emanation of the State for certain purposes including a possible claim under the European Convention on Human Rights Act 2003, the State is not a party in this case.
144. The plaintiffs claim that had they been advised of the audits and the misreading of the slides, they could have issued proceedings earlier. I do not accept that submission. Initially when Mrs. Morrissey ought to have been informed of the results of the audits, she was well and not ill. It is possible but not, I think, likely that in those circumstances she would have considered litigation. Mrs. Morrissey’s diagnosis of the return of the cancer was not made until February 2018. I do not believe that any material differences arise between the initiation of proceedings in February 2018 and July 2018.
145. A further and fundamental difficulty, however, for the plaintiffs in maintaining a claim of damages for breach of constitutional rights and/or European Convention Rights is that the rights complained of are fundamentally the tort and breach of duty rights that the plaintiff complain of in the main body of the proceedings and for which they are entitled to be compensated. In W. v. Ireland (No. 2) [1997] 2 IR 141, Costello J. held that a discrete action for damages for breach of constitutional rights only exists in situations in which damages are not otherwise provided for. I do not find that any of the European Convention Rights have been engaged other than possibly those rights which are covered by the tort and further, the actions complained of and found against the defendants do not amount to any or to any other breach. Accordingly, I do not have to specifically address this claim in any other detail.
(F) Was the first named defendant negligent in failing to advise the first named plaintiff to undergo scans and imaging tests in addition to the treatment afforded to her after the initial treatment in 2014 and did the first named plaintiff suffer any additional personal injuries due to her not being advised of the Audit results until 2018?
146. It should be noted that these allegations did not form part of the plaintiffs’ initial pleadings against the first named defendant and were not referred to in the opening of the case on behalf of the plaintiff or in the original evidence given by the first named plaintiff in July 2018. Nor, were these allegations referred to in the initial reports by the plaintiffs’ experts. Apparently, on 9th January, 2019, the second named defendant furnished the plaintiff with a number of reports including a report from Dr. P.L. and Dr. O. and these reports alleged that there had been a failure on behalf of the first named defendant in relation to the follow up of the plaintiff after she underwent her radical trachelectomy in 2014, and Dr. P.L. and Dr. O. apparently opined that the first named plaintiff ought to have been subject to regular imaging by CT scans and/or MRI scans. This criticism of the first named defendant arose from the issues between the defendants. However, the second named defendant withdrew Dr. P.L. and Dr. O’s reports and made no allegations or submissions against the first named defendant. I would not, therefore, have referred to the opinions of Dr. P.L. or Dr. O., other than the fact that the first named defendant’s submissions refer to these expert views and quote from them. Accordingly, I will consider the quoted reports as in the submissions of the first named defendant in relation to the medical negligence issue against the first named defendant. On receipt of these reports, the plaintiff then had the matter investigated and Prof. S., who had previously reported on other aspects of the case, furnished a further opinion supporting the criticisms of the follow up care of Mrs. Morrissey in relation to the issue of imaging. In this, Prof. S. was supported by the evidence and report of Prof. J.
147. On the reopening of the case on 29th January, counsel for the plaintiff applied to have this additional medical negligence aspect of the case included in the plaintiffs’ claim and also that the plaintiff be allowed to give evidence of a separate but related matter that had she been aware in 2014, that her original slides had been incorrectly read, that she herself would have insisted upon regular scanning. This argument was also not mentioned in her original evidence.
148. At the original opening of the case in July, counsel for the plaintiffs agreed that the plaintiff did not suffer any additional personal injuries as a result of not being informed of the results of the audits.
149. Counsel for the first named defendant understandably objected to this enlargement of the plaintiffs’ claim on the basis it would constitute a major widening of the issues in the case.
150. Having heard the submissions of counsel on both sides, I satisfied myself that the first named defendant would have a reasonable opportunity to investigate and report in relation of these new allegations of which the first named defendant had notice since the previous September from the second named defendant. Counsel for the first named defendant fairly stated that on receipt of the second named defendant’s reports, some preliminary inquiries as to these allegations had been undertaken. I also satisfied myself that given the time available in the case, the first named defendant would not suffer any prejudice. I allowed the case to proceed as now pleaded, as to whether the first named defendant was negligent in relation to the follow up care of Mrs. Morrissey in their failure to have regular imaging undertaken and also whether the plaintiff suffered injury due to her not being informed of the results of the audit and, therefore, not insisting upon regular imaging.
151. I did not allow the medical negligence to proceed on any wider basis, e.g. that the first named defendant had failed to conduct appropriate examinations on the plaintiff and in particular, had not carried out any rectal examination or any appropriate physical examinations. Indeed, I was not asked on 29th January, to allow the medical negligence issue to proceed on any basis other than the imaging issue. The matter did come somewhat of an issue in March 2019, when Prof. J. gave evidence and was critical in particular, the lack of a rectal examination as part of the follow up. I determined that the issue of medical negligence against the first named defendant was on the basis of the imaging and no more, however, evidence was led from both sides on the issue of the general adequacy of follow up care. I determined that this evidence is relevant only to the issue of the credibility of witnesses. I believe that to allow the medical negligence issue against the first named defendant to further expand would have been unfair notwithstanding the fact that as it subsequently transpired the witnesses from the first named defendant dealt with the issue of rectal examinations and general follow up care in their evidence.
152. The second named defendant subsequently withdrew the reports of Dr. P.L. and Dr. O. and did not lead any evidence on this aspect of the case. The plaintiffs relied upon Prof. S. and Prof. J. and on the recalled evidence of Mrs. Morrissey to support this aspect of her case.
153. The plaintiffs’ case is that had the regular images been undertaken that either the return of the cancer would have been detected sufficiently early to allow a cure or in any event to prolong a painless existence for the first named plaintiff.
154. Notwithstanding the late notification of the matter, this issue is now a live one and must be assessed according to its merits. Prof. S. on behalf of the plaintiff who was a pioneer in the Radical Trachelectomy procedure which was undertaken by Mr. M.H. on the plaintiff in 2014, was initially critical of Mr. M.H. personally for not carrying out MRI or CT scans after the radical trachelectomy on a regular, perhaps every six months, basis. It is clear that Prof. S. has great respect for Mr. M.H. and believe that he carried out the initial trachelectomy expertly but he based his criticism on the fact that this procedure is a relatively new one having first been carried out in 1991, and first carried out in the UK in 1994 and that as part of being permitted to utilise a procedure, the ethical committees at St. Bartholomew’s Hospital and the Royal Marsden Hospital, London, provided a stringent selection and follow up criteria including imaging. Prof. S. and Prof. J. stated that follow up imaging was a routine and regular matter in the United Kingdom hospitals and was particularly required in Mrs. Morrissey’s case given what they described as the high risk of recurrence given the size of the tumour in 2014. They also gave their opinion that the failure to have regular imaging was in the case of Mrs. Morrissey a breach of duty of care.
155. Subsequently, Prof. S. seemed to resile from a personal criticism of Mr. M.H. and instead indicated that the responsibility would have been in the multidisciplinary team (MDT) who should have insisted upon this regular follow up which Prof. S. and Prof. J. insisted were the normal required follow up procedures in the cases of trachelectomies.
156. On behalf of the first named defendant, Prof. D.B. gave expert evidence in relation to follow up after radical trachelectomy and in his report stated:-
“The goal of any post treatment surveillance programme is to identify early detection of recurrent disease so that it can be appropriately treated. There are no international recommendations or guidelines for post operative surveillance in women who have undergone a radical trachelectomy. It is generally considered appropriate to perform a colposcopy, smear test and pelvic examination at regular intervals in an attempt to identify central recurrences as outline above…There are no international guidelines that suggest post treatment radiological surveillance should be undertaken in women after radical hysterectomy or trachelectomy…”
157. Prof. B. also stated that imagining is not routinely recommended for surveillance but may be indicated in patients with symptoms or findings that are suspicious for recurrence. In Mrs. Morrissey’s case, he stated that there were no such symptoms or findings and the size of Mrs. Morrissey’s tumour was not such a reason.
158. Prof. A. also gave evidence for the first named defendant on this point and in his evidence, he did not accept that the fact that the plaintiff’s initial tumour was found on histology to be over 2cm, should result in her follow up care being any different from the normal. Prof. A. accepted that some recent guidelines, in the United States of America in 2019, did refer to follow up imagining but the American Guidelines in 2013, did not do so and his view was that the proper practice was not to have follow up imagining unless the patient was symptomatic. A reason given by him and Prof. B. for not having follow up imaging was that same were generally ineffective for detecting a recurrence.
159. Insofar as it goes to credibility, I accept the evidence of Mr. M.H. that he regularly does perform thorough follow up examinations involving smear testing, colposcopies and pelvic and vaginal examinations and that he did so in Mrs. Morrissey’s case. Mrs. Morrissey gave evidence that on one occasion this did not occur, but I believe she is mistaken and as a matter of probability that it did. Insofar as the failure to conduct a rectal examination is part of the case, and it can only relate to credibility, there is no doubt but that Mr. M.H. did not conduct any such examinations and whereas again there is some evidence, which indeed Prof. B. brought to the attention of the court that rectal examinations are recommended in some learned articles, I accept the evidence of Prof. B. and of Prof. A. that the preponderance of the opinions is that rectal examinations are not routinely required and indeed, that they probably would not have detected the tumour in Mrs. Morrissey’s case had they been conducted. I am not deciding the issue of the lack of rectal examinations from the point of view of a medical negligence action but on the basis of the credibility of witnesses and of their evidence.
160. The independence of Prof. B. as an expert was called into question by counsel on behalf of the plaintiff due to a letter that he co-wrote to The Irish Times after the cervical smear controversy was given great publicity in June 2018, advocating cervical screening and making the point that ” cancer screening is performed across community of healthy asymptomatic individuals and was designed to reduce deaths from cancer in the overall population. It differs from a diagnostic test targeted at an area of abnormality in an individual patient. Sadly false negatives are an inevitable part of even the best screening programmes, regardless of the disease they target or the country they are based in”. The letter also made the point that “automatic financial compensation for future false negative cases ‘could lead to all screening programmes being abandoned .” The arguments referred to in the said letter, are first of all not central to Prof. B’s evidence which was not dealing with the smears but rather with the medical negligence allegations against the HSE and indeed, the letter to the newspaper was saying little other than what I believe all sides in this case accept. I do not believe that the independence of Prof. B. was in any way affected by his ardent belief in the contents of that letter and Prof. B. was most careful in bringing papers to the attention of the court that appeared to run somewhat counter to his opinion. I find Prof. B. to be a most fair and careful expert witness.
161. I believe that the practices of Prof. S. and Prof. J. in advocating follow up scans, probably resulted from Prof. S’s pioneering work in the field of trachelectomy and the ethical guidelines that were required of him in the 1990s when the procedure was first utilised. I accept that the normal standard and the usual practice of clinicians in Ireland, the United Kingdom or the United States of America is not to require follow up of imaging. Whereas some papers do suggest that imaging should be part of the follow up programme, I accept the evidence of Prof. B. and of Prof. A. that the preponderance of the opinion is that screening is not usually indicated, unless they are clinical signs of concern. I do not accept the contention by the plaintiffs’ experts that the mere fact that the initial tumour was over 2cm is such a sign.
162. Therefore, there is no general requirement for post trachelectomy screening and there was no specific requirement for post trachelectomy screening in the case of the plaintiff.
163. Accordingly, I accept the evidence of the defendant’s witnesses in this regard and the plaintiff must fail on the first ground of the Dunne v. National Maternity Hospital test. Even insofar as the plaintiff is alleging breach of duty on the basis of the third ground in the Dunne case, the evidence of Prof. S. and of Prof. J. does not establish that the practice had inherent defects which ought to be obvious to a person giving the matter due consideration. The arguments against regular scanning as to its ineffectiveness and to its lack of necessity except in particular cases where there are clinical signs, are cogent.
164. Accordingly, the plaintiffs should fail in the allegation of negligence against the first named defendant in relation to the care of the first named plaintiff after her treatment in 2014.
165. In relation to the second aspect under this heading, that had she been aware of the misreading of the original slides that the first named plaintiff would have insisted herself on regular CT/MRI imaging, this, of course, raises a different issue.
166. The plaintiff in her original evidence given in July 2018, did say that she asked about imaging on a few occasions but did not make any case against the first named defendant that had she known of the results of the audit that she would have insisted on screening. When the matter was resumed in January 2019, I allowed the plaintiff to give further evidence and to made the case that had she been advised at the time of the diagnosis of her cancer and her treatment in 2014, that her slide had been inaccurately read, she would have insisted upon regular screening.
167. I accept that had the plaintiff insisted upon screening, the first defendant would have supplied it, if only to reassure Mrs. Morrissey. I also accept that the plaintiff is entirely sincere in her present belief that had she known about the misreading of the slides in 2009 and 2012, as discovered by the audits that she would have insisted upon her regularly screened after her treatment.
168. The issue in this case is then if Mr. M.H. had advised the plaintiff on her visit on 7th July, 2016, that the audits revealed that the slides had been misread would the plaintiff have insisted upon regular scanning so as to effect a cure or, at least, a relief of symptoms and a reasonable extension of life.
169. Though Mrs. Morrissey was very clear in her evidence in January 2019, that she would have insisted on regular rescreening, I believe that that evidence is based on hindsight and upon Mrs. Morrissey’s anger at not being informed of the audits. Had she been told in July 2016, or later, that the audits of her 2009 and 2012 smears indicated that they had been incorrectly read, she would have been given this information at a time that she believed that the 2014 procedures had resulted in a cure and I am not satisfied on the balance of probabilities that she would, in fact, have made any such insistence. There is, of course, nothing that connects the misreading of a test in 2009 or 2012, with the likelihood that the cancer which has been treated will return.
170. Had Mrs. Morrissey raised concerns having been told of the misreadings, she would have been rightly assured that the appropriate treatments and monitoring were being undertaking.
171. The point that needs to be made is that Prof. J. said that the opportunity for detection of the recurring tumour would only have arisen by February 2016, due to the previously small size of the tumour, and the opportunity for a cure ended around July 2016, and certainly by the winter of 2016 that window for a cure would have been closed. After that period, on the balance of probabilities, the best that could have been hoped for would have been a longer prognosis. However, given my findings on the issue of fact, it is not necessary for me to come to a view as to whether imaging being insisted upon, it would have detected the cancer in sufficient time to alter the outcome.
172. Accordingly, the plaintiff must also fail in the separate but related allegation that had she been advised of the misreading that she would have insisted on regular screening and that she has suffered personal injuries thereby.
173. It follows from the foregoing that the plaintiffs did not suffer any additional personal injuries due to the failure to advise the plaintiffs of the results of the audits on the slides.
(G) Is the first named plaintiff entitled to damages for the admitted breach of the first named defendant in failing to advise the plaintiff in relation to the results of the audit?
This issue will be analysed separately from the issue of exemplary damages.
174. The first named defendant has from the initiation of these proceedings properly admitted that it through its servants or agents was in breach of their duty of care to the plaintiff in failing to advise her of the results of the audit.
175. This not a minor or necessarily inevitable admission as a case could possibly have been made by the first named defendant that the obligations of treating doctors/health carers in relation to disclosure are different in questions of audit tests than in issues such as the diagnosis of injuries or their prognosis. Mr. M.H. said that when the results of audits relating to misdiagnosis commenced to appear, his original view was that the audits were educational and that screening always carried a high risk of false positives or false negatives and accordingly, he did not at the start believe that patients should be told. However, as the audit results continued to appear on his desk, he changed his mind and commenced telling the patients. This changes of mind occurred before the results of Mrs. Morrissey’s audits were communicated to him in July 2016, unfortunately Mrs. Morrissey’s case, notwithstanding Mr. M.H’s belief by July 2016, that a patient ought to be informed of the results of audits, Mr. M.H. simply ” forgot ” and the letter remained on Mrs. Morrissey’s file.
176. Mr. J.G. from the first named defendant was called as a witness by the plaintiff essentially dealing with the issue of exemplary damages, which will be considered under a different heading. He gave evidence of why the issue of screening might be a ” grey area ” in that it was not specifically referred to under the HSE’s open disclosure policy and in particular, why the issue of audits and their disclosure might be different.
177. Mr. J.G. also stated that there was some delay in notifying the plaintiff of the result of the audit because the first defendant apparently did not coordinate the audit results from the two tests on the plaintiff. After that, however, the first named defendant was also delayed in furnished the results of the audit to Mr. M.H. due to the contention by the second named defendant that the plaintiff should not be advised of the results of the audit and the attempt by the second named defendant to invoke the disputes resolution system in their contract.
178. Notwithstanding any such difference between the defendants, the first named defendant wrote to their agent, Mr. M.H., the surgeon, with the results of the audits in 2016, and the note on Mrs. Morrissey’s medical file was that the result were to be discussed with the plaintiff on her next visit in July 2016. However, Mrs. Morrissey was never advised of the audit results and Mr. M.H’s explanation was that he simply ” forgot “. I accept that explanation. I also accept that it is difficult for Mrs. Morrissey to agree that human error was the reason that she was not advised of the results of the audit in 2016 and I accept that the plaintiffs are by now convinced and I accept correctly, that were it not for the fact of the nondisclosure of audit results becoming a matter of public controversy in relation to another case that Mrs. Morrissey herself may never have been told.
179. The first named defendant accepts and admits, however, that they were in breach of duty in relation to the failure to advise the plaintiff of the results of the audit. The issue to be determined is whether the first named plaintiff is entitled to damages in respect of that admitted breach.
180. I have previously discussed the issue of the alleged negligence of the defendant in failing to provide regular scanning after 2014 and also the related issue as to whether had the plaintiffs known of the audit that she, herself, would have insisted on regular scanning’s and I have concluded that the evidence does not support these propositions.
181. It follows from my conclusion, the fact that Mrs. Morrissey was not advised as to the misreading of the original slides has not affected the plaintiff’s treatment. Once it was discovered that she had developed cancer, in 2014, the cancer was appropriately treated with apparent success. The audits were carried out by the defendants after Mrs. Morrissey was treated for cancer in 2014. Her treatment was undertaken by Mr. M.H. before the audit results were available and was not, in any way, affected by the audits or by the fact that the plaintiffs were not informed of their results. Therefore, the fact that the audits disclosed that the slides had been misread, or indeed the fact that I have found that these misreadings were a breach of duty has had no effect upon the first named plaintiff’s treatment or, indeed, the outcome
182. There is, no doubt, that Mrs. Morrissey is upset and angry about the issue of the audits. Indeed, those words ” upset ” and ” angry ” do not do justice to the plaintiff’s feelings.
183. For a good cause of action, the law requires not damage (or ” damnum “), but a legal wrong or ” injuria “. In this case, it is clear and it has been admitted that the first named defendant is in breach of a legal duty and that, therefore, an ” injuria ” has been done to the plaintiff. The issue is whether in addition to the ” injuria ” she has as a result suffered ” damnum ” to result in damages for personal injury.
184. The evidence of Prof. H., the plaintiffs’ psychiatrist, is that the first named plaintiff’s annoyance, upset and distress do not amount to a physical or psychiatric injury as required by law. An injury to be compensated in general damages, must be a disease or recognise a physical or mental injury. The first named plaintiff’s anger, upset and distress as she described and as Prof. H. described, do not amount to a ” damnum ” as is required by law in order to be compensatable in general damages.
185. The state of the law is that where there is ” injuria sine damno “, i.e. a legal wrong without loss or damage as recognised by law that only nominal damages can be awarded. It is, however, Right and Just to separately record a finding of damages, even if only nominal damages against the first named defendant, under this heading. The quantum of the nominal damages under this heading will be considered later.
(H) Assess Damages
I will deal with two of the subheadings of this issue together.
(i) Is the second named plaintiff entitled to damages, and if so on what basis?
(ii) Are the plaintiffs, or either of them entitled to damages for future care and loss of earnings and other special damages which will arise after the death of the first named plaintiff and, if so, on what basis?
186. The second named plaintiff is clearly entitled to damages for Loss of Consortium. Since the decision of the Supreme Court in McKinley v. Minister for Defence [1992] 2 I.R. 333, this action is equally available to a wife as well as a husband. An action for damages for loss of consortium, may now be maintained whether there is partial or total loss of consortium. The second named plaintiff is entitled to both general damages for loss of the society of the first named defendant but also to special damages arising from that loss.
187. In Spaight v. Dundon [1961] I.R. 201, at p. 215, the Supreme Court held that:-
“There is no doubt that the husband can recover for the medical and surgical expenses which he has been put to by the injury to his wife and for extra domestic expenses in which he has been involved… These are pecuniary losses easily ascertained where already incurred and capable of fair estimation for the future. In addition he is entitled to damages for the total deprivation of his wife’s company, even if such deprivation is for a limited period or periods. Such damages should not be too generous…”
It is clear that in cases where the husband will suffer, as in this case, the future loss of his wife’s salary, that loss of income can and should also be included, as well as general damages, under this heading.
188. Under this heading, Mr. Morrissey is entitled to damages in respect of the future care that he and his daughter will require after the death of the first named plaintiff as well as compensation for his losses resulting from the loss of earnings of his wife throughout her career, together with general damages for loss of consortium. The defendants submit that Coppinger v. Waterford County Council [1998] 4 I.R. 243, is authority for the proposition that damages for loss of consortium are only recoverable during the injured spouse’s life. That is not so. Geoghegan J. in Coppinger was deciding the issue of general damages for loss of consortium, not the issue of future pecuniary losses. Furthermore, Geoghegan J’s view on this point was clearly obiter. I do not accept that a spouse is not entitled to damages under the heading of loss of consortium for future loss as a result of loss of society. The fact that such damages are in certain circumstances available under Part 4 of the Civil Liability Act is not relevant to this discussion.
189. A judge should, in deciding a case, should only decide the minimum amount necessary for him/her to reach a conclusion. I am, however, aware that there are other cases involving claims by women whose slides were allegedly incorrectly read, it is probable that in some of these cases, the plaintiff does not have a spouse but does have dependent children. A question in those cases would arise as to whether in the absence of a spouses, losses such as future care of a child or loss of earnings or other items of special damage would be recoverable.
190. As the defendants have submitted, these cases are not Fatal Claims, cases taken under Part 4 of the Civil Liability Act 1961, which gives a statutory entitlement for named dependents including children to have their losses included in the fatal claim.
191. In Veronica Mahon v. Gerard J. Burke & Anor [1991] 2 I.R. 495, Lavan J. held that in a case where a deceased who had brought an action for negligence claiming damages for personal injuries against the defendant which was settled by compromise before his death, that after his death, the plaintiff, a statutory dependent, was not entitled to maintain an action under Part 4 of the Civil Liability Act for funeral expenses, mental distress and loss of consortium, as to hold otherwise would be to subject a defendant to more than one case arising from one cause of action. Accepting the decision in Mahon , it is important that it not be extended into the realms of unfairness. To exclude the children dependents of an injured party such as the plaintiff who had not a spouse, unlike Mrs. Morrissey, from claims for compensation for financial loss into the future just because their mother had vindicated her rights during her lifetime to claim damages for the wrong she suffered would clearly be grossly unfair and is not what the Civil Liability Act 1961 requires. To require such an injured party to make a choice either to vindicate her own rights in a personal action claiming damages for personal injury and, therefore, depriving her dependents of any claim for dependency or in the alternative, to forego her personal claim so that her dependants could achieve compensation for their losses, is clearly grossly unfair.
192. However, since the Mahon decision above, the children of a person who has been wrongly injured and whose life has been foreshortened as a result of the negligence of a defendant are not entitled to process separate claims under Part 4 of the Civil Liability Act if their mother has previously brought her own claim for injuries. I am conscious of the fact that no such issue arises in the instant case, given the claim for loss of consortium on the part of Mr. Morrissey. It would be wrong of me not to state that this problem, which could give rise to gross injustice in the case of a women with dependence who had no spouse, can be solved by resort to the principle of ” lost years ” as discussed by Dr. White in his Irish Law of Damages , Vol. 1 4.9. McMahon & Binchy (4th Ed.) para. 44.144 states the ” better opinion ” is that a plaintiff whose working life expectancy has been cut short may be compensated for earnings and other losses of the resulting from her ” lost years “. This view was favoured by Walsh J. in the Supreme Court decision of Doherty v. Bowaters Irish Wallboard Mills Limited [1968] I.R. 277 at page 285.
193. I am aware that the principle of ” lost years ” has been criticised on a number of grounds including a ” flood gates ” argument. Without deciding on any general application of the principle of ” lost years “, I hold that this principle must have application in cases where otherwise the great injustice I have referred to above, would occur. If, as is the case, a plaintiff can in certain circumstances be compensated for the loss of earnings due to their ” lost years “, it is Right and Just that they are also entitled to compensation in respect of the damages caused by the lost years of their inability to care for their children.
194. Clearly, of course, where these damages are being awarded in an action under another heading e.g. to a second plaintiff, the spouse of the injured party under the heading of loss of consortium, they cannot be doubly recoverable. If I am incorrect in my decision that the second named plaintiff is entitled to damages for these future losses under the heading of loss of consortium, and if the defendants are correct in citing Coppinger , to that effect, then I would find that the same damages would be recoverable by the first named plaintiff under the heading of ” lost years “. I believe, however, it is much more logical to include these items under Mr. Morrissey’s losses. It is Mr. Morrissey who is going to have to provide in the future for the care of Libby. It is Mr. Morrissey who is going to have to endure the loss of income of Mrs. Morrissey. It is Mr. Morrissey who is going to have to seek to provide out of his own pocket services which Mrs. Morrissey would otherwise do so.
195. The next issue in relation to the second named plaintiff is whether, in addition to his general and special damages for loss of consortium, he is entitled to damages in respect of his personal injury, namely the undoubted psychiatric injury he has been diagnosed with by Prof. H. as well as the return of his colitis. The defendants contend that the second named plaintiff is not entitled to these personal injury damages on the basis that the primary injury was to Ruth Morrissey and that a causation nexus does not exist between any negligence of the defendants and Paul Morrissey’s illness.
196. In Mullally v. Bus Éireann [1992] ILRM 722, the plaintiff’s husband and children were involved in a serious bus accident of which the plaintiff learnt when he was away on a visit to another town and she telephoned a hospital and was told that one of her sons was ” very bad ” and she phoned another hospital to be informed that her husband was dying and that a second son was there as well. As a result, the plaintiff developed PTSD which is a recognisable psychiatric injury, Denham J. analysing the situation stated:-
“It appears to me that the causal link is there. That the illness was reasonably foreseeable. The facts of this case clearly establish, a horrific situation for the plaintiff from the time of learning of the accident, through her journey to the hospital, to the appalling sights at the hospital, the terrifying sights of her sons Paul and Francis, and the fact of her apparently dying husband. All these events were caused by the accident caused by the defendants. It would be unjust, and contrary to the fundamental doctrine of negligence, not to find that there is a legal nexus between the actions of the defendants causing the accident, and the resultant aftermath of the accident in the scenes in the hospitals … The duty of care of the defendants extends as to injuries which are reasonably foreseeable…”
197. The real issue on this aspect of the case, therefore, is whether the defendants owed to Mr. Paul Morrissey a duty of care and are his injuries reasonably foreseeable. In Kelly v. Hennessy [1996] 1 ILRM 321, Hamilton C.J. identified five requirements for a successful claim for nervous shock: (i) the plaintiff must establish that he has suffered a recognisable psychiatric illness; (ii) the illness must have been shock-induced; (iii) the nervous shock must have been caused by the defendant’s act or omission; (iv) the nervous shock must have been ” by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff”; and finally; (v) the plaintiff must show that “the defendant owed him or her a duty of care not to cause him or her a reasonably foreseeable injury in the form of nervous shock “. It is the last of the five requirements that is open to debate.
198. I believe that approaching this case on the basis of the duty of care issue is more satisfactory than an analysis as is sometimes engaged in courts in England as to distinctions between ” primary ” and ” secondary ” victims. The neighbour principle established by Lord Akins in Donohue v. Stephenson [1932] AC 562, is the principal basis for establishing a duty of care. However, since the decision of the Supreme Court in Glencar Explorations plc v. Mayo County Council (No. 2) [2002] 1 IR 84, a court must consider three or four (and whether it be, there are three or four, is not of any great significance) preliminary conditions in cases where the issue of whether a duty of care is owed arises, i.e. is there reasonable foreseeability, is there proximity of relationship, are there any countervailing public policy considerations and, finally, the justice and reasonableness of imposing a duty of care. Whereas, Glencar and other related cases dealt with the issue of economic loss, where the existence of a duty of care has been denied, I believe that Mr. Morrissey’s claim for personal injuries must also be subject to this analysis. The fact that Mr. Morrissey suffered a physical injury (the return of his colitis symptoms) which was brought on by stress as well as psychological injuries is not of importance.
199. Mr. Morrissey has a recognised physical and psychiatric injury. His injuries started when he was advised in Galway of the return of the cancer. Clearly, there is a close proximity of relationship between him and his wife, especially so given the nature of the disease being suffered by Mrs. Morrissey. In relation to issues of countervailing policy, insofar as Mr. Morrissey’s claim is for physical injury caused by reason of his wife’s misdiagnosis, issues of countervailing policy do arise in that every spouse or close family member of a victim of medical malpractice is not per se entitled to compensation for psychological or physical stress related injury. To so hold would be to broaden considerably and unacceptably the number of plaintiffs who could claim damages in respect of a legal wrong done to their family members. Accordingly, Mr. Morrissey’s claim for damages for personal injuries arising from the misdiagnosis of cancer should fail on public policy alone. I make this point even assuming it was established that a duty of care exists.
200. However, Mr. Morrissey’s claim is also that his physical and psychiatric injuries have been considerably exasperated by the breach of duty of the defendants in their failure to notify himself and his wife of the results of the audit. In this regard, the quantity of potential plaintiffs is clearly very small and is a limited claim which would not be of general application so issues of countervailing policy may not arise.
201. The overriding issue in the case of Mr. Morrissey’s claim for damages for his personal injuries is that of the duty of care and, in particular, whether Mr. Morrissey’s injuries insofar as they relate to the issue of the nondisclosure of the audits are reasonably foreseeable.
202. I do not believe that a reasonable person in 2009, 2012 or 2016 could reasonably have concluded that if they negligently misread the slides or failed to tell Mrs. Morrissey of the results of the audits that her husband would be so affected that he would suffer a recognisable physical and mental injury. Accordingly, I have come to the conclusion with some reluctance that Mr. Morrissey is not entitled to maintain a claim for his personal injuries apart from naturally the issues that are compensatable under the heading of general damages for loss of consortium. I have come to this conclusion bearing in mind also the fact that I have found that the breach of duty of the first named defendant in relation to the failure to advise the plaintiffs of the result of the audit was caused because in his own words, Mr. M.H. ” forgot “.
(iii) Are the plaintiffs entitled to exemplary damages?
203. The principal object of General Damages the law of torts is to restore the plaintiff to the position that he or she occupied before the wrong was committed, principally through compensation in monetary form. The plaintiff in this case claims, in addition, exemplary damages. Exemplary damages are a vindication of the plaintiff by the punishment of the defendant. Dr. White in Irish Law on Damages , Vol. 1.2.03, states:-
“The justifications for awards in the nature of exemplary damages are twofold. First vindication of the plaintiff by punishment of the defendant. Secondly, deterrence of the defendant and others from repetition of similar misconduct. As regards vindication, it may be, and usually is, a great satisfaction to the victim of a tort that he may bring a wrongdoer before a court in order that he may be branded as being in the wrong collectively by society through the medium of the courts. Feelings of grievance, and even a desire for revenge, may be assuaged in this way whereas otherwise such feelings may fester, leading to undesirable tensions and hostility in the community, and perhaps occasionally explode resulting in recourse by the plaintiff to extra judicial methods of securing such satisfaction. Where the plaintiff has been a victim of egregious misconduct the law must, if the victim is to be vindicated, deal with the defendant in a manner significantly different from that in which it deals with an ordinary wrongdoer. The defendant must be punished and must be seen to be punished. An injured person’s feeling of impotence, being a victim, in the power of a bullying aggressor or of a perpetrator who is reckless i.e. consciously indifferent to the welfare of the plaintiff or the security of his property, are not to be underestimated and are of an entirely different order to the feelings of grievance experienced by a plaintiff who has been injured in different circumstances amounting to a tort. The only appropriate response of the law in this context is to mulct the defendant in an award in the nature of exemplary damages…”
204. The House of Lords in Rookes v. Barnard [1964] AC 1129 restricted the categories of law in which exemplary damages may be awarded in England:-
(a) where there had been ” oppressive, arbitrary or unconstitutional action by
the servants of the government “;
(b) where the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff; and
(c) where exemplary damages are expressly authorised by statute.
This case also distinguishes between aggravated and exemplary damages whereas previously the terms had been used almost interchangeably.
205. In Ireland, whereas the restrictions specified in Rookes v. Barnard have not been specifically rejected, there are a number of cases in which the restrictions have been rejected in obiter remarks (see McCarthy J. in McIntyre v. Lewis [1991] 1 IR 121 and Murray C.J. in Shortt v. Commissioner of An Garda Síochana [2007] 4 IR 587. In any event, in this case, I believe that the HSE could be properly described as ” servants of government “. So the issue of the restrictions in Rookes v. Barnard is not of relevance to the claims against the first named defendant for exemplary damages and insofar as the plaintiff’s might have a claim against the other defendants for exemplary damages, I will follow the reasoning of McCarthy J. in McIntyre v. Lewis (above).
206. Rookes v. Barnard also drew a sharp distinction between exemplary or punitive damages and aggravated damages. This distinction is also to be found in Finlay C.J’s judgment in Conway v. Irish National Teacher’s Organisation [1991] 2 I.R. 305, where he defined exemplary damages as:-
“…damages arising from the nature of the wrong committed and/or the manner of its commission which are intended to mark the court’s particular disapproval of the defendant’s conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, quite apart from its obligation where it may exist in the same case to compensate the plaintiff for his damage.”
207. Aggravated damages, as distinct from exemplary are additional compensation due to the conduct on the part of the defendant in the case and consequent distress and suffering for the plaintiff. Whether the plaintiff could formulate a claim for aggravated damages in these proceedings is disputed as only exemplary damages were pleaded. However, I will not decide this case on any pleading points. In relation to aggravated damages resulting from the conduct of the first named defendant’s defence clearly this cannot arise given the early admission by the first named defendant of breach of duty and in relation to the audits. In relation to the other criticisms of the conduct of the first named defendant’s defence, I do not find that this conduct was sufficient to justify a claim for aggravated damages. The first named defendant was entitled to deny any liability until a ruling from this Court was given on the issue. However, it would have achieved the same results had the first named defendant merely put in issue any misreading of the slides and claimed that if any of the slides were misread that they are entitled to an indemnity.
208. The second and third named defendants, of course, denied liability and chose not to call the persons who originally carried out the screening or the persons who carried out the audits on the slides but given the nature of their expert reports, I hold that they were reasonably entitled to deny liability and have the matter decided by a court. Accordingly, even assuming a claim for aggravated damages is open to the plaintiffs on the pleadings, the same does not arise in these proceedings.
209. The claim, as pleaded, however, is for exemplary damages. Exemplary damages are specifically recognised as a distinct head of damages under the Civil Liability Act 1961, and the issue I have to determine under this heading is whether the defendants by reason of their conduct of the governance of the screening system and of the tests and by their failure to reveal the findings of the audits to the plaintiff until, in effect, they were forced to do so by the inquiries of the plaintiffs and the public outcry in other case were guilty of such egregious conduct that they ought to be punished.
210. I have no doubt that for many observers the preliminary justifications for the award of exemplary damages as so eloquently outlined by Dr. White in the passage I have quoted from Irish Law on Damages would clearly be met. However, it must be said that the function of the law is not to place anyone in the modern equivalent of stocks so that they can be pelted by rotten vegetables for the entertainment of the public just because the public are enraged, even if understandably enraged. It is only as Dr. White indicated if the conduct of the defendant could be described as egregious that exemplary damages could be awarded.
211. Exemplary damages are only payable in the event of what could be described as an egregious or a deliberate or wilful act, such as an assault by a ” wealthy man in a dominant position” with a most humiliating effect upon a plaintiff as in McDonald v. Galvin (McWilliam J., High Court, 23rd February, 1976) or false imprisonment by members of An Garda Síochana ( Dillon v. Dunne Stores (George’s Street) Limited (Unreported, Supreme Court, 20th December, 1968)) etc. In the plaintiffs’ case, the breach of duty of the first named defendant (other than their liability for the conduct of the second and third named defendants) is as I have so found that a busy surgeon ” forgot ” to advise the plaintiffs of the audit. Further examples of the conduct of the first named defendant that the plaintiffs rely upon are the nature of the ” contracting out ” of the tests to foreign companies and the alleged mismatch of American lower standards with the Irish recall of three years rather than one year and the alleged fact that no proper account was taken of this mismatch in the contracts with the laboratories. When dealing with the issue of any claim for exemplary damages as against the first named defendant, I do not find that the liability as admitted or that any of the other matters raised by the plaintiff represented egregious conduct. The HSE, through Cervical Check, contracted with reputable international laboratories who could and did, in fact, conduct the smear tests in a more timely manner than the previous Irish laboratories. Efficiency of reporting is of vital importance in a smear check programme.
212. As regards, the second named defendant, the plaintiffs rely upon the fact that the second named defendant analysed the samples in the plaintiff’s case in a laboratory that was not specified to in the contract between the first named and second named defendant and it is unclear how or why this was done. I accept that the fact that Mrs. Morrissey’s slide was analysed by the second named defendant in a laboratory that was not specified in the contract and was not known to the first defendant meant that any systems of audit or governance put in place by the first defendants were ineffective, to say the least.
213. I regard the conduct of the second named defendant in relation to their contract with the HSE and Cervical Check as being, to say the least, cavalier. However, I do not believe that there is any evidence that the second named defendant utilised the laboratory not listed in the schedule to the contract for the purposes of avoiding or evading scrutiny by Cervical Check. The second named defendant’s laboratories were not compliant with ISO standards which was a requirement under the contract with the HSE. They were, however, compliant with American standards which were different though largely similar to the ISO. Cervical Check seemed to accept this difference and in their latest contract with the laboratories, they have specifically indicated that while the laboratories will attempt to comply with ISO standards that their present compliance is sufficient for the purpose of the contract. I do not believe that anything turns in relation to this case on any differences between ISO compliance and the compliance that the laboratories had with American standards.
214. As I indicated, perhaps with too much colour, during the course of the trial the central issue in the case, is whether the slides were negligently read. The issue is not whether they were read in the most modern and up to date laboratory subject to the most rigorous monitoring by the HSE or whether the slides were read by a Transition Year school student in his hut in the bottom of a garden. Of course, if the evidence showed that the HSE allowed the slides to be read by the equivalent of a student in the hut in the bottom of a garden, or if the second named defendant had purposefully outsourced the reading of the slides to a substandard laboratory, in order to avoid scrutiny, that would be grounds for exemplary damages. Though the reason for the second named defendant utilising laboratories not specified in the contract were not communicated to Cervical Check, and neither was the approval of Cervical Check sought for these other laboratories including the laboratory in Grand Rapids which tested the plaintiff’s slide in 2009, I do not believe that I can speculate that there was anything malicious or egregious in that fact, nor in the fact that the first named defendant did not, until this trial, discover where the slides had been read.
215. Neither, do I find that the claim for exemplary damages against the other defendants due to the delay in informing the plaintiff of the audit results, is well founded. The second named defendant was clearly responsible for some of the delay in transmitting the reports to the first named defendant and for a time vigorously opposed the first named defendant’s intention to inform the plaintiffs of the audit and indeed, notwithstanding the fact which is likely to be the case, that this opposition by these defendants was self-serving, the fact is that the main reason the audits were not reported to the plaintiffs is that reporting was delegated by the first named defendant, to Mr. M.H. in 2016, and unfortunately, Mr. M.H. “forgot”. The opinion of the other defendants that the results of the audit should not be disclosed has been rightly rejected by the HSE. Though erroneous, this view was not without, at least, an arguable basis at the time. The issue of nondisclosure of audit results especially when the audit results did not affect the treatment of a patient is not necessarily the same as nondisclosure of a patient’s illness or disease.
216. The actions of the third named defendant in relation to the utilisation of another patient’s name and details and inserting those on the slide of the plaintiff in relation to the blind review was not explained and was somewhat bizarre but I have not found this to be in any way sinister.
217. Accordingly, I do not find that the actions of the other defendants are grounds to hold that they should be punished or that their self-serving conduct was necessarily egregious. Therefore, the plaintiffs are not entitled to succeed in their claims for exemplary damages.
(iv) The Quantum of Damages
I will assess damages for each of the plaintiffs under separate headings and differentiate between the actual losses of each plaintiff.
(a) Special damages for the first named plaintiff
218. In assessing special damages, I adopt the formula utilised this Court and by the Court of Appeal in Russell v. HSE [2014] IEHC 590, that the proper method to test claims for special damages is to analyse whether the plaintiff’s claims are reasonable rather than attempting a paternalistic view of balancing the reasonableness of the competing claims from the plaintiff and the defendant. It is only if the plaintiff’s claims are unreasonable that the defendant’s suggestions should be considered.
219. Certain items of the first named plaintiff’s special damages have been agreed between the parties. The parties have agreed that the occupational therapy costings have been agreed at €55,000 and the claim for home adaptation has been agreed at €70,000. In addition, there has been agreement in relation to miscellaneous items of special damages amounting to €12,508. The next aspect of the plaintiff’s claim for special damages is her loss of earnings. As previously stated, the plaintiff was employed as a customer solutions supervisor with UPS. I accept that she was scheduled to be promoted to customer solution manager in 2018, giving an annual salary of €50,103.48 and that as a matter of likelihood she would have been promoted to customer solutions manager in around 2025, earning a salary of €59,925.55 gross at today’s levels. Beyond that, I believe to be speculation.
220. I think it is fair to allow Mrs. Morrissey the sum of her loss of earnings for the remainder of her life based on a salary of approximately €50,000 and allowing for her living and expenses including the cost of caring for Libby, a sum of €50,000, under this heading is reasonable.
221. In relation to the cost of assistance and care for the plaintiff for the rest of her life, and particularly for her end of life care, I believe that the costings as set out by Ms. N.R. are probably excessive in relation to the length of time such end of life care will be required. I do not believe that the plaintiff will require the care for the length of period as suggested by Ms. N.R. However, the figures set out by the defendants’ expert, Ms. P. insufficiently take into account the reality of the plaintiff’s loss.
222. An issue does arise in relation to the costings. Ms. N.R’s costings are on the basis of payment to persons who are in a regular position in relation to their taxation, whereas the defendants’ costings are it seems, at least, partly based upon payments of cash to neighbours/friends. Just as a plaintiff claiming damages for loss of earnings cannot expect to be compensated in respect of undeclared income lost so a defendant cannot expect a court to countenance payment on a ” cash ” basis even if such a basis is frequently utilised for the engagement of such services.
223. This is not an exact science and involves some necessary speculation. Being fair to both the parties, I will assess the care of the plaintiff for the rest of her life in the sum of €60,000 assuming a two year life expectancy. I assess, therefore, the special damages to the plaintiff for her life in the sum of €247,508. The balance of the losses will fall to be considered under losses for the second named plaintiff.
(b) General damages for the first named plaintiff
224. Had the slides been properly analysed in 2009 or had the slide in 2012 been deemed inadequate and the plaintiff been reviewed within one to three months, then as I have found as a matter of probability, the plaintiff would have been re-tested and as a matter of probability, her slides would have been abnormal and she would have been sent to colposcopy and would have been, as a matter of high probability, successfully treated using the non-invasive LLETZ procedure and she would never have contracted cancer in 2014. She would have been spared the pain and distress of what followed and in particular, the cancer would not, as a matter of probability have recurred. She would not have been subjected to the radium or chemotherapy treatment. She would not have suffered all her pain and distress that she has undergone so far. She would not have been left in the knowledge that she has only, at most, two years to live, her career would not have been interpreted. Her martial relations would not have ended with her husband. She would have, as a matter of likelihood, had at least one further addition to her family. She would have been spared the prospect and the knowledge that her daughter and her husband will have to go through life without her care and guidance and in particular, she will not live to see her daughter make her way through life and probably start her own family and of most and more importance, her life would not have been so tragically cut off.
225. The purpose of general damages is, of course, to attempt to place a plaintiff in the position she would have been had the insult to her not occurred. It is extraordinary that some analysis referring to the ” recalibration ” of damages should approach the issue without significant, or any, reference to the person, general damages serve in the first place. Indeed, general damages are ” assessed ” they are not ” calibrated ” so they cannot be ” recalibrated “. The Court of Appeal in Shannon v. O’Sullivan & Ors [2016] 1 I.R. 313, made clear that there is no question of ” recalibration ” in any of their decisions.
226. No two persons with the same or similar injuries suffer to the same degree. The assessment of damages can never be based upon any pseudoscientific exercise in ” box ticking “. Such an exercise, though perhaps superficially attractive is entirely subjective and dependent upon which ” boxes ” the box ticker creates in order for them to be ticked. The reasonable objective of consistency in awards can never trump fairness for individuals who must be individually assessed. In this regard, to ensure fairness, it seems a judge can never be replaced by a formula or by a computer, however, intelligent.
227. The first issue that arises in relation to general damages for the first named plaintiff is whether these general damages are to be limited in accordance with ” the cap” on general damages first referred to by the Supreme Court in Sinnott v. Quinnsworth [1984] ILRM 523, leading on from the earlier decision of the Supreme Court in Reddy v. Bates [1983] 1 I.R. 141.
228. The cap on general damages was most recently fixed by Quirke J. in Yun v. MIBI [2009] IEHC 318, at €500,000 which sum he reduced because of the then economic recession to €450,000. I have discussed the issue of the cap on general damages in a number of decisions including in Woods v. Tyrell [2016] 355. More recently, there has been an excellent review of the law by Barton J. in the important case of B.D. v. Minister for Health and Children [2017 No. 1 C.T.] (judgment delivered 19th January, 2019). I entirely agree with the analysis of Barton J.
229. General damages are awarded so that an injured party can utilise the money to purchase goods or services, serious or frivolous, to compensate for what he or she has lost. A plaintiff might want to buy a new car, engage in foreign travel or indeed, purchase a new or better house. Persons with catastrophic injuries will usually have less freedom to utilise their general damages to compensate for their loss which is the central reason given in Sinnott (above) to justify the ” cap “.
230. In Reddy v. Bates, the Supreme Court referred to a fact that the plaintiff ” has been awarded what is considered to be sufficient damages to cover all her prospective losses, to provide for all her bodily needs, and to enable her to live in comparative comfort (having due regard to her disabilities)” , and stated that this fact ” should be reflected in the amount of general damages to be awarded”.
231. Having quoted from the above passages in Reddy v. Bates , the Supreme Court in Sinnott stated that:-
“In a case such as this, regard must be had to the fact that every single penny of monetary loss or expense which the Plaintiff has been put to in the past or will be put to in the future has been provided for and will be paid to him in capital sums calculated on an actuarial basis. These sums will cover all his loss of earnings, past and future, all hospital and other expenses in relation to the past and the future and the cost of the special care which his dependence requires, and will require, for the rest of his life. …”
232. In the instant case, the first issue I must decide is whether this cap should apply. Clearly, if the cap does not apply, the injury suffered to the plaintiff is indeed at the most extreme. She does not, of course, have an ongoing disability at the moment equivalent to a tetraplegic or someone with significant brain damage which injuries would be expected to last for a considerable number of years. However, unlike plaintiffs with significant brain damage, possibly caused at birth, the plaintiff has a full knowledge of her situation. Mrs. Morrissey’s life has been ruined and she will be aware of that fact for the rest of her life. Mrs. Morrissey has suffered a life sentence of which she is fully aware which is expected to take effect within two years and for which there is no reasonable prospect of a reprieve. The fact that her injuries were caused by negligent inadvertence and not by any intentional act or even moral culpability, as I have so found, is relevant only to my decision in relation to exemplary damages. She has suffered a catastrophic injury no less than that of a tetraplegic or someone with brain damage. If the ” cap ” does not apply, then I would have no hesitation in awarding general damages at a rate higher than €500,000.
233. I am providing the first named plaintiff in special damages with what I believe to be all her reasonable losses to date and for the rest of her life for the next two years. Though she herself is not being compensated but rather her husband is, in respect of the losses of her future income after her death and the costs of the future care of her daughter, Libby, I have come to the conclusion that the cap on general damages should, following the principles in Sinnott, be applied in this case and accordingly, she is entitled to the sum of €500,000 for general damages. Any less would be an insult.
(c) Special damages for the second named plaintiff
234. I have already rejected the proposition that the second named plaintiff is only entitled to damage for loss of consortium for his losses while Mrs. Morrissey is still alive. If I am incorrect in that conclusion, then Mrs. Morrissey would be entitled to the same amount under the principle of ” lost years “. The second named plaintiff is entitled to his losses in respect of the loss he has suffered due to the plaintiff’s future earnings, and the extra cost of care for Libby until she reaches the age of approximately 23.
235. As previously stated, I believe that Mrs. Morrissey would have gone on to be promoted but the status of customer solutions manager at a salary of €59,922.55 in 2025. I believe that such a promotion is reasonable, it is quite clear that Mrs. Morrissey was a highly value employee of UPS but further promotion argued on behalf of the plaintiff is a matter of more speculation and I will not allow for it. The actuaries have calculated the loss of earnings figures as a whole where I have differentiated between losses to the first named plaintiff and the second named plaintiff.
236. When calculating loss of earnings to the second named plaintiff, one must, as the actuaries have, subtract from the figures the expenses that Mrs. Morrissey would have expended had she lived and which would not have been available for either Mr. Morrissey or Libby. Clearly the loss under this heading is Mr. Morrissey’s loss.
237. One must treat the actuaries figures as guides merely and allow for the fact that I have already compensated in respect of the next two years of the plaintiff’s earnings. The defendant’s valuations are based upon the plaintiff’s income as it was in 2017 and do not allow for the increases which I think are reasonable. Therefore, the plaintiff’s actuary’s approach is to be preferred in this regard.
238. The plaintiff’s actuary has given alternative figures of either €773,519 or €1,167,960. The higher figure assumes that the bonus of 3% is permanently added to the salary each year. I do not think that that is valid and will use the lower figure as a guide from which I must deduct, not alone the loss of earnings to Mrs. Morrissey for the next two years but also a sum for Reddy v. Bates , such deduction must be made as though Mrs. Morrissey is an enthusiastic and highly regarded employee, it is likely that had she survived and, for example, gone on to have a second and possibly a third child, that she would have been out of work for a period. I believe that a sum of €600,000 is reasonable under this heading.
239. In addition, the plaintiff’s claim to loss of State pension, company car, private benefit, share options. The defendants have not calculated the company car and share options but have allowed a sum for loss of occupational pension. The plaintiff’s actuary allows a figure of €200,000 for these figures. However, there is a level of uncertainty about some of these matters and I think being fair to the parties, a sum of €150,000 should be allowed.
240. In relation to the cost of future child care for Libby until she 23 and domestic assistance for Mr. Morrissey for his life after Libby is 23, there is a significant difference between the evidence of Ms. N.R. and of Ms. P. I fully accept that the plaintiffs are entitled to expect that in the absence of Mrs. Morrissey that Libby will have the best possible care. Essentially, Ms. P. sets out her recommendations based upon engaging persons on an informal cash basis, which is not acceptable. However, is must be said that Ms. N.R. does envisage a level of care which is in all probability unrealistic when Libby gets to her teenage years. Ms. N.R. is, of course, correct that nothing can replace the care of a mother and indeed, in teenage years and in the time when Libby will be doing her Junior Certificate and Leaving Certificate examinations, a mother’s care is of vital importance, I do not believe that this can be properly substituted by any level of formal care and accordingly, I believe that the costings as proposed by Ms. N.R. which would actuaralise at over €787,000 cannot be fully sustained. There is no scientific method of performing the exercise but I believe that a sum of €500,000 allowed for the future care of Libby would be reasonable. It is entirely reasonable that costings be based upon the payment of carers who are vetted and whose tax situation is regularised.
241. In relation to domestic assistance for Mr. Morrissey, after Libby is expected to leave home, there is an element of speculation as to whether Mr. Morrissey will at that stage require further assistance but I accept the case being made out that he will. It is not unreasonable that some services which will be provided by Libby until she leaves home should be allowed thereafter. I note the actuarial valuations on behalf of the plaintiff are slightly less than €200,000 in this regard and that of the defendant are slightly more than €36,000. I find that the plaintiff’s value as to Mr. Morrissey’s needs is somewhat excessive. I will assess the sum of €75,000 under this heading is fair and reasonable in the circumstances.
242. In addition, I will allow a sum to Mr. Morrissey in respect of retrospective care at €13,468 and a sum of €6,532, for bereavement counselling. These figures add to a further €20,000 in special damages for the second named plaintiff.
(d) General damages for loss of consortium for the second named plaintiff
243. The second named plaintiff, Mr. Morrissey has already suffered what the law refers to as ” partial loss of consortium “. Loss of consortium refers not just to the physical aspect of marriage but also and more importantly, to the care and support a spouse gives and receives. The general damages for loss of consortium are independent of the fact that Mr. Morrissey is not entitled to any damages for his personal injuries as discussed previously.
244. I have come to the conclusion that Mr. and Mrs. Morrissey are a particularly devoted couple and, as Mr. Morrissey is already deprived of her society in so many ways and as he will be deprived of her society in its entirety in approximately two years time, he is clearly entitled to general damages.
245. Kingsmill Moore J. in Spaight v. Dundon indicated that general damages for loss of consortium should not be ” too generous “. As O’Flaherty J. pointed out in McKinley v. Minister for Defence [1992] 2 I.R. 333, that precept ” applies to any award for damages “. In McKinley, a husband was left sterile and impotent by an explosion and O’Flaherty J. stated ” a benchmark might be sought and found in the level of damages that are awarded for mental distress under the Civil Liability Acts in the case of the death of a spouse. It would seem clear, in principle, that damages for loss of consortium should be related to those recoverable for the death of a spouse “.
246. In Coppinger v. Waterford County Council [1996] ILRM 427, Geoghegan J. determined that the mental distress which results from the death of a spouse and for which damages are recoverable under Part 4 of the Civil Liability Act 1961, is not, in any way, an injury of a similar kind to loss of consortium and that there was no ceiling for damages in the case of loss of consortium. In that case, Geoghegan J. indicated the plaintiff had already suffered loss of consortium for ten years and would probably continue to do so for a number of sixteen or seventeen years and that this was infinitely worse than mental distress if the plaintiff’s husband had died in an accident. Geoghegan J. awarded the plaintiff €60,000.
247. The general damages for loss of consortium for which Mr. Morrissey is entitled should clearly be damages that are at a level only recoverable in the High Court and, I believe that Mr. Morrissey’s damages should reflect the nature of his loss, how it occurred and its future permanence, and accordingly, I believe that a sum of €60,000 is fair and reasonable in and not at all too generous in the circumstances.
(e) Damages for the first named plaintiff for the breach of duty of the first named defendant in relation to the nondisclosure of the results of the audits
248. As previously stated, the plaintiff is not entitled to general damages under this heading but is entitled to what is known as nominal damages. Nominal damages are not compensatory damages but are awarded where there is a breach of a plaintiff’s right but no actual injury. Nominal damages must clearly be distinguished and distinguished in monetary terms from contemptuous damages which sometimes are awarded by courts in defamation cases where they find the defamation established but have little regard for the character of the plaintiff. In this case, the findings of the audits, even though they be educational, were within the definition of a ” harmful event ” in the first named defendant’s disclosure policy and accordingly, they ought to have been disclosed. I accept that the first named defendant has admitted liability for the nondisclosure and that, to a certain extent, at least, in grappling with the issue of these audits and whether to disclose them, the HSE were, indeed, dealing with new issues that had not been dealt with before. However, the wrong done to the plaintiff by the nondisclosure of the audits was not inconsiderable and as I stated, previously should be marked by a specific amount and in the circumstances, I believe that an award of €10,000 under this heading is appropriate.
Summary
249. The first named plaintiff is entitled to:
Damages in respect of failure by first
named defendant in relation to the audit €10,000
As against all defendants:
General damages €500,000
Miscellaneous special damages (agreed) €12,508
Cost of home adaption (agreed) €70,000
Occupational therapy (agreed) €55,000
Loss of earnings for life €50,000
Care costs €60,000
Total to first named plaintiff €747,508
+€10,000
Total €757,508
250. The second named plaintiff is entitled to:
General damages for loss of consortium €60,000
Loss of first named plaintiff’s income €600,000
Loss of pensions, company care and share options €150,000
Cost of care for Libby €500,000
Cost of domestic assistance €75,000
Retrospective costs and bereavement counselling €20,000
Total €1,405,000
Damages to the first named plaintiff +€757,508
Grand total €2,162,508
I assess that sum as being fair and reasonable in all the circumstances.
(I) The liability of the various defendants
251. The plaintiffs’ damages of €10,000 for the failure of the first named defendant to disclose the audit results are the responsibility of the first named defendant. In relation to the other heads of damages, the defendants are all Concurrent Wrongdoers under the Civil Liability Act 1961. Each of the defendants is responsible for the same damage or for damage that cannot be distinguished.
252. The first named defendant no less than the second and third named defendants have a liability to the plaintiff as the organisers and being responsible for the cervical smear tests. The first named defendant determined the standard to be applied in relation to screening. The first named defendant determined the international standard to which the laboratories were expected to conform. The first named defendant provided for the manner in which the screening should be conducted and how it should be reported. It was public policy for smear tests to be provided by the HSE free of charge. The first named defendant chose rather than provide the service themselves to contract out the screening programme to the second and third named defendant. Had the first named defendant not so contracted out the screening service, it was a service they would have provided themselves. The first named defendant also paid for the service. Kelly J. (as he was) held in Byrne v. Ryan [2007] that a party with a liability cannot evade of that liability to someone of the status of the plaintiff merely by engaging competent professional persons to perform tasks which they themselves are obliged to do so. The first named defendant has responsibility for all aspects from the cervical screening programme and has accepted same in its various reports under the Quality Assurance Guidelines published in 2009.
253. The detailed submissions of the first named defendant are, in my view, misguided. The primary liability is not based on agency and the decisions of O’Keeffe and other matters cited are not, in my view, relevant. I accept the principles of Woodland v. Essex County Council [2013] UKSC 65, and the five tests outlined therein. The first named defendant has a primary liability.
254. The first named defendant also is liable to the plaintiffs vicariously for the activities of the second and third named defendant. The first named defendant has control over the laboratories in what they do by virtue of their contractual arrangement. They also have control over the manner in which the laboratories are obliged to perform the contract.
255. It would have been preferable in this case had the first named defendant merely put liability in issue but admitted from the start that were any of the slides negligently read that then they had a liability and pleaded that they were entitled to an indemnity against the laboratories in respect of same. Given my views in relation to the first named defendant’s entitlement to an indemnity/contribution referred to below, nothing would have been lost by the first named defendant in taking that position.
256. However, it would be unreasonable to expect the first named defendant to admit liability just because the slides were misread. Each case must be assessed on its own merits and, as we have seen from the issues involved in the 2012 slide, the fact of misreading does not necessarily involve negligence or breach of duty. I have concluded that the first named defendant is not to be penalised for taking such a decision in relation to liability before there has been any judicial pronouncement on that topic.
257. I have held that that the plaintiffs’ losses result from the failure to properly assess the 2009 and the 2012 slides. It is impossible to differentiate between the losses resulting from one or the other. All the defendants are in relation to the 2009 and 2012 slides and the losses that flow therefrom concurrent wrongdoers as defined in the Civil Liability Act 1961.
258. Accordingly, it would seem:-
(a) The first named plaintiff is entitled to a decree in the sum of €10,000 against the first named defendant in respect of the failure to report the audit results.
(b) The first named plaintiff is entitled to a decree in sum of €747,508 against the defendants jointly and severally.
(c) The second named plaintiff is entitled to a decree in the sum of €1,405,000 against the defendants jointly and severally.
259. Under the contract between the HSE or its agents and the laboratories, the HSE are entitled to an indemnity against ” all costs, claims, actions, proceedings, demands, losses, awards, penalties, fines, liabilities and expenses of whatever nature incurred by (HSE) its employees, subcontractors or agents caused by or arising out of any act, neglect, breach of contract, breach of duty, breach of statutory duty, error, default or omission of the (laboratory) its employees, subcontractors or agents in connection with the performances of the services”.
260. These losses are clearly within the scope of clause 16 of the contract. While the first named defendant has a liability vis-Ã -vis the plaintiff which it cannot evade, the causa causens of the plaintiffs’ damages, apart from the non-disclosure of the audits, are the acts and omissions of the second and third named defendant. Accordingly, the HSE is entitled under the contract to an indemnity against the laboratories for all matters other than the HSE’s liability in relation to the audits.
261. Were it not for the existence of the indemnity clause, I would still hold that the HSE is entitled to a contribution, amounting to a complete indemnity on the basis outlined above that the causa causens of the losses were the actions or inactions of the laboratories.
262. Accordingly, the HSE is entitled to an indemnity against the second and third named defendants in respect of the entirety of the plaintiff’s claims save the sum of €10,000.
Blehein -v- The Minister for Health & Children and ors
[2008] IESC 40 (10 July 2008)
THE SUPREME COURT
Judgment of the Court delivered the 10th day of July, 2008 by Denham J.
1. This is an appeal by the Minister for Health and Children, Ireland and the Attorney General, “the State”, from the judgment of the High Court (Carroll J.) delivered on the 7th December, 2004.
2. There is a long history to this case, which it is not necessary to set out in detail. Previous proceedings have been brought by Louis Blehein, the plaintiff/respondent, “the plaintiff”, see Blehein v. St. John of God Hospital, Supreme Court, unreported 28th May, 1998, Blehein v. Murphy & ors [2000] 3 I.R. 359; and Blehein v. St. John of God Hospital and Anor, an unreported judgment delivered on 31st May, 2002, in which McGuinness J. refused a late application to amend pleadings to include a constitutional challenge to s.260 of the Mental Treatment Act, 1945, as amended, “the Act of 1945”. However, at that time it was stated that if the plaintiff wished to challenge the constitutionality of the legislation the correct course would be to commence new proceedings by plenary summons. These are such proceedings.
3. The plaintiff set out in his Statement of Claim three occasions on which he was involuntarily admitted to St John of God Hospital, Stillorgan. These were: (a) from 25th February, 1984 to 16th May, 1984; (b) from 29th January, 1987 to 16th April, 1987; and (c) from 17th January, 1991 to 7th February, 1991. He applied under s.260(1) of the Act of 1945 for leave to bring proceedings and he was refused leave to challenge his committal.
4. Consequently, the plaintiff has brought these proceedings, seeking a declaration that s.260 of the Act of 1945, is invalid having regard to the provisions of the Constitution of Ireland, 1937. He also seeks damages for infringement of his constitutional rights, and for personal injury, loss and damage.
5. The High Court declared that s.260 of the Act of 1945, as amended, was unconstitutional, having regard to Article 6 and Article 34 of the Constitution. The State has appealed against this determination.
6. Section 260 of the Mental Treatment Act, 1945, as amended by s.2(3) of the Public Authorities Judicial Proceedings Act, 1954,provided as follows:-
“(1) No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of this Act save by leave of the High Court and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the person against whom the proceedings are to be brought acted in bad faith or without reasonable care.
(2) Notice of an application for leave of the High Court under sub-section 1 of this section shall be given to the person against whom it is proposed to institute the proceedings, and such person shall be entitled to be heard against the application.
(3) Where proceedings are by leave granted in pursuance of sub-section 1 of this section, instituted in respect of an act purporting to have been done in pursuance of this Act, the Court shall not determine the proceedings in favour of the plaintiff unless it is satisfied that the defendant acted in bad faith or without reasonable care.”
7. The Act of 1945 has been repealed by the Mental Health Act, 2001, of which s.73 makes new provisions. Section 73 came into force on 1st November, 2006, and is not an issue in this appeal.
8. Thus the issue in this appeal is historic, as it relates to s.260 of the Act of 1945 which has been repealed. However, it is relevant to the plaintiff, who has a claim for damages outstanding.
9. The single issue before the Court is the constitutional validity of s.260 of the Act of 1945. Did the High Court err in declaring s.260 of the Act of 1945 unconstitutional?
10. The learned High Court judge stated:-
“In my opinion there is as a very real difference between the provisions of the various Acts quoted by the State which provide that leave to apply for judicial review shall not be granted unless the High Court is satisfied there are “substantial grounds” for contending a decision (etc.) is invalid or ought to be quashed and Section 146 of the 1945 Act which provides that leave to institute civil proceedings shall not be granted unless the High Court is satisfied that there are “substantial grounds” for contending specific grounds exist. In the former the High Court is at large to decide what grounds would justify an application provided they are substantial. Under s. 146 the High Court is confined to considering two grounds (i.e. acting in bad faith or without reasonable care) and its only discretion is in determining whether either of those grounds is substantial.
In my opinion the limitation of access to the courts on two specified grounds constitutes an impermissible interference by the legislature in the judicial domain contrary to Article 6 of the Constitution providing for the separation of powers and Article 34 providing for the administration of justice in the courts.
The legislature is permitted to provide that whatever grounds are deemed by the High Court in its discretion to be worthy of consideration in deciding whether to grant leave to apply to court should be substantial (see In Re Illegal Immigrants (Trafficking) Bill [2000] 2 IR 360). But in my opinion the legislature is not entitled to limit access to the High Court on specific grounds as provided in s. 146. This provision is apparent on the face of the section therefore the presumption of constitutionality does not apply (see Loftus v. A.G. [1979] I.R. 221).
Since the relief sought by the plaintiff basically consists of seeking a declaration setting out his arguments, it seems to me the appropriate order is a declaration that s. 260 of the Mental Treatment Act, 1945 (as amended) is unconstitutional having regard to Article 6 and Article 34 of the Constitution.”
11. The High Court held that the legislature is not entitled to limit access to the High Court on specific grounds as provided for in s.260 of the Act of 1945.
The issue before this Court on appeal is net. The words of s.261(1) of the Act of 1945 limit access to the court, requiring a person, when seeking access to the court by way of a s.260(1) application, to make a case of “bad faith or without reasonable care”, even if neither bad faith nor lack of reasonable care are part of his intended litigation.
13. Unfortunately, because of the history of serial proceedings by the plaintiff, this constitutional issue has been separated from findings of fact. Determinations of constitutionality of legislation are best made on a bed of fact. However, special circumstances have given rise to these proceedings, as referred to earlier in the judgment.
14. The Court is satisfied that the High Court was correct and would affirm its decision for the reasons given by the learned High Court judge, as set out in paragraph 10 above.
15. The objective of the Mental Treatment Act, 1945, was set out in the long title. It was an Act to provide for the prevention and treatment of mental disorders and the care of persons suffering therefrom, and to provide for other connected matters. Section 260 required the leave of the High Court for certain proceedings, such as those applied for by the plaintiff. In Murphy v. Greene [1990] 2 I.R. 566 this Court held that in requiring the leave of the High Court as a precondition to the institution of proceedings under the Act of 1945, s.260 was a curtailment of the constitutional right of access to the courts and thus should be strictly construed. Finlay C.J. stated:-
“Section 260 of the Mental Treatment Act, 1945, is prima facie a curtailment of the constitutional right of every individual of access to the courts to the extent that it requires a precondition of leave of the court for the bringing by him of a claim for damages for an asserted wrong. It seems reasonable, as was stated by O’Higgins C.J. in O’Dowd v. North Western Health Board [1983] I.L.R.M. 186, that one of the reasons for this curtailment is to prevent a person who is or has been thought to be mentally ill from mounting a vexatious action, or one based on imagined complaints.”
The purpose of s.260 was to give a limited protection to persons acting under the Act. This is a legitimate purpose for such legislation. But the section is a restriction of a constitutional right (access to the courts), in the context where the fundamental constitutional right of liberty has itself been restricted. Thus, it is a matter of seeking a reasonable and proportionate process.
16. The fact that access to court is restricted is not of itself unconstitutional. For example, this Court has held that the requirement in legislation to show “substantial grounds” in an application is not unconstitutional: In Re Illegal Immigrants (Trafficking) Bill 1999 2 I.R. 360 at 395. This Court has itself restricted access in ordinary litigation: Wunder v. Hospitals Trust (1940) Ltd Supreme Court, 24th January, 1967 and 22nd February, 1972.
17. The limitation of access to the court in this case, was not just one of “substantial grounds”, it was to situations where the High Court was satisfied that there were substantial grounds for contending that the person against whom the proceedings are to be brought acted in bad faith or without reasonable care. It was a restriction on the administration of justice where several features of the section are important. It placed a burden on a plaintiff, it related to two specified grounds only, it limited access to the courts, it curtailed the discretion of the court in a situation where a balance of constitutional rights is required to be protected.
18. At issue in the case is the liberty of the plaintiff, an important constitutional right. While the aim of the Act of 1945 was legitimate, the limitation on the right of the plaintiff should not be overbroad, should be proportionate, and should be necessary to secure the legitimate aim. As Costello P. stated in Heaney v. Ireland [1994] 3 I.R. 593 at 607:-
“The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:-
be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
impair the right as little as possible, and
be such that their effect on rights are proportionate to the objective …”
In this case the objective of the Act of 1945, as set out above, is legitimate. It is important. But it is not of sufficient importance to override the constitutional right of liberty and the constitutional right of access to the Courts, in the terms of the section, for the reasons given by the High Court. The terms of the section do not pass a proportionality test, for while being rationally connected to the objective, it is arbitrary (in referring to only two possible grounds of application) and hence unfair. It therefore does not impair the rights involved as little as possible, and so the effect on rights is not proportionate to the object to be achieved.
Consequently the Court would affirm the judgment and order of the High Court.
19. The High Court found that the whole of s.260 was invalid. In essence this was a finding as to the specified grounds of s.260(1). The decision as to s.260(2) and s.260(3) was entirely consequential to the findings as to the specified grounds in s.260(1) and not an inherent finding on s.260(2) or s.260(3). It is on this construction that the order is affirmed, there being no specific infirmity at issue in s.260(2) or s.260(3), but rather the foundations of s.260(1) which is found to be infirm.
20. Conclusion
For the reasons given the Court would dismiss the appeal and affirm the order of the High Court.