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You are here: BAILII >> Databases >> Irish Court of Appeal >> P.C. v The Minister for Health & Ors [2020] IECA 28 (19 February 2020)
URL: http://www.bailii.org/ie/cases/IECA/2020/2020IECA28.html
Cite as: [2020] IECA 28
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THE COURT OF APPEAL
NEUTRAL CITATION NUMBER: [2020] IECA 28
RECORD NUMBER: 2017/488
HIGH COURT RECORD NUMBER: 2017/6224 P
Baker J.
Noonan J.
Power J.
BETWEEN/
P.C.
PLAINTIFF/APPELLANT
-AND-
THE MINISTER FOR HEALTH, HEALTH SERVICES EXECUTIVE, CATHERINE WHITE, TOM
TOBIN, NORMA HARNEDY, GENERAL SOLICITOR FOR MINORS AND WARDS OF COURT,
PATRICE O’KEEFFE, REGISTRAR OF WARDS OF COURT, IRELAND, AOIFE NÍ
CHORCORAIN, LYNN OLIVER, JOSIE CLARE, TONY MCNAMARA
DEFENDANTS/RESPONDENTS
JUDGMENT of Mr. Justice Noonan delivered on the 19th day of February, 2020
1. This appeal is brought by the appellant (“Mr. C.”) against the order of the President of the
High Court, Kelly P., made herein on the 9th October, 2017.
2. The appeal forms part of a large number of proceedings, applications and appeals brought
by Mr. C. concerning his mother, Mrs. C. While it is not necessary to refer in detail to each
of these pieces of litigation, it is appropriate to mention the broad history of the matter in
order to gain a full understanding of the context in which the order under appeal was
made.
Relevant Facts
3. The background to the matter was most recently considered by the Supreme Court in
The sole judgment was delivered by O’Malley J., with whom the other members of the
court agreed and I gratefully adopt the detailed history and chronology of events set out
therein.
4. In brief summary, Mrs. C., who is now 97 years of age, fractured her hip in 2015 and was
treated in Cork University Hospital (“CUH”). She was discharged from hospital, but
unfortunately fractured her other hip some days later and was readmitted. Thereafter, it
is fair to say that relations between Mr. C. and his sister, on the one hand, and the
hospital authorities, on the other, became extremely strained. This, initially at least,
appears to have stemmed from a belief on the part of Mr. C. and his sister that the
treatment regime directed by the clinicians charged with Mrs. C.’s care, and in particular
the administration of various medications, were inappropriate for her and should be
replaced by, inter alia, natural remedies felt by Mr. C. and his sister to be more
appropriate for Mrs. C. A multidisciplinary team of clinicians considered that Mrs. C.
lacked capacity to make a decision about her discharge from hospital and that she
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required long term care in a nursing home setting. These conclusions have at all times
been vehemently opposed by Mr. C.
5. Unfortunately, relations between the parties deteriorated even further and became
fractious, with Mr. C. accusing the hospital of falsely imprisoning and assaulting his
mother. He attempted to remove his mother from the hospital necessitating the
intervention of the Gardaí.
6. The foregoing events culminated in Mr. C. applying to the President of the High Court for
an inquiry, pursuant to Article 40.4 of the Constitution, into the allegedly unlawful
detention of his mother at CUH. The President directed an inquiry and, in advance of the
hearing of the inquiry, was advised by counsel for the HSE, the body responsible for the
hospital, that the HSE had decided to make an application to have Mrs. C. made a ward of
court. The hearing of the Art. 40 inquiry took place on the 11th July, 2016 and on the
same date, Kelly P. delivered an ex tempore judgment holding that Mrs. C. was not in
unlawful detention. The President also made an order pursuant to s. 11 of the Lunacy
Regulation (Ireland) Act, 1871 appointing a medical visitor to report to the court as to the
capacity of Mrs. C. to make decisions concerning her own welfare or property. Mr. C.
lodged an appeal against the judgment of Kelly P. in the Article 40 matter to this court.
7. Three days later, on the 14th July, 2016, CUH was notified by a letter signed by Mrs. C.
that she intended to transfer to the Mater Private Hospital in Cork on that date. Mr. C.
arrived at the hospital that afternoon and claimed that security staff attempted to remove
him from the hospital. This prompted a second Article 40 application by Mr. C. on the
22nd July, 2016. The matter again came before Kelly P. who directed an inquiry which
was heard on the 25th July, 2016. Mr. C. asked the President to recuse himself and that
application was refused. The President again held that Mrs. C. was not unlawfully
detained. Mr. C. again appealed the Article 40 decision.
8. The medical visitor’s report was delivered to the President on 22nd July, 2016. Kelly P.
advised the parties that the medical visitor’s report had concluded that Mrs. C. had senile
dementia, was of unsound mind and incapable of planning her care needs.
9. The hearing of the wardship application took place before the President on 19th August,
2016. It was not attended by Mrs. C. or any member of her family. The President made
an order taking Mrs. C. into wardship on that date and appointed the General Solicitor as
her Committee. In December 2016, the President approved the transfer of Mrs. C. from
CUH to Saint Finbarr’s Hospital in Cork, a long term care facility for the elderly where Mrs.
C. now resides.
10. Mr. C.’s appeals in the first and second Article 40 inquiries were dealt with in a judgment
of the Court of Appeal of the 2nd July, 2018, delivered by Hogan J. The court concluded
that CUH had not acted lawfully in preventing Mrs. C. from leaving the hospital on the
23rd June, 2016 and by implication, on the 14th July, 2016. Since however, Mrs. C. was
no longer in CUH at that time, no order for release was necessary. The HSE appealed to
the Supreme Court. Very shortly after this judgment was delivered, on the 10th July,
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2018, Mr. C. attempted to remove his mother from Saint Finbarr’s and was prevented
from doing so. This appears to have resulted in a further application the next day, the
11th July, 2018, to the President by the HSE for various orders relating to Mrs. C. Later in
July 2018, Mr. C. made a further Article 40 application in respect of Mrs. C. which was
heard by Faherty J. who delivered judgment on the 3rd August, 2018. She held that Mrs.
C. was not unlawfully detained.
11. Appeals in respect of all three Article 40 Applications were heard and determined by the
Supreme Court in the judgment of O’Malley J. to which I have already referred above.
12. In its judgment, the Supreme Court held that the Court of Appeal had been in error in
concluding that Mrs. C. had been unlawfully detained in CUH. Mr. C.’s appeal against the
order of Faherty J. was dismissed. In the course of her judgment, O’Malley J. analysed
the wardship proceedings concerning Mrs. C. She noted that a number of orders had been
made in those proceedings, including the order of 19th August, 2016, which took her into
wardship. The latter order was found by the O’Malley J. to have been made in breach of
Mrs. C.’s right to fair procedures. However, O’Malley J. was at pains to point out that all
other orders made in the course of the wardship proceedings were valid. Thus she noted
(at para. 364 – 365): -
“364. …Since the jurisdiction to make protective orders in the wardship jurisdiction exists
once the wardship proceedings have commenced, it is possible to distinguish
between the order taking into wardship and the orders made thereafter. Thus, if
the order of the 19th August 2016 was invalid, it does not necessarily follow that
every order made since then was unlawful.
365. I have come to the conclusion that, as operated in this case, the process
concerning Mrs. C. was flawed in respect of the original order, but that the orders
made thereafter were fully lawful.”
13. The court noted the fact that the wardship proceedings commenced with the appointment
of the medical visitor and the proceedings continued even after the making of the invalid
order on 19th August, 2016. Those proceedings permitted protective measures to be
taken as long as they continued (see para. 378).
The Current Proceedings
14. The proceedings now before this court were commenced by Mr. C. issuing a plenary
summons on the 10th July, 2017. There are thirteen named defendants. The summons is
in narrative format and is primarily concerned with the treatment of Mrs. C. while a
patient in CUH and Saint Finbarr’s. It alleges that she was subjected to inhuman and
degrading treatment amounting to torture and was falsely imprisoned at the hospital. It
claims further, that a variety of drugs were administered to Mrs. C. without authorisation.
It alleges that various of the parties committed perjury by swearing false affidavits in
order to have Mrs. C. unlawfully made a ward of court to silence her. The summons
complains that Mr. C. and his sister were subjected to unauthorised surveillance.
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15. Various other complaints are made about Mrs. C.’s treatment. The summons complains of
unlawful interference with the visitation rights of members of Mrs. C.’s family. Claims of
deceit and conspiracy are levelled against a number of the defendants in connection with
the wardship application. The summons alleges that the provisions of the Lunacy
Regulation (Ireland) Act, 1871 are repugnant to the Constitution and incompatible with
the European Convention on Human Rights, although the Attorney General is not a party
to the proceedings. It alleges that the President acted unlawfully in initiating the wardship
proceedings. It alleges that various of the defendants breached provisions of the Data
Protection Amendment Act, 2003 and conspired to disclose confidential information
concerning Mrs. C.
16. The prayers for relief seek damages “for the C. Family” for the false imprisonment and
torture of Mrs. C., damages for misfeasance in public office against the Registrar of Wards
of Court and the President, although he is not a defendant, and damages for breach of
the constitutional and other rights of “the C. Family”. In addition, various injunctive reliefs
are sought, primarily to restrain the prescribing and administration of certain drugs to
Mrs. C. and to restrain any limitation on visitation rights to her. Mandatory orders are
sought requiring herbal remedies to be administered to Mrs. C. together with
physiotherapy of her own choosing and referrals to doctors nominated by Mr. C. and his
sister. Finally, a declaration that the 1871 Act is invalid is sought, together with an order
setting aside all orders made in the wardship proceedings.
17. The issuing of the summons was followed on the 12th July, 2017 by a notice of motion
seeking certain interlocutory reliefs. These consisted of orders restraining the
administration of certain drugs to Mrs. C. and limiting the visitation rights of Mr. C. and
his sister to their mother. A number of other orders are sought which, although expressed
as prohibitory, are in effect mandatory in nature. These include requiring staff at Saint
Finbarr’s Hospital to permit Mrs. C. to exercise and stand and to permit Mr. C. and his
sister to assist Mrs. C. with these activities. An order is sought requiring Mrs. C. to be
allowed use CBD oil from the hemp plant to treat her epilepsy, to participate in
physiotherapy of her own choosing and to allow Mr. C. and his sister to nominate a doctor
and, if necessary, a specialist to give opinions regarding the condition and treatment of
Mrs. C.
18. On the same date Mr. C. applied to the High Court (Gilligan J.) for short service of the
motion, which was granted and made returnable to the 18th July, 2017. On the latter
date, counsel for the various parties appeared and sought time to file replying affidavits
which resulted in the matter being adjourned for hearing to the 8th August, 2017. On the
latter date, the matter again come before the court (Barton J.) by which time a number of
replying affidavits had been filed within a very short timeframe by the defendants. A
transcript of the hearing on that date has been made available to this court. Barton J. was
informed that the matter was likely to take a number of days and considered it would not
be possible to facilitate the hearing of the matter at a vacation sitting.
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19. It is evident from the transcript that Barton J. decided that the matter should be
adjourned for hearing before the President of the High Court in the Wardship List on the
9th October, 2017. This was made clear by Barton J. on more than one occasion towards
the end of the hearing and there is absolutely no doubt that at the conclusion of the
hearing, Mr. C. was aware that the matter stood adjourned to the 9th October before the
President of the High Court in the Wardship List. At the hearing of this appeal, Mr. C.
conceded that he was aware of these facts. The transcript also discloses that Mr. C.
objected to the matter being transferred to the President because he was “conflicted” but
Barton J. indicated to him that he could make an application in that regard to the
President.
20. The transcript of the hearing of this appeal shows that Mr. C. articulated his position
clearly to this court (at p. 13, line 23-25): -
“Mr. C: I knew the 9th October, I never denied that I knew the 9th October, right,
ok, but it was not listed. The case was not listed.”
21. In the light of that concession and indeed the clarity of the transcript of the hearing
before Barton J., it is, to say the least, surprising to find the following in Mr. C’s written
submissions on this appeal (at para. 5): -
“Judge Barton listed the motion for hearing on 4 September 2017, but because
counsel had personal holidays on that date, Judge Barton put it in for 11 September
2017.”
The Hearing before the President on the 9th October, 2017
22. Mr. C. did not attend the hearing before the President having been called at first and
second calling. All thirteen defendants were represented. The order recites that the notice
of motion, all affidavits and exhibits in the matter were read by the court and submissions
made by counsel. The curial part of the order insofar as is relevant, provides: -
“(1) That the plaintiff’s application be and the same is hereby dismissed;
(2) That these proceedings be stayed and that the plaintiff may take not further steps
in these proceedings save on application to this Court on four days’ notice to the
respective defendants;
(3) That the plaintiff be prohibited from taking any proceedings which address either
the life, the liberty, the health or the welfare of his mother [A.C.] other than by an
application in the Wardship proceedings and such application not to be brought
unless two clear days’ notice is given to the General Solicitor for Minors and Wards
of Court, the Committee of [A.C.]…”
Mr. C.’s non-attendance on the 9th October, 2017
23. Mr. C.’s first ground of appeal states: -
“1. P.C. was taken by surprise on 24th October 2017 when he did a Central Office
search of record number 2017/6224 P to discover an order dismissing his injunctive
Page 6 ⇓
relief motion was made on 9th October 2017. The motion was not listed in the legal
diary for hearing, mention, or to fix a date.”
24. In his written submissions to this Court (at para. 1), Mr. C. goes considerably further: -
“The motion was not listed under its title or record number but deceptively assigned
a false entitlement and forum shopped before President Kelly on 9th October 2017
in the Wards’ List, thereby depriving P.C. of hearing notice.”
25. As I have already noted, there is absolutely no doubt that Mr. C. knew that his motion
was due to be listed for hearing before the President in the Wardship List on the 9th
October, 2017. In essence, he says that he did not attend because the matter did not
appear in the Legal Diary. Despite Mr. C.’s very extensive experience as a litigant in
person, he appears to suggest that it never occurred to him to attend before the
President on the date in question to establish why his motion was not listed. There was
certainly no inconvenience for Mr. C. in doing so as he already had business in High Court
Number 6 on the same day, a few metres from the President’s court. In his written
submissions, the following statement is made by Mr. C.: -
“6. The secretive, deceptive listing of the motion on 9th October 2017 in the Wards of
Court List was first discovered by P.C. in submissions from the Chief State Solicitor
in mid-November 2017, which states the motion was listed in the Legal Diary for
hearing on the morning of 9th October 2017…”
26. It will be recalled that Mr. C. considered his motion to be sufficiently urgent in July 2017
to seek an order for short service and thereafter an urgent vacation hearing date. It is
therefore extraordinary that, as his submissions suggest, Mr. C. took no steps of any kind
to establish what happened to his application, which he knew was due to be listed on 9th
October before the President, until he incidentally discovered that fact in mid-November
2017, and by chance. This statement is moreover demonstrably incorrect as Mr. C.’s first
ground of appeal shows that, according to himself, he discovered that the matter had in
fact been heard on 9th October, 2017 as early as on 24th October, 2017 as a result of
conducting a Central Office search, leading to his Notice of Appeal dated the 27th
October, 2017.
27. If this were genuinely a case of Mr. C. having been taken by surprise, the Rules of the
Superior Courts provide a remedy in O. 52, r. 12: -
“Where any of the parties to a motion on notice fails to attend, the Court may
proceed in the absence of such party. Where the Court has so proceeded, such
proceeding shall not in any manner be reheard unless the Court shall be satisfied
that the party failing to attend was not guilty of wilful delay or negligence….”
28. Where a genuine mistake has been made therefore, the court is entitled to rehear the
matter, absent wilful delay or negligence. Had Mr. C. made a bona fide mistake, it would
have been open to him to apply to the President to have the matter reheard. Courts can
Page 7 ⇓
and frequently do strike matters out where the moving party does not attend, but it is
commonplace where genuine oversight has occurred to reinstate the case. Because Mr. C.
did not follow the proper course under the Rules and apply to the High Court to have the
matter reheard but instead appealed, it is necessary on the unusual facts of this case for
this court to make a determination concerning whether Mr. C’s failure to attend was due
to wilful default or negligence. The respondents approached their submissions on that
basis and it seems to me that it would be a waste of court time to determine this aspect
of the appeal by reference only to the Rules of Court and to the correct procedural
approach to an order alleged to be made without notice to the other party.
29. Having regard to the matters I have outlined, it appears to me probable that Mr. C.
decided not to attend the hearing but at a minimum, he was negligent in failing to do so.
If he had valid reasons for asking the President to recuse himself, he ought to have made
that application to the President. He was expressly advised of this by Barton J. and of
course had made that very application to the President previously in the second Article 40
application. As he elected not to make such application in the High Court, he cannot seek
to do so for the first time in this court.
30. Further, this court should be slow to permit the bringing of appeals against orders made
in the absence of the appellant where the Rules provide a remedy before the trial court.
Order 52 is but one instance and there are, for example, other provisions for the setting
aside of judgments obtained by surprise or mistake. It is, however, not open to appellants
to this court to decide that they will not participate in a hearing at first instance and then
seek to have their case heard de novo on appeal. In general, the function of this court is
to correct error in the determination of the trial court, not to hear argument for the first
time from a party who deliberately absented him or herself from that court.
31. That is all the more so when the appellant was the moving party before the High Court.
All parties, particularly those initiating litigation, have a duty to the court to engage with
the court’s process and prosecute the ligation in a bona fide manner. A conscious decision
to abstain from appearing in a matter, perhaps in anticipation of an unsuccessful
outcome, and then seeking to appeal when that anticipation is realised, is a manipulation
of litigation and an abuse of process.
32. The argument of the appellant that the orders of the President should be set aside on the
grounds of surprise should for these reasons therefore, be dismissed.
Locus standi
33. Mr. C. is the sole plaintiff in these proceedings. The issue arising here is not whether Mr.
C. can, in proceedings in which the interests of his mother are asserted, represent her as
an advocate in court. In these proceedings, Mrs. C. is not a party at all. Rather, Mr. C. is
the plaintiff who is purporting to seek orders directly affecting his mother and, in the legal
sense, against her. There is no procedure known to our law whereby a party can seek
orders affecting the interests of a non-party or which purport to assert rights on behalf of
a non-party. In argument before this court, Mr. C. asserted that he had a right to bring
these proceedings because he is the son of Mrs. C. This is a fundamental misconception
Page 8 ⇓
as a matter of law. Although Mr. C. might well be entitled to seek to vindicate his right to
visit his mother, this is because that is a right that accrues to him and not to anybody
else. For the same reason, he cannot seek to vindicate his sister’s visitation rights in
proceedings where she is not a party.
34. There are of course many instances where a party under a legal disability may or must
bring or defend a claim through another party. The most obvious example is in the case
of minors who, while lacking legal capacity, may bring proceedings through the
intervention of a next friend, most commonly a parent. In such cases, the minor is also a
named party to the litigation. A person who is under a disability may also be sued and the
court may appoint a guardian to such defendant for the purposes of the litigation.
Guardians ad litem are perhaps now more commonly seen in childcare proceedings where
they are appointed by the court as independent persons to represent the interests of
minor children. Wards of court may bring and defend proceedings through their
committee, subject to the approval of the President of the High Court. These are all
instances of persons under a disability suing and being sued through the intervention of
representative parties. In all such cases the person under a disability is a party to the
proceedings.
35. None of this is to suggest however, that the position could be remedied by simply joining
Mrs. C. as a named party or substituting her as plaintiff. This would still not entitle Mr. C.
to purport to represent his mother, even apart from any wardship consideration. The
procedure whereby any person may apply to the High Court for an inquiry under Article
40 of the Constitution is wholly unique in our legal system. In general, a non-lawyer has
no right to represent a party in ligation before our courts. There are sound policy reasons
why this is so and the principle has been reiterated many times, indeed most recently by
the Supreme Court in the judgment of O’Malley J. to which I have referred. She cited with
approval the analysis of the issue by Humphreys J. in Knowles v. Governor of Limerick
Prison [2016] IEHC 33 (at para. 315 of her judgment) where he observed: -
“However, where a person is not representing themselves, it is a fundamental
postulate of the legal system that they must be represented by a qualified legal
professional, who in turn owes professional duties to the court.”
36. His conclusion in that case, which was an Article 40 application, was that while any person
may apply for an inquiry under Article 40, a non-lawyer is not entitled to represent the
applicant at the hearing of the inquiry itself, save in exceptional circumstances. Indeed,
such exceptional circumstances were held to arise here in the Article 40 proceedings
brought by Mr. C. in respect of Mrs. C. both at first instance and on appeal. In the context
of Article 40 inquiries, O’Malley J. held (at para. 388) that whether a lay person ought to
be heard in the substantive inquiry on behalf of the applicant is a decision for the trial
judge, but the general rule against such representation remains. She noted in particular
that the availability of the Custody Issues Scheme in Article 40 cases may well justify a
refusal of permission for lay representation. None of that arises in these proceedings
which are plenary rather than by way of Article 40.
Page 9 ⇓
37. Separately from the foregoing, the status of the wardship proceedings must be
considered. One of Mr. C.’s grounds of appeal is that the order of the President of the
19th August, 2016 taking Mrs. C. into wardship is invalid, and the Supreme Court has
since accepted that this is so. Mr. C. however, appears to extrapolate from this that the
President therefore had no jurisdiction to make the order now under appeal. However, as
I have already noted, the Supreme Court made clear in its judgment that while the order
of the 19th August, 2016 may be invalid, all other orders made in the course of the
wardship proceedings which commenced on the 11th July, 2016 remain fully lawful.
38. It is clear therefore that the infirmity in this order does not deprive the President of
jurisdiction in this matter or affect the validity of any other orders made herein. This is
also clear from the following statement in Harris, A Treatise on the Law and Practice in
Lunacy in Ireland (Corrigan and Wilson 1930) at p. 3: -
“The jurisdiction of the Chief Justice, which includes the power of varying and
discharging orders of his predecessors attaches in full when he makes the first
order in the matter, which he may do immediately on the presentation of the
petition and before the inquiry, the petitioner being directed to act on behalf of the
patient, if necessary.”
39. The order under appeal therefore, insofar as it touches on the rights and interests of Mrs.
C., was made fully within the President’s jurisdiction and remains valid.
The Order of the 9th October, 2017
40. I propose to comment on each of the three paragraphs of the order as they are set out at
para. 22 above.
(1) As Mr. C. did not attend to move his application at either first or second calling, the
President was entitled to dismiss it.
(2) In making an order staying the proceedings, the President did not exclude Mr. C.
from progressing them further. Rather, in the future he would be permitted to do so
only with the leave of the President on notice to the other parties. As is clear from
his ex tempore judgment, the President had at that stage extensive experience of
the various pieces of litigation involving Mr. C. and his mother. I have referred to
only some of these. They also involved contempt proceedings concerning Mr. C.
which were before the President on a number of occasions. In making this order,
the President was entitled to have regard to the history of the matter, of which he
was perhaps uniquely apprised, and Mr. C.’s behaviour which formed the subject
matter of the contempt proceedings. He clearly also had regard to the fact that
there were thirteen defendants concerned, each of whom was required to incur
considerable cost and inconvenience on every occasion they were brought before
the court by Mr. C. The President was also entitled to take into account that,
despite his presence in the Four Courts building, Mr. C. had, having initially
demanded an urgent hearing and brought all the other parties to court on three
occasions, neglected or elected not to turn up himself. He was also entitled to have
Page 10 ⇓
regard to the fact that in these proceedings, Mr. C. had made serious allegations
against all and sundry, including healthcare professionals, accusing them of the
most serious imaginable medical malpractice and indeed, deliberate wrongdoing
and deceit without a single shred of independent medical evidence to support his
claims. It has long been held in our courts that the bringing of professional
negligence proceedings in the absence of supportive expert evidence constitutes an
abuse of process.
It seems to me that confronted with such a manifest abuse of the court’s process
on many levels, the making of the order in question was an appropriately
proportionate response in the interests of doing justice between all the parties.
(3) In my view, this order must be viewed as a form of case management order. As is
clear from his ex tempore judgment, the President was conscious of the fact that
Mr. C. had made a variety of applications concerning his mother’s welfare to
different judges of the High Court at different times. Of course, in the case of
applications seeking inquiries under Article 40, it is true to say that an applicant has
a right to apply to any judge of the High Court. The Article 40 procedure is in this,
as in other ways, unique. In all other cases, litigants have no right to insist that any
particular judge does or does not hear his or her case. With the increasing
complexity of ligation over the years, case management has become an ever more
important tool in promoting the efficient progression of litigation. It is particularly
well suited to complex litigation involving multiple parties. It has an important role
to play in such litigation where on occasion, the number and complexity of issues
and amount of parties can render access to justice extremely difficult in the
absence of hands-on involvement by the court. Because our litigation system is
adversarial, traditionally the pace and manner of litigation progression has been
largely a matter for the parties, but that is becoming less and less so. One incident
of litigation that is solely party lead can be lengthy delay, sometimes of such
magnitude as to render meaningful access to justice impossible. Much recent
jurisprudence shows a heightened awareness of the State’s obligations under the
ECHR, and in particular, the right to a fair trial within a reasonable time under
Article 6. Where that right is potentially imperilled, the courts have shown an
increased willingness to intervene by the adoption of measures such as case
management.
Accordingly, many courts, such as the Commercial Court, utilise streamlined
procedures with early judicial intervention designed to ensure timely outcomes.
Even in the absence of dedicated procedures, there can be no doubting the court’s
inherent jurisdiction to case manage its business where that appears appropriate.
The order made by the President at (3) in this case does no more than channel any
proceedings concerning Mrs. C. through the medium of the wardship proceedings
which again, is entirely appropriate and within his jurisdiction. The sole exception
is to be found in Article 40 applications, as was made clear by this Court in another
Page 11 ⇓
case involving the same parties, A.C. v. Cork University Hospital and Others
[2018] IECA 217. Apart from such Article 40 applications, I am satisfied that it was again
quite appropriate to direct that any future applications concerning Mrs. C. should be
brought in the course of the ongoing wardship proceedings, on notice to the
General Solicitor. As the President said in his ex tempore judgment, this order
does not operate to prevent Mr. C. bringing any appropriate application he wishes
to bring, but merely directs the manner in which it should be brought.
The Grounds of Appeal
41. Mr. C. raises nine grounds of appeal which may be summarised and dealt with as
follows:-
(1) Mr. C. was taken by surprise in relation to the hearing on the 9th October, 2017.
For the reasons I have already set out, I reject this contention.
(2) This is an objection to Kelly P. hearing the matter on the grounds that he had a
conflict of interest and was biased. Again I have already dealt with this. No
application was made by Mr. C. to the President to recuse himself and he cannot
make it in this court.
(3) These grounds all contains complaints about the lawfulness of the order of the 19th
August, 2016 taking Mrs. C. into wardship. These complaints bear no relation to
any relief sought in the notice of motion and have, in any event, no bearing on any
of the other lawful orders made concerning Mrs. C.
(4) As at (3) above.
(5) As at (3) above.
(6) This concerns the privacy and visitation rights not only of Mr. C., but also of his
sister and his mother. As I have explained, Mr. C. cannot make a claim about
anybody’s rights, save his own. Insofar as his rights are concerned, this Court
cannot make any determinations of fact or law in relation to those rights as none
were made at first instance due to Mr. C.’s absenting himself from the hearing.
(7) This is a complaint primarily about the administration of drugs to Mrs. C. It is not a
complaint that Mr. C. is entitled to make as I have already held and, in any event,
it is not the subject of any determination due to his absence from the court of first
instance.
(8) This is a further complaint about the treatment of Mrs. C. to which the same
considerations as in (7) apply.
(9) This is a further complaint about a failure to produce perfected orders concerning
Mrs. C., a complaint never made before the President or considered by him and for
the same reasons as before, cannot be embarked upon by this court for the first
time.
Page 12 ⇓
42. The misconceived nature of Mr. C.’s grounds of appeal are further emphasised by the list
of orders sought from this court including injunctions against the President from further
hearing the matter, damages for Mrs. C. and Mr. C. and a declaration of incompatibly of
the 1871 Act with the ECHR, none of which were, or could conceivably have been, the
subject matter of the interlocutory application before the President.
Conclusion
43. In summary, none of the claims for relief sought at paras. 1 to 7 of Mr. C.’s notice of
motion are maintainable by him for the various reasons I have alluded to above. In my
view, the only claim that Mr. C. was ever entitled to make in this motion was that in
relation to his own right to visit his mother referred to a para. 4. However, as Mr. C.
declined to attend before the President to advance his claim in that regard, this court
cannot consider it de novo in the absence of any determination by the High Court.
44. I am therefore of the view Mr. C.’s appeal should be dismissed.
Result: Dismiss appeal