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Cite as: [2002] IEHC 128

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THE HIGH COURT

IN THE MATTER OF THE HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 AND IN THE MATTER OF SECTION 5[15] OF THE HEPATITIS C COMPENSATION TRIBUNAL ACT

RECORD NO. 1999No.179CT

BETWEEN

APPELLANT

AND

THE MINISTER FOR HEALTH & CHILDREN

RESPONDENT

AND

IN THE MATTER OF THE HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 AND IN THE MATTER OF SECTION 5[15] OF THE HEPATITIS C COMPENSATION TRIBUNAL ACT

RECORD NO. 1999No.153CT

BETWEEN

APPELLANT

AND

THE MINISTER FOR HEALTH & CHILDREN

RESPONDENT

JUDGEMENT of O'Neill J delivered the 15th day of February 2002

These two cases which for the purpose of this judgement raise identical issues, come before the Court initially on foot of Notices of Motion in both cases in which the Appellants in both cases seek orders of the Court appointing receivers by way of equitable execution over state assets, bank accounts and cash holdings held by the Respondent in order to effect recovery by each appellant of the sum awarded to each of them by this Court on appeals taken by both appellants from the Hepatitis C Compensation Tribunal, [hereinafter referred to as the "Tribunal"].

In response to those applications the Respondent brought motions on notice in both case, in which the primary relief claimed in both cases is the setting aside of the Orders made by this Court in both cases. In the alternative the respondent claims orders persuant to Section 5[19] of the Hepatitis C Compensation Tribunal Act 1997, giving leave to the Respondent in both cases to appeal to the Supreme Court on a specified question of law.

The affidavits filed in these motions set out the circumstances which give rise to the claims now made in both motions. It was clear that the real issue to be decided was that raised on the Respondents motions and it was properly conceded by Mr Maguire for the Respondent that if the Courts ultimately refused the relief sought, it would not be necessary for the Court to proceed to grant the relief claimed by the Appellants in their Notices of Motion. Mr Maguire also very properly concede that the Respondents complaint about the appeals being out of time was not being pressed.

Both appellants made claims to the Tribunal. In due course both appealed to this Court and their appeals were heard by me, one, in the case MD on the 19th day of January 2001 and the other in the case of JM on the 30th day of May 2001. In each case the Respondent when notified of the order of this case refused to pay the award and now invites this Court to consider whether it had jurisdiction to make either award for the following reasons.

On the 22nd day of April 1999 the Secretary to the Tribunal was notified by the Appellants solicitor in each case of the appeals to this Court. By letter of the 30th day of April 1999, the Secretary to the Tribunal wrote to the Solicitor indicating that in his view neither appellant had a right to appeal as both appellants had accepted the award of the Tribunal. The Secretary also indicated that both appeals appeared to be out of time . These letters were not replied at the time. Neither this Court or the Respondent were informed of the concerns raised by the Secretary to the Tribunal at any stage before or during the hearing of either appeal.

On the 8th of June 2001 and on the 13th day of August 2001, the solicitors for both appellants served the orders of this Court on the Tribunal. On the 19th day of September 2001, the secretary to the Tribunal 2001 wrote to the Respondent enclosing the opinion of Senior Counsel in relation to these matters. There also ensued correspondence between the Chief State Solicitor, the Tribunal and the solicitor for the appellants.

From the correspondence and the affidavits filed it would appear that the Tribunal did not inform the Respondent of the concern raised by the Secretary to the Tribunal. The reason for this was the statutory scheme in the Hepatitis C Compensation Tribunal Act 1997 [hereinafter referred to as the Act of 1997], designed to protect the confidentiality of awards by the Tribunal. As a consequence of this the Respondent did not become aware of it until informed by Secretary to the Tribunal in the correspondence that followed the service on the Tribunal of the orders of this Court. On the other hand the Solicitor for the appellants did not bring the matter to the attention of this Court because, as was urged in verbal submissions of Counsel, he believed that there was no inhibition on the Tribunal in disclosing to the Respondent the fact that an award had been accepted as distinct from the amount of that award and he is not to be faulted for not thinking that the respondent did not know, hence he assumed that that had been done and that it was for the Respondent to have raised the issue of concern to the Secretary to the Tribunal, if he so wished.

As a consequence of this the Respondent did not make to this Court, on the hearing of the two appeals, the submissions he now seeks to make, to the effect that the Appellants having accepted in writing the awards of the Tribunal, could not then appeal the awards to this Court, and hence this Court had no jurisdiction to hear those appeals.

Having considered the evidence on affidavit and the relevant sections of the act dealing with the confidentiality of proceedings both before the Tribunal [section 3[1211 and this Court on Appeal [section 5[17]] , and the sections dealing with the payment of awards [section 1011 have come to the conclusion that there was no good reason why the Tribunal could not have informed the Respondent of the fact that an award had been accepted in writing in apparent compliance with Section 5[9] of the Act. On the other hand, there is no evidence to suggest that the Solicitor for the Appellants had any cause to believe that the Respondent was not aware of the concern raised by the Secretary to the Tribunal in his letter of the 30th of April 1999. I would accept that that the solicitor for the Appellants did not realise that the Respondents were not aware of this matter and it would be unreasonable to have expected him to think that the Tribunal would not have communicated to the Respondent its concern, as expressed in the letter of the 30th April 1999, as a result of what was perhaps an over zealous approach to the question of the confidentiality of awards.

The Respondents have submitted that the Solicitor for the Appellants failed in two respects and was thereby responsible for the Court and the Respondents not being made aware of the fact that the Appellants accepted in writing the award of the Tribunal. These were, firstly that this matter was not dealt with in the affidavit of each appellant grounding their appeals to this Court and as consequence of this that there was a breach Art 4[3][C] of the S.I NO 392 of 1998 RULES OF THE SUPERIOR COURTS [NO 7] [APPEALS FROM THE HEPATITIS C COMPENSATION TRIBUNAL] . 1998. Secondly that the Solicitor for the Appellants failed in his duty too the Court as an officer of the Court to bring this matter to the attention of this Court.

In my view neither of these criticisms is justified.

Art 4[3] [c] of the S.I. No 392 of 1998 reads as follows;

"[3] In every appeal brought by a claimant or by a person appealing an award under section 6[3][e], such affidavit shall:...........

[c] exhibit any other relevant material adduced on behalf of such claimant or Person;....."

This refers in my view to material adduced in the hearing before the Tribunal and not to material which arose after the Tribunal hearing. In this regard it is to be noted that the award of the Tribunal is required to be exhibited at 4[3][e] and the waiver of any right of action required by section 5[18] of the Act must be exhibited to comply with Art 4[3][g].

I am satisfied that Art 4[3] [c] did not oblige the exhibiting of the written acceptance of the award in the Appellants affidavit.

In the light of my views expressed above as to the reasonableness or otherwise of the expecting the Solicitor for the Appellants to have realised that he Respondents did not know of the fact that the Appellant had accepted the awards in writing, I have come to the conclusion that there was no breach of the Appellant's solicitor's duty to the Court to in relation to this matter.

The Respondents relying on the case of Re Greendale Developements Limited 11Vo 31 (200012 LR. 514 and in particular the following passage from the judgement of Hamilton CJ at 527,

"Where a final Order has been made and perfected, it can only be interfered with ,

[1] In special and unusual circumstances, or

[2] Where there has been an accidental slip in the judgement as drawn up, or,

[3] Where the Court itself finds that the judgement as drawn up does not correctly state what the Court actually decided and intended

The restriction on the power of a Court to amend or vary an Order which has been made and perfected, therein set forth, must apply to an application to set aside an Order"

submit that the fact that the Appellants Solicitor was aware that his clients had accepted the awards of the Tribunal in writing prior to appealing the awards to the High Court, and that the he was notified by the Secretary to the Tribunal that the appeals were improperly taken, and that the Appellants solicitor was the only person who had knowledge of these matters when the Appeals came on for hearing, that the failure of the Appellants solicitor to inform the Court of the acceptance of the awards created unusual or special circumstances which justified the Court setting aside the awards made by it on appeal.

Against this the Appellants submit relying on the authority of the case of Belville Holdings Ltd [In receivership and in liquidation] v The Revenue Commissioners & Anor [1994] LL.R.M 29, that the only circumstances in which a Court can interfere with an order which has been made and perfected are;

1 Under the slip rule [Order 20 Rulell] or

2 Where the order does not correctly state that which was actually decided and intended by the Court.

They submit that the catagory of "special and unusual circumstance" merely refers to the jurisdiction to interfere when the order as perfected does not correctly state what was actually decided or intended by the Court. The Respondent submits that the common law recognises only these two circumstances as permitting a court to interfere with an order that has been made and perfected. In this regard they cite the following passage from the judgement of Finlay CJ at 37:

"I am satisfied that these expressions of opinion validly represent what the true common law principle is concerning this question. I would emphasise however, that it is only in special and unusual circumstances that an amendment of an order passed and perfected, where the order is of a final nature, should be made by the Court. The finality of proceedings both 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 and should not lightly be breached"

Here, the Appellants point out, Finlay CJ was referring to a passage from the judgement of Romer J. In Ainsworth v Wilding [189611 Ch 673 where at p.677 Romer J. said the following:

"So far as I am aware, the only cases in which the court can interfere after the passing and entering of the judgement are these:

[1] Where there has been an accidental slip in the judgement as drawn up, in which case the court has power to rectify it under 0.28, r.11;

[2] When the Court itself finds that the judgement as drawn up does not correctly state what the court actually decided and intended."

Finlay CJ then goes on to quote the following passages which were referred to by Romer J from the judgements of the Court of Appeal in In re Swire 30 ChD 293;

"Cotton LJ says; `It is only in special circumstances that the court will interfere with an order which has been passed and entered, except in cases of a mere slip or verbal inaccuracy, yet in my opinion the court has jurisdiction over its own records, and if it finds that the order as passed and entered contains an adjudication upon that which the court in fact has never adjudicated upon, then, in my opinion, it has jurisdiction, which it may exercise in a proper case exercise to correct its own records, that it may be in accordance with the order really pronounced"

Lindley LJ says: `If it is once made out that the order, whether passed and entered or not does nor express the order actually made, the court has ample jurisdiction to set that right, whether it arises from a clerical slip or not.'

And Bowen LJ says; `An order, as it seems to me even when passed and entered, may be amended by the court so as to carry out the intention and express the meaning of the court at the time when the order was made, provided the amendment be made without injustice or on terms which preclude injustice."

The Appellants submit that it is clear from the judgement of Finlay CJ that he adopted the statements of the law as set out above as the correct statement of the common law principles governing variation of perfected orders and hence his reference to "special or unusual circumstances" they submit, is a reference to these two circumstances and is confined to them, and does not contemplate a wider jurisdiction.

The Appellants also cite Limerick VEC v Carr [Unreported] July 25th 2001, Hughes v O Rourke [1986] ILRM 583, O'Sullivan v Dwyer [1973] IR 81, and Concorde Engineering v Bus Atha Cliath 1 ILRM 533, in support of their submission.

The Respondents rely on the Greedale case as expanding that jurisdiction to include the unusual circumstances of this case.

It is clear from the Judgements in that case that, indeed, so far as the Supreme Court is concerned there is such an expansion.

In her judgement Denhan J says the following at p.185 et seq where she was considering that part of the judgement of Finlay CJ in the Belville case as quoted above;

"This consideration of finality did not include an analysis of Article 34.6 However, the jurisprudence is fundamental to a fair court process. It is a jurisprudence to protects rights of parties.

The Supreme Court has a special role in the Constitution to protect constitutional rights. This special role is illustrated by Article 34.4.4.. In addition the Supreme Court has an inherent jurisdiction to protect constitutional rights..............."

At p.186 she continues:

"......If an applicant seeks to have the court exercise its jurisdiction to protect constitutional rights there is a very heavy onus of proof. The court has to balance the application against the jurisprudence of the common law and the Constitution, of the finality of an order. Whilst the Supreme Court is guardian of constitutional rights, it must also protect the administration of justice which includes the concept of finality of litigation

A similar jurisdiction to that described in Irish constitutional law has been recognised in the common law of England. Thus in R v Bow Street Metropolitan Stipendiary Magistrates, ex p. Pin ochet Ugarte fiNo 4 [199911 AER 577 at p.585 Lord Browne - Wilkinson stated:

[1] Jurisdiction

As I have said, the respondents to the petition do not dispute that your Lordships have a jurisdiction in appropriate cases to rescind or vary an earlier

order of this House. In my judgement, that concession was rightly made both in principle and on authority.

In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered..........................

However, it should be made clear that this House will not reopen any appeal save in circumstances where through no fault of a party, he or she has been subjected to an unfair procedure., Where an order has been made by this House in a particular case there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order was wrong.

In Australia the High Court has held that it has power to vacate its orders in an appropriate case, but it will do so only where there are quite exceptional circumstances. In State Rail Authority of New South Wales v Codelfa Construction Propietary Ltd (19811150 CLR.29 Mason and Wilson Jj stated at p.38

`Nevertheless, it is a power to be exercised with great caution. There may be little difficulty in a case where the orders have not been perfected and some mistake or misprison is disclosed. But in other cases it will be a case of weighing what would otherwise be irremediable injustice against the public interest in maintaining the finality of litigation. The circumstances that will justify a rehearing must be quite exceptional.'

Brennan J stated: at p.45:

`Application is now made ..... seeking recission of the order remitting the relevant issues to the arbitrator for determination. Although this Court can no longer be constituted as it was constituted when the orders were made, there is in my opinion, jurisdiction to recall the order remitting the relevant issues if appropriate grounds are shown. That jurisdiction inheres in this Court as a final court of appeal to prevent irremediable injustice being done by a court of last resort, but the occasions of its exercise must be rare indeed.'

In Wenthworth v Woollahra Municipal Council [19821149 CLR 672 at p. 684 the court stated:

`The applicant who now appears in person, seeks to argue a number of grounds in support of her application. However, as we had occasion to point out recently in State Rail Authority of New South Wales v Cofelfa Construction Pty Ltd 150 CLR 28, the circumstances in which this court will reopen a judgement which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.

In Autodesk Inc v Dyason IlVo 2][19931176 CLR 300, Brennan J stated at pp308-309:

`This Court has undoubted jurisdiction to recall a judgement which it has pronounced, at least prior to the formal entry of the judgement, if the judgement has been pronounced against a person who, without fault on the part of that person has not had an opportunity to be heard as to why the judgement should not be pronounced. The jurisdiction is exercised sparingly for it is important to bring litigation to finality in this Court. Nevertheless, natural justice would be denied if, in a case in which the stated conditions are satisfied, the judgement were not vacated......"

Under the heading Of "Decision" Denham J. goes on to say:

"The Supreme Court has a jurisdiction and a duty to protect constitutional rights. This jurisdiction may arise even if there has been what appears to have been a final order. However, it will only arise in exceptional circumstances. The burden on the applicants to establish that exceptional circumstances exist is heavy.

The second issue for determination is whether the applicants have successfully invoked this special jurisdiction. The Court has a duty to protect constitutional rights, including fair procedures, in its own court. This inherent jurisdiction arises in exceptional case to protect constitutional rights and justice. The applicants in this case have not discharged the burden of proof required to establish that an order of the court was constitutionally impinged by as alleged an absence of fair procedures....."

Barrington and Lynch JJ concurred with the judgement of Denham J.

Barron J in his judgement at p192 said the following:

"The Constitution requires the decisions of this Court to be final and conclusive for good reason. There must be certainty in the administration of justice. Uncertainty can lead to injustice. In my view, these provisions must prevail unless there has been a clear breach of the principles of natural justice to which the applicant has not acquiesced and such that a failure to take steps to remedy such breach would in the eyes of right minded citizens damage the authority of the Court. I believe that the jurisprudence of this court has always been to this effect"

It would seems to me that the only circumstance in which the Supreme Court could interfere with a final order of that Court is where a person can show that through no fault of his or hers, there has been a breach of natural justice in the conduct of the proceedings before the Supreme Court which would manifestly be irremediable unless the Supreme Court set aside the order impugned.

Thus a clear distinction opens up between the jurisprudence of the Supreme Court dealing with setting aside of final orders of that Court and the law relating to the setting aside of perfected orders of the High Court. In the High Court a breach of natural justice would not be irremediable unless the order was set aside. There could be an appeal to the Supreme Court where the breach complained of could be remedied.

I am of opinion therefore, that so far as the High Court is concerned, when it is acting as a court of first instance, the only circumstances in which a perfected order could be set aside are the two circumstances described in the Ainsworth case and referred to by Finlay CJ in the Belville case. The appellants are right in their submission to that extent.

What, then is the position of orders made and perfected in the High Court when the that Court is exercising an appellate jurisdiction.?

If an order of the High Court, exercising an appellate jurisdiction, is made in breach of the principles of natural justice, that breach would be irremediable unless it happened to give rise to point of law which could either be the subject of a case stated, or be the subject of an appeal under a special statutory provision such as in the case of section 5[19) of the Act of 1997. Otherwise there would be no remedy. A different situation, needless to say, applies to the Circuit Court exercising an appellate jurisdiction as the remedy of Judicial Review is available.

Where the High Court is exercising an appellate jurisdiction, in general its orders are final and conclusive. If a breach of the principles of natural justice occurs in the conduct of such an appeal, through no fault of the aggrieved party, then, in my view the principles set out in the judgements of Denham and Barron JJ in the Greendale case should apply in like manner to the appellate jurisdiction of the High Court, unless in a particular case, there is a special statutory provision enabling an appeal to the Supreme Court which can be invoked so as to remedy the breach of natural justice alleged. Otherwise the impugned order should be set aside.

In these cases this court was exercising the appellate jurisdiction conferred on it by section 5[15] of the Act of 1997. There is no doubt that in each of the appeals orders were made and perfected.

The Respondent now says that the fact that he did not on the hearing of the appeal, make the case that this court had no jurisdiction to hear these appeals because the Appellants had accepted the awards, was the result of a breach of natural justice brought about by the fact that he and the Court were kept in the dark so far as an essential item of information was concerned namely, the fact that the Appellants had accepted the awards in writing in apparent compliance with section 5[9] of the Act of 1997.

I have come to the conclusion that this unfortunate state of affairs was brought about not by any default on the part of the solicitor for the appellants but rather by the failure of the Tribunal to have notified the Respondent of the fact that the appellants had accepted their awards. As said earlier in this judgement, I can see no good reason for this reticence on the part of the tribunal, and I am satisfied that the unfortunate predicament in which the Respondent now fords himself was brought about mainly by the failure of the Tribunal to have informed him.

It is interesting to note that when served with the orders of this court in June and August 2001, whatever barriers to communication with the Respondent, were perceived to have been there, quickly melted away, to the point that the opinion of Senior Counsel obtained by the Tribunal was shared with the Respondent. That fact has significance in two ways. Firstly, it sheds light on the merits of the Tribunal's inhibition to communicating to the Respondent at the earlier time, the fact that the Appellants had accepted the awards.

Secondly that fact and the correspondence between the Tribunal and the Respondent and the Chief State Solicitor persuades me that for the purpose of these applications of the Respondent, the Respondent and the Tribunal should not be treated as independent of each other. Hence, although, the Respondent was not aware of the matter which concerned the Tribunal and I accept that he was not, he cannot in my view, be entitled to claim that he was in the position of a party who was wholly independent of the Tribunal and hence to be deemed without any fault in the matter.

The Respondent was necessarily and regularly the receiver of communications from the Tribunal concerning awards of the Tribunal for the purpose of payment of those awards. Whilst the Respondent had a duty to observe the confidentiality of those awards, and to comply with section 10 of the Act of 1997, it could not reasonably be said that that confidentiality would be breached by the disclosure to the Respondent of the fact that an award had been accepted or rejected, without any disclosure of the amount of the award. The Respondent must bear some part of the responsiblify for having failed to ensure that there was a proper and effective system of communication between the Tribunal and the Respondent in relation to pertinent matters such as the acceptance or rejection of awards persuant to section 5[9] of the Act of 1997.

Art. 3[4] of S.I. No 393 of 1998 requires that every appeal shall be served on the Tribunal. Given that it was clearly not envisaged that the Tribunal would be a protagonist in these appeals, the requirment to serve on the Tribunal would seem to have been intended to prompt the Tribunal to furnish to the parties to an appeal relevant information and documentation, such as the fact that an award had been accepted or rejected. This provision in the rules tends, to reinforce my opinion that the Tribunal should have informed the Respondent of the fact that the Appellants had accepted their awards soon after the service on the Tribunal of the appeals.

It is to be regretted that because the Tribunal did not inform the Respondent in timely fashion of the fact that these appellants had accepted the awards of the Tribunal, it has now been drawn into an intervention of a kind, which does not appear to have been contemplated by the Act of 1997, I have no doubt but that in the circumstance of this case the Respondent has failed to show that his is a case of the exceptional kind, which would move a court to set aside a final perfected order.

The specified question of law in respect of which, as an alternative remedy, the Respondent seeks leave under section 5[19] of the Act of 1997, is the very question which they wished to litigate in a rehearing of these appeals if the orders of this court were set aside. Having refused to set aside those orders, it would seem wholly illogical and contrary to principle to then permit an appeal on the very question, that was not and now cannot be litigated in these proceedings. To permit an appeal as sought would make an nonsense of the refusal to set aside the orders in each appeal and would involve the bringing of an issue on appeal to the Supreme Court which had not been litigated in the High Court, a proposition that, for reasons of constitutional propriety, cannot be countenanced.

I am therefore driven to conclude that I must refuse the relief sought by the Respondent in his Notices of Motion in each case.