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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Pharmaceutical Assistants Association Co. Ltd. & ors v The Pharmaceutical Society of Ireland & ors [2019] IEHC 663 (10 October 2019)
URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_663.html
Cite as: [2019] IEHC 663
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THE HIGH COURT
[2019] IEHC 663
[2019 No. 172 J.R.]
BETWEEN
THE PHARMACEUTICAL ASSISTANTS ASSOCIATION COMPANY LIMITED BY
GUARANTEE, ELAINE MCGRATH, RUTH DOYLE, PAULINE KAVANAGH AND PATRICIA
COYLE
APPLICANTS
AND
THE PHARMACEUTICAL SOCIETY OF IRELAND, THE MINISTER FOR HEALTH,
IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
JUDGEMENT of Mr. Justice Barr delivered on the 10th day of October, 2019
Introduction
1. This is an application in which the second, third and fourth respondents (hereinafter
referred to as "The Minister") are seeking to have the trial of the action split, so that the
court would first consider the challenge made by the applicants to draft rules which it is
proposed by the first respondent (hereinafter "P.S.I.") to implement, with the consent of
the Minister, on what may be termed administrative law grounds and only in the event
that the court did not find in favour of the applicants, would it go on to hold a second
hearing, which would consider the grounds of challenge to the proposed rules on the basis
of alleged breach of the Constitution and the European Convention on Human Rights.
Background
2. For the purposes of this judgement, it is only necessary to set out the background to the
dispute between the parties in very brief terms. The first applicant is the Pharmaceutical
Assistants Association. The remaining applicants are each employed as pharmaceutical
assistants. The last course which provided for people to train and qualify as
pharmaceutical assistants commenced in 1982. No new pharmaceutical assistants have
qualified in Ireland since 1985. Broadly speaking, pharmaceutical assistants are permitted
to carry out the work of a pharmacist during his or her "temporary absence". Given the
part-time nature of this work, most pharmaceutical assistants are female and tend to be
aged 55 years or over.
3. In these proceedings the applicants challenge draft rules which were drawn up by the
P.S.I. in or about February 2019. Those rules would only become effective with the
consent of the Minister. The Minister has agreed not to furnish his consent to the rules,
pending the determination of this action. The applicants challenge the proposed rules on a
number of grounds. These will be looked at in slightly more detail later, but they can be
broadly divided into two categories: those grounds which challenge the rules on normal
administrative law grounds, such as non-compliance with the statutory procedure, lack of
vires and lack of rationality. The second category are the grounds on which it is alleged
that if the P.S.I. did have the power to implement such rules, then having regard to the
far-reaching economic effects of those rules on the applicants, such provisions would be
in breach of the applicants’ rights under the Constitution and under the European
Convention on Human Rights.
The Present Application
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4. The present application is brought on behalf of the Minister. Mr. Leonard S.C. on behalf of
the Minister submitted that where the rules were being challenged on both ordinary
administrative law grounds and on constitutional grounds, it is appropriate that the court
should direct that there should be a split trial, whereby the court would deal firstly with
the challenge on the administrative law grounds and would only proceed to hold a hearing
on the constitutional aspects and on the challenge under the European Convention on
Human Rights if the applicants were unsuccessful in their challenge under the
administrative law headings.
5. Counsel submitted that when one looked at the Statement of Grounds it was clear that
the applicants were challenging the draft rules on the following basis: that the correct
procedure under the Pharmacy Act 2007 had not been followed; that the consultation
process provided for under the Act had not been properly followed in this case; that the
provisions of the rules as drafted were irrational and that the rule-making power provided
for under the Act did not envisage or extend to rules the nature of which were proposed
to be implemented in the draft rules of February 2019.
6. The second main limb of challenge put forward by the applicants would only arise if they
were unsuccessful on the other grounds of challenge. In that event, the applicants go on
to make the case that the provisions of section 30 (2) of the 2007 Act are contrary to the
provisions of the Constitution and in breach of the European Convention on Human
Rights.
7. It was submitted that in these circumstances, it was appropriate for the court to direct a
split trial so that the issues which might arise under the Constitution and under the
European Convention on Human Rights, would only fall to be considered and determined
by the court in the event that the applicants failed on their other grounds of challenge.
Counsel submitted that such a course of action was in keeping with the long-standing
principle that the court should only determine constitutional issues if it were necessary to
do so. In other words, if the court had reached a decision which disposed of the
substantive matter completely, such that the constitutional issues become moot, it would
not proceed to determine those issues.
8. In support of this submission senior counsel referred to the decision of the Supreme Court
in Murphy v Roche and Others [1987] I.R. 106, where Finlay C.J. stated as follows at
paragraph 110:
“There can be no doubt that this court has decided on a number of occasions that it
must decline, either in constitutional issues or in other issues of law, to decide any
question which is in the form of a moot and the decision of which is not necessary
for the determination of the rights of the parties before it. Secondly, it has also
clearly been established that where the issues between the parties can be
determined and finally disposed of by the resolution of an issue of law other than
constitutional law, the court should proceed to consider that issue first and, if it
determines the case, should refrain from expressing any view on the constitutional
issue that may have been raised.”
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9. Counsel pointed out that in the Murphy case the Supreme Court directed that having
regard to the fact that the Attorney General had no interest in arguing the issue based on
club membership, as distinct from any constitutional issue, it was appropriate to divide
the issues which were to be tried and accordingly the court directed that the issues should
be split so that the issue as to whether a member could sue his own club would be tried
separately as a preliminary issue.
10. Counsel also referred to the decision in McDaid v His Honour Judge Sheehy & Others
[1991] 1 I.R. 1, where the Supreme Court again stated that the settled jurisprudence of
that court was against deciding issues of constitutional validity, unless it was necessary to
do so. In the course of his judgement Finlay C.J. stated as follows at paragraph 19:
“To ascertain whether any statutory order purporting to be made pursuant to s.1 of
the Act of 1957 was an impermissibly wide piece of delegated legislation,
consideration would have to be given to its precise terms, to its intended duration
and to the actual effect it had on the interests of the citizen who has challenged it.
These and cognate questions which would be raised in a constitutional challenge
properly made by an aggrieved individual against this statutory provision
underlined the necessity for this Court to abstain from deciding that issue in this
case where the validity of this section is no longer of importance to and where it
has no effect in law on the interests of the applicant.”
11. Counsel also referred to the decision in Prendiville v The Medical Council [2008] 3 I.R.
122, where the learned High Court judge had dealt at the trial with the grounds of
challenge to the Medical Council decision which had not involved the constitutional
grounds. They had been left over to be decided on another occasion.
12. Counsel submitted that the court should only embark on a consideration of the
constitutional issues where it was necessary to do so and that eventuality would only
arise where the applicants had been unsuccessful on what might be termed the
administrative law grounds of challenge. Accordingly, it was appropriate in this case to
deal with the grounds on which relief had been sought as set out at paragraphs (d) 2-4 of
the Statement of Grounds at one hearing and then proceed on to consider the
constitutional grounds and the grounds pursuant to the European Convention on Human
Rights at a subsequent hearing, if that should become necessary having regard to the
determination made by the trial judge after the first hearing.
13. In response, Ms. Siobhan Phelan S.C. on behalf of the applicants submitted that the
application put forward by the Minister was flawed in a number of respects. Firstly, this
was not a case where the Minister was uninterested in the administrative law grounds put
forward by the applicants. It was clear from paragraph 5 of the Statement of Opposition
filed on behalf of the Minister, that he was challenging the vires argument, as he had
specifically pleaded that section 30 (2) of the 2007 Act permitted the first respondent to
make the rules which it had drawn up in February 2019. In these circumstances, it was
clear that the Minister would participate in the hearing which would be held to determine
the validity of the challenge made by the applicants on what has been termed the
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administrative law grounds. This fact distinguished the present case from the Murphy
case, because in that case the Attorney General was not proposing to take part in any
hearing as to whether there was a rule at common law that a member could not sue his
own club.
14. Counsel further submitted that the present application was based on an incorrect
interpretation of the cases which have been cited to the court. Those decisions did not
provide that where there were constitutional issues raised in an action, that there should
be a split trial dealing with other issues first and then a further hearing dealing with
constitutional issues. Those decisions merely stated that where there were constitutional
issues raised at the hearing, the judgement of the court should only deal with
constitutional issues and in particular issues concerning the constitutional validity of
legislation, where it was necessary to do so in order to reach a final decision in the
matter. In other words, if the case was going to be decided on other issues, such that the
constitutional issues had become moot, then the court should refrain from giving any
judgement on the constitutional issues.
15. Counsel submitted that it was clear from the authorities that the court should hear all
arguments on all the issues at the trial and it was only at the stage where the court was
delivering its judgement, that it would refrain from deciding the constitutional issues if it
was not necessary to do so. Counsel submitted that the decision of the Supreme Court in
Reid v IDA [2015] 4 IR 494, made it clear that in the case where constitutional issues
had been raised on the pleadings, there had been full argument on those issues at the
trial, notwithstanding that it had not been necessary to deal with those issues in the
judgement, because the case had effectively been decided on other grounds thereby
rendering the constitutional issues moot; see paragraph 35 of the judgement of
McKechnie J.
16. Counsel pointed out that while there had effectively been a split trial in the Prendiville
case, that had been done by agreement between the parties. While counsel accepted that
in the Murphy decision a split trial had been directed, there were no similar circumstances
in this case, as the Minister proposed to participate in the hearing on the administrative
law issues, in particular in relation to the vires issue.
17. Counsel further submitted that there were no logical reasons which would justify directing
a split trial. Indeed, she went further and submitted that were the court to do so, it would
only serve to increase costs substantially and lead to a most inefficient use of court time.
In such circumstances, it was submitted that there were compelling reasons from both a
cost and time management point of view in having all the issues argued before the court
at a single hearing and then leaving it to the trial judge to decide when formulating his
judgement whether it was necessary for him or her to determine the issues arising under
the Constitution and the European Convention on Human Rights.
18. Finally, Ms. Barrington S.C. on behalf of the P.S.I. stated that her client was essentially
neutral on the application being made by the Minister. Her only concern was that the
matter should proceed in as cost-effective a manner as possible. She stated that if a split
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trial were directed, it would be necessary to ensure that both limbs of the hearing were
heard by the same trial judge.
Conclusions
19. Having carefully considered the arguments and authorities cited by counsel for the
Minister and counsel for the applicants and having regard to the position adopted by
counsel for the PSI, I am of the opinion that the application on behalf of the Minister must
be refused.
20. It seems to me that the argument put forward by Ms. Phelan S.C. is compelling. While it
is undoubtedly true that the courts have on occasion directed split trials where
constitutional or other issues are clearly separable from either preliminary issues or other
main issues in a case; the cases cited do not established that where there is a
constitutional issue in a case there should be a split trial, but rather that where
constitutional issues fall to be determined, the trial judge should not make a
determination on those issues if he or she has already reached a decision in the matter,
thus rendering the constitutional issues moot. In other words, the clear practice is that at
the determination stage, the trial judge should not make a determination on
constitutional issues if it is not necessary to do so to enable him or her to reach a
judgement in the case.
21. Secondly, while it is true that constitutional issues and issues under the European
Convention on Human Rights have been raised in this case, I am not satisfied that the
Minister has set out good reasons in practice why the court should direct a split trial.
Indeed, seems to me that there is much weight in the submission made by Ms. Phelan
S.C. that to do so, would only serve to increase the overall costs substantially and would
also lead to a grossly inefficient use of court time. It seems to me that it would be a much
better use of time and money to have all the issues argued at the one hearing, rather
than having the administrative law issues determined first and then possibly having
another full-blown hearing a number of months later on the constitutional issues. I am
not convinced that there is any good reason why that should be done.
22. Finally, the court must have regard to the circumstances of the applicants. These are by
and large women of 55 years or older. They are bringing this action because they feel
that the draft rules will have a very severe impact on their incomes. This has been set out
very clearly in the grounding affidavits is sworn by the individual applicants. To bring an
action such as this is a very costly and stressful exercise for them. The court must be
vigilant to ensure that procedural rules, or case management is not used in a way that
may effectively frustrate the applicants exercising their constitutional right of access to
the courts in a full and proper manner. For these ladies to face the prospect of having to
mount not one, but two judicial review proceedings before the High Court, would run the
risk that they may be financially deterred from pursuing their claim before the court.
Having regard to the affidavits sworn by the applicants, I am satisfied that they are
unlikely, either individually or collectively, to have unlimited funds. In these
circumstances it seems to me that both the justice and logic of the case weigh in favour
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of the action proceeding as a unitary hearing. Accordingly, I refuse the application made
on behalf of the Minister.