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Cite as: [2000] 2 IR 231, [2000] IESC 1, [2000] 2 ILRM 481

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Blehein v. Murphy [2000] IESC 1; [2000] 2 IR 231; [2000] 2 ILRM 481 (17th January, 2000)

THE SUPREME COURT

1999 No. 153

Denham J.

Barrington J.

Barron J.

IN THE MATTER OF THE COURTS OF JUSTICE ACTS, 1924-1961

AND IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961-1981

AND IN THE MATTER OF AN INTENDED ACTION

BETWEEN

LOUIS BLEHEIN

PLAINTIFF/APPELLANT

AND

SEAN G. MURPHY, FINNUALA KENNEDY,

PATRICIA BLEHEIN, RICHARD QUINLIVAN,

THOMAS O’CONNOR AND DESMOND NOLAN

DEFENDANTS/RESPONDENTS

Judgment of Mrs. Justice Denham delivered on the 17th day of January, 2000.

1. Louis Blehein, the plaintiff/appellant (hereinafter referred to as the plaintiff) has appealed from the judgment and order of the High Court (Geoghegan J.) delivered on 2nd day of July, 1999, in which the plaintiff was refused leave to issue proceedings. The third named defendant has cross appealed seeking that the order of no order as to costs be set aside and discharged and that in lieu thereof the plaintiff be ordered to pay the costs of the action in the High Court and also that the plaintiff be ordered to pay the costs of the appeal to the Supreme Court. The action is an application under s.260 of the Mental Treatment Act, 1945, for leave for the plaintiff to institute proceedings against two doctors, his own wife and three members of the Garda Siochana in respect of his being taken against his will to St. John of God’s Hospital, Stillorgan, Dublin, in 1987. The plenary summons alleges causes of action of fraud, libel, slander, unlawful arrest, unlawful detention, conspiracy and violation of the privacy of the plaintiff's dwelling, being a breach of a constitutional right. Section 260 of the Mental Treatment Act, 1945, provides that leave of the High Court must be sought to institute certain proceedings. The section states:

“260.- (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.”

2. The plaintiff has applied by notice of motion to amend the notice of appeal by the addition of the paragraph:

“That section 260 of the Mental Treatment Act, 1945 (as amended) is invalid having regard to the provisions of the Constitution of Ireland, 1937”.

3. The plaintiff requested that the appeal be adjourned to allow notice to be served on the Attorney General in compliance with Order 60, Rule 1, of the Rules of the Superior Courts. The court heard the motion of the plaintiff. In an affidavit accompanying the motion seeking to amend the notice of appeal the plaintiff deposed:

“My understanding of the procedures to be followed in challenging the validity of a statute has at all times been that I could not make such a challenge save in Plenary proceedings and that such a challenge could only be initiated in the High Court. This belief was based on legal advice orally given. I have, however, very recently found precedent where such a challenge has been made in proceedings commenced by Motion and the challenge was first mentioned in the Notice of Appeal therein. Further I have also found precedent where this Honourable Court has given leave to amend a Notice of Appeal to include such a challenge and did adjourn the hearing of the said Appeal pending compliance with Order 60, rule 1, of the rules of the Superior Courts.

I say and believe that the said section 260 of the Mental Treatment Act, 1945, shows invalidity on the face of it’s (sic) provisions and that the presumption of constitutionality is disappointed and cannot prevail. I say this on the grounds that I believe that the said section 260:-

(a) Fails to hold all citizens equal before the law contrary to Article 40.1 of the Constitution.

(b) Ignores the constitutional guarantee that the State would, by it’s (sic) laws, defend and vindicate the personal rights of the citizen.

(c) Fails to protect the personal rights of the citizen from unjust attack and is obstructive of vindication in the case of injustice done.

(d) Is an interference with the operation of the courts in a purely judicial domain.

(e) Purports to subordinate the precepts of justice to the law.

(f) Purports to make justice subservient to the law

(g) Is deficient in that respect which one great organ of State owes to another.

(h) Is anti-democratic in that

(i) in inverts the rule of constitutional law ubi ius ibi remedium;

(ii) it ignores the fundamental requirements of the rule of law.

It is my intention to challenge the validity of the said section 260 sooner or later. I say and believe that it would be reasonable and appropriate to make that challenge in the action herein and before this Honourable Court hears and pronounces judgement on the Appeal herein.”

4. The plaintiff referred to two cases in support of his submission: The State (Gallagher, Shatter & Co.) v. de Valera [1986] ILRM 3 and Goulding Chemicals Ltd. v. Bolger [1977] I.R. 211. On these two authorities he sought the amendment of the notice of appeal and the adjournment to serve notice on the Attorney General.

5. Counsel for the defendants opposed the application. Mr. Mel Christle, S.C., on behalf of the first two defendants, submitted that this was the first time the plaintiff had brought up the question of the constitutionality of s.260 of the Mental Treatment Act, 1945. However, this was not the first time that the plaintiff had sought leave under s.260 to institute proceedings against the first two defendants. Leave was granted by Lynch J. in December, 1993 and the statement of claim in that case made reference to the incident the subject of this application. The learned trial judge in this case dealt with the matter on the affidavits and there was no query by the applicant as to the constitutionality of the sections. He emphasised that the ground was not argued before the High Court.

6. Stephen Roche, S.C., counsel for the third named defendant, also opposed the application on the basis that the plaintiff was attempting to start a constitutional action on an appeal. He submitted that the matter should be litigated first in the High Court. He pointed out that the defendants need not be part of a constitutional challenge.

7. Mr. Craven, B.L., counsel for the fourth, fifth and sixth named defendants, also opposed the application. He distinguished the facts in Goulding Chemicals Ltd. v. Bolger [1977] I.R. 211 and referred to Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. (No. 2) [1994] 2 I.R. 333. He referred to the following statement by McGuinness J. in Melly v. Moran and Ors . (High Court, Unreported judgment of McGuinness J., June 19, 1997):

“While Counsel for the Plaintiff in his opening submissions referred in some detail to the proposed challenge to the constitutionality of Section 260, he proposed that the first step to be taken by the Court was to decide within the parameters of the present law whether leave should be granted to the Plaintiff to issue his proceedings. This preliminary issue would fall to be decided within the terms of Section 260 and, depending upon the outcome, the Plaintiff could, if necessary, pursue the constitutional issues at a later stage. Counsel for both Defendants and the Attorney General agreed that this was the proper course to follow. Accordingly, the sole issue before the Court at present is whether it is proper to permit the Plaintiff to institute his proposed proceedings. The institution of the proposed proceedings is opposed by the First and Second named Defendants. Counsel for the Attorney General, Mr. Frank Clarke, reserved his position, his role being to deal with the merits of the Plaintiff’s claims in regard to the constitutionality of Section 260 and other aspects of the Mental Treatment Act, 1945.”

8. Counsel for the fourth, fifth and sixth named defendants submitted that the plaintiff has not yet exhausted all his remedies; that he could not start a constitutional action without his application under s.260 being finally resolved. Counsel stated that the plaintiff has constitutional proceedings extant challenging other parts of the Mental Treatment Act, 1945. Notice of trial in those proceedings were served in 1996 and he suggested that they be amended to include this point. He referred to Murphy v. Greene [1990] 2 I.R. 566, Finlay C.J., at p.572. He submitted that the application should be refused.

9. Mr. Blehein, in response, indicated that there were difficulties in proceeding with the other proceedings referred to. He admitted he did not raise the issue of the constitutionality of s.260 in the High Court. He said that he regarded s.260 as so contrary to the Constitution that the Supreme Court should not base a judgment on a section which would in the future be held to be unconstitutional. He referred to Article 34.3.2 of the Constitution and said that the wording of the Article implies that the issue of unconstitutionality may be raised first in the Supreme Court. He submitted that the High Court judgment gave him locus standi to challenge s.260 of the Mental Treatment Act, 1945. He submitted that by being refused leave to sue he was not only refused right of access to the courts but also refused a remedy for the issues he wished to raise, the infringement of his personal rights.

Law

10. Article 34.3 of the Constitution of Ireland states:

“1º The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.

2º Save as otherwise provided by this Article, the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of this Constitution, and no such question shall be raised (whether by pleading, argument or otherwise) in any Court established under this or any other Article of this Constitution other than the High Court or the Supreme Court.”

11. Article 34.4. states:

“1º The Court of Final Appeal shall be called the Supreme Court.

3º The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.

4º No law shall be enacted excepting from the appellate jurisdiction of the Supreme Court cases which involve questions as to the validity of any law having regard to the provisions of this Constitution.

5º The decision of the Supreme Court on a question as to the validity of a law having regard to the provisions of this Constitution shall be pronounced by such one of the judges of that Court as that Court shall direct, and no other opinion on such question, whether assenting or dissenting, shall be pronounced, nor shall the existence of any such other opinion be disclosed.”

Decision

12. Apart from a few exceptions, the Supreme Court is a court of appeal. The most obvious exception is the power of the President to refer any Bill to which the article applies to the Supreme Court for a decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to the Constitution: Article 26, Constitution of Ireland. Also, in exceptional circumstances, a non-appellate jurisdiction may be invoked: Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. (No. 2) [1994] 2 I.R. 333; In the Matter of Greendale Developments Ltd. (In Liquidation) and In the Matter of Article 40.3.1 and 2 of the Constitution, Article 6.1 of the European Convention on Human Rights and Article 14.1 of the International Covenant on Civil and Political Rights , Unreported, Supreme Court, 9th December, 1999.

13. The plaintiff referred to State (Gallagher, Shatter & Co.) v. de Valera [1986] ILRM 3 in which case in the notice of appeal the prosecutor raised for the first time the validity of s.36 of the Courts of Justice Act, 1924, s. 68 of the Courts of Justice Act, 1936, and 0.99 r.15(e) of the Rules of the Superior Courts having regard to the provisions of Article 40.3 and Article 43 of the Constitution and served a notice pursuant to 0.60 purporting to raise these issues. In fact the question of the validity of an Act was first raised in the Supreme Court, but not decided. It was held, inter alia, that the jurisdiction of the taxing master regulated by 0.99 r.15(e) of the Superior Court Rules derived from the Attorneys and Solicitors (Ireland) Act, 1849, and not from the Superior Court Rules Committee acting under s.36 of the Courts of Justice Act, 1924, or from any provision of the Courts (Supplemental Provisions) Act, 1961. It was found to be well established law that the court retained its inherent jurisdiction to order taxation, that such inherent jurisdiction had not been invoked, that such inherent jurisdiction runs in parallel to the statutory jurisdiction of the Act of 1849, that the Court should not disregard lightly restrictions or limitations imposed by the statutory code. McCarthy J. held that the jurisdiction relied upon by the respondent in the taxation of the prosecutor’s Bill of Costs is not to be found in the statute or rules relied upon and consequently that the cause shown should be disallowed and the conditional order made absolute. This case does not advance the jurisprudence sought by the plaintiff.

14. The plaintiff also referred to Goulding Chemicals Ltd. v. Bolger [1977] I.R. 211, in which case the plaintiffs appealed to the Supreme Court from the judgment of the High Court. The appeal came into the list for hearing on 19th December, 1976. On that occasion the plaintiffs were given liberty to amend the original notice of appeal by adding two additional grounds, one of which stated:

“The defendants, at all relevant times members of the Irish Transport and General Workers Union, were and are, in picketing and attending at the plaintiffs’ premises, acting without and contrary to the authority of the said Union. Accordingly, by means of s.11 of the Trade Union Act, 1941, s.2 of the Trade Disputes Act, 1906, affords no defence to the plaintiffs’ claim.”

15. The Plaintiffs were given leave to amend the notice of appeal and the defendants (who contended that the fresh ground of appeal raised the issue of the constitutional validity of s.11 of the Trade Union Act, 1941) were directed to give notice to the Attorney General pursuant to Order 60 of the Rules of the Superior Courts and the hearing of the appeal was adjourned. On the hearing of the appeal O’Higgins C.J. stated at pp. 227 - 228:

“The defendants have raised the question of the constitutionality of s.11, sub-s.1, of the Act of 1941 if its true meaning and effect were as contended for by the plaintiffs. This Court indicated a tentative or provisional opinion as to the meaning and effect of s.11, sub-s.1, which was along the lines just expressed by me in this judgment and, accordingly, did not feel it necessary or proper at that stage to enter into the question of its constitutionality. By reason of the view I have formed as to the meaning and effect of s.11, sub-s.1 of the Act of 1941, I do not think that this Court should now entertain an argument or pronounce a judgment on the constitutionality of the section.”

16. O’Higgins C.J. went on to deal with the other submissions on the hearing of the appeal and held that the appeal by the plaintiffs failed.

17. In a concurring judgment Kenny J. pointed out at p. 235:

“The plaintiffs appealed to this Court and advanced a number of arguments which were not mentioned in the High Court and which raised questions of fundamental importance and considerable difficulty on the Trade Disputes Act, 1906, and on the Trade Union Act, 1941. I was a judge of the High Court for 15 years and I confess that I always felt a sense of grievance when any judgment of mine was reversed on a ground which had not been mentioned before me. I think that the modern habit of treating the hearing in the High Court as a practice round and then regarding the hearing in this Court as the real trial and relying here on many points and cases not mentioned in the High Court is to be deprecated. Under the Constitution the High Court has full and original jurisdiction in all justiciable matters and the judges of that Court are entitled to have as full an argument of the case before them as that which is advanced in this Court.”

18. On the issue of constitutionality he held at p.240:

“As all the defendants are members of the union, s.11 of the Act of 1941 does not make it unlawful for them to picket. Therefore, it is unnecessary to consider whether s.11 is repugnant to the Constitution and I expressly reserve this point for future consideration.”

19. This was a case dealing with pickets and redundancies; it was an unusual case dealing with an urgent situation. O’Higgins C.J. stated at p.225:

“ ... the Court permitted one matter to be argued on the appeal which had not been argued before the learned trial judge; this related to the application, meaning, and effect of s.11, sub-s.1, of the Trade Union Act, 1941. As a question of the section’s constitutionality had been raised by the defendants, the Court directed that notice be served on the Attorney General and that he be heard on the appeal. The latitude which was given to the parties in this respect to enable all possible issues between them to be ventilated on the appeal, even though some of the issues were not raised in the High Court, is unusual and, in my view, ought not to be regarded as a precedent. It was permitted here only with considerable misgivings and because there was no procedure under which the appropriate arguments could then be initiated in the High Court.”

20. Both of these cases cited by the plaintiff were unusual and should not be regarded as precedents. Parties, including the Attorney General, have the right to have the issues argued fully in the High Court. Issues may be reargued on appeal to the Supreme Court. The Supreme Court is the final court of appeal in Ireland and most of its jurisdiction is appellate. To this there are a few exceptions. In exceptional circumstances the Supreme Court will consider issues of constitutional law which have not been argued in the High Court. The jurisprudence was explained by Finlay C.J. in Attorney General (Society for the Protection of Unborn Children (Ireland) Ltd.) v. Open Door Counselling Ltd. (No 2.) [1994] 2 I.R. 333, 341-342, when he stated that the Supreme Court has:

“ ... consistently declined, otherwise than in the most exceptional circumstances, dictated by the necessity of justice, to consider an issue of constitutional law which, though arising in a case not yet determined by it, has not been fully argued and decided in the High Court.”

21. Applying this jurisprudence to the facts of this case, there are no exceptional circumstances to invoke the exception to the rule and I would refuse the application of the plaintiff.

22. The plaintiff also invoked Article 34.3.2 and submitted that it envisaged an issue of the validity of a law being raised for the first time in the Supreme Court. Certainly the word “raised” could mean that the matter may be argued first in the Supreme Court. However, this may only be done in exceptional circumstances. The scheme of courts established under the Constitution envisages a High Court which has original jurisdiction including the question of the validity of any law. No court other than the High Court and the Supreme Court has jurisdiction to consider the validity of any law. Article 34.3.2 describes this special jurisdiction of the High and Supreme Courts. It does not envisage that cases will routinely raise the issue of the validity of any law for the first time in the Supreme Court. Indeed, the Constitution specifically protects the appellate position of the Supreme Court on cases which involve questions as to the validity of any law: Article 34.4.4. Consequently, this submission by the plaintiff also must fail.

23. The presumption of constitutionality applies to the Mental Treatment Act, 1945. It is an act passed after the Constitution of Ireland, 1937. In accordance with the respect which one organ of State pays to another, the courts presume that the Act is constitutional; it is presumed that the legislature has acted in accordance with the Constitution in enacting this piece of legislation.

24. It is not usual for the Supreme Court to allow amendments to a notice of appeal so as to add a ground not argued in the High Court. In Movie News Ltd. v. Galway County Council , Supreme Court, 25th July, 1973, Henchy J. stated that the Supreme Court should not include additional grounds not argued before the High Court. He said that the Supreme Court:

“ ... should not - except for exceptional reasons which do not exist in this case - under the guise of an appeal, enter on the trial of a matter as of first instance and thereby deprive the party aggrieved with its decisions of the constitutional right of appeal which he would have had if that matter had been decided in the High Court.”

25. I agree with this statement of the law and would apply it to this case. There being no exceptional reasons, the additional grounds of appeal, being matters not argued in the High Court, should not be permitted. Not only would the parties be deprived of a hearing in the High Court prior to an appeal but so too would the Attorney General.

Conclusion

26. It is only in exceptional circumstances that an appellant may amend a notice of appeal so as to argue a ground not argued in the High Court. In this case no such exceptional circumstances exist. If the plaintiff fails on his appeal in this action then it may be open to him to challenge the constitutionality of s.260 of the Mental Treatment Act, 1945 in the High Court. It may be that parties to this action may not be parties to a constitutional action. Such an action is for the plaintiff to consider. In so stating, I am not indicating any view on the constitutionality of s.260 Mental Treatment Act, 1945. Indeed, I am conscious of decisions on the section including: O’Dowd v. North Western Health Board [1983] ILRM 186; Murphy v. Greene [1990] 2 I.R. 566; O’Reilly v. Moroney [1992] 2 I.R. 145; Bailey v. Gallagher [1996] 2 ILRM 433.

27. Consequently, I would refuse the application by the plaintiff on the motion to amend the notice of appeal. The plaintiff’s appeal will be grounded on the unamended notice of appeal against the decision of the High Court delivered on 2nd day of July, 1999.