Supreme Court of Ireland Decisions

19

BETWEEN

These proceedings concern an appeal brought by the notice party/appellant, The Voluntary Health Insurance Board (“VHI”), from the judgment of the High Court (Peart J.) delivered on the 27 July, 2005, and from the order made pursuant to that judgment on 29 July, 2005, whereby the High Court directed that the action should proceed as between the applicants/respondents, BUPA Ireland Limited and BUPA Insurance Limited (“BUPA”) and the third and fourth named respondents being respectively The Health Insurance Authority (“HIA”), the Minister for Health and Children (“the Minister”), Ireland and the Attorney General (“the State”) without the presence of VHI as a notice party. The purpose of the appeal therefore is to reinstate the VHI as a notice party on the basis that it is a party genuinely interested in and affected by these proceedings which are scheduled to be heard in the High Court in early December.

Background

The proceedings were commenced by BUPA pursuant to leave granted by the High Court (Clarke J.) on 24 May, 2005. As originally initiated, BUPA’s claim sought to impugn a recommendation (“the First Recommendation”) dated 29 April, 2005 of the HIA to the Minister that payments under the Risk Equalisation Scheme, 2003 (“the Scheme”) should be commenced by the Minister. BUPA also sought to impugn the Scheme and certain provisions of the Health Insurance Act, 1994 (as amended) (“the Act”) under which the Scheme was established. BUPA sought to do so on various grounds, including constitutional grounds, and other grounds which include alleged breaches of the law of the European Union.

The principle of community rating is at the heart of the dispute between the parties, a dispute the resolution of which is seen by both BUPA and VHI as having enormous financial implications for both insurers to the point where it has been said that a successful outcome for one party would threaten the other’s financial viability and ability to compete. The fundamental principle of community rating is that all insured persons should share equally in the cost of health care on the basis that the excess of premiums over claims for younger, healthier members is used to pay the excess of claims over premiums for older and less healthy members. It is based on the principle of societal and inter-generational solidarity and prevents insurers risk-rating individuals for health insurance. It is combined with the principle of “open enrolment” which dictates that a private health insurer cannot refuse cover to anyone below age 65 and also the principle of “lifetime cover” which guarantees the right of the insured to renew a private health insurance policy. Furthermore the legislation incorporates the principle of “minimum benefits”, which dictates that all private health insurance schemes or plans must provide at least a certain level of coverage. The scheme is intended to assist the maintenance of community rating across the market for people who are or may become privately insured, providing that health insurance undertakings, whose risk profile of members is less costly than the risk profile of all insured persons, should compensate those undertakings with more costly risk profiles. While VHI contend that the Scheme is essential to render effective the principle of community rating, BUPA takes quite a different position. It contends:-
(a) That s.12 of the Act provides for an unauthorised delegation of legislative power contrary to Article 15 of the Constitution.
(b) That the Risk Equalisation Scheme implemented under s.12 of the Act amounts to an imposition of a form of direct or indirect taxation, or implementation of a money bill, by way of delegated legislation contrary to Articles 15 and 21 of the Constitution.
(c) That the imposition of charges pursuant to s.12 interferes with BUPA’s rights to private property and to carry on its business, contrary to articles 40.3 and 43 of the Constitution.
(d) That s.12 of the Act and the Scheme constitute an impermissible restriction by Ireland upon BUPA’s right of establishment and freedom to provide services subsisting under the EC Treaty and the Third Non-Life Insurance Directive, contrary to the provisions of the Treaty and the Directive.
(e) That the State has failed to discharge its obligations under Article 10 of the EC Treaty in enacting a Scheme which results or is capable of resulting in the reinforcement of VHI’s dominant position in the Irish market, contrary to Article 82 of the Treaty.
(f) That the State has breached Article 86 of the EC Treaty in enacting a scheme which might have the consequence of bringing about the abuse of the VHI’s dominant position contrary to Article 82 of the Treaty.

At present the Scheme does not operate. The Act and the Statutory Instrument made thereunder provide for the introduction of the Scheme in certain circumstances. The Risk Equalisation Scheme, 2003 (S.I. No.261/2003) provides for an evaluation by HIA of the operation of health insurance in the market and in particular requires the HIA to determine the nature and distribution of risks amongst Scheme undertakings and to make recommendations to the Minister. The Minister is empowered to make a determination to introduce the Scheme. If the Scheme is implemented, it will undoubtedly involve the making of very substantial payments to VHI.

When granting leave to BUPA to commence these proceedings on 24 May, 2005, the court also granted a stay on the implementation of the First Recommendation. Ultimately, however, the Minister did not accept the first Recommendation and the Scheme was not implemented. However, as appears later, the HIA thereafter made a provisional Second Recommendation that the Scheme be implemented, which said recommendation became a final Recommendation on the 28 October, 2005, the day following the hearing of this appeal by the court.

By Notice of Motion dated 27 May, 2005, application was made on behalf of VHI pursuant to Order 84, Rule 22(6) and/or Order 84, Rule 26(1) of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the court, joining VHI as a notice party to the proceedings and permitting VHI to participate in the proceedings. In the grounding affidavit in support of the application, David Clarke, solicitor for the VHI, outlined VHI’s interest in the proceedings. He asserted there was a clear justification for VHI being joined as a notice party because VHI was and is the party entitled to receive the greater part of any funds becoming available as a result of payments directed by the Minister under the Scheme. VHI also relied on the fact that the Statement grounding BUPA’s application for judicial review and the affidavit sworn on behalf of BUPA by Martin O’Rourke on 24th May, 2005, made a number of specific claims, assertions and allegations in relation to the situation and conduct of VHI in the market.

The High Court (Quirke J.) made an order on 30 May, 2005, joining VHI as a notice party to the proceedings. It is of some significance to note that BUPA did not oppose VHI’s application at that time.

Thereafter, Opposition papers were served on behalf of the State and on behalf of VHI. The Statement of Opposition on behalf of VHI was verified by an affidavit sworn by Vincent Sheridan, the Chief Executive Officer of VHI, on 15 June, 2005. In the meantime, however, the Minister decided on 27 June, 2005, not to accept the First Recommendation and the claim by BUPA in respect of the First Recommendation as such became moot. However, the balance of BUPA’s claims continued, although from that point in time onwards - and in the absence of any further recommendation - it is fair to say that BUPA regarded the presence of the HIA and VHI as superfluous to the issues to be disposed of by the High Court.

The matter came back to the High Court (Quirke J.) on 4 July, 2005, when, with the agreement of the parties, the court directed the parties to exchange Points of Claim and Points of Defence. I should observe that the court on that occasion did not direct that the proceedings be remitted to plenary hearing. The proceedings were at all times and remain even now judicial review proceedings. The court did not rule on the appropriateness of VHI remaining as a notice party on that date and the respective positions of the parties were reserved.

Thereafter Points of Claim were served on behalf of BUPA on 6 July, 2005. Points of Defence were served on behalf of the State on 14 July, 2005. Points of Defence were served on behalf of VHI on 15 July, 2005.

By Notice of Motion issued on 8 July, 2005, BUPA sought certain directions from the High Court. Those directions were:-
(a) As to pleadings;
(b) As to the mode of trial;
(c) As to the further involvement in the proceedings of VHI;
(d) As to date of trial.

That application was granted on an affidavit sworn by Liam Kennedy on 8 July, 2005. In his affidavit, Mr. Kennedy asserted (inter alia) that VHI was no longer a proper person to be heard in the proceedings in light of the fact that the Minister had decided not to accept the First Recommendation. It was contended on behalf of BUPA that once the challenge to the validity of the First Recommendation was no longer a live issue in the proceedings and where the remaining subsisting issue was a constitutional and EC law challenge to the validity of the Scheme and to the 1994 Act, it was no longer appropriate for VHI to be a Notice Party to the proceedings.

In the course of his affidavit Mr. Kennedy asserted that had BUPA proceeded by way of plenary proceedings to bring its constitutional challenge, VHI “would have had no basis for seeking to become involved in those proceedings” and that while VHI may have had an interest in the outcome of the proceedings, it was “no different from any party interested in the outcome of a constitutional challenge brought to legislation”. He also contended that VHI was not a “proper person” to be heard within the meaning of Order 84 of the Rules of the Superior Courts. On that basis, BUPA requested the court to direct that VHI should no longer participate in the proceedings.

BUPA’s application was resisted by VHI for the reasons already stated. Quite apart from the potential effects of the First Recommendation, it was contended on behalf of VHI that there were other allegations and assertions made by BUPA which directly affected VHI, which said allegations in relation to the position or conduct of VHI could not properly be dealt with without VHI being a party to the proceedings. It was submitted that the proceedings were judicial review proceedings and that the court had already directed that VHI was an appropriate party to be joined as a notice party to the proceedings in its order of 30 May, 2005. It was further contended that, even if proceedings had been commenced by way of plenary summons, that would not have prevented VHI from being entitled to apply to be joined as a party to the proceedings having regard to the allegations made against VHI in the proceedings. In an affidavit sworn by Mr. Clarke on the 14 July, 2005, Mr. Clarke asserted in the clearest possible terms that the statutory provisions which the applicant sought to impugn affected only a very limited number of persons, namely, providers of private health insurance in Ireland. He stated that the evidence already placed before the court demonstrated clearly that VHI would be “uniquely adversely affected” by the undermining of the Scheme through any finding of unconstitutionality in the legislation, a fact which had been recognised by the HIA, the Minister and even the applicants themselves. No replying affidavit had been sworn on behalf of BUPA asserting the contrary.

By way of completion of the background circumstances, it should also be noted that proceedings were also brought by BUPA against a decision of the Commission approving the Risk Equalisation Scheme which is now the subject of a pending appeal before the Court of First Instance of the European Communities. VHI applied to intervene in those proceedings and an order permitting VHI to do so was made by the President of that Court on 2 April, 2004. In contrast with the Irish position, BUPA had opposed VHI’s application to intervene in those proceedings on the grounds that the position of VHI should be taken to correspond substantially with that of the State which had been already given leave to intervene in those proceedings. That particular contention however was rejected by the President of the Court of First Instance. The Court found that VHI would require to put its own arguments quite independently of the State.

The High Court (Peart J.) delivered judgment on BUPA’s application on 22 July, 2005. The court held that the remaining claims in the proceedings, namely, the constitutional and EU law challenge to the 1994 Act, were matters which could be decided upon by the court without the participation of VHI at the hearing.

The court explained its conclusion in the following passage of the judgment delivered by Peart J. (at p.9):-

“Arising out of a successful challenge to any piece of legislation there may often be persons who would be affected financially or otherwise. That fact alone is not sufficient to permit such persons to be joined in the plenary proceedings commenced against the Attorney General so that they can add their voices to the submissions which will be put forward by the Attorney General when he discharges his obligation to argue for the upholding of the legislation impugned. In the present case, the Attorney General is and will be fully and expertly represented to argue that case. He is not arguing that case in any sense on behalf of VHI, even though it is the principal, and indeed probably the intended beneficiary of the Scheme. Rather he is arguing for the constitutionality of the legislation on behalf of the Government and the people of Ireland. The private interest of VHI is not one which needs to be heard in order to decide upon the constitutionality of the legislation or the EU law challenge.”

Since the date of the judgment of the High Court a number of significant events have taken place.

Firstly, further evidence has been delivered on behalf of BUPA in the proceedings. This consists of affidavits of Martin O’Rourke (the Chief Executive of BUPA Ireland), Dr. Christian Kobolt (an economist) and Mr. Robert Parke (an actuary). The affidavits of Mr. O’Rourke and Mr. Parke each refer extensively to the alleged attributes and actions on the part of VHI in support of the claims made by BUPA in the proceedings. Moreover, the evidence of Dr. Kobolt comprises expert economic evidence which BUPA relies upon to contend that the Scheme is inconsistent with the purposes of the policy of the 1994 Act and infringes the EC Treaty. Dr. Kobolt in his report refers to the key attributes and conduct of VHI and the effect of that conduct. He produces statistical data relating to VHI’s business. A great deal of the report is alleged to contrast the positions and conduct of what Dr. Kobolt refers to as the “incumbent” or “monopolist” health insurer on the one hand and any new entrant to the Irish private insurance market on the other. Much of what Dr. Kobolt says in his report with regard to VHI’s operations and how it does its business is disputed by the VHI. VHI apprehends that Dr. Kobolt’s evidence will be directed to establishing that the Scheme is not necessary and/or that it is a restriction in competition. It thus contends that the court should have available to it all relevant evidence with regard to the market analysis which will form an integral part of the case.

It is important to point out that, by agreement between the parties, this proposed evidence has been served on VHI and VHI has responded to it in the interim without prejudice to the outcome of this appeal and so as to avoid the trial of the proceedings being delayed in the event that the appeal succeeds.

More significantly, under the 1994 Act and the Scheme, the HIA is obliged to consider on a half-yearly basis whether or not it is appropriate for it to recommend to the Minister whether Risk Equalisation payments should commence. In accordance with those obligations, the HIA did, on 12 September, 2005, express a further provisional recommendation to the Minister that the Minister should order the commencement of Risk Equalisation payments under the Scheme. The HIA, as already noted, made its substantive recommendation in favour of commencement to the Minister on 28 October, 2005. It is not in dispute that if the Minister accepts the further recommendation, the greater part of any Risk Equalisation Payments ordered by the Minister will require to be paid to VHI. On this basis, VHI contends it has an ongoing interest in the 1994 Act and in upholding the Scheme and that that interest is not and should not be dependent upon whether a recommendation is current or on whether the Minister accepts or refuses to accept any particular recommendation of the HIA.

Decision

Given that the court at the conclusion of the hearing herein directed that the appeal be allowed and that VHI be rejoined as a Notice Party in the proceedings, the remainder of this judgment is confined to an outline of the reasons for the court’s decision.

Firstly, it is clear beyond question that the present proceedings have at all times been judicial review proceedings and continue now as such. As noted above, Points of Claim, rather than a Statement of Claim, were delivered pursuant to the court’s directions and Points of Defence, as is appropriate to judicial review proceedings, were filed in reply by the State respondents. Indeed the State respondents objected strongly to the applicant’s attempts to convert the proceedings from judicial review to a plenary hearing, not least because it was apprehended that more challenges might be made in respect of any further recommendations of the HIA.

Order 84, Rule 22(2) of the Rules of the Superior Courts provides that:-

“The Notice of Motion or summons must be served on all persons directly affected…”

“If on the hearing of the motion or summons the court is of opinion that any person who ought, whether under this rule or otherwise, to have been served has not been served, the court may adjourn the hearing on such terms (if any) as it may direct in order that the Notice or Summons may be served on that person.”

“ On the hearing of any motion or summons under Rule 22, any person who desires to be heard in opposition to the motion or summons, and appears to the court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with Notice of the Motion or the summons.”

In the course of his judgment, Finlay C.J. (at p.78) stated as follows:-

“If application is made for liberty to issue proceedings for judicial review and the claim includes one for certiorari to quash the decision of a court or of an administrative decision- making authority the applicant must seek to add as a party any person whose rights would be affected by the avoidance of the decision impugned. If liberty is granted the court should except for special reasons ordinarily add such person as a party.”

“This is a case in which the notice party, as indeed the High Court judge accepted, is a party with a vital interest in the outcome of the matter. As Finlay C.J. said in the O’Keeffe v An Bord Pleanála case, where you have a party such as the Notice Party in the present case who is vitally interested in the outcome of the proceedings, they must be joined as a party and will be joined by the court if the applicant does not join them. In those circumstances, it seems to me that once the notice party is there, once he is in the proceedings protecting his interests, he may find himself in precisely the same position as the respondent. He may find himself in the position that he has been there, of necessity, to protect his interests, to advance arguments that may not have been advanced by the IRTC, and to have had the benefit of his own counsel and solicitor to protect his interests. It would be quite unjust that he should have to pay his costs because the applicant company has no assets, where he has been brought there as a necessary party.”

While it is true, as argued by counsel for BUPA, that a challenge to legislation per se is a matter of public law affecting the public at large and that a private citizen normally will not be joined in proceedings where the Attorney General seeks to uphold the constitutionality of the legislation in question, a very different situation may be said to exist when, as in the present case, a particular party would be “uniquely adversely affected” if the application to strike down the Act and Scheme were to be successful.

In this regard counsel for the Minister has pointed out that it is by no means unusual for third parties to be heard where the issue is the alleged unconstitutionality of legislation.

Thus, for example, in Buckley v Attorney General (1950) I.R. 67, the personal representative of the surviving trustees was a defendant. Likewise, in Blake v Attorney General (1982) IR 117, the tenants of one of the defendants were represented by counsel and argued the case before the High Court. Again, in O’B v S (1984) I.R. 316, where the constitutionality of certain provisions of the Succession Act, 1965 were under challenge, both the testator and the offspring appeared and argued the constitutional point. Counsel for the Minister suggested therefore that it may be said there is a practice that at least a third party who stands “immediately affected” by the outcome of a constitutional challenge is entitled to appear and be heard in such proceedings.

In the instant case it may be genuinely said that the abolition of the Scheme would immediately impact the legal environment in which VHI is required to operate and would have very significant consequences for how VHI does its business in the future having regard in particular to its statutory obligations to maintain reserves.

Furthermore, very serious allegations are made by BUPA in its Points of Claim to suggest that if Risk Equalisation payments are commenced under the Scheme, VHI will be thereby enabled to abuse its dominant position in the Irish market. In the course of the hearing before us Mr. Gallagher on behalf of VHI submitted, we believe correctly, that a detailed market analysis will in this context form an integral part of the upcoming hearing. Indeed the exchange of evidence and other materials which has taken place since the hearing in the High Court fully supports that proposition. It is incontrovertible that VHI is in a unique position to contribute to that debate and is, in the words of its own solicitor, likely to be “uniquely adversely affected” if the applicant’s claims, which go beyond a mere challenge to the constitutionality of the legislation, are successful.

The proceedings will inevitably involve an examination of the nature of Risk Equalisation, the competitiveness of the market, the nature of community rated markets and the issue of risk selection. The role of VHI in that market and the nature of its behaviour in the market will be central issues. It follows that VHI has the greatest possible interest and need to express its views on matters which go to the heart of the case being made by BUPA. Any suggestion that VHI is likely to abuse such dominance with the activation of Risk Equalisation makes it all the more important that the views and input of the VHI in this case would be available to the court.

While it is true to say that the proceedings as presently constituted are shorn of any challenge to the first recommendation from HIA to implement Risk Equalisation, recent days have brought news of a further recommendation from HIA which confirms our view that the original status quo wherein VHI was joined to the proceedings without demur by BUPA has been restored. While Mr. Collins on behalf of BUPA stated in court that his clients had no present plans to challenge that new recommendation, preferring instead to challenge the legislation, it is impossible to avoid the conclusion that there is a certain inconsistency in BUPA’s position between then and now in relation to VHI’s participation in the proceedings.

In the course of argument, it was also suggested by counsel for VHI that the learned High Court judge had applied the wrong test in deciding the issue of joinder or non-joinder by reference to Order 15 of the Rules of the Superior Courts.

Order 15, Rule 13 provides:-

“No cause or matter shall be defeated by reason of the mis-joinder or non-joinder or parties, and the court may in every case or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added.”

In that case the plaintiffs had instituted proceedings against two defendants, but in due course served Notice of Discontinuance in respect of the first named defendant. That defendant applied under Order 15 to be rejoined to the proceedings on the basis that he feared his reputation might be impugned in the course of the hearing against the second named defendant and he wished to protect himself in that regard. The court held that a person whose good name and reputation might be affected by the outcome of a case was not automatically entitled to be joined as a defendant, if his presence was not required by the court for the effectual and complete adjudication of the issues to be determined. The court also approved the reasoning of Lynch J in Fincoriz S.A.S. Di Bruno Tassin Din e C v Ansbacher & Co. Ltd (Unreported, High Court, Lynch J., 20th April, 1987) that there must be “exceptional circumstances” before a person could be joined as a defendant against the wishes of a plaintiff.

Quite apart from the fact that this court believes that the test in Barlow Fanning was not the correct test to apply in this particular case, the court feels nonetheless that the facts of the present case are such as to bring it within the principles laid down in that case. That is to say, this court is strongly of the view that this case does involve exceptional circumstances and that the continued presence of VHI in the proceedings is “necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the cause or matter”. The court has reached this conclusion having regard, in particular, to the matters alleged against VHI or directly affecting VHI in the Statement of Grounds, the affidavit sworn on behalf of BUPA, the Points of Claim delivered by BUPA and having regard also to the fact that VHI would be “uniquely adversely affected” if BUPA were to succeed in the proceedings. Furthermore, even if the test contained in Order 15, Rule 13 were the correct test to apply, this court feels that there ample grounds for holding that VHI is a body whose “proprietary or pecuniary rights are or may be directly affected by the proceedings either legally or financially”. That this may be a relevant consideration is evident from the corresponding law in England, as noted by Keane CJ in Barlow v Fanning when (at p.599)he cited a passage to that effect from Halsbury’s Laws of England (4th ed.) Vol. 37, para.226. Mr. Collins rather ingeniously sought to deal with this aspect of the case by suggesting that VHI would lose nothing if the case went against them, that they merely have at present the contingent possibility of a ‘financial windfall’ if the Scheme becomes operative. The court can not accept this contention because to do so is to ignore the reality of the unprecedented mano a mano struggle between the rival insurers in this case and their respective claims of detriment to financial viability if unsuccessful in the proceedings.

Given that the circumstances which warrant the joinder or intervention of a party in proceedings before the Court of First Instance are agreed not to coincide with those contained in the Rules of the Superior Courts, the court does not seek to invoke in aid of its decision the fact that the Court of First Instance has allowed VHI intervene in the challenge to the ruling of the Commission in favour of Risk Equalisation.

It is nonetheless a factor which at the level of practical common sense suggests the appropriateness of rejoining VHI in the present proceedings, particularly when the further recommendation of the HIA for the commencement of Risk Equalisation is taken into account.

For these various reasons, the court has allowed the appeal in this case.