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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> C.M. -v- Minister for Health and Children [2017] IESC 76 (12 December 2017)
URL: http://www.bailii.org/ie/cases/IESC/2017/S76.html
Cite as: [2017] IESC 76
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Judgment
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THE SUPREME COURT [Appeal No. 260/2011]
[Record No. 2009/5CT] Clarke C.J. McKechnie J. MacMenamin J. Dunne J. O’Malley J. In the Matter of an Appeal pursuant to Section 5(15) of the Hepatitis C Compensation Tribunal Act 1997, as amended by the Hepatitis C Compensation Tribunal (Amendment) Act 2002 And in the Matter of a Claim by C.M. And in the Matter of a Hearing and Decision made by the Hepatitis C Compensation Tribunal to the Claimant, C.M., dated the 14th May, 2009, and in the Matter of an Appeal of the Claimant, C.M.
C.M. Applicant/Respondent -and- THE MINISTER FOR HEALTH AND CHILDREN Respondent/Appellant JUDGMENT of Mr. Justice William M. McKechnie delivered on the 12th day of December, 2017
Introduction
2. In June, 2009, Ms. C.M. sought to use the statutory process provided for under the 1997 Act to appeal the award to the High Court. In April, 2010, the Minister for Health and Children (“the Minister” or “the appellant”) responded by issuing a motion to enlarge the time for the bringing of a cross-appeal, by which the Minister intended to challenge the above stated “causation finding” of the Tribunal. By judgment delivered on the 18th February, 2011 ([2011] IEHC 132), the High Court (Irvine J.) found that the Minister had no legal entitlement to maintain a cross-appeal in respect of that issue in circumstances where the claimant’s own appeal related only to the amount of damages awarded to her.
3. On application made under section 5(19) of the 1997 Act, the High Court certified two specified questions of law for consideration by this Court. Those questions ask, first, whether the Minister may cross-appeal or appeal a finding of the Tribunal as to causation or quantum pursuant to section 5(15) or any other provision of the 1997 Act, and, second, whether the Minister must formally cross-appeal in every appeal brought by a claimant where the Minister only wishes to uphold the decision taken by the Tribunal. This judgment is concerned solely with determining these said questions.
4. Prior to addressing such questions directly, it may be helpful to set the scene by referring to the background to the statutory compensation scheme established in 1997, the relevant provisions of the Act, the findings made by the Tribunal in respect of Ms. C.M., and the challenge which the Minister seeks to make in relation to those findings.
Background 5. The background to the enactment of the 1997 Act can perhaps best be understood by reference to the Report of the Tribunal of Inquiry into the Blood Transfusion Service Board (“the BTSB”), published in March, 1997; however, as that is a very lengthy and detailed document, only a brief reference is possible in this judgment.
6. The Tribunal’s Report identified the primary source for the infection of Anti-D produced by the BTSB as being the taking of plasma from a Patient X in 1976 and 1977, and the use of that plasma to form pools from which the product was manufactured. The use of this plasma was in breach of the BTSB’s own standards for donor selection, which prohibit the use of blood or plasma from a person with a history of jaundice or Hepatitis, or a person who was recently transfused. The Report found that the BTSB failed properly to react to reports that recipients of the Anti-D made from Patient X’s plasma had suffered jaundice and/or Hepatitis. Whilst the manufacture of existing Anti-D was terminated, existing batches continued to be issued. A further contribution to the infection of Anti-D subsequently arose from the use of blood from a Donor Y. This blood was taken in 1989 and issued between 1991 and 1994, notwithstanding that the stored plasma had by that time tested positive for Hepatitis C.
7. The Report was also critical of the response of the National Drugs Advisory Board (“the NDAB”) in carrying out its functions in advising on the grant of a manufacturing licence for Anti-D and in failing to carry out adequate inspections. It further stated that successive Ministers for Health and Departments of Health had failed to adequately supervise the NDAB in exercising these functions, and had failed to provide it with appropriate resources.
The Non-Statutory Scheme 8. On the 15th December, 1995, the Minister for Health established a non-statutory tribunal to compensate certain persons who had contracted Hepatitis C within the State from Anti-D Immunoglobulin, whole blood or other blood products. The establishment of this tribunal (“the non-statutory tribunal”) was generally seen a positive step by all parties. As explained by Geoghegan J. in his judgment in D.B. v Minister for Health [2003] 3 IR 12 at p. 62:
9. By May, 1997 this tribunal had received 1,686 applications. It made 326 lump sum and provisional awards, amounting to approximately £38 million, excluding administrative and legal costs. No award of that tribunal had ever been rejected. However, certain factors limited the effectiveness of its operation and this led to agitation for structural and other changes to the scheme. Foremost amongst these deficiencies were the fact that the non-statutory tribunal had no power to award aggravated or exemplary damages; the fact that it was obliged to take into account, in calculating an award, any statutory benefit which a claimant had received or would receive or become entitled to; and the fact that there was no right of appeal from any award made by it.
The Statutory Tribunal 10. As a consequence of public dissatisfaction with these elements of the scheme, the 1997 Act was enacted and became law on the 21st May, 1997. Its basic purpose, per sections 2 and 3 of the Act, was to set up a statutory tribunal to replace its non-statutory predecessor. The establishment day for the Hepatitis C Compensation Tribunal was the 1st November, 1997, on which day the non-statutory version was dissolved (section 6(1) of the 1997 Act). Claims pending before the non-statutory tribunal as of that date were to be heard and determined by the statutory Tribunal in the same way as any other claim made under the 1997 Act (section 6(2)). A right to appeal an existing award was provided for, but in terms quite different from that applying to a claim first initiated under the new scheme (section 6(3)(e) of the Act; see para. 90, infra).
11. According to the Introduction to the Tribunal’s 2016 Annual Report, there were 33 new claims submitted to it that year, making a total of 4,816 to the end of 2016. While the Tribunal paid awards in 28 cases in 2016, approximately 458 initial claims were still awaiting hearing. The Tribunal paid a total of €15,027,384 in respect of awards during 2016. To the end of 2016, the total awards of the Tribunal amount to €719,685,501. A further €84,835,704 has been paid following High Court appeals, and the Reparation Fund established under the Act has paid out €158,048,571. Cumulatively, this amounts to more than €960 million paid in compensation from 1996-2016. It is a sobering figure which gives a real sense of the degree of harm inflicted on the unfortunate victims, many of whom died (estimated as around 260 deaths as of 2015), and their families. A further €169,864,915 in total has been spent on legal costs during that period.
12. It should also be noted that the work of the Tribunal was expanded by the introduction of the Hepatitis C Compensation Tribunal (Amendment) Act 2002, which enabled the Tribunal to award compensation to certain persons who contracted HIV within the State from certain blood products and to provide for related matters. The Tribunal has since been known as the Hepatitis C and HIV Compensation Tribunal (section 2 of the 2002 Act). Such amendment, though of self-evident importance to those persons, is of no moment to this appeal.
13. It may be helpful, at this juncture, to set out the main provisions of the 1997 Act and the related Rules of Court.
The 1997 Act - Main Features
(ii) The Claimant: the criteria and qualifying conditions for access; (iii) The Assessment of Compensation, including aggravated and exemplary damages; (iv) The right to reject or accept or appeal any award and the consequences of such actions; and (v) The right of appeal to the High Court from a Tribunal decision by both the claimant and the Minister. The Tribunal 15. The nature of this Tribunal, as discerned from its powers and functions, is quite unlike any other statutory body established to interface with victims of State culpability; such victims and their families frequently suffered the most catastrophic consequences, including death, from the administration of the said blood products.
16. The Tribunal was given a broad array of powers under the 1997 Act. As such, the Tribunal:
(ii) can appoint its own counsel, who could call expert evidence as the Tribunal required; (iii) can appoint medical and other experts to advise it; (iv) can seek assistance, through counsel, from persons or bodies other than the claimant who had an interest or involvement in, or who might be affected by, any given claim; (v) relies principally on written material in determining a claim before it.
The Claimant 17. The criteria and qualifying conditions for access are set out in section 4(1) of the 1997 Act. The following persons may make a claim for compensation:
• Receiving a blood transfusion, or • Receiving a blood product, (ii) The children or spouse of any such person who had been so diagnosed; (iii) A dependent of any such person where the death of that person was caused or substantially contributed to by the virus; and (iv) Any person who has suffered financial loss from caring for those persons mentioned at subparas (i) and (ii) above.
The Assessment of Compensation 18. The assessment of compensation under the Act is governed by the following principles:
(ii) Any award made should be calculated on the same basis as if the complaint was tortious in nature. Accordingly, the relevant common law principles and statutory provisions (e.g. the Civil Liability Act 1961, as amended) apply (section 5(1)). (iii) A claim for aggravated or exemplary damages may be made if a claimant can establish a legal entitlement to it (section 5(3)). (iv) As an alternative to such a claim, a person may simply apply for and is entitled to receive, as of right and without any formal proof, an uplift of 20% on his total award (section 11(4)). (v) An order for reasonable costs and expenses would follow the making of any award (section 5(5)). Consequences of Accepting or Rejecting an Award 19. A qualifying claimant has to choose whether to accept, reject, or appeal their award. Depending on the option utilised, the effect will be to “tribunalise” the claim, or not (see para. 53, infra):
(ii) If within this said period such an award is rejected outright or is neither accepted or rejected (a “deemed rejection”), the claimant is no longer within the scheme and is free to pursue any other course open to her, including the instituting of court proceedings. (iii) An appeal taken against an award is deemed a rejection of that award pursuant to section 5(9)(b) of the Act; however, unlike the class of persons last mentioned, such appellant is regarded as being in the same situation as a person who accepts the award, in that she is prohibited from resorting to or continuing with court proceedings. Thus a claimant who appeals their award is considered to have been “tribunalised”. Right to Appeal an Award to the High Court 20. The situation regarding appeals to the High Court is as follows:
(ii) The Minister may cross appeal any such appeal (both pursuant to section 5(15) of the Act). (iii) The Minister may also appeal any award of aggravated or exemplary damages (section 5(16) of the Act).
The Relevant Provisions of the 1997 Act
22. The definition/interpretation section of the Act, section 1, is of relevance only in respect of what an “award” is said to mean, namely, an “award of compensation”. That term, however, is of considerable significance and, at least to some extent, the point under discussion in this case might be more easily understood, if not more easily solved, by keeping in mind the equivalence which “compensation” or “damages” have to an award. The word “decision” is not defined but, as will become apparent, its meaning too is important to this case.
23. Section 5 of the 1997 Act deals with the rights and entitlements of those persons affected by a “decision” or “award” of the Tribunal. It also contains the provisions relating to the appeals which may be brought within the statutory scheme, which are of course central to this judgment. Section 5(9) provides as follows:
Subsection 13 concerns awards and settlements in respect of a claimant who is a minor, and is of no relevance to this case.
24. There are three other critical provisions for present purposes: the first is section 5(15). It was based on this provision that the Minister sought to cross-appeal the decision of the Tribunal of the 14th May, 2009. It states that:
Secondly, it is also necessary to refer to subsection (16). Other than the cross-appeal referred to in section 5(15), subsection (16) contains the only right of appeal given to the Minister under the Act. It reads as follows:
Finally, subsection (18) should be noted. It provides that:
Rules of the Superior Courts (No. 7) (Appeals from the Hepatitis C Compensation Tribunal), 1998, S.I. No. 392/1998 25. The only rules of court which are relevant on this appeal are those contained in Order 105A of the Rules of the Superior Courts (“RSC”), which came into effect on the 23rd October, 1998. As both parties have relied on certain provisions of this Order, it is worth setting out the relevant parts thereof. Rules 1 and 2 provide as follows:
2. (1) Where an appeal against an award is brought by a claimant, such notice of motion shall be issued within one month from the date of receiving notice of the making of the award or within such greater period as may be prescribed by the Minister.
(2) Where an appeal against a decision of the Tribunal is brought (other than an award) such notice of motion shall be issued within one month from the date of the decision.
(3) Where an appeal is brought by a claimant, the Minister may cross-appeal within one month of the date of service of the notice of motion upon the Minister. Such cross-appeal shall be taken by way of a notice of motion. An appeal by any party shall put the matter appealed against fully in issue and a notice of cross-appeal shall not be required on that issue by any other party.
(4) Where an appeal is brought under section 5(16) of the Act by the Minister or a relevant agency, such appeal shall be brought within one month of the date of the making of the award of aggravated or exemplary damages.
(5) Any appeal brought by a person pursuant to section 6(3)(e) of the Act shall be brought by originating notice of motion within six months from the date of the commencement of these rules or within such further period as may be permitted by the court under Order 122.” The History of the Instant Proceedings
27. Her claim was heard on the 14th May, 2009, with the Tribunal delivering its decision on the same date. Having heard evidence from a Professor John Hegarty, the Tribunal was “satisfied, as a matter of probability, that [the claimant] contracted Hepatitis C as a result of the administration of an injection of contaminated Anti-D following the birth of her daughter in 1977 from batch 244.” Evidence had been given that her clinical history was consistent with severe post-viral chronic fatigue syndrome, which is associated with Hepatitis C infection; the Tribunal also heard that she suffered from other symptoms such as arthralgia and fibromyalgia. After the birth of her daughter her fatigue had been so severe that she was unable to complete her qualifications to become a solicitor. Having considered her employment prospects in Ireland in the early 1980s, the Tribunal awarded her the sum of €250,000 for loss of opportunity, together with €150,000 for general damages and €480 for visits to Professor Hegarty, amounting to a total award of €400,480.
28. On the 11th June, 2009, Ms. C.M. lodged an appeal against her award. Though her appeal documents as originally drafted sought an appeal against both the decision and the award of the Tribunal, it was made clear in the grounding affidavit that as causation had been found in her favour, the appeal was on a narrower basis and in fact related solely to the award (see paras. 43 and 70, infra).
29. On the 1st April, 2010, a notice of motion was issued on behalf of the Minister seeking an order pursuant to Order 122, Rule 7 RSC enlarging the time for the bringing of a cross-appeal against the decision of the Tribunal dated the 14th May, 2009. This notice of motion formed the subject matter of the High Court’s judgment in this case. The Minister sought to cross-appeal the finding of the Tribunal to the effect that Ms. C.M. qualified for compensation under the scheme by having satisfied the criteria set out in section 4(1), in the manner provided for by s. 4(8) of the 1997 Act. This finding was described in the High Court judgment as a finding on “causation” (see para. 50, infra)
30. The reason for the Minister’s delay in bringing the cross-appeal was that, according to the grounding affidavit, the decision to appeal the causation determination was “not straightforward”, in that it involved “the assessment of certain legal issues and also the consideration of material of significant scientific complexity.” The solicitor acting on behalf of the Minister had written to the claimant on the 13th August, 2009, notifying her that an appeal would be lodged in due course. He then contacted Professor John Crowe, consultant gastroenterologist, to seek his opinion on whether, on the facts of this case, the claimant had contracted HCV in the manner decided upon by the Tribunal. Professor Crowe’s medical report, which was exhibited in the grounding affidavit of the motion seeking the extension of time, cast doubt on whether the claimant had contracted HCV in 1977, or even before or since that time. There were three bases to this opinion: first, that Ms. C.M.’s symptoms of depression and fatigue pre-dated the alleged infection in 1977; second, and as accepted by the claimant, she tested negatively for HCV on all tests (ELISA, RIBA and PCR tests); and, third, that none of the other 63 known recipients of Batch 244 exclusively had tested RIBA- or PCR-positive. Armed with this evidence, the Minister decided to proceed as indicated.
The Judgment of the High Court
32. The conflicting interpretations of section 5(15) asserted by the parties can be summarised as follows.
The service of a Notice of Appeal in respect of an award has the statutory consequence of the award being rejected (section 5(9)(b) of the 1997 Act). Such rejection is not, however, confined to the question of compensation; rather it extends to the entirety of the decision made by the Tribunal, which includes the prior finding on the question of causation. Any appeal under section 5(15) must therefore have the effect of appealing the whole decision, including causation. Accordingly, on any interpretation of that provision, the Minister for Health is entitled to agitate the issue of causation before the High Court.
The Minister is granted a right to cross-appeal the claimant’s “appeal”, but not the “decision” of the Tribunal. As a result, his right to challenge the appeal is confined solely to the complaint raised by the claimant in the Notice of Appeal. The mere fact that a decision is deemed rejected by the service of such a Notice does not negative the antecedent decision of the Tribunal on causation. Accordingly, section 5(15) of the 1997 Act does not permit the Minister to raise an issue external to the scope of the Notice of Appeal as served. Thus, in this case, the Minister could engage with the issue of quantum only. 33. Irvine J., for the reasons given in a detailed and careful judgment, favoured the interpretation advocated by the claimant. The learned judge was of the view that section 5(15) is “somewhat obscure and ambiguous” (paras. 35 and 44) and thus it required to be construed by reference to the plain intention of the Oireachtas as ascertained from the Act as a whole. Her reasons for finding such ambiguity related, first, to the unique nature of the cross-appeal given to the Minister under the section, in that, unlike in general civil procedure, he enjoys a right of cross-appeal under the section despite not enjoying the same right by way of appeal; and, second, the differing interpretations of the word “appeal” in the section, as above described.
34. Irvine J. thus used a purposive approach to interpret the provision in question, and came to the conclusion that the claimant’s construction was to be favoured. Her reasons for doing so are referred to later in this judgment, and therefore it is not necessary at this juncture to further repeat those points (see paras. 75-95, infra). In the course of her judgment, the learned judge made the following observation at paragraph 55:
This comment directly gives rise to the second certified question on this appeal. That question and my views thereon are addressed at paras. 99-105, infra. The learned judge continued by stating that had she found for the Minister as regards the extent of the right of cross-appeal, on the facts of the case she would have exercised her discretion to grant the extension of time sought to cross-appeal. That conclusion is of no relevance for the disposition of the appeal to this Court.
Appeal to this Court
2. Must the [Minister] formally cross-appeal in every appeal brought by a Claimant where the [Minister] only wishes to defend the decision taken by the Tribunal?” These questions are the only issues before the Court on this appeal.
Submissions of the Appellant 36. Although the Minister initially stated as his first ground of appeal that Irvine J. erred in holding that section 5(15) of the 1997 Act is ambiguous and that a purposive interpretation of the statutory framework is appropriate, he now accepts that the learned judge was correct in so finding. Having thus acknowledged, and having also accepted that he has no free-standing right to a full appeal from a Tribunal decision, with the exception of that given by section 5(16), broadly speaking he makes five points in support of his stated position.
37. The Minister submits, by reference to the long title of the 1997 Act, that the purpose of the Act is to compensate only those who can rightfully be regarded as qualifying persons. If, subsequent to a favourable decision of the Tribunal in this regard, compelling evidence should come to light to suggest that either the claimant was not infected with Hepatitis C, or was so infected but for reasons other than exposure to a blood product provided by the State, it would be an overly narrow reading of section 5(15) to prevent the Minister from raising this issue, even where the Notice of Appeal was confined to quantum, as in this case. This is particularly so where there is no legitimus contradictor before the Tribunal and where the Minister only becomes aware of the proceedings if and when an appeal issues.
38. The Minister further argues that there is no express prohibition in the Act which precludes him from raising causation issues in the cross-appeal. Had the Oireachtas so intended, it could readily have included such a provision. As with proceedings which operate independently of the scheme, the party who is cross-appealing can fully engage with the decision below, unless expressly provided otherwise. Furthermore, the appellant submits that Order 105A, Rule 2(3) explicitly permits a cross-appeal on causation in the present circumstances. It provides, inter alia, that “[a]n appeal, by any party, shall put the matter appealed against fully in issue” (emphasis added). This could not be confined to an appeal on aggravated or exemplary damages, as those matters are dealt with separately under Order 105A, Rule 2(4). Thus “an appeal by any party” must include a cross-appeal by the Minister.
39. Finally, the Minister refers to D.B. v. Minister for Health and Children & Anor [2003] 3 IR 12 (“D.B. v. Minister for Health and Children” or “D.B.”) in respect of what constitutes a “decision” of the Tribunal and what, therefore, is being rejected when an appeal against an award is moved. It is submitted that D.B. decided that an award is a decision for the purposes of section 5(15) of the 1997 Act; it is not part of a decision, or a bundle of decisions, it is a decision, the component parts of which are the compensation award and the causation finding. Once the decision of the Tribunal (here, the award) is appealed to the High Court, the award, as well as the basis for making it (“the causation finding”) is deemed rejected pursuant to section 5(9)(b). Thus in this case the “decision” being appealed includes the causation finding because the two component parts cannot be separated: “[a]n award is a decision for the purpose of section 5(15) and it is a single decision” (per McGuinness J. in D.B. at p. 54). Once rejected, the Tribunal’s decision no longer stands and the appeal proceeds de novo, save that some limitations will still apply, such as the fact that the Minister may not cross-examine the claimant. Thus once the award is rejected, so too is the basis upon which it was made. Accordingly, the Minister says that he is within his rights in challenging the causation finding.
40. In relation to the second question upon which leave was given, the Minister says that this point is of central importance to the effective administration of the Hepatitis C scheme. Heretofore his practice has been to interpret Order 105A RSC as not requiring the service of a cross-appeal in respect of each and every appeal taken by a claimant. Where the State supports the Tribunal, the Minister has “stood in the shoes” of that body without the necessity of filing a formal cross-appeal. It is submitted that this practice is in accordance with Order 105A RSC and that no cross-appeal is required. If the judgment of the High Court is upheld in this regard, it may well have the effect of preventing the Minister from engaging with appeals in the future unless a formal cross-appeal has been brought. Such a finding could have significant costs repercussions for how such appeals are conducted: this situation can be entirely avoided if Order 105A is given its ordinary and natural meaning.
Submissions of the Respondent 41. The respondent adopts in its entirety the reasoning of the High Court. She notes at the outset of her submissions that the first certified question is probably limited, on the facts, to causation as opposed to quantum, as that was the issue which was addressed by the learned trial judge.
42. Ms. C.M. refers to the detailed consideration of section 5(9) of the 1997 Act in D.B. v. Minister for Health and Children. Denham J. (as she then was) and McGuinness J. each explained that this provision gives a claimant three choices: he or she can accept the award, reject the award, or appeal the award under subsection (15). A claimant must do one of the three, whether by deliberate choice or default. If she rejects the award simpliciter she drops out of the scheme, but with an appeal she remains within it, even though she is also deemed to have rejected the award. The respondent further submits that D.B. is not an authority for the proposition advanced by the Minister (para. 39, supra), and adds that while not all decisions are awards, an award is a decision for the purposes of section 5(15) of the Act.
43. D.B. makes it clear that a deemed rejection of the award by the service of an appeal is not the same as an outright rejection. Such appeal does not set at nought or negate a positive finding of the Tribunal in favour of a claimant on the issue of causation. If that were the case, there would be little to distinguish an appeal from a simple rejection, whereas in fact there are obvious differences between the court process which would be the only available option after a rejection, and the appellate process under Order 105A RSC. Moreover, as the High Court noted, it was clear that Ms. C.M.’s appeal was limited to the award of damages: it would make no sense to challenge the finding on causation. Therefore, based on the language of section 5(9), the judgments in D.B., and the concession made in the High Court (para. 70, infra), it is untenable to submit that Ms. C.M.’s appeal had the effect of putting causation in issue.
44. The respondent then addresses whether section 5(15) of the 1997 Act nonetheless permits the Minister to cross-appeal on causation. She submits that on the wording of that subsection, the appeal is against the “decision” of the Tribunal, whereas the cross-appeal relates to the claimant’s “appeal”. Thus the scope of the cross-appeal is limited to the claimant’s appeal. Ms. C.M. further submits that, contrary to the appellant’s submissions, Order 105A, Rule 2(3) RSC in fact favours her construction of section 5(15). She states that it is only “the matter appealed against” that is put fully in issue; this position is supported by a comparison with the wording of Order 105A, Rule 2(1) and (2). In the alternative, if Order 105A, Rule 2(3) is found to support the Minister’s reading of section 5(15), it is submitted that the Rules of the Superior Courts are a statutory instrument and would always be subject to a legislative provision in the hierarchy of legal principle (Luby v. McMahon [2003] 4 I.R. 133). Accordingly, the Rules could not prevail over what the respondent submits is the correction interpretation of the primary legislation.
45. Ms. C.M. also draws attention to matters said to be relevant in applying a purposive approach to the interpretation of the 1997 Act. She refers to the background of the Act, specifically the intention that it would remedy defects in the non-statutory scheme, and also to its “central purpose” as identified by McGuinness J. in D.M., namely, to award compensation to certain persons who have contracted Hepatitis C. The respondent adopts each of the factors addressed by Irvine J. at paragraphs 44 to 56 of her judgment in this case; those factors are addressed below.
46. Finally, as to the second certified point, the respondent maintains a neutral position. She states that this point simply does not arise out of the facts of this case as here the Minister wishes to do more than simply defend the decision taken by the Tribunal and is actually seeking to overturn that decision, such that the respondent would receive no compensation. She does, however, note that the logic of the High Court judgment is that a cross-appeal only arises in circumstances where a claimant appeals an award and the Minister wishes to convince the High Court to award a lesser sum.
Discussion/Decision 47. As above noted, the legislation has expressly informed us as to what it intended the word “award” to mean (para. 22, supra). It has, however, left to judicial authority what a “decision” of the Tribunal means, or, more accurately, what it means in any given context, in particular when one looks at subsections 5(9), 5(15) and 5(16) of the 1997 Act.
48. Before focusing on these provisions, however, it is important to bear in mind that during the course of adjudicating upon any claim before it, the Tribunal may be called up to make a number of different rulings, all of which could be described as decisions. The following list gives but a flavour of what might be involved. The Tribunal may be called upon:
(ii) to require the attendance of a person to give evidence or to produce documents relevant to the claim; (iii) to extend the specified period for the making of a claim, where it considers there are exceptional circumstances to so do;
(v) to decide whether to permit a claimant to change her position in seeking a lump sum or a provisional award, or to obtain the payment of an award in instalments (subsections 5(8) and (11), respectively); and, finally, (vi) where an award is made, the Tribunal is obliged to award reasonable costs and expenses under section 5(5) of the Act.
49. In addition, the Tribunal must also decide on who qualifies for access to the scheme: this could be classified as a jurisdictional question in the sense that unless a claimant can satisfy the provisions next mentioned, the Tribunal cannot consider the issue of compensation. This issue involves a consideration of sections 4(1) and (8) of the 1997 Act, it being unclear whether the latter, as a matter of substantive law, adds much to the former. To take but a single example, section 4(1)(a) qualifies a person who has been diagnosed with Hepatitis C as a result of the use of Human Immunoglobulin Anti-D within the State. Section 4(8) provides that in respect of the same category of person, a claimant must prove on the balance of probabilities that she has been so diagnosed resulting from the same cause, again within the State. Perhaps the explanation is straightforward and is that which I am about to describe. In any event, subsection (8) is generally said to be dealing with “causation”, whereas subs (1) is thought of as referring to “qualifying persons”.
50. What happens in practice raises an interesting but not wholly germane point. Is this essential qualification requirement decided upon as a sort of preliminary issue, or does it fall to be considered as part of the overall case? In other words are the provisions in section 4(1) of the Act looked at separately from those in section 4(8)? I doubt strongly whether they are, as both subsections are clearly complementary of each other, with the former identifying in principle who may qualify and the latter stating where the onus and standard of proof lie on that particular issue. It therefore seems to me that whether one describes the issue which the Minister is trying to agitate in this appeal as a “qualification issue” or as a “causation issue” is not of any real significance. Given that the learned High Court judge described it as a “causation finding”, albeit acknowledging that such a phrase may not be entirely accurate, I too will adopt the same terminology, though with the same reservation.
51. Whichever way it is described, what is clear is that unless the provisions of sections 4(1) and (8) of the 1997 Act are satisfied, that is an end to the claim within the statutory scheme. There can be no question of an award in such circumstances. What is equally clear, however, is that if the qualifying conditions are met, the next stage in the process is for the Tribunal to consider the question of compensation, i.e. to assess damages, by applying the same common law and statutory principles as if the subject matter were a tort claim (sections 5(1) and (2) of the Act). This is subject to an important relieving provision, namely, section 4(7) of the Act, which provides that negligence does not have to be established. The only caveat to this presumption is where a claim for aggravated or exemplary damages is made, as a claimant must prove negligence in respect of either such head of damages. However, even that position is qualified in the sense that a claimant may utilise sections 11(4) and (6) of the Act as an alternative to seeking such damages, and thus automatically obtain a 20% uplift on the total sum assessed. Accordingly, there are a number of sequential steps in maintaining a successful application, somewhat loosely analogous to a claim in, say, negligence, save that, subject to the exception for aggravated or exemplary damages, the existence of a duty of care and its breach are presumed. Therefore, if one is a qualifying person whose condition has resulted from the administration of one of the specified products, causation will be established and liability is presumed: such is followed by an assessment of damages, which the Act describes as “an award”. Subject to any appeal, that completes the process.
52. A significant feature of the 1997 Act is that the scheme established was intended as an alternative to court proceedings; principally, may I suggest, for the benefit of those affected by the virus, all of whom had overwhelming right on their side. To achieve that objective, and to avoid any possibility of double compensation, the legislature imposed a number of restrictions on those who stayed within the process. Those constraints oblige such a person to waive her right to seek judicial redress outside the scheme and/or to discontinue any existing court proceedings. This form of ouster does not kick in when an application to the Tribunal is first made, nor indeed when notification of any award issues. Apart from those persons to whom section 4(2) of the Act applies, the insistence upon a waiver or discontinuance only occurs where an award is accepted. In no other circumstances, bar one, is a person prevented from instituting proceedings.
53. The exception last mentioned gives rise to an obvious tension, if not inconsistency, between section 5(9)(b) of the Act, which says that where an appeal is taken the award is deemed to have been rejected, and subsection (18) of the same section, which obliges a claimant who makes an appeal to waive his right to issue proceedings, or to discontinue the same if already in existence. If a claim is rejected or is neither accepted nor rejected (“rejection simpliciter”) within the specified period, the claimant thereafter is outside the scheme and is external to the process. On the other hand, although the service of a Notice of Appeal is regarded as a rejection of the award, by that same act a person is statutorily obliged to waive her right to civil redress. In other words, her claim is exclusively “tribunalised”.
54. Although it is not easy to fully explain or rationalise the interplay between these provisions, one must at least search for some explanation, as the legislature clearly intended to make a distinction between a rejection simpliciter, on the one hand, and a deemed rejection arising from an appeal, on the other. As the discussion which follows feeds into the most likely answer to this difficulty, I will come back to the point later in this judgment.
Proper Approach to Interpretation
56. However, what struck me forcibly when looking at the relevant case law was the absence of any clear, definitive and easily understood demarcation line between the approaches first mentioned. When one looks at the matters which I have taken into account under the literal approach, one may well wonder, if not query, whether a number of such factors should be positioned more appropriately in the purposive approach. However, whilst there is authority of high standing which assigns or allocates each matter to that particular box, it must also be acknowledged that it is also quite possible to identify a judicial pronouncement which places the same or similar matters into different approaches. Indeed if research and time permitted, I would be confident that one could obtain case law which on its face would support a great number of propositions, many of which would be contradictory and inconsistent with each other. A cursory examination of any well-known textbook will quickly demonstrate the point. Unfortunately, however, it is well beyond this judgment to conduct a comprehensive review of why such confusion exists or on what basis these contradictory and incompatible propositions can be justified. In any event, it is self-evidently the case that there is a serious blurring of the boundaries between these different approaches.
Literal Approach 57. As might be obvious, if the objective intent of parliament is self-evident from the ordinary and natural meaning of the words or phrases used, then the task is at an end, and the court’s function has been performed. Whilst it has long been said that the words themselves, in their plain meaning, best declare such wish, that and multiple other similar expressions must be properly understood. I would therefore add the following, as being part of and complementary to this primary approach to legislative construction. The Court may:
(ii) Consider the subject matter being dealt with, the provisions put in place for that purpose, and the harm, injury or damage - the legislative objective - which the same were intended to address. What Lord Blackburn said as far back as 1877 remains as apt today as when it was first stated:
58. Accordingly, a consideration of both the narrower and broader context of any disputed provision, including the subject matter of the legislation itself, is an integral part of the literal approach, as is the legislative history, the subject matter of the Act and, to use an almost obsolete phrase, the “mischief” which was sought to be remedied by its provisions. In identifying such matters, the same is not intended, quite evidently, as a prescriptive ruling on this approach.
Purposive Approach 59. Where this method does not yield a sufficiently clear indication of parliament’s intention, then further assistance may be called upon by adopting one or more of a range of options also available, including what is sometimes referred to as a “purposive” approach, which involves looking beyond the plain text of the statute and considering the intended objective of the legislature and the reason for the statute’s enactment. As is made clear in multiple court decisions going back very many years, where the words are obscure or ambiguous, or their true meaning is in doubt, such an approach is permissible (see, e.g., Carlisle Trust Limited v. Dublin Corporation [1965] I.R. 456; Deely v. The Information Commissioner [2001] 3 IR 439; Cahill v. Grimes [2002] 1 IR 372; Boyne v. Dublin Bus [2006] IEHC 456). Section 5 of the Interpretation Act 2005 now gives statutory recognition to this course. The Minister no longer contests the proposition that the relevant wording of section 5(15) of the 1997 Act can be classified as ambiguous, and a teleological or purposive approach will later be adopted.
Remedial-Redress Statute 60. Although the Court has not received any submissions on this particular point, I have been troubled from the outset by what the correct approach might be, as a matter of principle, to a piece of legislation such as that in issue in this case. When one considers, in the first instance, the backdrop to this matter, including how and why the Hepatitis C scandal arose, the responsibility of State agents, the profound consequences for the victims and their families, and the public outcry in support of such persons, and, in the second instance, the non-adversarial nature of the Tribunal, the assumption of negligence if causation is established, the procedure which it was obliged to adopt, and the availability of a 20% top-up in lieu of establishing a basis for claiming exemplary or punitive damages, the same begs the question as to whether an approach to interpretation, not heretofore well-recognised or well-developed, should be adopted. I am relieved to know that there exists a stream of authority which affirmatively answers this question.
61. Section 3(1) of the Family Home Protection Act 1976 (“the 1976 Act”) renders void any purported conveyance of the family home without the prior consent in writing of the other spouse. In Bank of Ireland v. Purcell [1989] I.R. 327, Walsh J. held that as the Act in question was enacted “to protect the interest of the non-owning spouse in the family home and to deal with and to seek to remedy the social problem which was created or could be created by the fact that the spouse who owned the family home could effectively put the other spouse out on the street by selling it or mortgaging it”, it could properly be described as a “remedial statute”. The learned judge, with whom the other members of the Court agreed, went on to say that “[t]his statute is not to be construed as if it were a conveyancing statute. As has been frequently pointed out, remedial statutes are to be construed as widely and liberally as can fairly be done” (p. 333). That theme was referred to and adopted in A O’G v. The Residential Institutions Redress Board ([2015] IESC 41), but without any added discourse. The Court of Appeal (per Hogan J.) in J. McE. v. The Residential Institutions Redress Board [2016] IECA 17, dealing with the same legislation as in A O’G., once more adopted the phrase “remedial statute” and, following Bank of Ireland v. Purcell, held that the same should be construed “as widely and liberally as can fairly be done”. Thus the Residential Institutions Redress Act 2002 (“the 2002 Act”) was aligned with the 1976 Act for this purpose.
62. That approach has now received the endorsement of this Court in J.G.H. v. The Residential Institutions Redress Committee & Anor [2017] IESC 69. Clarke C.J. (with whom MacMenamin, Dunne and O’Malley JJ. concurred) stated as follows:
4.2 The Court of Appeal accepted that such was the proper approach to the interpretation of the 2002 Act for the purposes of this case, with Kelly J. citing the observation of Denham C.J. in A O’G. Nor did I understand counsel for the Review Committee to argue otherwise. I agree, therefore, that the proper approach to statutory interpretation for the purposes of resolving any questions of difficulty in construing the ambit of the 2002 Act is to adopt the approach identified by Hogan J. in J. McE and to construe the Act as widely and liberally as can fairly be done. But there are, of course, two elements to that description. The legislation should be given a generous interpretation in favour of affording compensation because that was the clear intent of the Oireachtas. However, in so doing the Court can only adopt an interpretation which can be said fairly to arise on the wording of the legislation itself. To go beyond a meaning which can fairly be attributed would be to impose a liability on the State which it could not properly be said that the Oireachtas intended to accept.
…
4.5 The underlying principle behind the proper approach to the interpretation of remedial legislation is that it must be assumed that the Oireachtas, having decided that it is appropriate to apply public funds to compensate a particular category of persons, did not intend that potentially qualifying applicants would be excluded on narrow or technical grounds, for that would be wholly inconsistent with the purpose of the legislation. On the other hand the Oireachtas is entitled, when deciding to apply public funds in a particular way, to define, within constitutional bounds, the limits of any scheme which it is decided should be put in place. Where that scheme is remedial, Courts should not be narrow or technical in interpreting those bounds but they should not be ignored either. Against that backdrop I turn to the specific issues of interpretation which arise on this appeal.” Although O’Donnell J. dissented, I do not read his judgment as offering a different view, at least in principle, on the proper approach to the remedial legislation in question.
63. The legislation at issue in A.O’G., J. McE and J.G.H. is much more closely aligned with the Hepatitis C Compensation Tribunal Act 1997, as amended, than either are with the 1976 Act. As commendable as that Act was, one can think of a number of other similar legislative initiatives, e.g. the Succession Act 1965, all of which can accurately be described as social reforming or remedial statutes. But both the 1997 Act and the 2002 Act are much more than that, and certainly are quite different as regards their establishment, their purpose and their focus. Widespread wrongdoings on a serious scale, with devastating effects, were being addressed on behalf of the general public: acknowledgement of culpability and the right to compensation were provided for. The background which gave rise to the remedial statutes above identified, though totally deserving of social redress, was very much different in virtually all keys aspects to that underlying the subject legislation in this case. Accordingly, I am entirely satisfied that both the 1997 Act and the 2002 Act are even more deserving of such generous, indulgent and permissive an approach as the Act or a disputed provision thereof will allow. In my view, therefore, both should more accurately be described as “Redress Acts”, with that description being given its most expansive meaning. I therefore have no hesitation whatsoever in not only following the judgment of this Court in J.G.H., but also in grounding the redress approach on it.
64. I should, however, add the following qualification to what I have just stated. The phrase used in Bank of Ireland v. Purcell - to construe “as widely and liberally as can fairly be done” - was not, in my view, intended to suggest that the Court is without restriction in interpreting such statutes. This point was made by Clarke C.J. in J.G.H., where at paragraph 4.4. he said that “[w]hile the Courts have, having regard to the remedial nature of the legislation, taken a generous approach to the interpretation of those time limits, it could not be suggested that they could simply be ignored.” The proper limits will, of course, be legislatively specific to any given Act, it not being permissible to extent the legislation’s reach beyond its terms (see the judgment of O’Donnell J. in J.G.H. at para. 63). Nonetheless, at a general level I think it can be said that in view of the very strong public interest which motivated these redress schemes in the first instance, and the policy decision behind their establishment, a court would be entitled to be as generous as the resulting Act reasonably permits. It should not, however, be so expansive as would render its interpretation contra legem.
65. In D.B. v. The Minister for Health and Children, the traditional approach articulated by Blayney J. in Howard v. Commissioner of Public Works was followed by all three members of the Court who delivered judgments. There was no necessity to move to the next point on the spectrum and adopt a purposive approach. For my part, however, I believe that in light of recent case law the correct exercise is a step further along that spectrum and is to apply a generous interpretation to the subject legislation, with the justification therefor being the line of authority commencing with Bank of Ireland v. Purcell, running through A O’G, J. McE, and now being further enhanced by this Court in J.G.H. As stated, the 1997 Act is not simply remedial. It is more of a recompense and reconciliation statute than purely being a tool of social reform like the 1965 Act or the 1976 Act. Thankfully there have been but a handful of such Acts, but when necessity demands their enactment, I believe that this approach is well justified. Of course, there may be cases where utilising this interpretative approach may simply lead to precisely the same result as adopting a literal or purposive approach, as above described.
The Main Point
“5.—(15) An appeal shall lie to the High Court by a claimant in respect of any decision made by the Tribunal and the Minister may cross-appeal any such appeal.” (Emphasis added)
“5.—(16) An appeal shall lie to the High Court by the Minister or a relevant agency in respect of an award of aggravated or exemplary damages.” 67. At the outset it should be noted that section 5(9)(a) of the Act is not an appellate provision in its own right; rather, in the circumstances therein outlined, it affords to a dissatisfied claimant a right to appeal the award under subsection (15). It is therefore that subsection and its correct meaning which is at the heart of this case.
68. It is common case that the only freestanding right of appeal given to the Minister is that contained in section 5(16) of the 1997 Act, pursuant to which he may appeal any award of aggravated or exemplary damages to the High Court. It is he who moves that application, which is not in any way conditional upon any step having previously been taken by a claimant. He is accordingly entirely in control of such an appeal, restricted only in that it is confined to the subject matter indicated. That being so, this provision forms an important part of the backdrop when considering the correct meaning of section 5(15) of the Act.
69. As indicated earlier in this judgment, the Tribunal, as part of its jurisdiction when dealing with a claim, may be called upon to make several decisions, examples of which have previously been given. Many of those do not involve quantification of damages, or the assessment of compensation, or the making of an award, all of which have the same meaning. Subsection (15) therefore applies in principle to any one or more of the many decisions as outlined, subject to the jurisprudence of the High Court in declining to entertain, save in exceptional circumstances, any appeal from rulings made in the course of proceedings still pending, certainly in respect of those which are non-jurisdictional in origin.
70. The only decision appealed from in this case is the quantum of damages. Even though the submissions made on behalf of the appellant Minister seek to raise, at least vaguely, the possibility that the claimant has raised the issue of causation within her Notice of Appeal, despite that issue having been decided in her favour, this suggestion must be discounted in light of the concession made by the Minister in the High Court, which is recited at paragraph 3 of the judgment of the learned trial judge. Therefore Ms. C.M.’s sole appellate complaint arising from the decision of the Tribunal relates to quantum.
Is this Provision Ambiguous?
72. I acknowledge that limiting a cross-appeal to the appeal itself, rather than the decision under appeal, is quite exceptional, if not downright unique. Nonetheless, giving the words their ordinary and natural meaning, and applying this Court’s judgment in D.B. insofar as it is appropriate, it does not appear to me that the section need necessarily be termed unclear or obscure, or be called “ambiguous”, as such, simply because it is novel. Rather, giving the words their ordinary meaning, per the standard method of statutory interpretation, the section provides that the Minister may “cross-appeal any such appeal”. The phrase “such appeal” can only relate to the subject matter of the Notice of Appeal filed by a claimant. Otherwise that phrase has to be stood down and in its place substituted “the decision of the Tribunal”. That, of course, cannot be done. In its ordinary language, therefore, what the Minister is entitled to do is to engage with or challenge a complaint made by the claimant - nothing more. Such a meaning could not, in my view, be said to fail to give effect to the plain intention of the Oireachtas; on the contrary, it merely reflects it.
73. Where, as here, the appeal is against the “award” only, it seems to me that the subject matter of any such appeal is just that, the award, i.e. the amount of damages and nothing else. This follows from the definition of an award as being an “award of compensation” (section 1 of the 1997 Act). Although the Minister has argued, by reference to D.B. v. Minister for Health, that to appeal an award includes also a rejection of the antecedent causation ruling, I am not persuaded that this is so: see paras. 79-83, infra. As an appeal on the award means an appeal on quantum only, this has the effect that all previous rulings of the Tribunal remain in place, as do the other safeguards offered to such person within the Act. However, as a quid pro quo for this situation, the claimant is obliged to surrender her right to have recourse to court proceedings. She therefore continues to be within the statutory scheme.
74. Such a construction would, I believe, be sufficient to dispose of the first certified question, and the Minister’s appeal on that point would have to fail. However, in case I am in error in this view of the section, and also because the parties are now agreed that the purposive approach ought to be utilised, despite what was first being urged by the Minister, I will now consider the issue in that way in light of the specific submissions urged by the appellant.
Purposive Approach 75. The Minister’s main contention is that by virtue of the meaning which he ascribes to “any decision” in section 5(15) of the 1997 Act, when a claimant appeals an award it automatically has the effect of nullifying the underlying decision in its entirety; accordingly, the Minister can therefore cross-appeal on any ruling previously made by the Tribunal as part of its adjudicative process, no matter what that ruling might have been, and no matter how limited the nature of the Notice of Appeal might be.
76. In submitting that a purposive approach should be adopted, the Minister has highlighted five factors which, he suggests, support his interpretation of section 5(15) (paras. 36-39, supra). He suggests, first, that his interpretation is supported by the decision in D.B., where it was held that the component parts of an award cannot be separated; second, he points out that nothing in the Act expressly precludes him from raising causation issues in the cross-appeal; third, he submits that the Rules of the Superior Courts provide him with an express authorisation for his cross-appeal; fourth, he says that the long title to the Act supports his interpretation; and, fifth, he points to the fact that the appeal is his first opportunity to engage with the issue of causation.
77. Many, if not all, of these same submissions were argued by the Minister in the High Court. I very much stand over and endorse the learned judge’s detailed reasoning in relation to each of the factors which she considered in addressing the Act through the purposive approach. Hers was a comprehensive judgment. Nonetheless, as some of these same factors have been urged again in this Court by the Minister, it is necessary to re-engage with them; in so doing I will explain why Irvine J. was right in the conclusion which she reached.
78. Before doing so, might I make two general observations on his main argument. First, the Minister’s primary submission leads to an interpretive absurdity. It would mean that his office is given a far more extensive right of appeal by this provision than by the freestanding one contained in section 5(16). Secondly, it would mean that a claimant, being dissatisfied solely with the assessment of damages, either has to forego an appeal or, by appealing on that issue only, opens the entire floodgates on every aspect of the preceding process. If the Oireachtas had intended that to be the situation under the Act, one would have expected to find it expressed in a much more explicit way.
D.B. v Minister for Health 79. To briefly reiterate the Minister’s argument on this point, he says that D.B. determined that an award is a “decision” for the purposes of section 5(15): it is not part of a decision, or a bundle of decisions, it is a decision. He goes on to say that the component parts of that decision are the compensation award and the earlier causation finding. In appealing “the decision” of the Tribunal, the award as well as the basis for it (the causation finding) are deemed by section 5(9)(b) to have been rejected. Therefore “the decision” being appealed includes the causation finding, as D.B. states that the component parts cannot be separated. Accordingly, the Tribunal decision no longer stands and the appeal proceeds de novo, subject to the other limitations in the 1997 Act.
80. I do not consider that D.B. can be read to support the Minister’s contention in the way that he suggests. Whilst McGuinness J. did reject the submission that an award is a “bundle of decisions”, that must be read in light of the argument then being addressed by the learned judge. As a means to side-step the mandatory time limit contained in section 5(9)(a) of the Act, which of course cannot be extended, unlike those time limits provided for in the Rules of the Superior Courts, D.B., whose appeal of the award would otherwise have been out of time, turned to an “ingenious argument” (per Geoghegan J. at p. 60) to circumvent that problem: he said that the assessment of general damages and that of loss of earnings into the future, etc. were all discrete ‘decisions’ made by the Tribunal, such that he could appeal each individual decision, subject to an obtaining a discretionary extension of time for the appeal under the Rules of the Superior Courts. Thus his submission was very much that each head of damages - general damages, lost earnings, medical expenses etc. - was a decision separate and distinct from the award itself, and thus as a decision in its own right it was subject to the discretionary extension of time to appeal pursuant to Order 122(7) RSC; in other words, these component decisions were not captured by the time limit relating to the award itself under section 5(9)(a).
81. This argument was not accepted by the Court. This is the context in which the above observation made by McGuinness J. regarding the award not being a “bundle of decisions” must be understood. It does not mean that causation and quantum are inseparable, but rather that an award of compensation cannot be split down into its component parts as regards the different heads of damages. This is the submission that had been made to the Court and it is in the context of that argument that the three judgments in the case should be read. This applies very much also to what was said by Geoghegan J. at p. 61 of the report, where he said that:
82. Whilst it might be said that there is only one appealable decision arising out of a personal injury action, nonetheless it could not be contended thereby that an appeal on quantum only, as frequently is the case, could have the effect of also including automatically within the Notice of Appeal the anterior findings on negligence or causation, which the appellant very well may not want to contest. Of course it is always open to the respondent in such an appeal to cross-appeal negligence or causation in the usual way, but, as a result of the specific terms of section 5(15) of the 1997 Act, such course evidently is not open to the Minister here. The key point for present purposes is that D.B. cannot be read to say that to appeal an award necessarily includes an appeal on the claimant’s status as someone who qualifies for an award. An award is not a “bundle of decisions” in that it is not made up of various sub-categories of damages, each of which is a decision in its own right, but it does not follow that “an award” must therefore include the finding on causation. An “award” means “an award of compensation”, per section 1 of the Act. It is therefore only the award of compensation which is the “decision” being appealed pursuant to section 5(15). Accordingly, I do not read D.B. as supporting the case made by the Minister.
83. I might add one further point. With great respect to the judgments in D.B., there may have been a more obvious answer to the “ingenious” submission advanced by the claimant in that case. It may simply have been easier for the Court to say that where it is intended to appeal any aspect or individual item of the compensation granted, the same, being an integral part of the overall award, must also be subject to the statutory time limits as set out in section 5(9)(a) of the Act. In other words, the same provision applies whether the entirety of an award of compensation or any aspect of it (i.e. any head of damage) is the subject-matter of the appeal. I mention this because there is a reading of D.B. which could give rise to considerable difficulty for a claimant/appellant, namely, that a claimant who wishes to contest but one aspect of damages puts at risk the entirety of the award. For example, a claimant who wishes to challenge one item of special damages only, and so limits his or her originating notice of motion to that particular item, may be met with the argument that, on one reading of D.B., such a step renders the whole award a single, non-divisible unit, and therefore to put any aspect of the award in issue is to put the whole award in issue. On such reading, the Minister in his cross-appeal could challenge any other head of damages contained in the award also. I do not believe that this would have been intention of the Court in D.B.
No Express Provision Excluding an Appeal on Causation 84. In support of his reading of section 5(15), the Minister has pointed to the fact that nothing in the Act expressly precludes him from raising causation on a cross-appeal, and that the Oireachtas could easily have included such a provision if it so wished. Furthermore, he relies on the general practice in court proceedings.
85. I cannot accept this submission, which seems to me to overlook the unique nature of the statutory compensation scheme put in place by the Act. The whole appellate structure in relation to the Tribunal is determined by the principle of conferral. The Minister is given the right of cross-appeal under section 5(15) and the right to appeal on aggravated or exemplary damages pursuant to section 5(16): he therefore has no other right save as conferred. To suggest that competence accrues by default is to wholly misconceive the proper approach to the issue; in effect, this reasoning is backwards, as in reality the Minister only possesses those rights that the legislation in fact grants to him by its terms, and no more. It is not that he has a right of appeal unless the legislation takes it away from him; rather the Minister only possesses the right of appeal given to him by that legislation in the first instance. That such appeal was so limited is a policy decision, let me say fully concordant with what the Oireachtas saw as the appropriate response to this scandal.
86. Moreover, the inclusion of section 5(16) in the Act is a further obstacle to interpreting section 5(15) in the manner suggested by the Minister. It does give a right of appeal to the Minister, but only in respect of an award of aggravated or exemplary damages. Given that the Minister only enjoys such right of appeal as has expressly been granted, the fact that an appeal on causation was omitted from section 5(16) is a clear indication that it was not intended to grant any such right to the Minister at all. As previously noted, the Minister says that a right of appeal or cross-appeal on causation could have been expressly ruled out had the legislature so wished. That, however, is to approach the issue from the wrong direction. Rather, it is more appropriate to say that had the Oireachtas intended to extend to the Minister a right of appeal or cross-appeal on such issue, it could easily have done so, but it chose not to. Given that the proper approach is to look at what rights the Act has extended to the Minister rather than to examine what it did not say he cannot do, the fact that he was expressly given certain appellate rights under section 5(16), but not a right to appeal causation, is instructive.
Order 105A RSC 87. The procedural operation of these provisions is dealt with in Order 105A RSC. Rule 2(1) reflects the wording of what can be appealed pursuant to section 5(9)(a) of the Act (i.e. an award) and the mandatory nature of the time period within which that must be done (D.B. v. Minister for Health). All of the other time periods specified are Rule-based and therefore their enlargement is subject to Order 122 RSC.
88. The only other measure of immediate relevance is that contained in Rule 2(3), which refers to section 5(15) of the Act. Rather surprisingly, when describing the Minister’s right under the subsection, it simply refers to it being a right to “cross-appeal”, with no reference to the limitation contained in the section itself, namely, “to cross-appeal any such appeal” (emphasis added), and goes on to say “an appeal by any party shall put the matter appealed against fully in issue and a notice of cross appeal shall not be required on that issue by any other party”. I am not at all sure why the entire statutory phrase is not included, or what is meant by that part of the Rule last quoted.
89. On one reading, what is stated might give the impression that once an appeal has been lodged by a claimant, then the Minister, even without a cross-appeal, is at large in what may be agitated on his behalf before the High Court. If that is what was intended, I entirely reject it. Such a suggestion seems to reflect Order 58, Rule 10 RSC, which deals with appeals, cross appeals, and Notices to Vary in proceedings before the Superior Courts. As interpreted in A.A v. The Medical Council, it seems to be the case that the most a respondent has to do, when served with a Notice of Appeal, is to serve a Notice to Vary; even that will only be required depending on the nature of the arguments which he wishes to pursue. This has no relevance to the 1997 Act. Accordingly, if there is any conflict, the Rules of Court must yield to the correct interpretation of the relevant statutory provisions (see, The State (O’Flaherty) v. Ó Floinn [1954] I.R. 295: Rainey v. Delap [1988] I.R. 470: Luby v. McMahon [2003] 4 I.R. 133 and Gokul v. Aer Lingus Plc [2013] IEHC 432). In any event, it seems to me that the better reading of Rule 2(3) is that “the matter appealed against” which has been put “fully in issue” in this case relates purely to quantum, and thus the Rule does not support the Minister’s submission regarding the extent of his right of cross-appeal.
90. Finally in this context, I do not see how Order 105A, Rule 2(5) can assist the Minister. It will be recalled that section 6(3) of the 1997 Act permitted an appeal to the regime thereby established from an award made by the Tribunal’s predecessor. It did not, however, constrain this right of appeal by any time limit, either mandatory - as akin to section 5(9)(a) - or at all. It was perfectly appropriate, therefore, that the Rules of Court should contain a time period and, as would normally follow, such was therefore subject to Order 122 RSC. This differentiation in treatment between claimants/appellants under the old and new procedures is entirely justified. Accordingly, Order 105A, Rule 2(5) has no relevance to this case.
Long Title of the Act, and the Minister’s First Opportunity to Engage 91. These two factors, both stressed by the Minister, can be addressed together. By reference to the long title, it is said that the purpose of the Act is to compensate only those who, on the balance of probabilities, have been infected with HCV by the actions of the State. There is no legitimus contradictor at the Tribunal hearing. Thus if compelling evidence comes to light after the Tribunal’s decision, and that evidence raises a possibility or probability that the claimant does not in fact meet these qualifying criteria, the Minister’s reasoning is that he should be entitled to put causation in issue on the appeal so that the purpose of the Act, which is to compensate only certain persons, is upheld. A very similar rationale underpins the Minister’s submissions in relation to the fact that the appeal represents his first opportunity to engage with the process. His point, in essence, is that as the very purpose of the Act is to provide only certain people with compensation, then to permit him to cross-appeal on causation is itself to give effect to the intention of the Oireachtas.
92. The same submissions were received and rejected by Irvine J. For very much the same reasons as the learned judge, I too find the Minister’s arguments in this regard to be unpersuasive. Simply because the compensation scheme is confined to a particular group of HCV sufferers (that is, those who contracted the virus due to certain actions of the State), it does not follow that this Court should read a right to cross-appeal on causation into section 5(15). Such, first of all, requires the Court to read into that section a right which is not expressly there, as it refers to a cross-appeal only of “the appeal”. It is also to overlook the very extensive investigatory powers given to the Tribunal under the Act, and particularly under section 4 thereof. These powers have been set out at paragraph 16, supra. Cumulatively, they provide the safeguards which the Oireachtas settled on in order to ensure that only persons meeting the qualifying criteria in section 4(1) would receive compensation from the Tribunal. Had the legislature intended that Minister was to engage on the issue of causation, it could so easily have provided for same. It did not do so. Instead, it settled on a scheme whereby the Tribunal was granted the powers, and access to the expertise, required to make medically-informed decisions on the question of causation.
Further Considerations 93. Indeed, a broader consideration of the overall scheme of and rationale for the Act only further supports the respondent’s interpretation of section 5(15). A number of over-arching points made by the High Court merit restatement. First, on the Minister’s interpretation of the section, his entitlement to cross-appeal on causation is entirely dependent upon a claimant having brought an appeal in the first instance. On one level this makes sense, as the Minister will not even be aware of the individual claimants and their cases unless an appeal is lodged. However, if it had been intended that the Minister would provide a protection against apparently incorrect causation findings, section 5(15) as presently enacted represents a highly impractical, if not downright illogical, way of doing so. The Minister has no right to contest causation at all unless the claimant has first brought an appeal; he is “a hostage to fortune”, as the High Court put it. It is entirely unlikely that the Oireachtas can have intended any such safeguard to be engaged only by the happenstance decision of the claimant to appeal the quantum of their award; there were far more direct and explicit ways that it could have enabled the Minister to engage with the section 4(1) qualifying criteria, but it opted not to do so.
94. Moreover, as identified by McGuinness J. in D.B. v. Minister for Health and Children, the rationale behind the enactment of the Act and the establishment of the Tribunal was to remedy the defects inherent in the non-statutory scheme and to “provide a scheme which could deal with the large number of claims in a consistent, orderly and reasonably expeditious manner.” It would be entirely inconsistent with these aims, which are manifestly geared towards smoothing the compensation process for victims, to hold that the Oireachtas intended that a person who appealed their award, and thus “tribunalised” their claim per section 5(18), rather than rejecting it outright and instead entering the domain of the courts, would nonetheless go back to square one and lose the benefit of the causation finding which had already been made in their favour. As stated by Irvine J., such would have the effect of hugely increasing the costs of a scheme which was put in place with a view to simplifying the compensation process for those who contracted HCV due to the said actions of the State. The Minister’s interpretation of section 5(15) runs contrary to the very aims that the Tribunal was intended to achieve.
95. Each of the points just made in turn informs a third observation which was made in this case by the then High Court judge, namely, the “Sword of Damocles” point made at paragraph 52 of her judgment. The statutory Tribunal was introduced in the face of public anger concerning the deficiencies of its predecessor. It was to be fairer and more just than its forebear. It can, broadly speaking, of course, be described as a claimant-friendly piece of legislation. It is an unlikely reading of the right of appeal introduced by the 1997 Act - and furiously fought for by those suffering from the virus - that the Minister could question the Tribunal’s findings on causation where the claimant has taken no appeal on same. There is certainly nothing in the actual wording of its text to suggest that an appeal on an award could ultimately have the effect of denying a claimant the benefit of a causation finding made by the Tribunal. In such circumstances, it would seem wholly contrary to the spirit of the 1997 Act to read section 5(15) in such a way as to permit the Minister to cross-appeal with the intention of proving that the claimant is not entitled to compensation under the scheme at all, simply where the claimant has put the amount of their award in issue. The entire scheme of the Act is such as to put “causation”, or the qualifying criteria, outside the scope of influence of the Minister. He simply has no role to play in determining that issue. It would be wholly contrary to the purpose for which the Act was drafted if an appeal on quantum could allow the Minister to access causation by the backdoor.
Conclusion on the First Certified Question 96. In short, nothing submitted by the Minister to this Court can have the effect of displacing the conclusions of the High Court on the extent of the right of cross-appeal contained in section 5(15). In this case, all of the strands of interpretation meet at a similar point. Regardless of which interpretive approach is used, the Minister cannot prevail on the first certified question. For my part, I am not sure that there is really any ambiguity in the section such that regard need be had to the purposive approach. Giving the words used their ordinary and natural meaning, the right of cross-appeal extended to the Minister relates only to “the appeal” as brought by the claimant; thus, where that appeal does not itself put causation in issue (and there is no reason why a claimant ever would do so where a positive finding on causation has been made), the Minister cannot engage with that point. Here, the appeal was on quantum only. Accordingly, the ordinary meaning to be given to the section is that that is the sole issue with which the Minister may engage on the cross-appeal.
97. Moreover, although the Minister now accepts that a purposive approach is the right one, I have found that interpreting the 1997 Act in that manner leads one to the same conclusion as when using the ordinary approach. Indeed, for the reasons above set out, viewing the Act purposively - taking account of the historical background leading up to the legislation, the subject matter of its provisions, and the purpose of its enactment, which essentially was to stand down the rigours of court proceedings and to substitute in their place a scheme whereby entirely innocent members of the public could be compensated in a just manner for the infliction of both death and morbidity on a sizeable number of people - serves to underline how unlikely it is that the Oireachtas could have intended that an appeal by a claimant on quantum could potentially reopen a positive finding in their favour on causation. Of course, the restrictions, exclusions and curtailments found within the Act must be respected. Even so, for the reasons articulated above, when applying the purposive approach I again reach the conclusion that section 5(15) does not permit the Minister to raise the issue of causation where a claimant has appealed to the High Court on quantum only.
98. I have, moreover, stated my view that as the 1997 Act is a “redress statute” in the sense above-described, it follows that it should be given as claimant-friendly an interpretation as its terms will allow. Given the conclusions which I have reached through the application of the literal approach and the purposive approach, it might be thought that this more generous reading because of the nature of the statute is unnecessary. Nonetheless, that is my view of how this statute should be interpreted, and it follows from my conclusions based on the other interpretive methods that the Minister’s arguments must again be rejected when viewed through this lens.
The Second Certified Question
100. In accordance with my reading of section 5(15) of the Act, I cannot see any reason why a Notice of Cross-Appeal is necessary if all that the Minister proposes to do, at the hearing of the claimant’s appeal, is to support the outcome and reasons of the Tribunal.
101. As earlier outlined, Order 105A, Rule 1(1) states that an appeal to the High Court under section 5(15) shall be brought by way of originating notice of motion. The various time limits for bringing such an appeal are then set out in Rule 2(1)-(5). Of importance for the second certified question is Order 105A, Rule 3(2), which provides as follows:
102. Thus it is clear from the Rules that the service of the notice of motion on the Minister makes him a party to the appeal before the High Court. If the Minister’s status as respondent is to have any value at all, this must surely mean that he has a right of audience before the High Court. This of course would include an entitlement to stand over the decision of the Tribunal. It would seem an unlikely step that it was intended that the Minister, who is already a party to the appeal, would be required to take a further step - i.e. the service of a cross-appeal - simply to say that the Tribunal was correct. Such is not demanded by the text of the statute or the Rules, nor does the context in which the Minister becomes a party to the appeal require this step. Moreover, although I have above found that Order 105A Rule 2(3) does not support the Minister’s position as regards the first ground of appeal (paras. 88 and 89, supra), it would seem that my view on the second ground is reinforced by the references in that Rule to an appeal by any party putting the matter appealed against (here, quantum) “fully in issue” and to the fact that no notice of cross-appeal is required on that issue by any other party.
103. I do not believe that this view is inconsistent with anything I have said in relation to the first certified question. It is true, of course, that the right of cross-appeal contained in section 5(15) is novel, perhaps unique. The Minister can cross-appeal only the appeal, and therefore he is constrained in what he can argue by the ambit of the claimant’s appeal itself - unless the claimant is appealing on causation, the Minister cannot cross-appeal on that issue. However, in circumstances where the Minister is already a party to the appeal itself, I cannot see how it follows that he must serve a notice of cross-appeal simply to stand over the Tribunal’s decision. The unusual feature of section 5(15) applies only to cross-appeals. The claimant can appeal a decision and the Minister can cross-appeal the appeal. However, where the Minister does not wish to cross-appeal on any point but rather to simply stand over the decision (which, as respondent, must be his role on any such appeal), it does not follow that the usual course cannot be adopted: leaving aside the cross-appeal issue, in normal civil procedure a respondent is entirely entitled to stand over the judgment in their favour without having to serve a notice of cross-appeal. Of course their right to cross-appeal is not limited in the same manner as the Minister’s is under section 5(15), but the key point is that in simply standing over the Tribunal’s decision, the Minister is not cross-appealing at all - he is instead acting as a respondent to an appeal in the usual manner.
104. Therefore, even at a textual level, I am satisfied that the Minister should succeed on the second certified question. I have reached this conclusion without having had to have regard to the Minister’s arguments regarding the effective administration of the scheme and the significant costs repercussions which the learned High Court judge’s comment could have had on such appeals. It is therefore not necessary to engage with those submissions. Of course, in so holding I am saying no more than that the Minister is entitled, without serving a notice of cross-appeal, to support the outcome and indeed the reasoning of the Tribunal. If he wished to do more, for example, to argue in an appeal on quantum that the claimant should in fact receive less than she was originally awarded, that would of course require a cross-appeal on that issue.
105. I would therefore allow the appeal on the second certified question.
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