BUSINESS LAW - LECTURE 1: INTRODUCTION TO LEGAL SYSTEMS

 

1.0     LEGAL SYSTEMS

 

1.1 Legal System

 

There are various definitions of the term "legal system":   A legal system, as that term is here used, is an operating set of legal institutions, procedures, and rules.  The term "legal system" refers to the nature and content of the law generally, and the structures and methods whereby it is legislated upon, adjudicated upon and administered, within a given jurisdiction.

 

1.2 Legal traditions or families

 

A legal tradition, as the term implies, is not a set of rules of law about contracts, corporations, and crimes, although such rules will almost always be in some sense a reflection of that tradition. Rather it is a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught.

 

1.3 The Rule of Law

 

The Rule of Law represents a symbolic ideal against which proponents of widely divergent political persuasions measure and criticise the shortcomings of contemporary State practice.

 

According to the notoriously chauvinistic Dicey, the Rule of Law has three distinct elements which together made for the Rule of Law as he understood it:

 

•   An absence of arbitrary power on the part of the State. The extent of the State's power, and the way in which it exercises such power, is limited and controlled by law. Such control is aimed at preventing the State from acquiring and using wide discretionary powers, for, as Dicey correctly recognised, the problem with discretion is that it can be exercised in an arbitrary manner; and that above all else is to be feared, at least as Dicey would have us believe.

 

•   Equality before the law. The fact that no person is above the law, irrespective of rank or class. This was linked with the fact that functionaries of the State are subject to the same law and legal procedures as private citizens.

 

•  Supremacy of ordinary law. This related to the fact that the English Constitution was the outcome of the ordinary law of the land and was based on the provision of remedies by the courts rather than on the declaration of rights in the form of a written constitution

 

Joseph Raz

 

Raz claims that the basic requirement from which the wider idea of the Rule of Law emerges is the requirement that the law must be capable of guiding the individual's behaviour. He states some of the most important principles that may be derived from this general idea:

 

•  laws should be prospective rather than retroactive. People cannot be guided by or expected to obey laws which have not as yet been introduced. Laws should also be open and clear to enable people to understand them and guide their actions in line with them;

 

•  laws should be stable and should not: be changed too frequently as this might lead to confusion as to what was actually covered by the law

 

•  there should be clear rules and procedures for making law

 

•  the independence of the judiciary has to be guaranteed to ensure that they are free to decide cases in line with the law and not in response to any external pressure;

 

•  the principles of natural justice should be observed, requiring an open and fair hearing to be given to all parties to proceedings;

 

•  the courts should have the power to review the way in which the other principles are implemented to ensure that they are being operated as demanded by the Rule of Law;

 

•  the courts should be easily accessible as they remain at the heart of the idea of making discretion subject to legal control;

 

•  the discretion of the crime preventing agencies should not be allowed to pervert the law.

 

2.0  THE NATURE OF LAW

 

Law is a formal mechanism of social control and as such it is essential that the student of law be fully aware of the nature of that formal structure.

 

2.1 CATEGORIES OF LAW

 

Six categories were selected for the creation of this work on world legal systems: civil law, common law, customary law, religious law, talmudic law, socialist and mixed law systems, the latter referring not to a single system but to a combination of systems.

 

2.1.1 Civil Law Systems


In this category you will find political entities that, apart from other sources, have drawn their inspiration largely from the Roman law heritage and which, by giving precedence to written law, have resolutely opted for a systematic codification of their general law.


2.1.2 Common Law Systems


Like that of civil law, the common law system has taken on a variety of cultural forms throughout the world. Notwithstanding the significant nuances that such diversity can sometimes create, and which political circumstances further accentuate, this category includes political entities whose law, for the most part, is technically based on English common law concepts and legal organizational methods which assign a pre-eminent position to case-law, as opposed to legislation, as the ordinary means of expression of general law.


2.1.3 Customary Law Systems


Hardly any countries or political entities in the world today operate under a legal system which could be said to be typically and wholly customary. Custom can take on many guises, depending on whether it is rooted in wisdom born of concrete daily experience or more intellectually based on great spiritual or philosophical traditions.


2.1.4 Religious Law Systems


An example of this is like muslim and talmudic legal systems.  The Muslim legal system is an autonomous legal system which is actually religious in nature and predominantly based on the Koran.

 

2.1.5 Socialist Law

 

This type of law reflected the communist legacy of much of the 20th century.  True, despite recent political upheavals, Marxist-Leninist thought still plays a sometimes significant role in the legal organization of certain countries. But the criterion which governed the creation of a category of socialist law, as opposed to western law, was a material one, whereas we on the whole have given greater importance to the technical aspects of the systems, to legal concepts and to methods of developing and expressing law, without confining ourselves to superficially formal criteria.

 

2.1.6 Mixed Legal Systems


The term "mixed", which we have arbitrarily chosen over other terms such as "hybrid" or "composite", should not be construed restrictively, as certain authors have done. Thus this category includes political entities where two or more systems apply cumulatively or interactively, but also entities where there is a juxtaposition of systems as a result of more or less clearly defined fields of application.   There are also mixed jurisdictions and mixed legal systems which are legal systems in which the Romano-Germanic tradition has become suffused to some degree by Anglo-American law.  Mixed jurisdictions are really political units (countries or their political subdivisions) which have mixed legal systems. Common law / civil law mixed jurisdictions include Louisiana, Québec, St. Lucia, Puerto Rico and South Africa.

 

3.0    COMMON LAW SYSTEM

 

3.1 COMMON LAW AND EQUITY

 

The common law has been romantically and inaccurately described as the law of the common people of England. In fact, the common law emerged as the product of a particular struggle for political power. Prior to the Norman Conquest of England in 1066, there was no unitary, national legal system. The emergence of the common law represents the imposition of such a unitary system under the auspices and control of a centralised power in the form of a sovereign king; and, in that respect, it represented the assertion and affirmation of that central sovereign power.

 

 

By the end of the 13th century, a refusal to deal with substantive injustices, because they did not fall within the particular parameters of procedural and formal constraints, bv necessity led to injustice and the need to remedy the perceived weaknesses in the common law system. The response was the development of equity.

 

Common law remedies are available as of right. Remedies in equity are discretionary, in other words, they are awarded at the will of the court, a depend on the behaviour, and situation, of the party claiming such remedies.

 

3.2  COMMON LAW AND STATUTE LAW

 

Statute law refers to law that has been created by Parliament in the form of legislation. Although there has been a significant increase in statute law in the 20th century, the courts still have an important role to play in creating and operating law generally and in determining the operation of legislation in particular.

 

3.3  PRIVATE LAW AND PUBLIC LAW

 

Actions of the State and its functionaries vis a vis the individual citizen, and the legal manner in which, and form of law through which, such relationships are regulated: that is, public law.

 

Matters located within the private sphere are seen as purely a matter for individuals themselves to regulate, without the interference of the State, whose role is limited to the provision of the forum for deciding contentious issues and mechanisms for the enforcement of such decisions.

 

3.4 CIVIL LAW AND CRIMINAL LAW

 

Civil law is a form of private law and involves the relationships between individual citizens.

 

Criminal law, on the other hand, is an aspect of public law and relates to conduct which the State considers with disapproval and which it seeks to control and/or eradicate.

 

4.0 SOURCES OF LAW

 

4.1 LEGISLATION

 

It is recognised that Parliament has the power to enact, revoke or alter such, and any, law as it sees fit.

 

 

 

 

4.2 THE LEGISLATIVE PROCESS

 

Parliament consists of three distinct elements; the House of Representatives, the Senate and the President. Before any legislative proposal, known at that stage as a Bill, can become an Act of Parliament it must proceed through and be approved by both Houses of Parliament and must receive the Presidential Assent.

 

An Act of Parliament comes into effect on the date of the Presidential Assent, unless there is any provision to the contrary in the Act itself.

 

4.3 CASE LAW

 

Case law refers to the creation and refinement of law in the course of judicial decisions. The foregoing has highlighted the increased importance of legislation in its various guises in today's society but, even allowing for this and the fact that case law can be overturned by legislation, the United Kingdom is still a common law system and the importance and effectiveness of judicial creativity and common law principles and practices cannot be discounted.

 

4.3.1  Precedent

 

The doctrine of binding precedent, or stare decisis, lies at the heart of the English legal system. The doctrine refers to the fact that, within the hierarchical structure of the English courts, a decision of a higher court will be binding on a court lower than it in that hierarchy. In general terms, this means that when judges try cases they will check to see if a similar situation has come before court previously. If the precedent was set by a court of equal or higher status to the court deciding the new case, then the judge in the present case should follow the rule of law established in the earlier case. Where the precedent is from a lower court in the hierarchy, the judge in the new case may not follow but will certainly consider it.

 

Not everything in a case report sets a precedent. The contents of a report can be divided into two categories:

 

•  Ratio decidendi

 

The ratio decidendi of a case may be understood as the statement of the law applied in deciding the legal  problem raised by the concrete facts of the case.

 

 

•  Obiter dictum

 

Any statement of law that is not an essential part of the ratio decidendi is, strictly speaking, superfluous; and any such statement is referred to as obiter dictum (obiter dicta in the plural), that is, said by the way.

 

4.3.2   Advantages of case law

 

There are numerous perceived advantages of the doctrine of stare decisis amongst which are:

 

•  Consistency. This refers to the fact that like cases are decided on a like basis and are not apparently subject to the whim of the individual judge deciding the case in question.

 

•   Certainty. This follows from, and indeed is presupposed by, the previous item. Lawyers and their clients are able to predict what the likely outcome of a particular legal question is likely to be in the light of previous judicial decisions.

 

•   Efficiency. This refers to the fact that it saves the time of the judiciary, lawyers and their clients for the reason that cases do not have to be reargued.

 

•   Flexibility. This refers to the fact that the various mechanisms by means of which the judges can manipulate the common law provide them with an opportunity to develop law in particular areas without waiting for Parliament to enact legislation.

 

4.3.5  Disadvantages of cases

 

It should be noted that the advantage of flexibility, at least, potentially contradicts the alternative advantage of certainty, but there are other disadvantages in the doctrine which have to be considered. Amongst these are:

 

•  Uncertainty

This refers to the fact that the degree of certainty provided by the doctrine of stare decisis is undermined by the absolute number of cases that have been reported and can be cited as authorities.

 

•   Fixity

This refers to the possibility that the law in relation to any particular area may become ossified on the basis of an unjust precedent with the consequence that previous injustices are perpetuated.

 

•  Unconstitutionality

This is a fundamental question that refers to the fact that the judiciary are overstepping their theoretical constitutional role by actually making law rather than restricting themselves to the role of simply applying it. This possibility requires a close examination of the role of the courts in the process of law making.

 

•  Bias

 

. Where an issue arises before a court for the first time, it follows, as a matter of course, that there can be no precedent for the court to follow, and, given the rapid change in contemporary society, it can only be suggested that such innovations and potentially innovatory court cases, are increasingly likely.  Courts may impose a bias inconsistent with aspirations of society.

 

•  Reform

 

The question arises as to how the law is to develop and change to cater for changed circumstances if cases are always to be decided according to precedent.

 

These considerations raise the question that if the law, as represented in either

 

4.4 BOOKS OF AUTHORITY

 

When a court is unable to locate a precise or analogous precedent, it may refer to legal textbooks for guidance.

 

4.5  CUSTOM

 

There is some academic debate about the exact relationship of custom and law. Some claim that law is simply the extension of custom and that with the passage of time customs develop into laws. From this point of view, law may be seen as the redefinition of custom for the purposes of clarity and enforcement by the legal institutions.

 

5.0 THE SEPARATION OF POWERS

 

Although the idea of the separation of powers can be traced back to ancient Greek philosophy, it was advocated in early modern times by the English philosopher Locke and the later French philosopher Montesquieu and found its practical expression in the constitution of the United States. The idea of the separation of powers is posited on the existence of three distinct functions of government, the legislative, executive and judicial functions, and the conviction that these functions should be kept apart in order to prevent the centralisation of too much power.

 

5.1   Parliamentary sovereignty

 

5.2   Judicial independence

 

6.0 STATUTORY INTERPRETATION

 

Statutory interpretation is a particular form of a general problem - the understanding of meaning or, more broadly still, communication.

 

6.1 THE THREE BASIC SO-CALLED 'RULES' OF STATUTORY INTERPRETATION

 

6.1.1 The literal rule

According to the literal rule it is the task of the court to give the words to be construed their literal meaning regardless of whether the result is sensible or not. Lord Esher put the proposition succinctly in 1892: If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the Legislature has committed an absurdity.

 

6.1.2 The golden rule

 

The so-called 'golden rule' was attributed to Lord Wensleydale by Lord Blackburn in River Wear Commissioners v. Adumson, in which he said:

 

I believe that it is not disputed that what Lord Wensleydale used to call the golden rule is right, viz., that we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency), or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification, and to justify the Court in putting on them some other signification, which, though less proper, is one which the Court thinks the words will bear.'

 

6.1.3 The mischief rule

 

The classic statement of the mischief rule is that given by the Barons of ;he C'ourt of Exchequer in Heydon s case ( 1584) 3 Co. Rep. 7a:

 

And it was resolved by them, that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the Common Law), four things are to be discerned and considered:

 

1. What was the Common Law before the making of the Act.

2. What was the mischief and defect for which the Common Law did not provide.

3. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.

4. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy and to suppress subtle inventions and evasions for continuance of the mischief.

 

7.0 CIVIL LAW

 

In ancient Rome, the term jus civile ("civil law") was used to distinguish the proper or ancient law of the city or state of Rome from the jus gentium, or the law thought to be common to all the peoples comprising the Roman world, as developed and incorporated with the former through the praetors (magistrates) and jurists.

 

In the 5th and 6th centuries western and central Europe was dominated by Germanic peoples.  Among  the  many strands that went into the weaving of the complex pattern of medieval  law,  the  customs  of  the  merchants  and  the canon law of the Roman Catholic Church were of special significance. It was through the canon law that the ideas of ancient Rome continued to make their presence felt, even when, as a whole, Roman law had been forgotten. In the late 11th century Roman law was rediscovered  and  made  the  subject  matter  of  learned study and teaching by scholars in northern Italy, especially at Bologna.  In the Holy Roman Empire of German nations the reception was facilitated  because  its  emperors  cherished the idea of being the direct successors of the Roman Caesars; the Roman law, collected in the Corpus juris civilis by the emperor Justinian I between 527 and 565, could be regarded as still being in effect simply because it was the imperial  law.  Decisive  for  the  reception,  however, was the superiority of the specialized training of Roman law jurists over the empiricist activities of the lay judges and practitioners of the local laws; equally decisive was the superiority  of  the  Roman-canonical  type  of  proceihire, with its rational rules of evidence, over the forms of local procedure  involving  proof  by  ordeal,  battle,  and other irrational methods. Nowhere, however, did the Roman law completely supplant the local laws. So far as the content  of  the  law  was  concerned,  there  developed various amalgams. Roman law strongly influenced the lav of contracts and torts; canon law achieved supremacy

 

The rise of nationalism that accompanied the unification and stabilization of the European nations and their struggle for hegemony had an impact in the field of law through national codification of laws.  Because of the personality of their backer and the novel technique applied, great fame and influence were achieved by the Napoleonic codifications of the private and criminal law of France, especially their central piece, the Civil Code (Code Civil or Code Napoleon) of 1804. Codification continued after the Napoleonic era. In Belgium and Luxembourg, which had been incorporated into France under Napoleon, his codes were simply left in effect. The Netherlands, Italy, Spain, and numerous countries of Latin America followed the French model not only in the undertaking of national codification but also in the techniques and arrangements of their codes. Naturally, their courts and legal scholars were, at least in the earlier decades of the 19th century, inclined to pay great attention to French legal learning.

 

In Germany national codification came considerably later than in France. Only a commercial code had been uniformly created by the independent German states shortly after the revolution of 1848, The unification of the criminal law came almost simultaneously with the political unification of the country, which occurred in 1871. Codification of the organization of the courts and of civil and criminal procedure came in 1879. But the Civil Code (Bijrgerliches Gesetzbuch fiir das deutsche Reich) was not completed until 1896, and it did not take effect until January 1, 1900. But all through the 19th century the vigorous German science of law exercised much influence in Austria (which as early as 1811 had codified its law in a technique different from that of France), in Switzerland, in the Scandinavian countries, and, later on, in most of eastern Europe. When Swiss law was codified in 1907-12, it became the model for the Turkish codification of 1926 and strongly influenced that of China, which is still in effect in Taiwan.

 

 Due to the different dates of codification and the different style and attitude of legal learning, the civil-law family of laws is thus divided into the French, or Romance, branch and the German, or Germanic, branch. Their main features are determined by those of their prototypes. The legal system of Japan belongs essentially to the German branch, but it presents important features of its own national codifications.

 

9.0 CIVIL LAW AND COMMON LAW : DIFFERENCES IN SOURCES, CONCEPTS AND STYLE

 

Common law and civil law legal traditions share similar social objectives (individualism, liberalism and personal rights) and they have in fact been joined in one single family, the Western law family, because of this functional similarity.

 

My analysis will therefore explore the sources, concepts and style of the two Western sources of law.

 

9.1 Stare decisis

The English doctrine of stare decisis compels lower courts to follow decisions rendered in higher courts, hence establishing an order of priority of sources by "reason of authority". Stare decisis is unknown to civil law, where judgments rendered by judges only enjoy the "authority of reason". This distinction makes sense. Confusion would result in the common law world if the core of the law was to differ from one court to the other. This is not true in the civil law world, where the general principles are embodied in national codes and statutes, and where doctrine provides guidance in their interpretation, leaving to judges the task of applying the law.

 

The essence of the civil law is that every law of the country is "codified," or written into the law. Codification is the responsibility of the legislative body. The judge's role is limited to the application of the law to the facts of a given case. For years, scholars believed that a judge was not ever allowed to interpret the law. If a judge heard a case for which there was no law, he/she was obligated to refer the case to the legislative body, who would then codify a law to deal with the circumstances of the case. Unlike the common law, then, the civil law apparently had no "judge-made", or common, law. This lack of judicial precedent was designed to restrict the power of the judicial branch. Prior to the French Revolution, the power of the bench had been overwhelming. Therefore, one of the main points of the French Revolution was the restriction of judicial power.  Because the factual nature of each case varied so drastically, however, the legislative bodies soon became overwhelmed by the number of judicial referrals. They simply could not make laws quickly enough to deal with each circumstance.

Accordingly, there developed an unwritten system of judicial precedent.  Basically, when a case came before a judge, the lawyers would very persuasively inform the judge about all of the similar cases which had previously been decided by the court, and would urge the judge that the facts of the case merited the same treatment. Of course, judges were not bound to follow those previous decisions, as they would be in a common law system, but as a practical matter they would usually adhere to their previous rulings.

 

9.2 Absence of Reasons

Also unlike the common law, though, the civil law decisions never stated the reasons for the particular outcome of a case. That information was kept confidential in the court's dossier (file). Instead, the decision would consist of one sentence. For example, "Whereas the [insert particular facts]; whereas the law states in code provision [insert provision]; held for [winner of case]."  Due to the cursory nature of the legal opinions, common law scholars, who were accustomed to reading legal opinions full of rationale and logic, believed that the judges were strictly limited to the application of the law.  In the past two decades, however, several scholars have delved into the court dossier, only to discover that common law-type legal argument does occur, just not officially. This "unofficial" debate has created an anomaly; because judges are not bound by precedent, yet free to pursue legal debate, they now have just as much, if not more, power than before the French Revolution.

 

9.3 Jurisprudence: style

Civil law judgments are written in a more formalistic style than common law judgments. Civil law decisions are indeed shorter than common law decisions, and are separated into two parts - the motifs (reasons) and the dispositif (order). This is because civil law judges are especially trained in special schools created for the purpose, while common law judges are appointed from amongst practising lawyers, without special training.  The method of writing judgments is also different. Common law judgments extensively expose the facts, compare or distinguish them from the facts of previous cases, and decide (if not create) the specific legal rule relevant to the present facts. Civil law decisions first identify the legal principles that might be relevant, then verify if the facts support their application (only the facts relevant to the advanced principle thus need be stated). (In Québec, the common law methodology is followed.)

 

 

9.4 Statutes: functions

Although statutes have the same paramountcy in both legal traditions, they differ in their functions. Civil law codes provide the core of the law - general principles are systematically and exhaustively exposed in codes and particular statutes complete them. Finally follows the jurisprudence.  Common law statutes, on the other hand, complete the case law, which latter contains the core of the law expressed through specific rules applying to specific facts. (It is not surprising that the English word "law" means all legal rules whatever their sources, while the French word "loi" refers only to written statutory rules. The word "droit" in the French civil law is the equivalent of "law" in English common law.)

 

9.5 Consequences - evolution of the law

While the civil law principles, frozen into codes and often rigid doctrine, are imposed on courts, most common law rules can be changed from time to time, subject to the doctrine of stare decisis. On the one hand, the realities of modern life can be addressed in a more timely fashion through the common law, e.g. the salvage lien and repairer's lien. On the other hand, common law judges are sometimes hesitant to change a rule, where the consequences of doing so in relation to the whole of the law are not clear.  Less timid to reform, civil law jurisdictions have sometimes hired learned authors to assist in effecting major legal changes. An example is the engagement by the French Government of the late Dean René RODIÈRE, then regarded as the premier maritime law author and professor in France, to draft five statutes by which French maritime law was reformed in the 1960s.

 

9.6 No Trial By Jury

In civil systems there is no jury trial unlike the common law. In the adversary procedure of the common law, arguments are addressed orally to the court, and the evidence is directly presented to it or to the jury. In the 19th century, jury trial was widely adopted in civil-law countries, but only for criminal cases. In the 20th century it was largely abandoned mostly in favour of the system of the mixed bench, on which professional, legally trained judges sit together with laymen and decide together with them not only, as the common-law jury does, questions of fact but also those of law. In civil cases concerning matters of business or of labour relations, the lay members of the court are picked from among business people or from the circles of management and labour.   In common-law countries the mode of adversary procedure is still followed rather consistently in both civil and criminal cases. In civil law countries witnesses are generally examined by the presiding judge, who has also the power to expedite the conduct of a case and, when he regards it as necessary, to influence the parties' conduct of the case. Although it is conceivable that a judge having such powers may be swayed from strict impartiality, the scales can be balanced in favour of the party represented by counsel less able or less ruthless than that of his adversary.

 

CIVIL LAW AND COMMON LAW : RESULTING DIFFERENCES IN LAW – William Tetley

 

A study of several differences in substantive law as between the civil law and the common law is very instructive in illustrating the diversity of basic juridical concepts underlying the two legal systems.

1. Economic loss

2. Pre-judgment interests

3. Lex mercatoria

4. Conflict of laws

5. Forum non conveniens 

6. Forum conveniens

7. Arbitration

8. Interpretation / construction of contracts

 

SOME CIVILIAN PRINCIPLES NOW IN THE COMMON LAW

 

1. Restitution

2. Negligence - delict - general tort of negligence

3. Foreseeable contractual damages

4. Pre-judgment interests

5. Proof of foreign law

6. Contributory negligence

7. Marine insurance

 

Tutorial Questions:

 

1.       Hypothetical Law: Everyone must wear orange colored pants on Thursday.  Discuss from the perspective of a civil law specialist and a common law specialist.

 

2.       The Parliament of ValleyView recently passed an Electoral Offence Act 2001, which created the following offence- Section 3(1) No one shall wilfully, fraudulently and with intent to affect the result of any general election impersonate any person entitled to vote at such election.

 

Facts: Mumford Kenny, knowing that John Daniel had migrated to Canada and had not returned to Valley View for over 15 years, had decided to use the poll card of John Daniel, which had accidentally come into his possession, to vote in the general elections.  He proceeded to vote in his own name, remove the ink stain from his finger and return and vote as John Daniel.  He was recognised by a police officer and promptly arrested and charged for breach of Section 3(1) above.  Unknown to Mumford Kenny, John Daniel had died three years previously in Canada.  Applying the rules of statutory interpretation, would Mumford Kenny be guilty of an offence under Section 3(1) of the Electoral Law?

 

3.     The traditional differences between the common law and civil law systems are now disappearing in the face of decreased judicial intervention and growing reliance on Parliament as the primary body responsible for the making of laws.  Discuss.

 

4.       The Municipal Corporations Act, Section 45 states, “In the event a Corporation expands its boundaries and assimilates lands falling under District Councils, the Corporation shall pay reasonable compensation to the District Council so affected.”  In 2000, the Point Fortin Corporation decided to assimilate part of the lands of the Cedros and Icacos District Councils respectively.  Subsequent to the assimilation, the Minister of Local Government, by Order, consolidated the Cedros and Icacos District Councils with a new name of the Ceacos District Council.  The new Ceacos District Council is claiming compensation under Section 45 of the Municipal Corporation Act for the assimilation of the lands of the former Cedros and Icacos District Councils but the claim is being resisted by the Point Fortin Corporation.

 

Discuss the merits of the case of the Ceacos District Council using the main rules of statutory interpretation.

  1. The common law system is characterised by the dominance of case law.  It can be argued that while the reliance on case law and the doctrine of stare decisis is worthwhile, the disadvantages herald the need for change.  Discuss.

 

  1. The Rule of law is essential for ensuring that the public and the business community can operate within a legal environment that is supportive and capable of ensuing proper social development.  Discuss.

 

  1. Section 17 of the Jury Act of La La Land states “On announcement of a decision by the foreman of a jury, the number of jurors voting for and against a decision must be stated. 

 

John Brown committed a terrible murder on November 14th 2000.  He killed a pregnant woman and her husband as they were taking a casual stroll in the Blue Park Savannah.  The nation was shocked by this crime and the public opinion called for swift justice.  The matter was heard before 12 jurors and a unanimous decision was required for a murder verdict.  However, a finding of guilty by 10 jurors out of 12 constituted a verdict of manslaughter.  John Brown’s trial lasted two weeks and after a mandatory three hours of deliberations, the foreman of the jury announced that 10 jurors had voted for a murder verdict but the remaining jurors could not be persuaded.   The judge accepted the verdict and condemned John Brown to 20 years imprisonment for manslaughter. 

 

John Brown would like to appeal the conviction on the basis of the contravention of the Jury Act. Please advise.

 

8.  Judges must not pre-empt the role of Parliament and purport to render its own opinion on the intentions of Parliament.  Discuss this statement in the context of the following problem.

The St. Michael Council wants to bring an action against Peter Smith alleging that he breached Regulation 14(3) of the Building Regulations which places responsibility for poor building work on "the person carrying out the work".  Peter Smith is the owner of a building where shoddy work was carried out but he was not the person doing the work. 

 

CASES Gooden v. Waterford Regional Hospital [2001] IESC 6 (21st February, 2001)

THE SUPREME COURT

 

Record No. 334/00

 

McGuinness, J.

Hardiman, J.

Geoghegan, J.

 

 

IN THE MATTER OF THE MENTAL TREATMENT ACTS 1945 TO 1961

 

AND IN THE MATTER OF ARTICLE 40 OF THE CONSTITUITION

 

BETWEEN

 

CLIVE GOODEN

 

APPELLANT/APPLICANT

 

AND

 

WATERFORD REGIONAL HOSPITAL AND ST. OTTERAN’S HOSPITAL

 

RESPONDENTS

 

 

[Judgments by McGuinness and Hardiman JJ.; Geoghegan J. agreed with both]

 

 

JUDGMENT of Mrs. Justice McGuinness delivered the 21st day of February 2001

 

 

1. This appeal concerns an enquiry pursuant to the provisions of Article 40 of the Constitution into the legality of the detention of the Appellant at St. Otteran’s Psychiatric Hospital in Waterford.

 

Factual Background

 

2. The Applicant was born in Huddersfield, England, on 1st May 1966. His ethnic background is Afro-Caribbean. He states in an affidavit sown on 13th June 2000 that he moved with his parents to Canada at the age of nine and lived there for some twenty five years, a period which would cover his entire lifetime. However it appears from his medical

history that he also lived as an adult in England and spent a period of one year in a psychiatric hospital there. He subsequently came to Ireland. He states that he spent three months as a voluntary patient in St. Patrick's Hospital, Dublin; other medical evidence establishes that he was in St. Brendan's Hospital, Dublin from 16th July 1999 to 24th August 1999.

3. It is not entirely clear when the Appellant began to reside in Waterford, but he appears to have taken up residence there by June 1999. In April 2000 he was residing in Bolton House, which is described as “The Independent Protestant Hostel”; the administrator of this hostel is a Baptist Minister. By religion the Appellant is a Jehovah’s Witness. Arising out of an incident in Bolton House, the Appellant was on 16th April 2000 brought by members of the Garda Siochana to the Department of psychiatry, Waterford Regional Hospital. He had been examined by a local general practitioner Dr. Power, and he was admitted as a temporary chargeable patient under Section 184 of the Mental Treatment Act 1945. He was diagnosed as suffering from a major mental illness, most probably disorganised schizophrenia. He was examined and treated by Dr. Noel Sheppard, Consultant Psychiatrist. Due to increasingly disturbed behaviour he was subsequently transferred to St. Otteran’s Hospital and came under the care of Dr. Derek O’Sullivan, Consultant Psychiatrist.

4. On 13th June 2000 the Appellant applied to the High Court for an enquiry under Article 40 of the Constitution into the legality of his detention. The matter came on for hearing before Herbert J. and on 16th June 2000 Herbert J. made an order adjudging that his detention was not in accordance with law and directing his release. It appears from the pleadings in that application, which are exhibited with the Appellant’s affidavit in the present proceedings, that the reason for his release by the High Court was that the statutory form necessary for his reception as a temporary chargeable patient under Section 184 was manifestly defective and incomplete and that the proper procedures had not been carried out prior to his reception in the hospital. The Applicant remained living at liberty in Waterford until the 9th November 2000. On that date he was arrested by the Garda Siochana arising out of an incident of alleged assault. The subsequent events are summarised by Kelly J. in his judgment of 14th December 2000 as follows:-

“Whilst in police custody he (the Appellant) described hearing voices in his head and said that aliens were coming to visit him and green blood was pouring from his veins. The police took him to the hospital. At the hospital it was difficult to obtain a comprehensive history from him and he answered some questions by saying that he was from space. He was considered to be suffering from a psychotic illness involving delusions, abnormal thoughts and hallucinations.

 

When he arrived at the hospital there was an accompanying form for admission as a temporary patient (chargeable) under the provisions of the Mental Treatment Act 1945. This form was incomplete so the Applicant was offered admission as a voluntary patient which he accepted by signing the relevant forms.

 

On the following day he was seen by Dr. Derek O’Sullivan, Consultant Psychiatrist, who was aware of the Applicant’s previous history of mental illness. When he examined him he found him to be deluded about aliens stating that he lived in outer space. The Doctor formed the view that there was a relapse in his schizophrenic condition due to poor compliance with treatment. Anti-psychotic medication was commenced.

Dr. O’Sullivan saw him again on the 13th November 2000. He continued to be deluded but demanded that he leave hospital. On that occasion the Applicant gave written notice that he wished to be discharged from the hospital....

 

On the same day that he gave that written notice namely the 13th November 2000 he was seen by Dr. O’Sullivan. He told the Doctor that he had been sent to the hospital from another planet to track down aliens who were there and were causing harm. The Applicant said that his objective was to take them back to their own planet. The Doctor found him to have a very elaborate delusional system with paranoid and persecutory components. The Applicant alleged that he had been stabbed in Canada and the United States and shot at, but that people from outer space had patched him up and put him together again. He had no insight into the fact that he had an illness and did not believe that he required medication.”

 

5. It was clearly the view of Dr. O’Sullivan and the hospital authorities that the Applicant was not medically fit to be discharged from the hospital. Dr. O’Sullivan had found him to have a very elaborate delusional system with paranoid and persecutory components. The hospital authorities requested an assessment of the Applicant with a view to having him admitted to the hospital as a temporary chargeable patient under Section 184 of the 1945 Act.

6. On 15th November 2000 the local Superintendent Community Welfare Officer Mr. Bernard Tyers and Dr. Power, General Practitioner jointly assessed the Appellant. Following that assessment parts 1 and 2 of the statutory form under Section 184 of the 1945 Act was completed by them. Dr. O’Sullivan saw the Appellant on 16th November 2000 before the seventy two hour notice which he had given for his discharge from hospital had expired. Dr. O’Sullivan diagnosed him as continuing to be ill and requiring treatment and completed Part 3 of the statutory form, admitting him as a temporary chargeable patient. In his affidavit sworn the 4th December 2000 Dr. O’Sullivan then states that he informed the Appellant of his rights and gave him a leaflet. He goes on to state that a second opinion was requested from one of his consultant colleagues, Dr. Sheppard, and it was arranged for the Appellant to be facilitated in contacting his solicitor. The Appellant has remained in St. Otteran’s Hospital since that date. In his affidavit sworn the 4th December 2000 Dr. O’Sullivan avers that the Appellant is still seriously ill and in need of continuing treatment.

7. On 30th November 2000 the Appellant again applied ex parte for an enquiry pursuant to Article 40 of the Constitution into the legality of his detention. On that date Kelly J. made a conditional order directing the Medical Superintendent of St. Otteran’s Hospital to produce the Appellant before the Court and to certify in writing the grounds of his detention. On 5th December 2000 Kelly J. carried out the enquiry under the Constitution. He delivered his reserved judgment on the 14th December 2000 and made an order declaring that the Applicant was detained in accordance with the law and refusing his release.

8. From that judgment and order the Appellant/Applicant has appealed to this Court. The grounds of his appeal are as follows:

“1. The Applicant’s detention is invalid and unlawful in that

(a) The Respondent failed to release the Appellant from voluntary detention in accordance with Section 194 of the Mental Treatment Act of 1945, the Appellant having given seventy-two hour notice of discharge from the Respondent’s institution in accordance with the said Act;

(b) the Respondent was not entitled under any circumstances to prevent the Appellant from leaving its institution after the expiry of the seventy two hour notice;

(c) the procedure provided for under Section 184 of the said 1945 Act, as amended, is not available in cases where a person is already detained voluntarily in the institution in which it is intended to have him received and detained;

(d) the mandatory provisions of Section 184 of the said 1945 Act were not complied with, to the effect that any purported detention thereunder is not in accordance with law;

(e) the mandatory provisions of Section 5 of the Mental Treatment Act 1953 were not complied with by the Respondent, in particular the requirements of Section 5(3)(a)(i) and 5(3)(a)(ii), so that the purported detention of the Appellant under Section 184 of the said Act of 1945 as amended is not in accordance with law.

2. The learned judge of the High Court erred in law and in principle:

(a) in determining that the Respondent was entitled not to release the Appellant from voluntary detention upon the expiry of seventy two hours notice of discharge being given by the Appellant under Section 194 of the Mental Treatment Act 1945;

(b) in determining that the procedure for the involuntary detention of a person pursuant to Section 184 of the said Act of 1945 (as amended) could be invoked in the case of a voluntary patient who had given notice of discharge under Section 194 as aforesaid;

(c) in determining that the Appellant could be denied the protection to which he would otherwise have been afforded pursuant to Section 5 of the 1953 Mental Treatment (Amendment) Act 1953;

(d) in failing to release the Appellant.”

 

9. At this point I should say that I have no doubt that the authorities in St. Otteran’s Hospital, and in particular Dr. O’Sullivan, acted as they did in what they saw as the best interests of the Appellant. It also appears clear from the medical evidence that the Appellant remains quite seriously ill and that his prognosis if he is released without further treatment is not good. However the matter before this Court is an enquiry under Article 40 of the Constitution and accordingly the sole issue which falls to be decided is whether the Appellant’s detention is in accordance with law. This was made clear by the learned Chief Justice (Finlay C.J.) in his judgment on behalf of a full Court in In Re D. [1987] IR 459 at 457: -

“Though on my view of the case it does not arise for decision, I feel I should express my view that, on my understanding of the provisions of Article 40, s.4, sub-s. 2 of the Constitution, the High Court on the hearing of an application pursuant to that sub-article must reach a single decision, namely, whether the detention of the person concerned is or is not in accordance with law. If it is, then the application must be refused, if it is not, the person must be discharged from the custody in which he is. Such a procedure does not appear to me to admit of any supervision or monitoring of the interest of the person concerned, even allowing for a condition of mental retardation or other want of capacity.”

 

The Statutory Provisions

10. The interpretation of a number of sections both of the Mental Treatment Act 1945 (as amended) and of the Mental Treatment Act 1953 forms the core of the issues in these proceedings. The first relevant section is Section 194 of the Mental Treatment Act 1945 which is found in Part XV of the Act entitled “Voluntary Patients”. Section 194 in so far as it is relevant provides as follows:-

“(1) A person not less than sixteen years of age who has been treated in an approved institution as a voluntary patient may give written notice that he wishes to leave the institution not earlier than seventy two hours from the giving of the notice, and he shall be entitled and shall be allowed to leave the institution on or at any time after the expiration of the said seventy two hours....

(3) A notice under this section shall be given to the person in charge of the relevant institution.”

 

11. It was submitted in argument before this court that Section 195 was also relevant. That section provides as follows:-

“195. Where a person who has been treated in an approved institution as a voluntary patient becomes mentally incapable of expressing himself as willing or not willing to remain in the institution, he shall be discharged from the institution into the custody of such person as the person in charge of the institution approves of not later than twenty eight days after becoming so incapable unless he sooner becomes capable of expressing himself as aforesaid or a Reception Order relating to him is obtained.”

 

12. The Appellant has been detained in St Otteran’s Hospital pursuant to a Reception Order purporting to have been made under Section 184 of the Mental Treatment Act 1945 (as amended). Section 184 forms part of Chapter 3 of Part XIV of the Act. Part XIV deals in general with Reception Orders and Chapter 3 is entitled “Temporary Chargeable Patient Reception Orders and Temporary Private Patient Reception Orders”. Section 184 (as amended) of the Act insofar as it is relevant provides as follows:

“(1) Where it is desired to have a person received and detained as a temporary patient and as a chargeable patient in an approved institution maintained by the Mental Hospital Authority for the Mental Hospital District in which such person ordinary resides or an approved institution in which temporary patients of such authority may, in pursuance of an arrangement made under Section 102 of this Act, be received, application may be made in the perscribed form to the person in charge of such institution for an order (in this Act referred to as a Temporary Chargeable Patient Reception Order) to have such person received and detained as a temporary patient and as a chargeable patient in such institution.

(2) An application under this section may be made -

(a) by the husband or wife or a relative of the person to whom the application relates, or

(b) at the request of the husband or wife or a relative of the person to whom the application relates, by the appropriate assistance officer or,

(c) subject to the provisions of the next following sub-section, by any other person.

(3) Where an application under this section is not made by the husband or wife or a relative of the person to whom the application relates or, at the request of the husband or wife or a relative of such person by the appropriate assistance officer, the application shall contain a statement of the reasons why it is not so made, of the connection of the Applicant with the person to whom the application relates, and of the circumstances in which the application is made.

(3A) An application under this section shall not be made unless the Applicant is at least 21 years of age.

(4) An application under this section shall be accompanied by a certificate in the prescribed form of a registered medical practitioner (not being a registered medical practitioner disqualified in relation to the person to whom the application relates) certifying that he has examined the person to whom the application relates on a specified date not earlier than seven days before the date of the application and is of opinion either -

(a) that such person -

(i) is suffering from mental illness, and

(ii) requires for his recovery not more than six months suitable treatment, and

(iii) is unfit on account of his mental state for treatment as a voluntary patient, or

(b) that such person -

(i) is an addict, and

(ii) requires, for his recovery, at least six months preventive and curative treatment.

(5) After consideration of an application for a Temporary Chargeable Patient Reception Order and of the certificate accompanying the application, the person to whom the application is made may, if he so thinks proper, make such order in the prescribed form.

(6) .........

(7) A registered medical practitioner shall, for the purposes of this section, be disqualified in relation to a person -

(a) if such practitioner is interested in the payments (if any) to be made on account of the taking care of the person,

(b) if such practitioner is the husband or wife, father, stepfather or father-in-law, mother, stepmother or mother-in-law, son, stepson or son-in-law, daughter, stepdaughter or daughter-in-law, brother, stepbrother or brother-in-law, sister, stepsister or sister-in-law, or guardian or trustee of the person, or

(c) if such practitioner is a medical officer of a District Mental Hospital.

(8).........”

 

13. Certain provisions of Section 5 of the Mental Treatment Act 1953 are also in issue. That section in so far as it is relevant provides:

“(1) Where, in the case of an application under Section 184 or 185 of the Principal Act, a medical certificate under the section has been given, the following provisions shall have effect:-

(a) the Applicant or any person authorised by him may, not later than seven days after the date of the examination, take the person to whom the application relates and convey him to the institution in which it is desired to have him received and detained,...

(3)(a) Notwithstanding sub-section (1) of this section, where a medical certificate has been given under Section 184 of the Principal Act and it is proposed to exercise the power conferred by paragraph (a) of that sub-section -

(i) the Applicant shall, before exercising the said power, inform the person to whom the application relates of the nature of the medical certificate and of the fact that such person may request a second medical examination...”

 

The Decision of the High Court

14. In his judgment the learned High Court judge set out the relevant facts and statutory provisions. The first issue that arose was whether a voluntary patient in a mental hospital who had given the seventy two hour notice of his discharge required by Section 194 of the 1945 Act had an absolute right to be discharged and physically released from the hospital at or before the expiry of the seventy two hour notice period. Kelly J. considered that in providing for the seventy two hour period of notice the Oireachtas “must have had in mind that in an appropriate case the hospital authorities might during that period avail themselves of other statutory provisions so as to ensure that a mentally sick person would not be free to leave hospital thereby placing his welfare or perhaps even his life at risk.”

 

15. He rejected the proposition that in all cases where a notice was given under Section 194 of the Act there was a mandatory entitlement on the part of the patient to leave the institution at the expiration of the seventy two hour period.

16. With regard to the interpretation of Section 184 of the 1945 Act, which provides that a patient is to be “received and detained” Kelly J. held that the section should be interpreted in a purposive fashion and that a voluntary patient could, while in the custody of the hospital, be the subject of Section 184 detention.

17. The learned High Court judge also held that there had not been a failure to comply with the provisions of Section 5(3)(a) of the Mental Treatment Act 1953. The provisions of Section 5(3)(a) only applied in circumstances where it was proposed to exercise the power to “take and convey” the person concerned as set out in Section 5(1)(a) of the Act. Since that did not apply in the case of the Appellant, the provisions of Section 5(3)(a) did not apply to him. The learned judge noted that despite this a second opinion had been given and the Appellant had been given a leaflet setting out his rights. Kelly J. therefore took the view that the Appellant had not made out a case that his detention was unlawful and consequently he refused his application for release.

 

Submissions of Counsel

18. The submissions of Mr Counihan, Senior Counsel for the Appellant, fell under three headings. He argued that the detention of the Appellant was unlawful in that (i) the Respondent failed to release him in accordance with Section 194 of the 1945 Mental Treatment Act, (ii) the procedure for admission as an involuntary patient under Section 184 of the 1945 Mental Treatment Act did not apply to persons already admitted as voluntary patients, and (iii) that the procedure adopted by the Respondent was not in accordance with the mandatory provisions of Section 5 of the 1953 Mental Treatment Act 1953. Finally Mr Counihan argued that the Court should have regard to the provisions of the European Convention on Human Rights on the deprivation of liberty.

19. As regards the first issue Mr Counihan submitted that the wording of Section 194 was clear and unambiguous. Where the meaning of a statute was clear and unambiguous it should be interpreted literally. He referred to the judgment of Denham J. in this Court in DPP (Ivers) v Murphy [1999] 1 ILRM 46 at page 60 :-

“If the purpose of the legislature is clear and may be read in the section without rewriting the section then that is the appropriate interpretation for the court to take.”

20. Mr Counihan argued that a voluntary patient who had given notice pursuant to Section 194 could not during the period of notice be subjected to the Section 184 procedure in order to keep him in hospital. The detention of Mr Gooden in St. Otteran’s Hospital was plainly in breach of Section 194.

21. With regard to the procedure under Section 184 used by the Respondents to detain the Appellant in St. Otteran’s Hospital, Mr Counihan submitted that the use of the section was a strategy to ensure his continuing detention. He referred to the statutory form which had been completed in regard to Mr Gooden. He submitted that Mr Bernard Tyers, the Superintendent Community Welfare Officer, had no involvement in the case and was merely acting as a rubber stamp. He had clearly been brought in by the authorities in St. Otteran’s Hospital solely for the purpose of completing the form. There was no evidence to support the Section 184 application and the situation was not one of emergency. No emergency situation had been pleaded by the Respondents.

Under Section 5(3)(a) of the Mental Treatment Act 1953 the Appellant should have been informed subsequent to his examination by Dr. Moore that he had the right to request a second medical examination. He was not so informed. The second opinion provided by Dr. Sheppard, Consultant Psychiatrist, which was referred to in the affidavit of Dr. O’Sullivan, did not satisfy the terms of Section 5(3). Dr. Sheppard was not an independent practitioner; he was part of the staff of the Respondent hospital. Dr. Sheppard carried out his examination not at the request of the Appellant but at the request of Dr. O’Sullivan or other hospital authorities. The examination was not carried out at the correct time specified in the 1953 Act.

22. Mr Counihan also referred to the leaflet which was given to Mr Gooden and which was exhibited with Dr. O’Sullivan’s affidavit. He pointed out that this leaflet did not clearly indicate to the Appellant that he had a right to seek a second opinion. The main reference to the patient’s rights was contained in a short paragraph which stated:-

“Patients admitted on a temporary basis have certain rights of appeal and your doctor will be able to inform you of these rights as well as explaining other aspects relating to your admission.”

 

23. This paragraph was in the first place far from clear and in the second place left the patient solely dependent on the advice of the doctor as regards his rights.

24. Mr Counihan also stressed the importance of the constitutional right to liberty and referred to the dictum of Costello P. in R.T. v Director Central Mental Hospital [1995] 2 IR 65 at page 79 where the learned President stated:

“The reasons why the Act of 1945 deprives persons suffering from mental disorder of their liberty are perfectly clear. It does so for a number of different and perhaps overlapping reasons - in order to provide for their care and treatment, for their own safety, and for the safety of others. Its object is essentially benign. But this objective does not justify any restriction designed to further it. On the contrary, the State’s duty to protect the citizen’s rights becomes more exacting in the case of weak and vulnerable citizens, such as those suffering from mental disorder.”

 

25. This dictum was specifically approved by this Court in Croke v Smith (No.2) [1998] 1 IR 101 at 118.

26. Mr Counihan also drew attention to Article 5.1 of the European Convention on Human Rights:-

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law:......(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;”

 

27. Mr Counihan submitted that the Appellant in the present case had not been detained in accordance with a procedure prescribed by law.

28. Finally Mr Counihan submitted that the Court could not be concerned with the objective welfare of the Appellant. This was an application under Article 40 of the Constitution and the sole issue was whether the Applicant was detained in accordance with law.

29. Senior Counsel for the Respondents. Mr. McEnroy, argued that Mr Counihan’s submissions in regard to Section 194 of the 1944 Act were entirely dependent on taking Section 194 as a section standing on its own. On the contrary the section formed part of that Part of that Act which dealt with voluntary patients and should be read in its context. In particular it should be read in the context of Section 195, which provided that where a person who has been treated in an approved institution as a voluntary patient becomes mentally incapable of expressing himself as willing or not willing to remain in the institution, he shall be discharged from the institution into the custody of such person as the person in charge of the institution approves of not later than 28 days after becoming so incapable unless he sooner becomes capable of expressing himself as aforesaid or a Reception Order relating to him is obtained. Mr McEnroy submitted that Section 195 clearly envisaged a situation in which a Reception Order whether under Section 184 or under another section could be made in relation to a voluntary patient who was still in the hospital. He argued that the seventy two hour notice period where discharge was sought under Section 194 was provided precisely in order to allow the hospital authorities to take appropriate action if they felt that on account of his illness the patient was not fit to be discharged. This was the course that had been taken by Dr. O’Sullivan and the authorities of St. Otteran’s.

30. With regard to the argument that Mr Bernard Tyers was a mere “rubber stamp” and had no connection with the patient, Mr McEnroy raised the query as to who was to sign the statutory form under Section 184. This was clearly set out in sub-section (2) of Section 184. The primary persons required to make an application - the husband, wife, relative, or assistance officer at the request of a relative simply did not exist in the instant case and that was made clear by Mr Tyers in filling in the form. At paragraph 7(b) of the form dated 15th November 2000 on foot of which the Appellant was detained as a temporary patient (chargeable) Mr Tyers had stated. “My connection with the said person is I am Superintendent Community Welfare Officer for the Waterford Community Care Area and the circumstances in which I am making the application are the patient has no blood relative available to do so.” Given that it was envisaged at 7(a) of the statutory form that an Assistance Officer could have a role in completing the form it was quite appropriate that Mr Tyers should have fulfilled the role in this case since the present post of Community Welfare Officer was the modern equivalent of an Assistance Officer in 1945.

31. The Appellant in this case had been assessed by a General Practitioner Dr. Moore and had subsequently been examined by Dr. O’Sullivan who was a Consultant Psychiatrist. Mr McEnroy acknowledged that the second opinion given by Dr. Sheppard was not the type of second opinion envisaged in Section 5(3) of the 1953 Act. It had taken place at the wrong point in the process. That was not to say that it was entirely without value.

32. Mr McEnroy submitted that the learned High Court Judge was entirely correct in holding that the provisions of Section 5(3)(a) only came into effect where it was proposed to exercise the powers conferred by Section 5(1)(a) - to take and convey the person concerned to the institution. Since this did not arise in the case of the Appellant, neither did Section 5(3)(a) apply to the Appellant.

33. As far as the rights of the Appellant were concerned, Mr McEnroy submitted that the Appellant had an important right to health as well as a right to liberty. His right to health might well be damaged if his right to liberty was vindicated by his being discharged from St. Otteran’s Hospital when he was clearly seriously ill. No medical evidence had been produced to contradict the medical evidence of his illness provided by the Respondents. Mr McEnroy referred to Re: Philip Clarke [1950] IR 253 where the previous Supreme Court had held that the 1945 Act “was of a paternal character, clearly intended for the care and custody of persons suspected to be suffering from mental infirmity and for the safety and well being of the public generally” (at page 247). Mr McEnroy submitted that this central purpose of the Act should be borne in mind when approaching any questions of interpretation.

The Law and Conclusions

34. The first issue which arises is the interpretation of Section 194 of the Mental Treatment Act 1945. Counsel for the Appellant submits that the learned High Court judge erred in interpreting this section in a purposive manner and contends that since the wording of the section is clear and unambiguous it should be interpreted literally. The rules of interpretation were fully considered by Denham J. in her judgment in this Court in DPP (Ivers) v Murphy [1999] 1 ILRM 46 (at page 58 onwards). Counsel for the Appellant himself referred to an aspect of this case in his argument. However I think that it is useful to consider the passage as a whole. Under the heading “Rules of Interpretation” Denham J. stated:

“The learned trial judge applied the literal rule of interpretation. There is authority that this should be applied even if the result be absurd. Thus Lord Esher said in R v Judge of the City of London Court [1892] 1 QB 273 at page 290 :

‘If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the Legislature has committed an absurdity.’

However, this approach is ameliorated by the golden rule which was described by Lord Blackburn in River Wear Commissions v Adamson (1877) 2 App Cas 743 at page 764 as :

‘I believe that it is not disputed that what Lord Wensleydale used to call the golden rule is right, viz., that we are to take the whole Statute together and construe it all together, giving their words their ordinary significance, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary significance, and to justify the Court in putting on them some other signification, which, though less proper, is one which the court thinks the words will bear.’

Such an approach enables the court to consider the entirety of the Act or section when the literal interpretation produces an absurdity. This choice was described by Henchy J. in Nestor v Murphy [1979] IR 326 as:

‘To construe the sub-section in the way proposed on behalf of the Defendants would lead to pointless absurdity.’

The third rule of construction, the mischief rule, may also be considered. This rule was described in Heyden's case (1584) 3 Co. Rep 7:

‘And it was resolved by them, that for the sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:

(1) What was the common law before the making of the Act?

(2) What was the mischief and defect for which the common law did not provide?

(3) What was the remedy the Parliament had resolved and appointed to cure the disease of the commonwealth.

(4) The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the Act, pro bono publico.’

This rule is now more commonly called the purposive approach. In Pepper v Hart [1993] 1 All ER 42 Lord Griffiths stated at page 50:

‘The days have long passed when the Courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The Courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation....’

I would concur with this approach. However, no method of interpretation may be such as to encroach on the constitutional role of the Oireachtas as the legislative organ of the State. The rules are applied to interpret the Act passed by the legislature and in so doing afford the respect appropriate from the judicial organ of government to the legislature.

 

The rules of construction are part of the tools of the court. The literal rule should not be applied if it obtains an absurd result which is pointless and which negates the intention of the legislature. If the purpose of the legislature is clear and may be read in the section without rewriting the section then that is the appropriate interpretation for the Court to take.”

 

35. I respectfully accept Denham J’s analysis of the principles of interpretation as set out in that judgment. In interpreting Section 194, therefore, it would in my view be right to consider the purpose of the 1945 Act as a whole. It is a wide ranging Statute, dealing with all aspects of provision of treatment for those suffering from mental illness, ranging from the building of mental hospitals to details of their administration and staffing and to the reception and care of patients. It is divided into distinct but related Parts. Section 194 occurs in that part of the Act which deals with voluntary patients in mental hospitals. It cannot, however, be read entirely in isolation from those parts of the Act which deal with patients who had been committed to mental hospitals as a result of Reception Orders. Still less should be read in isolation from the surrounding sections in the same part, and in particular Section 195.

36. At first reading the wording of Section 194 appears clear and unambiguous. If, however, it is interpreted literally as providing an absolute right to physical release from the hospital and as preventing any use of the machinery of Section 184 or the making of a Reception Order while the patient is still in the hospital the logical result is that the only person for whom a Reception Order cannot in any circumstances be made is a voluntary patient who has given notice of discharge. During the seventy two hour period of notice he is inviolate and at the end of it he must be physically released. This situation would apply even if the patient in question was so mentally ill as to be a danger either to himself or to the public. That this is the effect of a literal interpretation of Section 194 is candidly admitted by Mr. Counihan.

In In Re Philip Clarke [1950] IR 235 the former Supreme Court considered the constitutionality of Section 165 of the 1945 Act. O’Byrne J. who delivered the judgment of the Court, described the general aim of the 1945 Act thus:

“The impugned legislation is of a paternal character, clearly intended for the care and custody of persons suspected to be suffering from mental infirmity and for the safety and well being of the public generally. The existence of mental infirmity is too widespread to be overlooked, and was, no doubt, present to the minds of the draftsman when it was proclaimed in Article 40.1 of the Constitution that though all citizens are to be held equal before the law, the State, may, nevertheless, in its enactments, have due regard to differences of capacity, physical and moral, and of social function. We do not see how the common good would be promoted or the dignity and freedom of the individual assured by allowing persons alleged to be suffering from such infirmity to remain at large to the possible danger of themselves and others.”

 

37. This passage has been generally accepted as expressing the nature and purpose of the 1945 Act. The Act provides for the detention of persons who are mentally ill both for their own sake and for the sake of the common good.

38. The Appellant was a voluntary patient in St. Otteran’s Hospital who gave notice that he wished to discharge himself. The unchallenged medical evidence establishes that he was still seriously ill and suggests that he was not fit for discharge and for living independently in the community. It seems likely that situations similar to that of the Appellant must not infrequently arise in the experience of mental hospitals. It is hardly likely that the Oireachtas intended that these patients, and these patients alone, should be discharged into the community, possibly without treatment, when other persons exhibiting the same degree of illness can be protected by being received into a hospital and there have their illness treated. It may be of significance, although this was not raised in argument before this Court, that the voluntary patient may not be released prior to the expiration of the notice period; he is to be allowed to leave “on or at any time after” its expiry (my emphasis).

39. In addition, I would accept the validity of Mr McEnroy’s submission that Section 194 should be interpreted in the light of Section 195. Section 195 envisages a situation where a voluntary patient is so ill that he or she is unable to continue to make the voluntary decision either to remain in hospital or to seek discharge. The section envisages any one of three outcomes to such a situation. If after a period of a maximum of 28 days the person remains unable to express willingness or unwillingness to remain he should be discharged to an approved person. However, within the 28 days the patient may recover sufficiently to make his own decision. The third possibility is set out in the final part of the section -

“or a Reception Order relating to him is obtained” .

40. This must imply that if the patient concerned is too ill to be discharged at the end of the 28 day period the hospital may, without discharging him , set in train the machinery for obtaining a Reception Order.

41. If this is permissible in a situation where Section 195 applies, it seems to me that it is also permissible in a situation under Section 194 where a patient seeks discharge but is sufficiently seriously ill to render discharge likely to be harmful. As far as this issue is concerned, therefore, I would uphold the decision of the learned High Court judge.

42. I would also reject the submission of the Applicant that the procedure under Section 184 of the Act by which the Reception Order was made was incorrect in that Mr Bernard Tyers, Senior Community Welfare Officer, was not a proper person to make the application for a Reception Order. It is, of course, true that Mr Tyers is not a relative of the Applicant; nor is he acting on the request of a relative. However, it is clear firstly that the Appellant is not a native of Waterford and has no relatives in the area, and secondly that in the terms of Section 184(2)(c) the application may be made by “any other person” . Mr Tyers fulfils the requirements of Section 184(3). He is a senior official of the South Eastern Health Board. In my view he is a perfectly proper person to make the application in the circumstances of the case.

43. I now turn to the submission made by counsel for the Applicant that the procedure adopted by the Respondent was not in accordance with the mandatory provisions of Section 5(3) of the Mental Treatment Act 1953. The Appellant’s case is that in all cases where an application for a Reception Order for a chargeable patient is made the person in respect of whom the application is made must, before the Reception Order is made, be told that he may request a second medical opinion and may obtain that opinion.

If Section 5(3)(a)(i) applies in the case of the Appellant, Mr Gooden, it is clear, as is conceded by Mr McEnroy, that neither the examination of the Appellant by Dr. Sheppard nor the terms of the leaflet handed to Mr Gooden would meet the requirements of the sub-section.

44. Mr McEnroy, however, argues that Kelly J. was correct in his decision that Section 5(3) did not apply at all, since it was governed by Section 5(1) and applied only when the person concerned was taken and conveyed to the relevant institution.

45. The right to request a second opinion and the necessity to be informed of such a right are extremely important protections in the case of a person who is facing involuntary detention in a mental hospital. It should be noted that where application is made under Section 185 for a temporary Reception Order in respect of a private patient, the opinion of two general practitioners is automatically required. This is one of a number of differences or discriminations made in the Act between public, or “chargeable”, patients and those who can afford to pay for their own psychiatric care. This in my view is one of the undesirable features of this legislation which has now been in existence for over fifty five years.

46. I would therefore consider it highly desirable that all chargeable patients should benefit from the right to a second opinion as provided in Section 5(3). There seems little justification for limiting this right to persons who are to be physically removed to “the institution in which it is desired to have him received and detained”. Presumably the right to a second opinion was provided by the Oireachtas in order to protect persons from being committed to a mental hospital without proper medical justification by relatives or other persons who bear them ill-will or simply want to get them out of the way. It is, I suppose, arguable that where a person is, like the Appellant, already a patient in a mental hospital when the application for a Reception Order is made, his rights will be promoted and protected by the doctors and other staff who are already caring for him. In the present case, for instance, Dr. O’Sullivan endeavoured to fulfil this function by seeking a second opinion from Dr. Sheppard and by giving the (somewhat inadequate) leaflet of rights to Mr Gooden.

47. I remain personally convinced that all persons in respect of whom a Reception Order is sought should have a clear right to an independent second opinion. I am, however, faced with the plain words of the section:

“Notwithstanding sub-section (1) of this section, where a medical certificate has been given under Section 184 of the principal Act and it is proposed to exercise the power conferred by paragraph (a) of that sub-section ........” (my emphasis).

 

48. The power conferred by paragraph (a) is the power to “take the person to whom the application relates and convey him to the institution in which it is decided to have him received and detained” . The word “convey”, unlike the words “receive” and “detain” in Section 184 of the 1945 Act, definitely implies movement from another place to the institution in question. The primary meanings of “convey” given by the Oxford English Dictionary are “transport” and “carry” . It is in my view impossible to avoid the conclusion that the intention of the Oireachtas was that the right to a second opinion applies only where a person is being brought from elsewhere to a mental institution. With some reluctance, therefore, I accept that in the circumstances of this case the rights provided in Section 5(3)(a)(i) do not apply to the Appellant.

49. Mr Counihan also referred to Article 5.1 of the European Convention on Human Rights. Article 5.1 provides:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law.....”

 

50. Among the cases listed are “(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants”.

51. It appears that this provision would envisage that proper legal procedures for the detention of persons of unsound mind do not infringe the protections of the Convention. In any event it has been made clear repeatedly by the High Court and by this court that the European Convention on Human Rights does not (at least to the present) form part of Irish domestic law. The provisions of the Convention may be helpful in considering unspecified personal rights which arise under the Constitution of Ireland (see Doyle v Commissioner of an Garda Siochana [1999] 1 IR 249; judgment of Barrington J. at Pg. 268 . In the case of the Appellant it does not seem to me that the provisions of Article 5.1 add anything to the Appellant’s right to liberty as it arises under Article 40 of Bunreacht na hÉireann. I would therefore dismiss the appeal and uphold the judgment and order of the High Court.

52. At the conclusion of this judgment the learned High Court judge drew attention to the need for legislative reform. He stated:-

“Finally, I wish to record that I have the greatest sympathy for the medical and nursing personnel who are called upon to operate the provisions of the Act. It is now fifty five years old and badly in need of reform. The Act came into force at a time when the practice of psychiatric medicine bore little resemblance of what it is today. The psychotropic drugs had not even been invented when this Act came into force. It is highly desirable that this legislation be brought up to date. This is not the first time that a judge of this court has pointed out the necessity for so doing. In R.T. v Director of the Central Mental Hospital and Others [1995] 2 ILRM 354 Costello P. pointed out that the reforms which were enacted in 1981 had never been brought into effect. He said at page 368

‘The 1981 reforms which would have remedied the defects were not brought into force because more thorough reforms were being considered......The prolonged search for excellence extending now for over fourteen years has had most serious consequences for the Applicant herein.’

 

That view was approved by Budd J. in the High Court in S.C. v Smith and Others (unreported 31st July 1995). Over five years later it appears that this illusive search for excellence continues. Meanwhile patients, doctors and nurses have to continue to operate in a statutory regime which is in dire need of major overhaul.”

 

53. In addition I would point out that the facts in the instant case illustrate further weaknesses in the current legislation. As I have noted earlier in this judgment the situation where a Reception Order is required for a voluntary patient who has, contrary to his own medical interests, given notice of discharge from hospital must occur relatively frequently. No express provision is made in the Act of 1945 for this situation. It has been necessary for this court to imply such a provision. This is not a satisfactory situation.

54. It has also become clear that the crucial protection of a right to an independent second opinion does not extend to all “chargeable” or public patients, while two opinions are automatically required for all private patients. This is one of a number of unnecessary and invidious differences between the treatment of public and private patients which arise under the Act. Again this situation is far from satisfactory.

55. There is now, however, some hope of reform on the horizon. The Mental Health Bill 1999 was initiated by the Minister for Health and Children on the 10th December 1999 and is proceeding through its various stages in the Oireachtas. It has, it appears, been considered and amended by the Select Committee on Health and Children which completed its work on the Bill by 25th October 2000.

56. A reading of this proposed legislation shows that it provides for very considerable reform of the law regarding the detention of persons suffering from mental illness, and would include the repeal of virtually the whole of the 1945 Act. It also envisages the repeal of the 1981 Act which was, of course, never brought into effect.

57. This is not the place to comment on the proposed reforms contained in the Mental Health Bill 1999, neither would it be proper for this Court to do so in any way. I might, however, be permitted to note that Sections 22 and 23 of the 1999 Bill deal with precisely the problem arising under Sections 194 and 195 of the 1945 Act which has been an issue in the present appeal.

58. It is to be hoped that there will be no unnecessary delay in completing the enactment of the proposed legislation; and, still more importantly, that once it is enacted it will be brought into effect.

 

THE SUPREME COURT

 

McGuinness J. 334/00

Hardiman J.

Geoghegan J.

IN THE MATTER OF THE MENTAL TREATMENT

ACTS, 1945-1961

and

IN THE MATTER OF ARTICLE 40 OF THE

CONSTITUTION

Between:

CLIVE GOODEN

Appellant/Applicant

and

WATERFORD REGIONAL HOSPITAL

and

ST. OTTERANS HOSPITAL

Respondents

JUDGMENT of Mr. Justice Hardiman delivered the 21st day of February, 2001.

59. I agree with the judgment of Mrs. Justice McGuinness in this case. Specifically, I strongly agree with what she has said about the need for statutory initiatives in this area and her hope that legislation now in train will significantly clarify and improve the position of all parties involved in the mental treatment area.

 

60. I wish to add a few words of my own about the techniques of construction the Court has applied in this case.

 

61. At the end of her judgment, McGuinness J. has said:-

“In addition I would point out that the facts in the instant case illustrate further weaknesses in the current legislation. As I have noted earlier in this judgment the situation where a reception order is required for a voluntary patient who has, contrary to his own medical interests, given notice of discharge from hospital must occur relative frequently. No express provision is made in the Act of 1945 for this situation. It has been necessary for the Court to imply such a provision. This is not a satisfactory situation”.

 

62. There is no doubt that the medical and Social Welfare authorities involved in this case have acted constructively and benevolently both in the interests of the Applicant and in the wider public interest. It is most unfortunate that the validation of these actions in law has involved complex debate about the interpretation of the statutory provisions concerned. Furthermore, it has involved the application to those provisions of the sophisticated techniques of construction described in the judgment of the learned McGuinness J. and illustrated by cases such as River Wear Commissions v. Adamson [1877] 2 App Cas 743, Nestor v. Murphy [1979] IR 326, Pepper v. Hart [1993] 1 AER 432 and DPP (Ivers) v. Murphy [1999] 1 ILRM 46.

 

63. Moreover, the result arrived at in this case has involved the application of different techniques of construction to two of the sections involved. In construing the word “received” where it occurs in Section 184(1) of the Mental Treatment Act, 1945 as amended (“where it is desired to have a person received and detained as a temporary patient and as a chargeable patient in an approved institution......”) an extended construction was required in order to apply the section to a person already physically present in the institution. On the other hand, the circumstances of the case required a literal construction to be applied to the words “convey” where it occurs in Section 5(1)(a) of the Mental Treatment Act, 1953. If the section were otherwise interpreted, the detention of the Applicant would have been invalid for non compliance with the later provisions of Section 5.

 

64. I believe that these techniques and their varied applications are justified in this case on the principle stated by Lord Griffiths in Pepper v. Hart , as follows:-

“The rules of construction are part of the tools of the Court. The literal rule should not be applied if it obtains a result which is pointless and which negates the intention of the legislature. If the purpose of the legislature is clear and may be read in the section without rewriting the section then this is the appropriate interpretation for the Court to take”.

 

65. I believe however that in construing the statutory provisions applicable in this case in the way that we have, the Court has gone as far as it possibly could without rewriting or supplementing the statutory provisions. The Court must always be reluctant to appear to be doing either of these things having regard to the requirements of the separation of powers. I do not know that I would have been prepared to go as far as we have in this direction were it not for the essentially paternal character of the legislation in question here, as outlined in In Re Philip Clarke [1950] IR 235. The nature of the legislation, perhaps, renders less complicated the application of a purposive construction than would be the case with a statute affecting the right to personal freedom in another context. The overall purpose of the legislation is more easily discerned and, where the medical evidence is unchallenged, the conflicts involved are less acute than in other detention cases. I do not regard the present decision as one which would necessarily be helpful in the construction of any statutory power to detain in any other context.

 

 

Crilly v. T. & J. Farrington Ltd. [2001] IESC 45; [2002] 1 ILRM 161 (11th July, 2001)

 

THE SUPREME COURT

APPEAL NO. 11 & 28/00

1990 NO. 7308P

Denham J.

Murphy J.

Murray J.

McGuinness J.

Fennelly J.

 

BETWEEN

DEREK CRILLY

PLAINTIFF

and

T. & J. FARRINGTON LIMITED and JOHN O’CONNOR

DEFENDANTS

 

AND IN THE MATTER OF AN ISSUE DIRECTED

TO BE TRIED

BETWEEN

THE EASTERN HEALTH BOARD

CLAIMANT/APPELLANT

and

DEREK CRILLY

FIRST NAMED RESPONDENT

and

FBD INSURANCE PLC

SECOND NAMED RESPONDENT

 

 

 

[Judgments from Denham, Murray, McGuinness and Fennelly JJ.; Murphy J agreed with Denham J]

 

Judgment delivered by Mrs. Justice Denham on the 11th day of July, 2001

 

 

1. Issues

1. In this case the matter for decision is whether the method of calculation of the charge payable under s. 2 of the Health (Amendment) Act, 1986, namely, the calculation of charge by the division of annual hospital costs by the number of occupied hospital bed days during the same year, as used by the Eastern Health Board (now known as the Eastern Regional Health Authority) hereinafter referred to as the claimant, is reasonable, proper and intra vires the Health (Amendment) Act, 1986. In addition the claimant has asked that regard be had to parliamentary materials when interpreting statutes. The second-named respondent in this appeal, F.B.D. Insurance plc., is hereinafter referred to as the insurer.

 

2. Background

2. Derek Crilly was severely injured in a road traffic accident. He was a patient in a number of hospitals and underwent extensive medical treatment. He sued T. & J. Farrington Limited and John O’Connor . In a reserved judgment on 26th August, 1992 Derek Crilly was awarded £1,667,078.20. As his injuries resulted from a road traffic accident the Act of 1986 applied. The claimant claimed a charge. I was the trial judge in the High Court in the said original action, as was noted in court at the commencement of this appeal. The parties had no objection to my presiding on the adjudication of the issues now before this court. In the said reserved judgment of 26th August, 1992 I stated:

 

“It seems unreasonable to the Defendants that they should bear the cost of a special road traffic accident rate in hospital over and above the ordinary rate. Consequently I am including in this judgment a figure which represents the cost for a private patient in Beaumont, but not the additional loading because the Plaintiff was a road traffic accident victim. This figure is not final. In relation to Our Lady’s Hospital Drogheda where the Plaintiff was in a general ward I have set payment on the basis of £99 per day, i.e., semi-private. I grant the hospitals liberty to apply to explain why they consider it fair to charge this extra rate for road traffic accident victims to the defence. The evidence I heard from the hospitals merely established that there was this rate over and above the private rate or semi-private rate and its method of costing is set out.”

 

 

3. The issue in this case between the claimant and the insurer is as to the method of charging of the Beaumont Hospital bill. In fact the bill has been paid and in this case in the High Court [2002] 1 I.L.R.M. 548 Geoghegan J. questioned whether the subject was moot. However, in view of the fact that the declaratory relief sought is in relation to an issue which arises every day of the week between the claimant and the insurer the learned trial judge acceded to the request of the parties that the matter proceed.

 

 

3. The Statutory Law

4. The matter in issue requires the construction of the Health (Amendment) Act, 1986. The long

title to the Act describes it as:

 

“An act to enable charges to be made by health boards for in-patient services and out-patient services provided for persons in respect of the treatment of certain injuries caused by the use of mechanically propelled vehicles in public places.”

 

 

Section 2 states:

 

“(1) Where -

 

(a) injury is caused to a person by the negligent use of a mechanically propelled vehicle in a public place, and

(b) in-patient or out-patient services have been, are being or will be provided by or on behalf of a health board in respect of the injury, and

(c) any one of the following, that is to say, the person aforesaid, his personal representative or dependant, has received, or is entitled to receive damages or compensation in respect of the negligent use

aforesaid from the person liable to pay such damages or

compensation in respect of that injury, or any loss, damage or

expense (or mental distress in the case of a dependant) arising

therefrom,

 

the health board shall, notwithstanding anything in the Health Acts, 1947 to 1985, make a charge upon the person who received or is entitled to receive such damages or compensation in respect of the said in-patient services or out-patient services.

 

(2) (a) A health board may waive the whole or part of a charge under subsection (1) of this section if it considers it proper to do so -

 

(i) having had regard to the amount of damages or compensation, and interest (if any) thereon, received by the person liable to pay the charge in respect of the injury to which the charge relates, and

(ii) in a case where there was contributory negligence on the part of the person to whose injury the charge relates or of one for whose acts he is responsible, having had regard to any reduction in the amount which would have been received but for the contributory negligence.

 

(b) In proceedings brought by a person to whom injury is caused by the negligent use of a mechanically propelled vehicle in a public place, or by the personal representative or dependant, of such a person in respect of such negligent use as aforesaid, claiming damages in respect of that injury, or any loss, damage or expense (or mental distress in the case of a dependant) arising therefrom, paragraph (a) of this subsection shall be disregarded.

 

(3) (1) Any sum due by a person to a health board under section 2 of this Act may be recovered by the health board from the person as a simple contract debt in any court of competent jurisdiction.

. . .

 

(4) (1) This Act may be cited as the Health (Amendment) Act, 1986.

(2) The Health Acts, 1947 to 1985, and this Act may be cited together as the Health Acts, 1947 to 1986.

(3) The Health Acts, 1947 to 1985, and this Act shall be construed together as one Act.”

 

5. The Health Act, 1970 provides:

 

“s.52 (1) A health board shall make available in-patient services for persons with full eligibility and persons with limited eligibility.

. . .

 

“s.55 A health board may make available in-patient services for persons who do not establish entitlement to such services under section 52 and (in private or semi-private accommodation) for persons who establish such entitlement but do not avail themselves of the services under that section and the board shall charge for any services so provided charges approved of or directed by the Minister.”

 

 

4. The High Court

6. In the High Court [2000] 1 I.L.R.M. 548 Geoghegan J. determined at p. 551 of the report:

 

“... the actual issue in the case is whether the calculation of the charge by the division of the annual costs of a particular hospital by the number of occupied hospital bed days in that hospital during the same year is reasonable and intra vires the 1986 Act”

 

7. There had been previous decisions on this issue in the High Court in other cases, to which the

 

learned trial judge referred and he then noted at p. 555 of the report:

 

 

“... I do acknowledge that the issue has been argued before me in a much fuller way than it was in the other cases and also that new matter has been put before me if I am prepared to look at it which was not before the other judges ... I have also had the benefit of evidence as to the practicalities of different methods of charging.”

 

 

 

8. Applying the traditional canons of construction the learned High Court judge held that s. 2(1) of the Act of 1986 cannot be interpreted as requiring the health board to make a charge similar to the charge under s. 55 of the Health Act, 1970 as the said s. 55 provides for a fixed charge, i.e. a charge to be fixed from time to time by the Minister for Health, and that there was no reference in s. 2(1) of the Act of 1986 to such a fixed charge.

 

9. Further, the learned trial judge held:

“The charge must be a reasonable one.”

 

10. After analysis, he held as set out at pp. 555-7 of the report:

 

“The charge which the health board is obliged to make upon a person such as the plaintiff in this case, is a charge in respect of the actual in-patient services or out-patient services which that plaintiff received. That is perfectly clear from the wording of the subsection. This does not mean that there can be no element of averaging because some averaging may be necessary in order to assess with any practicality a reasonable price for the services given. But on any reading of

s. 2(1) of the 1986 Act it is difficult to see how a health board would be entitled to charge a patient in Beaumont Hospital with a broken toe, the identical daily charge as a similar type plaintiff who had to undergo expensive brain surgery.

...

 

The general averaging is, in my view, quite clearly an artificial way of determining price and could not fall within any quantum meruit concept. If intended it would have to be expressly provided for.

...

 

In summary, therefore, applying the ordinary rules of construction I am satisfied that the charge under s. 2(1) of the 1986 Act must be a reasonable charge in the quantum meruit sense. In so far as a plaintiff will have received treatment within a particular speciality some averaging within that speciality would be acceptable in arriving at the charge but the general averaging as contended for could not be contemplated as a reasonable basis for a charge unless there was a special provision in the section covering it.”

 

 

11. On the second issue, the consideration of parliamentary debates, the learned High Court judge quoted from Costello P. in People (D.P.P.) v. McDonagh [1996] 1 I.R. 565; [1996]

2 I.L.R.M. 469, referred to other case law and set forth five propositions. He then looked at what the Minister for Health said in the Dail when piloting through the bill which later became the Act of 1986.

 

5. Appeal by Claimant

12. The claimant appealed. The grounds of the said appeal are that the learned High Court judge erred in fact and law:

  1. In failing to have any or any adequate regard to the uncontroverted evidence in holding that the charge sought to be imposed by the claimant under the Health (Amendment) Act, 1986 was not a reasonable charge.
  2. In failing to have any or any sufficient regard to the claimant’s uncontroverted evidence that the system of determining charges, used by the claimant, was appropriate and reasonable having regard to the available or possible methods of charging.
  3. In holding that the division of annual hospital costs by the number of occupied hospital bed days during the same year, or general averaging as so described by the learned trial judge, could not fall within any quantum meruit concept.
  4. In holding that the general averaging, as contended for by the claimant, could not be contemplated as a reasonable basis for a charge under the Health (Amendment) Act, 1986 unless there was a special provision in the section covering it.
  5. In holding that the claimant’s charge was not a charge in respect of the actual in-patient services or out-patient services which were received.
  6. Alternatively, in holding that the charge the claimant is obliged to make upon a person such as Mr. Crilly in these proceedings is a charge in respect of the actual in-patient services or out-patient services which that person receives.
  7. In failing to have any or any adequate regard to the evidence said by the claimant in respect of speciality costing and/or case mix indices and/or other possible methods of charges in arriving at a decision as to what was a reasonable charge and/or a charge permitted by the Health (Amendment) Act, 1986.
  8. In having regard to s. 157 of the Road Traffic Act, 1988 of England and Wales as an aid to the construction of the Health (Amendment) Act, 1986.
  9. In holding that no attention should be paid to that part of the speech of the then Minister for Health in the Dáil whereby the Minister approved of the claimant’s proposed method of charge, when construing the Health (Amendment) Act, 1986.
  10. In failing to have any or any sufficient regard to the independent, uncontested evidence that the method of charge proposed by the claimant was a reasonable one.

 

6. Cross Appeal by Insurer

13. The insurer cross appealed on the grounds that the learned trial judge erred in law and/or fact:

  1. In holding that the words “make a charge” occurring in s. 2(1) of the Health (Amendment) Act, 1986 cannot or ought not be interpreted as meaning that a health board should make a charge similar to the charges imposed under s. 55 of the Health Act, 1970; such charges being in the nature of a contribution towards the actual cost of in-patient services rather than a charge representing the total economic cost thereof.
  2. In declining to hold that in the absence of any definition or prescription in the Act of 1986 of the nature and/or amount of the charge to be made thereunder or the method of its calculation it was appropriate to construe the phrase “make a charge” in that Act ejusdem generis with the term “charge” in the Act of 1970, as s. 4 of the Act of 1986 provides for its collective construction with the Health Acts 1947 to 1985.
  3. That if and insofar as the learned trial judge called in aid or was influenced by the statement by the Minister for Health when presenting the bill which subsequently became the Act of 1986 so as to conclude that the charge to be made under the Act of 1986 was not to be equivalent in character and amount to that made under s. 55 of the Act of 1970, he was incorrect in so doing.
  4. In holding that the charges imposed under s. 2(1) of the Act of 1986 amounted to a demand for payment in respect of a statutory contract between the health board and the recipient of the service and thus holding that the said charges were not in the nature of an imposed statutory obligation such as a tax or quasi tax or levy or charge of a similar nature.
  5. In holding that he was entitled to have regard to what was said in the Oireachtas during the course of the parliamentary debates of the Act of 1986 either to the extent to which he so held as a general proposition flow or in the circumstances of this particular case.
  6. In failing to hold that the admission of such material would constitute a breach of the separation of powers as ordained by the Constitution and in particular Articles 15, 28 and 34 thereof.

 

 

7. Submissions of the Claimant

14. Paul Gallagher, S.C., counsel for the claimant, submitted that the High Court judge held:

 

(i) that the charge to be made under s. 2(1) of the Act of 1986 was not the charge made under s. 55 of the Health Act, 1970, known as the maintenance charge;

(ii) that the charge to be made under s. 2(1) had to be a reasonable charge;

(iii) that a charge based on an average daily cost was not a reasonable charge;

(iv) that a reasonable charge could, however, involve some averaging of costs;

(v) that the court was entitled to have regard to the Dáil Debates and the statement of the Minister on the introduction of the bill that the charge proposed was not the s. 55 Health Act, 1970 charge;

(vi) that nevertheless, a court could or should disregard the statement of the Minister made in the same debate that the charge would be an average daily cost.

 

15. The claimants agreed with the submission at (i), (ii) and (v) above and submitted that (iii), (iv) and (vi) were wrong in fact, in law and internally inconsistent.

 

16. It was submitted that there is a mandatory obligation on the health board to impose a charge. The manner in which the charge is to be calculated is not set out in the Act. The charge to be imposed may be in respect of future or ongoing services which are necessarily uncertain and can only be determined as a matter of probability. In fact while there should be a relationship between the charge and the service it is not required to be precise.

 

17. It was submitted that the learned trial judge was correct when he held that the charge must be reasonable and moreover, reasonable vis-à-vis both parties. It was submitted that the claimant’s practice of seeking to recoup the average daily cost (A.D.C.) is reasonable as regards its own conduct and as regards the health board and in-patient/recipient of services.

 

18. It was contented that a scheme permitting “some” averaging would be necessarily arbitrary and less transparent than the existing practice.

 

 

19. It was submitted that as regards a method of calculation whereby the charge would be in respect of actual services received by a patient but permitting some averaging necessary to obtain a reasonable price, there was no such scheme in Beaumont Hospital or in any other hospital in the country. The claimant suggested that the cost of establishing and implementing such a scheme for the less than 1% of patients who are road traffic accident victims would be disproportionate and might even exceed any saving which might otherwise accrue to patients themselves.

 

20. It was further submitted that the evidence in this case was that of the claimant’s concerning the A.D.C. scheme. The evidence adduced was that it was not feasible to price on an individual basis and that averaging, in particular A.D.C., was a reasonable method of charge. The uncontradicted evidence before the court was that the charge made by the complainant was reasonable and appropriate. Further that the A.D.C. had the advantage of transparency. The method was particularly appropriate as insurers are by definition averagers of cost and risk.

 

21. The claimant submitted that the conclusion that the charge is reasonable is one which could be reached without recourse to parliamentary materials. However, the claimant adopted the conclusions and reasoning of the learned trial judge as regards the admissibility of parliamentary material, i.e. Dáil and Seanad debates. It was submitted, however, that the treatment of the Minister’s statement to the Dáil by the learned trial judge was not consistent with the learned trial judge’s own enunciation of how such parliamentary material should be treated.

8. Submissions of the Insurer

22. Mr. Patrick Connolly, S.C., counsel on behalf of the insurers, submitted that the High Court judgment, when perused as a whole, found that the method of calculation advanced by the claimant, i.e. A.D.C., was ultra vires the Act of 1986. It was submitted that the learned trial judge was correct in so holding. It was submitted that it is clear from the Act that the charge to be levied is to be in respect of the services actually received by the individual patient. As regards the proposition that individualisation of charges is either very difficult or very expensive, that was nihil ad rem so far as the issue of intra or ultra vires was concerned.

23. The insurer further submitted that the determination by the learned trial judge that the charge to be imposed under the Act should be a reasonable one is correct and that the trial judge was correct in holding that the charge sought to be imposed by the claimant was not reasonable.

24. With regard to the expert evidence, it was argued on behalf of the insurer that the evidence tendered on behalf of the claimant was and is irrelevant to the legal issues at the heart of the case, such as vires and reasonableness. However, the insurer advanced the argument that as “charge” is not defined in the Act of 1986 and the Act provides that it is to be construed with the other acts which constitute the health code, assistance as to the nature of the charge is provided by reference to s. 55 of the Health Act, 1970. Indeed, the insurer submitted that the word “charge” in s. 2 ought to receive a similar meaning to that given to the charge in

s. 55 as both are instances where otherwise eligible patients are required to incur a charge for hospital services and if it had been intended that such a patient would be required to pay the full economic cost of hospital services, the Oireachtas would surely have said so in explicit

language. It was submitted by the respondents that such a conclusion could also be drawn by employing the standard principles of statutory interpretation.

 

25. As regards the admissibility of parliamentary debates counsel analysed and distinguished case law. It was submitted as a general proposition that whatever be the modern considerations in relation to such concepts as “purposive interpretations” and the looking at external materials, the primary and dominant canon of construction still remains that the meaning of legislation is to be gleaned in the first instance by the language taken as a whole of the act (and sister acts) and that recourse to external material only arises in certain limited circumstances at most. It was submitted that insofar as it is stated in The People v McDonagh [1996] 1 I.R. 565 that external material could be looked at even when there was no ambiguity in the Act, such a proposition was obiter and extreme, and of itself, not well founded

 

9. Declaration Sought

26. The claimant sought a declaration that the method of calculation of the charge payable under

s. 2 of the Health (Amendment) Act, 1986, namely the calculation of the charge by the division of annual hospital costs by the number of occupied hospital bed days during the same year, as used by the claimant, is reasonable, proper and intra vires the Health (Amendment) Act, 1986.

 

10. Decision

(a) Method of Calculation of Charge

27. The issue is whether the method of calculation of the charge payable under s. 2 of the Health (Amendment) Act, 1986 by the claimant is reasonable and intra vires the Act. Under s. 2 of the Act of 1986 where injury is caused to a person by the negligent use of a motor vehicle in a public place and in-patient or out-patient services have been, are being, or will be provided by or on behalf of a health board in respect of the injury, and the injured person, or his personal representatives or dependants, have received or are entitled to receive, damages or compensation in respect of that negligence from the person liable to pay such damages arising therefrom, the health board shall, notwithstanding anything in the Health Acts 1947 to 1985, make a charge upon the person who received or is entitled to receive such damages or compensation in respect of the in-patient or out-patient services.

 

Section 2 of the Act of 1986 is mandatory. The claimant “shall” impose a charge, although the claimant has authority to waive the charge under s. 2(2) of the Act of 1986. The method of calculating the charge is not set out specifically in the said Act. The calculation of the charge may be complex as it may relate not only to past services but to services to be given in the future. The Act of 1986 does not state that the charge shall be in relation to the precise services rendered. However, it is clear that the words envisage a relationship between the charge and the in-patient or out-patient services. What is established under the statute is the basic policy for a pragmatic scheme.

 

28. The issue arises under a public statute. It is a matter of public law. I am satisfied that the correct basis for the determination of the issue is to be found in public law. The Oireachtas has left the type of charge to be determined, in this case by the complainant, in accordance with the principles and policies of the Act. The applicable rule of law was stated by Henchy J. In Cassidy v. Minister for Industry [1978] I.R. 297 at pages 310-311 where he stated:

 

“The general rule is that where Parliament has by statute delegated a power of subordinate legislation, the power must be exercised within the limitations of that power as they are expressed or necessarily implied in the statutory delegation. Otherwise it will be held to have been invalidly exercised for being ultra vires . And it is a necessary implication in such a statutory delegation that power to issue subordinate legislation should be exercised reasonably. Diplock L.J. has stated in Mixnam’s Properties v. Chertsey Urban District Council at p. 237 of the report:

 

‘Thus, the kind of unreasonableness which invalidates a by-law [or I would add, any other form of subordinate legislation] is not the antonym of ‘reasonableness’ in the sense of which that expression is used in the common law, but such manifest arbitrariness, injustice or partiality that a court would say: ‘Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires .’”

 

 

29. That test, as applied by Blayney J. in McGabhann v. Law Society [1989] I.L.R.M. 854, is applicable. In that case the learned judge, in considering the question as to whether the Law Society’s compensation rules were unreasonable, stated at p. 862 of the report:

 

“Could it be said that the committee, in laying down this standard, was guilty of manifest arbitrariness, injustice or partiality? In my opinion it could not. There was no arbitrariness or partiality about it because it was a fixed standard which applied equally to all the candidates taking the examination. Nor could it be said to be unjust.”

 

 

30. The test is thus to see if the charge is reasonable in the above sense. It is a matter of construction.

 

31. I am satisfied that the learned trial judge was correct in holding that s. 2(1) of the Act of 1986 cannot be interpreted as requiring a health board to make a charge similar to a charge under

s. 55 of the Health Act, 1970. The wording of the sections is entirely different. Section 55 relates to “charges approved of or directed by the Minister”: a specific scheme. It is a fixed charge. There is no reference to such a charge in s. 2 of the Act of 1986. Nor is there a reference to charges being approved by the Minister. A different approach is taken in s. 2, where it is stated that the health board “shall ... make a charge”. It is noteworthy that the mandatory requirement is stated to be “... notwithstanding anything in the Health Acts, 1947 to 1985”. Thus while the Health Acts, 1947 to 1985, and the Act of 1986 shall be construed together as one, it is clear that separate systems of charging are envisaged.

1

32. The learned trial judge was correct in determining that the charge must be a reasonable one. I am satisfied that the power must be exercised reasonably. It must not be arbitrary, unjust or partial.

 

33. The Act of 1986 does not state expressly what charge or system of charge is to be used under s. 2. In this it is different from the scheme in s. 55 of the Act of 1970. Thus s. 2 falls to be construed. The section has been set out in full previously in this judgment. Observations have been made as to its nature. It falls to be construed under the traditional canons of construction. The section sets out circumstances:

 

“Where ... the health board shall ... make a charge ...”

 

 

34. As previously noted, the claimant is mandated to make a charge. The Act refers to “a charge”. The Act does not refer to “the charge” for the actual cost of the services. In fact, in certain circumstances, for example, if the damages include future services, the charge could not be determined precisely.

1

35. There was evidence of the difficulties in establishing the actual cost of the services rendered. While this does not settle the matter it is a relevant factor.

 

36. There was ample factual evidence as to the nature of the charge. The evidence was that the claimant seeks to recoup the “Average Daily Cost” (A.D.C.). The A.D.C. is calculated by taking the hospital’s total annual expenditure and dividing this by the number of bed days occupied in the year. It appears that the charge made by a hospital in a given year usually lags behind the actual cost in that year because it is calculated on the basis of the preceding year’s audited accounts. The A.D.C. excludes capital and capital appreciation costs. This is a transparent system of establishing the charge. It is a system of averaging which is reasonable and consistent. Consequently it is not arbitrary, partial or unjust. No evidence was given as to any other system.

 

37. Reference was made to English legislation. This has not proved helpful. At issue is the specific interpretation of an Irish act - the establishment of an Irish scheme.

 

Section 2 of the Act of 1986 is a clear section. The words are plain. There is no ambiguity. It is a situation where no complex canons of construction are needed.

 

38. I am satisfied that whereas the learned trial judge was correct in determining that the charge must be reasonable and correct in applying the traditional canons of construction, he fell into error in determining that the charge is a charge in respect of the actual in-patient or out-patient services which the victim received. The section does not so state expressly. It is a statutory section enabling a health board impose “a charge”. The section requires “a charge” to be made in respect of the services which the person has received or is entitled to receive. The Act does not expressly require the charge to cover precisely the services given. Discretion is left to the claimant to establish the charge.

 

39. The section relates to victims of road traffic accidents. The wording echoes legislation requiring compulsory insurance. It refers to such injured persons as have received in-patient or out-patient services and as have received or will receive damages or compensation. In referring to the services rendered or to be rendered and the charge to be made the section does not tie one with the other. Thus the statute does not expressly provide for individualised charges. Nor, in an area where averaging is the norm, would it be reasonable to so imply. Indeed, the learned trial judge accepted that there would in fact be a degree of averaging.

 

40. On the clear words of the statute “a charge” is mandated. This must be reasonable. On the evidence A.D.C. is reasonable. This is a matter which was uncontradicted and so must weigh in the analysis of the case, for what is reasonable is a matter of law and fact. The facts are based on the evidence. The evidence was that the A.D.C. was reasonable and practical. Section 2(1) provides a distinct charging system relating to victims of road traffic accidents. Road traffic accident victims are 0.78% of users of hospital services. In interpreting the section the fact that the section applies to this separate group is relevant. The reality that individualisation of charges would be very expensive is a factor, although not conclusive, in analysing the factual aspects of the issue.

 

41. I am satisfied that the A.D.C. falls within the range of “reasonable”. It is not arbitrary, partial or unjust. It is transparent. It is calculated on the general average and not on the more intensive use of hospital facilities by road traffic accident victims. It is charged by the year in arrears. The capital cost is not included. Of course, it is not the only scheme possible under the section. However, the A.D.C. is within the scope of “reasonable”.

 

42. To summarise my conclusions on this aspect of the case, I am satisfied that the charge must be reasonable. Applying the ordinary rules of construction I am satisfied that the words of the section are clear and unambiguous. The charge under s. 2 of the Act of 1986 is not the charge envisaged under s. 55 of the Health Act, 1970. Further, a charge need not be the precise charge for the actual services rendered. An average is a reasonable basis for a charge. The A.D.C. is reasonable and intra vires s. 2(1) of the Act of 1986. Consequently, I would allow the appeal and dismiss the cross appeal.

 

(b) Admissibility of Minister’s Statement in Parliamentary Debates - a note of caution.

43. As a result of the conclusion reached above it is not necessary to proceed to determine the admissibility in evidence of parliamentary debates. However, I would strike a note of caution as to the admissibility in court of ministerial statements in parliamentary debates.

 

44. The learned trial judge pointed out that it was not necessary for him to address this issue. Nevertheless, he then went on and stated:

 

“In case I am wrong in the view which I have taken, I think that I should now consider whether and to what extent I take into account also a statement made by the minister when piloting through the bill as has been urged on me by counsel for the health board. Traditionally, of course, this was forbidden in common law jurisdictions. But that has now changed somewhat. In England, the House of Lords departed from it in Pepper -v- Hart , [1993] 1 All E.R. 42 but set down

limits. I do not think that there is any point in my analysing the speeches in that case because it is quite clear that the Irish Supreme Court in People (D.P.P) -v- McDonagh , [1996] 1 I.R. 565; [1996] 2 I.L.R.M. 468 has gone much further.”

 

 

In People (D.P.P.) v. McDonagh [2000] 1 I.L.R.M. 548, Costello P. expressed an opinion on the use of parliamentary material in the construction of a statute. In stating this opinion in

McDonagh Costello P. was consistent with his judgment in Wavin Pipes Ltd. v. The Hepworth Iron Co. Ltd. (unreported, High Court, 8th May 1981). In McDonagh Costello P. declared at p. 570 of the report:

 

“It has long been established that a court may, as an aid to the construction of a statute or one of its provisions, consider its legislative history, a term which includes the legislative antecedents of the provisions under construction as well as pre-parliamentary material and parliamentary material relating to it. Irish statutes frequently and for very good reasons adopt with or without amendment the provisions of statutes enacted by the United Kingdom Parliament dealing with the same topic and so the legislative history of Irish statutes may well include the legislative history of the corresponding enactment of the United Kingdom Parliament. It was urged on the appellants’ behalf that the Court should not consider the legislative history of s. 2 of the Act of 1981 because the Court can only do so when construing a section which is ambiguous, which this section clearly is not. I cannot agree with this submission. Our courts do not and should not adopt such a rigid exclusionary rule (e.g. Bourke v. Attorney General [1972] I.R. 36) in which the Supreme Court not only used the European Convention on Extradition to assist in the construction of the Extradition Act, 1965, but also its travaux preparatoires ,) and it seems to me that the Court should have regard to any aspect of the enactment’s legislative history which may be of assistance.”

 

 

Of McDonagh’s case the learned trial judge stated, [2000] 1 I.L.R.M. 548 at p. 558:

 

 

“It is certainly not direct authority for the proposition that an explanation as to the meaning of a section by the relevant minister when piloting the Bill through the Dail can be used as an aid to construction. That point did not arise in that case. The passage from the judgment of Costello P. which I have cited begins with the words ‘it has long been established’. Quite clearly it has not long been

established in Ireland that a minister’s statement could be used in aid of construction. I do not think that Costello P. had that in mind at all when he used that expression. But at the same time I think that it is well within the spirit and intent of the passage cited to deduce from it that he would have been of the view that in certain circumstances such a ministerial statement could be availed of. This view would seem to correspond to that taken by Shanley J. in In Re National Irish Bank Ltd., [1999] 1 I.L.R.M. 321 and Kearns J. in Lawlor -v- Flood, High Court 1999 No. 197 JR 2nd July, 1999. What Costello P. was referring to in McDonagh’s case was material such as advice of committees and commissions in advance of legislation, the history of a particular bill passing through parliament such as for instance the significance of amendments that might have been made

along the way, the link with English legislation etc. Not too much significance can be attached to his reference to travaux preparatoires because that was in the context of construing an Act which itself had its foundation in an international treaty.”

 

 

The McDonagh decision raises a number of relevant matters:-

1. The decision was that legislative history may be looked at by a court in construing a statute, even if the section being construed is unambiguous.

 

2. In McDonagh reference was made to earlier relevant legislation both in Ireland and the United Kingdom. It was in that sense that the legislative history of the section in issue was before the court. There was no issue in the case as to the admissibility of parliamentary debates or ministerial statements.

 

3. Costello P. stated that:

“It has long been established . . . ”

 

45. Both the above matters (the said legislative history and the fact that its use had long been established) indicate an approach consistent with the current law. It has indeed long been established that such legislative history of a section could be referred to. This is done frequently.

 

4. Special reference was made to Bourke v. Attorney General [1972] I.R. 36. In that case there was reference to travaux preparatoires . This was in reference to an international treaty. International treaties are a different and specific matter. It is important that the interpretation of international treaties in Ireland be compatible and consistent with the interpretation of the treaty in other countries. Reference to travaux preparatoires aids this approach.

5. The statement of Costello P. was an obiter dictum .

 

6. It has long been the common law that words spoken in parliamentary debates are not admissible in court in construing statutes.

 

7. The law of other common law countries was opened in the submissions in this case. It is clear that decisions have been made in other jurisdictions to admit in evidence parliamentary debates. However, it is also clear that such approach has not been without its problems and that in certain instances there appears to have been attempts thereafter to limit the admissibility of such evidence. Consequently, it is not an approach which heralds a panacea for all ills.

 

8. To hold that parliamentary debates are admissible would be an alteration in the law and an alteration which would have a profound effect. For example, it could have a negative effect on presumptions, such as the presumption of the constitutionality of legislation. Canons of construction and presumptions, which are the product of many years of common law, could be called in question. In addition, it could have an effect on the Dáil and Seanad which might feel bound when debating each bill to state what is meant by each section of a bill. It is possible that a minister’s speech would then be drafted with a view to persuading a court of a certain approach. This would bring a new aspect to the parliamentary process in addition to its current roles. It might render the processing of legislation more complex. In addition, if a Minister’s statement in the Dáil is to be accepted, are those of the opposition to be excluded? Their interpretation may be radically different. Further, bills are often amended as they proceed through the Dáil and Seanad. These amendments may significantly alter the intention expressed in the original ministerial speech. Are all speeches then to be analysed together with the amendments to obtain the expressed intention on the meaning of an act?

46. For well established reasons, including those I have just stated, the speeches made by ministers in the Dáil and Seanad when introducing legislation have not been admissible in court when the court is construing statutes. I am not persuaded that good reason has been indicated in this case for changing or developing the common law in this jurisdiction.

 

47. In this case the Act is clear, there is no ambiguity and the section in issue has been construed in accordance with the traditional canons of construction. McDonagh decided that even if an act is not ambiguous the legislative history, that is the legislative antecedents, may be considered by a court. I agreed then and I agree now with Costello P.’s judgment that such an approach should not be excluded. A court has a discretion to consider such legislative history.

 

48. In this case such an approach would not lead to any different construction of the relevant legislation. Nor would I have reached a different conclusion if the Minister’s statement had been admissible.

 

49. In the High Court the learned trial judge looked at what the then Minister for Health in 1986 said to the Dáil when piloting through the bill which became the 1986 Act. The learned trial judge cited the Minister as stating:

 

“Section 2(1) gives specific power to health boards to make charges for hospital in-patient or out-patient services on persons injured in road traffic accidents who have received or are entitled to receive damages or compensation in respect of the accidents. The charge payable is not specified but would normally be the average daily cost per bed day in the hospital concerned. This will vary depending on the hospital involved.”

 

 

50. Of that statement the learned trial judge held at p. 559 et seq . of the report:

 

“This statement does assist in the interpretation of the section but only by implication. The fact that the minister told the Dail that the charge would normally be the average daily cost per bed day in the hospital concerned means that as far as the minister was concerned at least it was never intended that the

s. 55 charges should apply. I think that I would be entitled to draw an inference that the members of the Oireachtas who voted in favour of the Act did so on the assumption that the charge was not intended to be calculated by

reference to the charge specified by the minister under s. 55 of the 1970 Act. Of course I had already formed that view independently of reading the ministerial statement.

 

I have come to the conclusion that I should pay no attention to the remaining part of the minister's statement. He points out that the charge payable is not specified but that of course is self-evident and in so far as he goes on to say that it would normally be the average daily cost per bed day in the hospital concerned, he is merely indicating departmental policy. That policy was restated in the circular already referred to which was sent to the health boards on 8 August 1986, some three months after the Act came into force. While obviously the departmental memo can be of no assistance to the construction of the Act passed before it, I do not consider that the ministerial statement can be of any assistance either. It is ultimately for the court and only the court to decide whether a charge calculated in the manner suggested by the minister can be regarded as a quantum meruit charge. For the reasons which I have indicated earlier in this judgment, I do not think that it can. Accordingly, the declaration sought by the Eastern Health Board must be refused.”

 

 

51. If I were satisfied that in general the statements of ministers in parliamentary debates should be admissible in evidence (which, as yet, I am not), then, consequent on the doctrine of the separation of powers and the division of the functions of the three organs of government and the respect which one organ of government holds for another, such statement should carry significant, heavy weight. Where a minister specifically stated what a section meant I would consider that it would be difficult to determine that such admissible evidence should not be followed. All of that being so, if the statement of the Minister were admissible in this case, I would have been inclined to decide that A.D.C. is a reasonable interpretation of s. 2 of the Act of 1986 and intra vires the Act. However, this approach does not arise.

 

 

11. Conclusion

52. For the reasons stated in this judgment I would allow the appeal and set aside the order of the High Court. I would make an order in the form of the declaration sought that:

“... the method of calculation of the charge [payable] under s. 2 of the Health (Amendment) Act 1986, namely, the calculation of charge by the division of annual hospital costs [by] the number of occupied hospital bed days during the same year, as used by the Appellant, is reasonable, proper and intra vires the Health (Amendment) Act, 1986.”

 

 

 

 

 

THE SUPREME COURT

 

APPEAL NO. 11 & 28/00

1999 NO. 7308P

Denham, J.

Murphy, J.

Murray, J.

McGuinness, J.

Fennelly, J.

 

BETWEEN

DEREK CRILLY

Plaintiff

and

T.J. FARRINGTON LIMITED and JOHN O’CONNOR

Defendants

AND IN THE MATTER OF AN ISSUE

TO BE TRIED

 

BETWEEN

EASTERN HEALTH BOARD

Claimant/Appellant

and

DEREK CRILLY

First Named Respondent

and

FBD INSURANCE PLC

Second Named Respondent

 

 

Judgment delivered the 11th day of July, 2001, by Murray, J.

 

53. The substantive issue in this case concerns the interpretation of Section 2 of the Health (Amendment) Act 1986 and in particular the manner in which the Eastern Health Board, now known as the Eastern Regional Health Authority, calculated the charges which it is entitled, by virtue of that section, to impose on a person to whom in-patient or out-patient services have been provided in respect of injuries received in a road traffic accident and where the person injured is entitled to recover damages from a negligent wrongdoer who caused or contributed to the said accident.

54. A subsidiary but important issue also arises concerning the use of a ministerial statement in Dáil Eireann as an aid to the interpretation of the Act.

55. Mr Crilly received serious injuries in a road traffic accident and successfully sued

1Messrs T.J. Farrington Limited and John O’Connor for negligence as a result of which he was awarded damages in the amount of £1,667,078.00. Since section 2 of the 1986 Act applied to Mr Crilly the Health Board made a charge pursuant to that section in respect of the treatment which he had received for his injuries. The charges made by the Health Board were recoverable from the Defendants and ultimately the Defendants’ insurers, FBD Insurance Plc, the second named respondents. Issues arose as to the level of charges imposed by the Health Board and in particular as to their manner of calculation in the exercise of its powers under Section 2. This is the issue which is now being litigated in these proceedings.

56. Mrs Justice Denham in her judgment has set out all the relevant facts and arguments of the parties and because I have come to the same conclusion as she does in her judgment concerning the interpretation to be given to the Act it is not necessary for me to refer to them except in so far as they are relevant to the issue concerning the admission of statements made by a Minister in the Oireachtas as an aid to the interpretation of Section 2 of the Act.

57. The basic submission of the Appellants, the Health Board, is that the charges which it may make pursuant to Section 2 of the 1986 Act may be properly calculated according to, what they call, the Average Daily cost. The Average Daily cost is calculated by taking the hospital’s total annual expenditure and dividing this by the number of bed days occupied in the year. It excludes capital and capital depreciation costs. The Appellants contend that this method of calculating the charges to be made is a proper and reasonable exercise of their powers under Section 2 of the 1986 Act properly construed.

58. In the High Court the Appellant sought to rely on a ministerial statement made in Dáil Éireann during the passage of the Bill as support for the interpretation for which they contended. It was also part of the case made by the Appellants before this Court that Section 2 of the Act should be interpreted in the light of a ministerial statement in Dáil Éireann that the charge contemplated under Section 2 “ would normally be the average daily cost per bed in the hospital concerned. ”

59. The learned High Court judge ruled that Counsel for the Appellants was entitled to introduce the ministerial statement for the purpose of persuading the court to a particular view as to the interpretation of the statute. As I understand the learned High Court’s judgment such a ministerial statement is admissible for such purposes even where the statutory provision in question is unambiguous. Having done so the learned High Court judge found the ministerial statement of assistance in the interpretation of the Section “ but only by implication ” namely that, contrary to one of the arguments put forward by the Respondents, it was never intended that charges provided by in Section 55 of the Health Act 1970 should apply to a case of this nature. He did go on to observe that he had already formed that view independently of considering the ministerial statement.
In this appeal the Appellants have relied on the learned High Court Judge’s ruling and repeated their submissions concerning the admissibility of ministerial statements as an aid to the construction of statutes. The Respondents, for their part, object to the admissibility of parliamentary debates for such a purpose on the grounds, inter alia , that they are excluded by a long standing common law rule to that effect and because to do so would infringe the separation of powers between the Legislature and the Courts. In these circumstances this is an issue which I consider needs to be addressed in this appeal and the one with which this judgment is concerned.

 

The Interpretation Issue :

60. The interpretation of legal texts such as statutes has presented problems from the earliest times to the present day. Plato urges that laws be interpreted according to their spirit rather than literally. Voltaire expressed the view that to interpret the law is to corrupt it. These two anecdotes simply highlight the historical tension which still exists between the search for the “ true intent ” of a statute and legal certainty. That such tensions should persist to the present day is not surprising when one considers that first, there is the law; then there is interpretation. Then interpretation is the law. This simplified reference to the judicial process emphasises that when courts apply a statute the interpretation which they give it has ultimate authority. Voltaire’s misgivings would not be altogether misplaced in a judicial environment where rules for interpretation of statutes were lax, subjective or even non-existent. Then there would be a real likelihood that in some cases the Courts would usurp the functions of the legislature.

61. Assuming that a statute is not drafted in haste, which is by no means always the case, and the parliamentary drafter has carefully fashioned and finessed its text, the fact remains that words are often an imprecise tool, however well wielded. Added to this is the impossibility of always foreseeing every situation or combination of circumstances to which a statute may have to be applied. As Bennion in the introduction to his third edition (p. 3) on Statutory Interpretation observed “ The natural and reasonable desire that statutes should be easily understood is doomed to disappointment. Thwarted, it shifts to an equally natural and reasonable desire for efficient tools of interpretation. If statutes must be obscure, let us at least have simple devices to elucidate them. A golden rule would be best, to unlock all mysteries. Alas, ... there is no golden rule. Nor is there a mischief rule or a literal rule, or another cure-all rule of thumb. Instead there are a 1001 interpretative “criteria”. Fortunately, not all of those present themselves in any one case; but those that do yield factors that the interpreter must figuratively weigh and balance. That is the nearest we can get to a golden rule, and it is not very near ”.

62. With a view to addressing the difficulties inherent in statutory construction the common law in the course of its evolution over a long period of time has identified an extensive range of criteria, usually referred to as canons of construction, referred to above by Bennion, as efficient objective and neutral aids to the interpretation of statutes. There are also presumptions concerning the interpretation of statutes such as the presumption of constitutionality, that an act is prospective, the strict construction of penal statutes and presumption against absurdity. They are, as I have mentioned, intended as efficient and neutral aids to the interpretation