Irish Court of Appeal

AN CHÚIRT ACHOMHAIRC

THE COURT OF APPEAL

 

APPROVED - NO REDACTION NEEDED

 

Court of Appeal Record Number: 2024/137

High Court Record Number: 2022/6528P

Neutral Citation No: [2025] IECA 55

Faherty J.

Pilkington J.

Collins J.

 

BETWEEN/

E.C.

PLAINTIFF/RESPONDENT

 

- AND -

 

IRELAND AND THE ATTORNEY GENERAL

 

DEFENDANTS/APPELLANTS

 

 

AND BY ORDER OF THE COURT

 

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION AND THE MENTAL HEALTH COMMISSION

 

NOTICE PARTIES

 

JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 6^th day of March 2025

 

I.                  Introduction

1.            By s. 73(1) of the Mental Health Act 2001 ('the Act of 2001') no civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of that Act save by leave of the High Court. In this appeal, the Court is required to interpret that provision and to determine the consequences of any non-compliance therewith.

 

II.               Background

2.            On 23 December 2022, solicitors acting on behalf of E.C. (hereafter 'the Respondent' or, where appropriate, 'the Plaintiff') caused to have issued out of the Central Office of the High Court a Plenary Summons in proceedings entitled "The High Court Record No. 2022/6528P Between T..... N.... Plaintiff and Health Service Executive and Peter Whitty Defendants and Ireland and Attorney General and Irish Human Rights and Equality Commission Notice Parties."  That Plenary Summons was indorsed as follows:

1.     A Declaration that the Plaintiff's treatment with depot neuroleptic medication without his full and/or proper and/or lawful or any consent thereto, and despite his express refusal thereof, by the Second Defendant, or his servants or agents, at the First Defendant's Hospital, and without a proper assessment and/or determination that he lacks functional capacity to consent to such treatment by reason of his mental disorder:

a.     is unlawful, and/or

b.     is in breach of the Mental Health Act 2001 section 57(1), and/or

c.      breaches the Plaintiff's rights by reference to Bunreacht na hÉireann and, in particular, Article 40.3.1 and his personal rights derived therefrom including, but not limited to, his rights to bodily integrity, privacy and to respect for his autonomy, and Article 40.3.2 and, in particular, his right to the person and/or fails to respect his human dignity;

2.     A Declaration that the physical restraint of the Plaintiff by the Defendants' servants or agents, or other persons employed or engaged thereby, for the purpose of administering depot neuroleptic medication to him without his consent and despite his refusal and without a proper assessment and/or determination that he lacks functional capacity to consent thereto, as aforesaid:

a.     is unlawful, and/or

b.     breaches the provisions of the Mental Health Commission Code of Practice on the Use of Physical Restraint in Approved Centres (October 2009);

3.     A Declaration that the Mental Health Act 2001 section 57(1) does not permit or justify or render lawful the Plaintiff's treatment with depot neuroleptic medication without a proper assessment and/or determination that he lacks functional capacity to consent to such treatment by reason of his mental disorder;

4.     A Declaration that the opinion of the Second Defendant, or his servants or agents, that the Plaintiff lacks functional capacity to consent to such treatment by reason of his mental disorder does not constitute a proper or lawful determination of any such lack of capacity and is not sufficient to justify his treatment without consent thereto, and despite refusal thereof, as aforesaid pursuant to the Mental Health Act 2001 section 57(1);

5.     If necessary, a Declaration that, should the opinion of the Second Defendant, or his servants or agents, that the Plaintiff lacks functional capacity to consent to such treatment by reason of his mental disorder constitute a proper or lawful determination of any such lack of capacity sufficient to justify his treatment without consent thereto, and despite refusal thereof, as aforesaid, pursuant to the Mental Health Act 2001 section 57(1), that section:

a.     breaches and/or fails to respect and, insofar as is practicable, to defend and vindicate the Plaintiff's rights by reference to Bunreacht na hÉireann Articles 40.3.1 and 40.3.2 and is invalid having regard to the provisions thereof, and/or

b.     breaches the Plaintiff's rights by reference to the European Convention on Human Rights and, in particular Articles 6, 8, 13 and/or 14 and is incompatible therewith;

6.     An injunction restraining the Defendants, their servants or agents, or other persons employed or engaged thereby from:

a.     administering depot neuroleptic medication to the Plaintiff without his full and/or proper and/or lawful consent thereto, and despite his express refusal thereof and without a proper assessment and/or determination, in accordance with law, that he lacks functional capacity to consent to such treatment, and

b.     restraining the Plaintiff for the purpose of administering depot neuroleptic medication to him in the circumstances as aforesaid;

7.     Damages for negligence and breach of duty, trespass to the person and, if necessary, misfeasance in public office, and for the negligent infliction of emotional suffering and for breach of the Plaintiff's constitutional rights and, if necessary, pursuant to the European Convention on Human Rights Act 2003 section 3.

 

3.            On 12 January 2023, the Respondent's solicitors moved the High Court (O'Moore J.) ex parte seeking orders to abridge the time for service of a notice of motion to restrain the defendants from administering depot neuroleptic medication to the Respondent without his full and/or proper and/or lawful consent.  In acceding to that application, the High Court ordered that the Respondent "have liberty to amend the title of the summons herein by deletion of the Notice Parties".

 

4.            On the day following, the High Court (O'Moore J.) granted the interim relief sought, gave certain directions and made the motion returnable for 14 January 2023. The High Court (Hyland J.) heard that application and delivered judgment on 16 January 2023. She refused the application for interlocutory relief, joined the Attorney General, the Mental Health Commission and the Irish Human Rights and Equality Commission as notice parties to the proceedings, made directions as to delivery of pleadings by all parties and adjourned the matter to 18 January 2023.

 

 

5.            On 16 January 2023, the Respondent's solicitors served notices on the Attorney General under R.S.C. Ords. 60 and 60A. On 17 January 2023, the Respondent's solicitors discontinued the proceedings as against the second defendant, Peter Whitty, and delivered a Statement of Claim on the first defendant, the Health Service Executive (hereafter 'the HSE') and on the three notice parties. On 18 January 2023, Counsel on behalf of the Respondent, the HSE, the Attorney General and the Mental Health Commission attended at a directions hearing. Of its own motion, the High Court (O'Moore J.) ordered the parties to circulate written legal submissions as to whether leave of the High Court pursuant to s. 73 of the Act of 2001 had been required prior to the institution of the proceedings, extended time for delivery of a Defence by the Attorney General and fixed the hearing of the action for three days to commence on 15 February 2023.

 

6.            On 23 January 2023 the HSE, now the sole defendant in the action, delivered a Defence without prejudice as to any ruling that might be made on the question whether, pursuant to s. 73 of the Act of 2001, leave of the High Court had been required prior to the institution of the proceedings, adding that it would not have objected to the grant of such leave had it been sought.

 

7.            The Respondent was discharged from hospital on 27 January 2023. On same date, the Attorney General delivered legal submissions in which he contended that s. 73(1) of the Act of 2001 required leave of the High Court to be obtained prior to the commencement of the proceedings. Since leave had not been obtained, the proceedings ought to be struck out. In the light of the Respondent's discharge from care, by Order of 30 January 2023 the High Court (O'Moore J.) suspended its directions of 18 January 2023. On that same date the Chief State Solicitor entered an unconditional appearance on behalf of the Attorney General as notice party in the action.

 

8.            On 7 February 2023, the High Court (O'Moore J.) vacated the three-day hearing and ordered that one day be set aside for legal argument as to whether leave of the High Court pursuant to s. 73 of the Act of 2001 had been required prior to the institution of the proceedings. The Attorney General's application to strike out the proceedings on the ground that they had been commenced in disregard of s. 73 of the Act of 2001 came on for hearing before the High Court (Egan J.) on 15 February 2023.

 

III.           High Court Judgment

9.            Egan J. delivered judgment on 5 May 2023 ([2023] IEHC 226). Under the heading "Scope, structure and summary of this judgment", the learned High Court Judge described the proceedings before her as follows:

"5. This is an application by the State to strike out the proceedings as having been commenced without leave. The HSE makes no such application and took no active part in this application. This judgment is concerned solely with whether, as presently formulated, the proceedings required such leave and with whether the State is entitled to the order it seeks.

 

6. This judgment is not an adjudication upon an application for leave to institute proceedings pursuant to s. 73 (1). The plaintiff made no application before me for s. 73 (1) leave, and indeed positively argued that leave could not, in any case, be granted as his proceedings make no allegation that the hospital acted in bad faith or without reasonable care.

 

7. Nor is this judgment, in any sense, an adjudication on whether or not s. 73 is inconsistent with the Constitution in confining an intended plaintiff to proceedings arising out of a lack of bona fides or want of reasonable care. The plaintiff does not advance any challenge to the constitutionality of the section in the present proceedings."

 

10.        The High Court (Egan J.) acceded to the application in part. She concluded at paragraph 77 of her judgment that:

"... insofar as the present proceedings seek declaratory relief and damages as against the HSE for the non-consensual treatment of the plaintiff on grounds that same is unlawful as being in breach of s. 57(1) of the [Mental Health] Act or is otherwise in breach of the plaintiff's constitutional or Convention rights, they required leave of the High Court pursuant to s. 73(1) prior to their institution. If the requirement for s. 73(1) leave ultimately prevents the plaintiff from pursuing the case he wishes to advance as against the HSE, then his remedy, if any, lies in differently formulated proceedings. ..."

 

11.        The learned High Court Judge then addressed the Respondent's claim against the Attorney General, characterising it as a challenge to the constitutionality of s. 57(1) of the Act of 2001. She held that since s. 73(3) of the Act of 2001 provides that a court shall not determine in favour of the plaintiff proceedings in which leave is granted pursuant to sub-section (1) thereof unless it is satisfied that the defendant acted in bad faith or without reasonable care, a constitutional challenge to which s. 73 of the Act of 2001 applied would fail. Nor could leave be a prerequisite to the institution of a "stand-alone" challenge to the constitutionality of s. 57(1) of the Act of 2001 since the Oireachtas cannot immunise itself from constitutional challenge. The requirement to plead relevant facts in a constitutional action justified any link between those claims and the medical treatment that the Respondent had received. The High Court (Egan J.) concluded that the Respondent did not require leave under s. 73(1) of the Act of 2001 to prosecute that constitutional challenge.

 

12.        In the context of the orders she intended to make on foot of her judgment, Egan J. considered whether s. 73 of the Act of 2001 operated as a jurisdictional or a procedural bar to the High Court entertaining the proceedings against the Attorney General. Since s. 73 of the Act of 2001 "...is in the nature of a partial statutory immunity against all actions bar those permitted", she held that it is directed to the Court hearing the matter, requiring that, where necessary of its own motion, it strike out proceedings for which leave had not been obtained. The learned High Court Judge distinguished s. 73 of the Act of 2001 from s. 12 of the Personal Injuries Assessment Board Act 2003 that O'Donnell J. (as he then was) had considered in Clarke v. O'Gorman [2014] 3 I.R. 340. She observed that the judgments of MacMenamin J. in M.P. v. HSE [2010] IEHC 161 and Pilkington J. in C. v. Casey [2022] IECA 24 appeared to have been decided on the basis that non-compliance with s. 73 of the Act of 2001 constitutes a jurisdictional bar to bringing such proceedings. Insofar as R.S.C. Ord. 137 facilitated a party served with proceedings instituted in disregard of s. 73 of the Act of 2001 to have them struck out for non-compliance, which indicated that the section was designed to have procedural, rather than jurisdictional, consequences, Egan J. ruled that terms in the Rules of the Superior Courts could not be used to defeat the plain intention of the legislature.

 

13.        On 16 June 2023, the High Court (Egan J.) directed the parties to file written submissions as to how to proceed in the light of her judgment. The Respondent was given liberty to file a notice of motion to amend his pleadings, which he did on 20 June 2023. After hearing Counsel, the High Court (Egan J.) delivered a ruling in which she struck out the Respondent's claim against the HSE, joined the first notice party, the Attorney General, and Ireland, as defendants in the proceedings, and granted the Respondent leave to amend the Indorsement of Claim on the Plenary Summons and the Statement of Claim. These amendments excised the entirety of the Respondent's claim against the HSE, leaving his constitutional action against Ireland and the Attorney General extant.

 

IV.            Scope of appeal and cross-appeal

14.        By Notice filed on 11 June 2024, Ireland and the Attorney General (hereafter 'the appellants') ask this Court to:

-         set aside such parts of the judgment of the High Court (Egan J.) delivered on 5 May 2023, and of the ruling made on 27 July 2023, as permit the Respondent to challenge the constitutional validity of s. 57 of the Act of 2001 in these proceedings;

-         set aside the Order of the High Court of 13 October 2023 to add Ireland and the Attorney General as defendants to the said proceedings and to grant the Respondent leave to amend the Plenary Summons, Indorsement of Claim and Statement of Claim;

-         strike out the Respondent's proceedings in their entirety.

 

15.        By Notice filed on 1 November 2024, the Respondent, inter alia, cross-appeals the High Court's finding that s. 73 of the Act of 2001 is a jurisdictional bar to the institution and maintenance of his proceedings against the HSE. The proceedings against it having been struck out for want of compliance with s. 73 of the Act of 2001, the HSE held a watching brief at the hearing of this appeal.

 

16.        The appeal raises two questions of law. Paragraphs 5 and 67 of the judgment of the learned High Court Judge clearly identify the first: "the decision for this court is only whether s. 73 (1) leave is required for the proceedings as presently drafted,". If leave is required to institute such proceedings, the second question that arises is whether non-compliance with that requirement prevents the High Court from adjudicating upon them.  The Superior Court judgments that have considered s. 73 of the Act of 2001: A.L. v. Clinical Director of St Patrick's Hospital [2010] 3 IR 537, M.P. v. HSE [2010] IEHC 161, J. O'T. v. Healy [2018] IEHC 571 and C. v. Casey [2022] IECA 24 do not answer these questions directly, although M.P. v. HSE and C. v. Casey are of some assistance.

 

17.        The context in which these questions arise defines the framework in which they are to be resolved. The Respondent asserts that the proceedings he initiated did not allege a lack of good faith or want of reasonable care, by reason of which they fell outwith the intendment of s. 73 of the Act of 2001. He appears, in effect, to assert an entitlement to maintain these proceedings without obtaining leave of the High Court. Being of that opinion, the Respondent neither requires, nor seeks, to remedy any non-compliance by way of an application to extend the time to apply for leave or for an order to grant leave with retroactive effect. On the assumption that the High Court has jurisdiction to entertain an application of that nature, the success of such an application would depend upon the materials put forward in support of it. Absent such an application, this Court cannot speculate as to whether the High Court could or would accede to it.  Nor is this a case where the Respondent is prevented from instituting a challenge to the constitutionality of s. 57(1) of the Act of 2001. The parties to this appeal and the learned High Court Judge (at paragraph 82 of her judgment) accept that such a challenge may be pursued by way of what are described as "stand-alone" proceedings. The issue in this appeal is the procedure the Respondent has chosen to advance his claim, not his right to do so. This may also explain why it is no part of the Respondent's case that s. 73 of the Act of 2001 is repugnant to the Constitution. It is, in any event, difficult to see how he would have standing to advance that challenge in these proceedings since he contends that provision has no impact upon his personal circumstances.

 

18.        Some of the High Court's time was taken up with argument as to whether, and if so, in what circumstances, s. 73 of the Act of 2001 governs the initiation of an inquiry under Art. 40.4 of the Constitution, proceedings by way of judicial review, or "stand-alone" constitutional challenges.  As the proceedings the subject matter of this appeal do not come within any of those categories, this Court is not required to consider these matters further.

 

V.               Interpretation of s. 73 of the Act of 2001

19.        By this provision:

1.     No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of this Act save by leave of the High Court and such leave shall not be refused unless the High Court is satisfied:

(a) that the proceedings are frivolous or vexatious, or

(b) that there are no reasonable grounds for contending that the person against whom the proceedings are brought acted in bad faith or without reasonable care.

 

2.     Notice of an application for leave of the High Court under subsection (1) shall be given to the person against whom it is proposed to institute the proceedings and such person shall be entitled to be heard against the application.

 

3.     Where proceedings are, by leave granted in pursuance of subsection (1) of this section, instituted in respect of an act purporting to have been done in pursuance of this Act, the Court shall not determine the proceedings in favour of the plaintiff unless it is satisfied that the defendant acted in bad faith or without reasonable care.

 

20.        In interpreting this section, I am guided by the general approach to statutory interpretation the Supreme Court recently endorsed at paragraphs 111 - 116 of the judgment of Murray J. in Heather Hill Management Company CLG & McGoldrick v. An Bord Pleanála [2022] IESC 43, with whom the other members of the Court (O'Donnell C.J., O'Malley, Woulfe, Hogan JJ.) agreed.  As for the policy behind and the legislative antecedents of s. 73 of the Act of 2001, I gratefully adopt paragraphs 1 to 12 inclusive of the judgment of Murray J., delivered in this Court in C. v. Casey, notably paragraph 8 thereof which observes that, as a statutory exception to the constitutionally guaranteed right of access to the Courts, s. 73 of the Act of 2001 is to be interpreted strictly in accordance with its terms. The sub-section falls to be analysed under three headings: the nature and the scope of the prohibition; the institution of civil proceedings; and what is caught by the words "in respect of an act purporting to have been done in pursuance of this Act".

 

Nature and Scope of the Prohibition

21.        The words "[n]o civil proceedings shall be instituted ... save by leave of the High Court" plainly prohibit the institution of such proceedings without leave of the High Court. Since they are responsible for the reception and the management of civil proceedings, that prohibition is addressed, in particular, to the Courts established under the Constitution which may, of their own motion, intervene to ascertain whether such proceedings are instituted in accordance with law.

 

22.        The language of the sub-section differs from the restriction on the commencement of proceedings that O'Donnell J. considered in his judgment in Clarke v. O'Gorman [2014] 3 I.R. 340 (Hardiman, Clarke, MacMenamin, Dunne JJ. conc.), an authority upon which the Respondent appears to have relied before the High Court. The Supreme Court examined s. 12 (1) of the Personal Injuries Assessment Board Act 2003, which provides that:

"Unless and until an application is made to the Board under section 11 in relation to the relevant claim and then only when the bringing of those proceedings is authorised under section 14, 17, 32 or 36, rules under section 46 (3) or section 49 and subject to those sections or rules, no proceedings may be brought in respect of that claim."

 

23.        At paragraph 37 of his judgment, O'Donnell J. finds that the terms in which provisions of this nature are enacted have weighty consequences for their interpretation:

"In my view, s. 12 does not operate as a jurisdictional provision. The very concept of jurisdiction is sometimes a broad one, but in this case, I think the word is used in its narrowest and purest sense. The defendant can only succeed here, given the manner in which the application was made and its timing, if the Act [of 2003] deprives the court of jurisdiction to hear and determine the claim. Section 12 is certainly significant. It imposes a legal prohibition. But it is significant that the prohibition is not directed towards the court, but rather towards the parties, and in particular the plaintiff. The operative part of the section provides that "no proceedings may be brought" in respect of any such claim without an authorisation. Manifestly it is the plaintiff who brings proceedings to whom this prohibition is directed. If the section said, as it could have, that unless and until an application was made to the Board and an authorisation granted, a plaintiff or intending plaintiff could not bring proceedings in respect of any claim, the meaning of the section would, in my view, be identical, but it would be more difficult to contend that the impact of the section deprived the court of jurisdiction, rather than imposing a restriction on the right of a plaintiff to bring a claim."

 

24.        O'Donnell J. reinforces his reasoning at paragraphs 39 and 40 by relying upon what he described as the "significance" of the use of the verb "to bring" in various provisions of the Statute of Limitations. Notwithstanding that s. 12 of the Personal Injuries Assessment Board Act 2003 was expressed in more emphatic terms,

"... what is much more significant is the employment of the same verb: it is the bringing of proceedings which is restricted in both cases. In using that formulation, the Oireachtas was employing a statutory formulation which was very well known. While distinctions between jurisdictional and procedural limitations are difficult both conceptually and in practice, the fact is that the legal consequence of the Statute of Limitations is one that is well recognised and was well known in 2003 when the Act [of 2003] was enacted."

 

25.        At paragraphs 86 to 90 of her judgment, the High Court (Egan J.) discusses O'Donnell J.'s judgment in Clarke v. O'Gorman. She concludes that s. 73 of the Act of 2001 does not lay down a procedure that intending plaintiffs must follow but is rather in the nature of a partial statutory immunity. Her interpretation of s. 73 of the Act of 2001 appears to be consistent with the policy pursued by, and the antecedents of, the legislation Murray J. describes in paragraphs 1 to 12 of his judgment in C. v. Casey.  For these reasons I am content to accept the basis upon which the High Court concluded that the express condition that s. 73 of the Act of 2001 imposes upon the institution of certain civil proceedings has the consequence of delimiting the jurisdiction of the courts to receive those proceedings. It is of interest to observe that, notwithstanding the use of the verb 'to bring' in the provision under construction, in Seal v. Chief Constable of South Wales Police [2007] 1 WLR 1910, a majority of the House of Lords (Lord Bingham of Cornhill, Lord Carswell and Lord Browne of Eton Under Heywood) interpreted s. 139 (2) of the United Kingdom Mental Health Act 1983: "No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court;" which, like s. 73 of the Act of 2001, has its origins in s. 12 of the Lunacy Acts (Amendment) Act 1889 (52 & 53 Vic c . 41: see C. v. Casey per Murray J., paragraph 1), as ousting the High Court of England and Wales' jurisdiction to entertain proceedings not commenced in compliance therewith.

 

26.        Two other factors support the conclusion I have reached on this point. First, at paragraph 53 of his judgment in M.P. v. HSE, MacMenamin J. observed that the Act of 2001 prohibits 'the institution' of proceedings without leave and that it made no provision for variation or waiver. He accordingly had no difficulty with striking out, rather than dismissing, proceedings that did not comply with s. 73 of the Act of 2001. Writing in this Court in C. v. Casey, Pilkington J. observed that the Act of 2001 was in clear terms and cited with approval MacMenamin J.'s observation in M.P. v. HSE. In the light of the text of s. 73(1) of the Act of 2001 - "[n]o civil proceedings shall be instituted" - she expressed the view that that provision does not permit the grant of leave with retrospective effect (at paragraphs 106 - 108 of her judgment).  Second, the prohibition on the institution of civil proceedings otherwise than in accordance with s. 73 (1) of the Act of 2001 applies to all courts: for instance, C. v. Casey involved a Civil Bill purportedly issued out of Galway Circuit Court. A litigant who seeks to commence such proceedings in the Circuit or the District Courts without leave of the High Court thus cannot cure that deficit before the court of trial. There is no obvious reason why the Oireachtas would permit a litigant before the High Court to cure non-compliance with s. 73 (1) of the Act of 2001 whilst depriving a litigant before the Circuit or the District Courts of that option. To that unexplained difference in the treatment of persons in similar circumstances one might add that such an allowance could create a perverse incentive for litigants to commence all proceedings that require leave in the High Court.

 

Institution of Civil Proceedings

27.        On their face, the words "civil proceedings" encompass all justiciable claims that are not criminal in nature, including those that raise issues of public law: the title of Robertson, The Law and Practice of Civil proceedings by and against the Crown and Departments of the Government (London, 1908) refers. During the debate in the High Court, the parties appear to have made various concessions in an effort to limit the breadth of the term. One need not look beyond s. 73(3) of the Act of 2001 to ascertain the character of the "civil proceedings" to which it applies: namely those which allege that a defendant acted in bad faith or without reasonable care. Describing s. 73 of the Act of 2001 at paragraph 7 of his judgment in C v. Casey, Murray J. observed that: -

"The only causes of action that may be maintained by a person in respect of an act purporting to have been done in pursuance of the 2001 Act are those which involve a defendant acting in bad faith or without reasonable care. This follows from the second ground for refusing leave, and is underscored by s. 73(3) ..."

 

28.        At paragraph 10 he held that: -

"The plaintiff can only succeed in his or her claim if such bad faith or lack of reasonable care is established. A claim which does not incorporate one of these elements is a cause of action in respect of which a plaintiff may not as a matter of law be granted leave under s.73."

 

29.        And at paragraph 12: -

"... In applying these preconditions the court should keep firmly in sight the purpose and limits of the legislation. It is, I think, hard to improve on the summary in the judgment of Vaughan Williams LJ. in Shackleton v. Swift [1913] 2 KB 304, at p. 316: s. 330 of the 1890 Act, he said 'gives special protection to those officers and others acting under the powers of this Act in cases where, although they may have misconstrued the Act and although they may have done things which there was no jurisdiction to do, they have acted in good faith and in a reasonable manner'."

 

30.        At paragraphs 64 to 66 of her judgment, the learned High Court Judge cited these three passages. Like her, I accept the propositions contained therein as correct.  The proceedings to which s. 73(1) of the Act of 2001 applies are limited to the purpose of that provision which, as Egan J. observed at paragraph 90 of her judgment, is to afford a "partial statutory immunity" from a defined category of actions. Whilst the issue does not arise for decision, on this interpretation s. 73 of the Act of 2001 would seem to respect the constitutional imperative that restrictions on access to the courts are as narrow as may be required to attain the result sought by the legislator, thereby complying with the principle of proportionality.

 

31.        Section 73(1) of the Act of 2001 refers to 'proceedings', not to reliefs sought, causes of action, claims, grounds, challenges, pleas at law or other cognate terms.  The subsection adopts the language of R.S.C. Ord. 1, r. 1: "... civil proceedings in the High Court shall be instituted by a summons of the Court ...". In Civil Procedure, (5th Ed., 2023), Delany & McGrath observe at paragraph 2-01 that: -

"In order to claim any form of relief from a court, proceedings must be commenced. Proceedings may be commenced in the High Court by either (i) an originating summons, (ii) a petition, or (iii) an originating motion. The use of an originating summons is by far the most common because Order 1, rule 1 stipulates that, save as otherwise provided in the Rules, civil proceedings in the High Court must be instituted by an originating summons."

 

32.        Just as the Supreme Court observed in Clarke v. O'Gorman that the Oireachtas must have been alive to the text of the Statute of Limitations when it adopted s. 12 (1) of the Personal Injuries Assessment Board Act 2003, when it enacted s. 73(1) of the Act of 2001, it must equally be taken to have been aware that, since 1962, the Rules of the Superior Courts had referred to the 'institution' of proceedings, that word having replaced 'commencement' which had been used since 1905. In Heather Hill Management Company CLG & McGoldrick v. An Bord Pleanála, the Supreme Court confirmed that "proceedings" consist of the reliefs an applicant seeks, together with such grounds as s/he may seek to advance in support thereof. On that basis, Murray J., at paragraphs 129 - 145 of his judgment, rejected a submission that the word "proceedings" in s. 50B of the Planning and Development (Amendment) Act, 2000, which governs the allocation of costs in certain proceedings, did not include the entirety of the reliefs sought in the application for judicial review but could be limited to the grounds pleaded that engaged one of four identified EU Directives.

 

33.        Section 73(1) of the Act of 2001 requires that leave is sought to institute civil proceedings, not a part or a sub-set thereof. If undefined, the words "civil proceedings" are unqualified. R.S.C. Ord. 1, r.1 appears to treat proceedings that are instituted as an identifiable unit. Whilst reliefs sought or claims made may be amended, struck out or withdrawn during their progress through the legal system, proceedings have a unitary, singular character, in the sense that one may refer to a "set" of proceedings which gather together a bundle of claims, pleas etc. It follows that once any part of proceedings is in respect of the acts contemplated by s. 73(1) of the Act of 2001, the Oireachtas requires that leave of the High Court is obtained in order to institute them. That interpretation is consonant with the goal of the Act of 2001 to afford a partial statutory immunity from suit to a class of persons by exempting them from the requirement to analyse proceedings with a view to distinguishing those aspects that concern acts purporting to have been done under the Act of 2001 from those that do not.

 

34.        An assessment as to whether civil proceedings require leave to be commenced must, logically, be conducted by reference to their content at the time of their purported institution.  On 23 December 2022, the Respondent caused to have issued out of the Central Office of the High Court a Plenary Summons indorsed in the terms set out at paragraph 2, above, which clearly seek orders in respect of acts that were illegal unless they had been done in pursuance of the Act of 2001.

 

35.        At paragraphs 70 to 82 of her judgment, Egan J. decided that because the Respondent could not challenge the constitutionality of s. 57(1) of the Act of 2001 in proceedings for which s. 73(1) thereof requires leave of the High Court, but could initiate "stand-alone" proceedings for that purpose, that Court had jurisdiction to subtract, and therefore rescue, that part of the proceedings that advanced a constitutional challenge from that which she had struck out for want of leave. In my view, since the words "civil proceedings" in s. 73 of the Act of 2001 describe what the Respondent caused to have issued out of the Central Office of the High Court on 23 December 2022, the High Court had no power to entertain those proceedings in the form in which they had been instituted.  That approach does not immunise the State against a constitutional challenge to the validity of provisions of the Act of 2001, if only because, as the learned High Court Judge had accepted earlier in her judgment, the Respondent may always institute "stand-alone" proceedings for that purpose.

 

"... in respect of an act purporting to have been done in pursuance to this Act ..."

36.        The Indorsement of Claim of the Plenary Summons seeks various declarations in respect of acts that Mr Whitty and/or the HSE allegedly carried out in purported compliance with the Mental Health Act 2001. A simultaneous allegation that those acts were carried out without legal authority does not exempt the proceedings from having to comply with s. 73(1) of the Act of 2001 since such acts may ultimately be shown to have been carried out for that purpose.

 

37.        At paragraphs 71 to 73 of her judgment, Egan J., following A.L. v. the Clinical Director of St Patrick's Hospital (per Clarke J. at paragraphs 8 and 9) and the judgments of this Court in C. v. Casey, held that the Respondent "could present the HSE's alleged failure to adhere to the requisite procedures in relation to the nonconsensual administration of medication as comprising a lack of good faith and/or a want of reasonable care", thereby necessitating leave pursuant to s. 73(1) of the Act of 2001. The Respondent does not contest that determination, the cross-appeal being limited to the consequential finding that the failure to obtain leave was a jurisdictional bar to the maintenance of his action against the HSE. The Respondent therefore accepts that at least part of the proceedings he commenced by way of Plenary Summons are in respect of acts that purport to have been done in pursuance of the Act of 2001.

 

Conclusion to the first question

38.        Having considered the language the Oireachtas used in s. 73(1) of the Act of 2001 in the context of which it forms a part, I conclude that it is to be read literally, such that civil proceedings of the nature contemplated by the sub-section shall not be instituted in respect of an act purporting to have been done in pursuance of the Act of 2001 save by leave of the High Court. The contents of the proceedings the subject of this appeal disclose that leave of the High Court under s. 73(1) of the Act of 2001 was required for them to have been instituted in accordance with law.

 

VI.            Consequences of non-compliance with s. 73(1) of the Act of 2001

39.        In Telecom Éireann v. O'Grady [1998] 3 I.R. 432 at 451, Keane J. (as he then was), with whom Barron J. agreed, made the following observations: -

"... where, as here, the legislature have plainly expressed their intention, it is not open to a court, absent any constitutional considerations, to frustrate that intention by departing from the ordinary meaning of the words used. Nor, it must be emphasised, can the literal construction in this case be said to defeat "the spirit and purpose of the Act": it is, after all, an Act intended to render unlawful certain types of discrimination in the workplace and a reading which leads to the prohibition of a particular discriminatory practice, however unfairly burdensome the result may appear to be, must be regarded as being in harmony, rather than in conflict with, the general legislative scheme."

 

40.        At paragraph 68 of their judgment in A1 Properties (Sunderland) Ltd. v. Tudor Studios RTM Company Ltd [2024] 3 WLR 601, Lord Briggs and Lord Sales, with whom the other members of the UK Supreme Court agreed, observed that "where there is no express statement of the consequences of non-compliance with a statutory requirement" the correct approach "is first to look carefully at the whole of the structure within which the requirement arises and ask what consequence of non-compliance best fits the structure as a whole."

         

41.        I am content to adopt these summaries of the principles on statutory interpretation that apply where, as here, a provision does not describe the consequences of non-compliance therewith in express terms. By reference to the language used in a provision and the context in which it appears, a Court may conclude that non-compliance with its terms may result in proceedings being a nullity. As I observed at paragraph 25, above, the antecedents and purpose of s. 73 of the Act of 2001 demonstrate an intention to confer a partial statutory immunity on a limited class of persons who come within its scope. The terms in which the section is expressed are consonant with an interpretation according to which proceedings not instituted in compliance with its terms do not exist. The force and effect of the rule s. 73 of the Act of 2001 establishes would be diluted were proceedings not instituted in compliance with that section to have a phantom existence capable of resuscitation upon application to the High Court. Since the institution of proceedings is prohibited, it is difficult to see how s. 73 of the Act of 2001 gives the High Court jurisdiction to remedy a failure to comply with its terms, save perhaps where, as Keane, J. indicated in the aforecited passage in Telecom Éireann v. O'Grady, it may be necessary to vindicate a constitutionally protected right, which circumstances do not arise here for the reasons explained at paragraph 17, above. Had the Oireachtas intended otherwise, one would, moreover, expect that the section would confer on the High Court jurisdiction to relieve the absolute character of the provision in an appropriate case. The absence of that possibility supported the proposition that the Oireachtas intended that proceedings instituted without leave of the High Court are a nullity.

 

42.        Such case-law as exists appears to point in the same direction. Paragraph 26, above, discusses the relevant passages in M.P. v. HSE and C. v. Casey. Whilst of the view that she did not need to decide the point in the context of the Respondent's action against Ireland and the Attorney General (although she had implicitly done so by striking out, rather than dismissing, the Respondent's claim against the HSE), at paragraphs 84 to 94 of her judgment, Egan J. concluded that a failure to comply with the requirements of s. 73 of the Act of 2001 is a statutory bar to the maintenance of the proceedings it governs. So far as reliance might be had upon it in the light of their common antecedents, it may be observed that s. 139(2) of the UK Mental Health Act 1983 also omits to provide for the consequences of non-compliance. Speaking for the majority in Seal v. Chief Constable of South Wales Police, Lord Bingham of Cornhill observed at paragraph 15 of his opinion that: -

"... the House has been referred to no judicial opinion and no scholarly commentary suggesting that failure to obtain the required leave was a procedural irregularity which might be cured rather than a flaw which rendered the proceedings null. When Parliament legislated in 1982-1983 there was, as it would seem, a clear consensus of judicial, professional and academic opinion that lack of the required consent rendered proceedings null, ..."

 

43.        The Superior Courts Rules Committee apparently shares this interpretation. By R.S.C. Ord. 137, r. 4 a person served with an originating summons instituting civil proceedings caught by s. 73 of the Act of 2001 who alleges that leave of the High Court had not been obtained may apply in the proceedings on notice to the plaintiff for an order to strike out those proceedings. Were the consequences of non-compliance a purely procedural matter, one might anticipate that that rule would have accommodated the High Court making any order that might be required to facilitate the progress of those proceedings.

 

44.        In his client's cross-appeal, Counsel for the Respondent relied upon the dissenting opinions of Lord Woolf and Baroness Hale of Richmond in Seal v. Chief Constable of South Wales Police to urge this Court to adopt what he described as a proportionate approach to the interpretation of s. 73 of the Act of 2001 that would result in non-compliance constituting a procedural, not a jurisdictional, obstacle to the maintenance of the proceedings.

 

45.        Two issues arise from that submission. In response to a question from the Court, Counsel asserted that since the UK and the Irish legislation shared a common origin and addressed the same mischief, there was no substantive difference between them, by reason of which he did not need to engage with those differences. Without conducting that analysis it is difficult to entertain that argument, notably in the light of the clear words the Oireachtas deployed in s. 73 of the Act of 2001.  In Clarke v. O'Gorman the Supreme Court pointed out that had s. 12(2) of the Personal Injuries Assessment Board Act 2003 contained the words unless and until an application was made and an authorisation granted a plaintiff could not bring proceedings in respect of a claim, it would have been more difficult to contest the argument that the import of the section deprived the court of jurisdiction, and took the view that the legislature's use of the verb 'to bring' had a particular meaning in the context of the initiation of litigation. It is also difficult to understand the absence of engagement with the text since the provisions under consideration in Clarke v. O'Gorman and Seal v. Chief Constable of South Wales Police both described proceedings as being brought, as distinct from being instituted, as is the case of the section under consideration.

 

46.        One also cannot overlook the fact that, in Seal v. Chief Constable of South Wales Police, a majority of the House of Lords declined to follow the approach the Respondent urged upon this Court in circumstances where the expiry of the applicable limitation period was capable of non-suiting the appellant. Paragraph 17, above, explains that a finding by this Court that the High Court had no jurisdiction to entertain the action before it neither prevents the Respondent from instituting a constitutional challenge to the validity of s. 52 (1) of the Act of 2001 nor from pursuing any remedy in damages that he may have against the HSE. It follows that there is no obligation upon this Court to interpret s. 73 of the Act of 2001 so as to vindicate the Respondent's constitutional right of access to the courts. The considerations that persuaded the High Court in Dunmanus Bay Mussels Ltd v. Aquaculture LAB [2014] 1 I.R. 403, In the matter of MJBCH Limited (in liquidation) [2013] 1 I.R. 407 and Waterville Fisheries Development Ltd v. Aquaculture Licences Appeals Board [2014] 1 I.R. 684 to relax the application of what appear to have been interpreted as statutory limitations on the High Court's jurisdiction to entertain proceedings are absent, which may explain why the parties did not draw this Court's attention to those judgments in their helpful written and oral submissions.  

 

47.        For the sake of completeness, I should add that, in the course of the hearing of this appeal, Counsel for the Respondent emphasised that the proceedings had 'in fact' been instituted on 23 December 2023. Whilst he did not go so far as to rely upon a legitimate expectation or an estoppel, he implied that, at the very least, this Court should take account of what he described as 'the realities' of the situation. The issue of the High Court's jurisdiction to enter into these proceedings has been live at the very latest since 18 January 2024, i.e. within a month of their purported institution. Of greater importance is the fact that, as a matter of first principle, the Central Office of the High Court has no power to disregard a provision of an Act of the Oireachtas, nor can it, by its actions, approbate acts that are contrary to law: see by analogy Wiley v. Revenue Commissioners [1989] I.R. 350. That the Central Office issued the Plenary Summons that purportedly instituted these proceedings cannot, therefore assist the Respondent. 

 

Conclusion to the second question

48.        For the reasons set out above, I conclude that the Respondent's non-compliance with s. 73(1) of the Act of 2001 deprives the High Court of jurisdiction to take any steps in the within proceedings.

 

VII.        Forms of Order

49.        I propose that this Court allow the appeal, dismiss the cross-appeal, and strike out proceedings entitled "The High Court Record No. 2022/6528P Between T..... N.... Plaintiff and Health Service Executive and Peter Whitty Defendants and Ireland and Attorney General and Irish Human Rights and Equality Commission Notice Parties."

 

50.        Since this judgment accepts the proposition that these proceedings were not validly before the High Court, there is no necessity to make the orders sought at paragraphs 1 and 2 in paragraph 4 of the Notice of Appeal. R.S.C. Ord. 99, r. 2(1) provides that the costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively. Since no proceedings were in being, no costs orders can be made. Such costs orders as may have been made should therefore stand discharged and there will be no order for the costs of this appeal.

 

51.        Since this judgment is delivered electronically, I am authorised by Faherty and Pilkington JJ. to state that they agree with it and the order that it proposes.

Result:     Allow Appeal and dismiss cross appeal

 

 

 

Appearances:

 

For the Plaintiff/Respondent: Ciarán D. Craven SC and Amy Deane, instructed by Daly Lynch Crowe and Morris Solicitors LLP

 

For the Defendants/Appellants: Feichín McDonagh SC and Joe Holt, instructed by the Chief State Solicitor