THE SUPREME COURT

HAMILTON C.J.
KEANE J.
MURPHY J.
265/97 & 7/98

IN RE E.D.

(A Ward of Court)

Ex-Tempore Ruling delivered on the 4th day of March 1998 by Hamilton C.J.

This is an appeal brought by the Appellant who is the daughter of E.D. who was admitted to Wardship on the 15th May 1995 against a number of orders made by the President of the High Court in the exercise of his jurisdiction with regard to the care and maintenance of Wards which come under his protection. Originally this protection was vested in the Lord Chancellor of England and when we achieved our independence in 1922 it was by virtue of the Courts Act, 1922 vested in the Chief Justice. The Chief Justice was relieved of that responsibility by the Courts of Justice Act, 1936 when the jurisdiction previously exercised by the Chief Justice and the Chancellor was vested in the High Court.

(2)

By the Courts Establishment Act of 1961 the said jurisdiction was vested in the President of the High Court or any Judge nominated by him for the purpose of exercising that jurisdiction.

Invariably it has been the practice that whenever the President of the High Court is available he exercises that jurisdiction and only on the rare occasions when he is not available is that responsibility delegated by him to another Judge of the High Court.

It is perfectly clear that the President of the High Court has a very real responsibility to Wards of Court which come under his care and protection and in order to exercise that jurisdiction properly he has a wide discretion which of course has to be exercised judicially in first of all in determining whether the medical evidence is available before he makes an order admitting a person to wardship and also to deal with the care and maintenance of a Ward who comes under his protection when he is admitted to wardship. The exercise of that jurisdiction is then that there is a committee appointed, usually a committee of the person and of the property but from time to time it may be necessary to split that responsibility of that committee and have a committee of the person and a committee in charge of the property. But I merely illustrate this for the purpose

(3)

of giving an indication of the responsibilities of the President and the discretion that he has in order to enable him to fulfil that responsibility.

In this particular case, he made a number of orders which as I say have been appealed on by the Appellant who is a daughter of the Ward and is obviously very attached to her mother and is concerned that she obtain the proper care and attention and she has conflicting views as to what is required in order to ensure that her mother is properly cared for in her, obviously declining years, she is now I think 79 years of age.

Certain disputes undoubtedly arose between the Appellant and the Committee and also certain disputes with regard to the staff and the administration of the hospital as to the treatment of her mother and she brought an application for an order directing the Committee to make arrangements to transfer the Ward from the Royal Hospital to what she described as in her motion as a more caring institution. She also brought a notice of motion seeking an order directing that the Ward be examined independently by a Dr. Marjorie Young and Dr. Michael Carty and also that she be sent for examination to the Diabetic Unit in St. Vincent’s Hospital.

(4)

The Committee brought a motion on the 5th December 1997 for an order restraining the Appellant from visiting the Ward, from contacting the Ward in any way, from contacting the hospital, from entering the grounds for the purpose of visiting her, from contacting the staff and from circulating letters and directing that future enquiries which the Appellant wished to make should be made to her sister and the Committee. These orders were made by the learned trial judge having considered the affidavits before him and I have no doubt whatsoever that all the relevant affidavits were before the President, that he gave consideration to them before he made his orders. There was a further three motions. It is quite clear as I say that the learned President has the discretion in connection with all matters relating to the care and maintenance of a Ward and that there was evidence before him by affidavit upon which he was entitled to make these orders.

The Appellant relies strongly on the fact that the learned President was a Governor of the Royal Hospital and has submitted that by reason of his being such Governor that he should have disqualified himself from hearing the application because involved in it were various criticisms by the Appellant with regard to the behaviour of the staff and because there were affidavits from members of the staff dealing with the alleged behaviour of

(5)

Ms. D on the occasions of her visits. She has submitted that she, having learned that he was a Governor of the Hospital, feels that he was biased in favour of the hospital and against her and has referred the Court to a number of cases before this Court including Gates and the R.D.S., High Court (Shanley J) 31 July 1997, and the Dublin Wellwoman Centre v SPUC [1995] 1 ILRM 408, as indicating that a judge who has a particular interest should disqualify himself or herself from hearing proceedings.

It is quite clear from the judgment and the record of the judgment that Mr. Justice Costello freely and openly acknowledged that he was a Governor of the Hospital and clearly stated that he would not allow that in any way to affect his judgment. The motivating force of that judgment was the welfare of the Ward. While the Appellant feels and relies on the fact that she feels that he was biased against her, the question of bias must be perceived on the basis of not what one particular person might consider but what a reasonable person would consider and I am satisfied that no reasonable person would be justified in considering that the President of the High Court merely because he was a Governor of the Hospital and because he is engaged in many charities would allow himself to be affected by that fact in reaching the determination which he did on each of the motions.

(6)

For these reasons I am satisfied that the orders made by him were within his jurisdiction as President of the High Court, that there was evidence which justified him in exercising his discretion in this manner and I am further satisfied that there was no question good, bad or indifferent of any bias by the learned President because of the fact that he was Governor of the Royal Hospital against the Appellant.

Consequently, I would dismiss the appeal.