AA v Medical Council

JurisdictionIreland
CourtSupreme Court
JudgeMr. Justice Hardiman,Keane C.J.
Judgment Date19 December 2003
Neutral Citation[2003] IESC 70
Docket Number[S.C. No. 208 of 2003]
Date19 December 2003

[2003] IESC 70

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

M cGuinness J.

Hardiman J.

208/03
A (A) v. MEDICAL COUNCIL & AG

BETWEEN

A A
APPLICANT

AND

THE MEDICAL COUNCIL
RESPONDENT

AND

THE ATTORNEY GENERAL
NOTICE PARTY

Citations:

MEDICAL PRACTITIONERS ACT 1978 PART V

MEDICAL PRACTITIONERS ACT 1978 S56

RSC O.84 r21

RSC O.58 r10

CONSTITUTION ART 26

CONSTITUTION ART 12.3

COURTS OF JUSTICE ACT 1936 S38

COURTS OF JUSTICE ACT 1947 S16

AG V OPEN DOOR COUNSELLING LTD (NO 2) 1994 2 IR 333

BLEHEIN V MURPHY 2000 2 IR 231

DUNNES STORES (IRL) CO V RYAN UNREP SUPREME 8.2.2000 2000/6/2158

D (K E) ORSE C V C (M) 1985 IR 697

RSC O.58 r1

NORTHERN BANK FINANCE V CHARLETON 1979 IR 149

HANRATTY V DROGHEDA WEB OFFSET PRINTERS LTD & ANOR UNREP SUPREME 2.6.1994 1994/10/3016

MEDICAL PRACTITIONERS ACT 1978 S45

CARROLL V RYAN & ORS 2003 1 IR 309 2003 2 ILRM 1

HENDERSON V HENDERSON 1843 3 HARE 100

COX V DUBLIN CITY DISTILLERY (NO 2) 1915 1 IR 345

A CLOSER LOOK AT HENDERSON V HENDERSON HANDLEY 118 LQR 397

YAT TUNG INVESTMENT CO LTD V DAO HENG BANK LTD 1975 AC 518

JOHNSON V GORE WOOD 2002 WLR 72

WOODHOUSE V CONSIGNA 2002 2 AER 737 2002 1 WLR 2558

GAIRY V AG OF GRENADA 2001 3 WLR 779

EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS 1950

ASHINGDON V UK 1985 7 EHRR 528

TINNEALLY & SONS LTD V UK 1999 27 EHRR 249

MEDICAL PRACTITIONERS ACT 1978 S48

Synopsis:

- [2003] 4 IR 302 - [2004] 1 ILRM 372

The applicant was acquitted of charges of sexual assault. He subsequently became the subject of a disciplinary inquiry by the Medical Council. He applied for judicial review to prevent the holding or continuance of the inquiry. He brought two sets of proceedings. The first set of proceedings related to the alleged double jeopardy and breach of natural justice in the form of multiple proceedings in the same matter. The second (present) proceedings concerned the alleged breach of natural justice by reason of the Council's failure to provide legal aid for the applicant. The respondent contended that the applicant had been guilty of delay which put him outside the time limits. The respondent further contended that the applicant had failed to explain why the relief sought in the second proceedings had not been sought in the first proceedings.

Held by the Supreme Court (Keane CJ, Denham, Murray, McGuinness and Hardiman JJ) in dismissing the appeal abd affirming the order of the High Court that no reason had been advanced for the failure of the applicant to raise the grounds relating to legal aid or funded representation in the first proceedings. The issues in relation to legal aid were issues which properly belonged to the subject of litigation of the first proceedings. The second proceedings ran foul of the public policy that litigation should not drag on forever and that a defendant should not be oppressed

1

19th day of December2003by Keane C.J.

Keane C.J.
2

I have read the judgment which will be delivered by Hardiman J. I agree with it and with the order he proposes. There are some observations, however, which I would wish to add as to the course these proceedings have taken.

3

The primary relief claimed by the Applicant by way of judicial review was an order prohibiting the Respondent from holding an inquiry pursuant to Part V of the Medical Practitioners Act, 1978. The other reliefs sought, and the grounds upon which they were sought, make it clear that the case essentially being made by the Applicant was that the Respondent's failure to provide legal aid to the Applicant to enable him to be legally represented at the proposed inquiry constituted a failure on the part of the Respondent to vindicate the Applicant's right to his good name and his right to earn his livelihood. The application for leave to issue such proceedings having been refused in the High Court, this court allowed an appeal from that refusal on the22 nd February, 2002 and granted the Applicant leave to seek the relief in question on those grounds. Thereafter, the Applicant was given leave in the High Court to amend his statement of grounds by seeking declarations that s. 56 of the 1978 Act permitted the Respondent to provide such legal representation or sufficient means to enable the Applicant to procure that representation and, in the alternative, a declaration that, to the extent that Part V of the 1978 Act did not so permit the Respondent to provide legal representation or the means to procure it, it was invalid having regard to the provisions of the Constitution. The Attorney General was thereupon joined as a Notice Party in these proceedings.

4

In his Statement of Opposition, the Respondent, in addition to denying that the Applicant was entitled to any of the reliefs sought, gave notice that the Respondent would contend at the hearing that the court should exercise its discretion against granting the relief sought on thegrounds

5

(a) that the application had been brought outside the time limit prescribed by O. 84 r. 21 of the Rules of the Superior Court and that the Applicant was also guilty of gross, inordinate and inexcusable delay in bringing the proceedings and

6

(b) that the Applicant was precluded by reason of his failure to raise the issue of legal aid and / or legal representation in earlier judicial review proceedings from maintaining these proceedings and that his conduct in instituting them amounted to an abuse of the process of the court.

7

It is clear from the judgment of the learned trial judge that the Respondent, in the course of the hearing in the High Court, relied upon those grounds, in addition to contending that the 1978 Act could not be construed so as to empower the Respondent to ensure that the Applicant had legal representation at the inquiry and that Part V of the 1978 Act,innot so empowering the Respondent, was not invalid having regard to the provisions of the Constitution.

8

The learned trial judge, having considered the submissions on behalf of the parties, concluded that the Applicant 1978 Act should be read as empowering the Respondent to make provision for legal aid and that Part V of the Act was not invalid having regard to the provisions of the Constitution. He added:

"While the Respondent has relied upon the discretionary nature of the remedy sought by the Applicant and the failure of the Applicant to move promptly to this court as a basis upon which I should in any event refuse the Applicant the relief sought, I am satisfied that it is not necessary in the circumstances to determine this application on any such discretionary basis".

9

On the hearing of the appeal in this court, Mr. Cush on behalf of the Applicant objected to the Respondent relying on the grounds of opposition relating to the discretionary nature of the remedy sought because they had not been the subject of any adjudication in the High Court and argued that for this court to embark on a consideration of them would amount to a denial of the Applicant's constitutional right ofappealfrom a decision of the High Court. In addition, he submitted that the Respondent, having failed to serve a notice to vary the judgment or order appealed from pursuant to O. 58 r. 10 of the Rules of the Superior Courts, should not be permitted to argue the issue relating to the discretionary nature of the relief granted.

10

This court is a court of appeal only and cannot exercise any jurisdiction other than an appellate jurisdiction, save under Articles 26 and 12.3 of the Constitution and when it is exercising the Case Stated jurisdiction vested in it pursuant to s. 38 of the Courts of Justice Act, 1936and s. 16 of the Courts of Justice Act, 1947. For that reason, this court has consistently declined to consider an issue of constitutional law which, though arising in a case not yet determined by it, has not been fully argued and decided in the High Court, save in the most exceptional circumstances: see TheAttorney General -v- Open Door Counselling Ltd (No.2) [1994] 2 IR 333; Blehein -v- Murphy [2000] 2 IR 231, 239 and Dunnes Stores Ireland Company -v-Ryan; unreported; judgments delivered 8 thFebruary, 2000.

11

Consistently with that principle, the court has declined to allow a party to raise an issue for the first time which has never been raised in the High Court. In K.D. (otherwise C.) -v-M.C. [1985] IR 697, the appellantsought to raise in nullity proceedings an issue which had never been raised in the High Court, relying in particular on the fact that the effect of a decree of nullity would determine the legal status of a child born to the union between the Respondent and the petitioner, thereby rendering it an exceptional case. Finlay C.J., with whom the other members of the court agreed, said

"It is a fundamental principle, arising from the exclusively appellate jurisdiction of this court in cases such as this, that, save in the most exceptional circumstances, the court should not hear and determine an issue which has not been tried and decided in the High Court. To that fundamental rule or principle there may be exceptions, but they must be clearly required in the interest of justice. This case cannot, in my view, however, provide such an exception".

12

The present case is manifestly distinguishable from that case in one critical respect. Not merely did the Statement of Opposition expressly rely on the discretionary nature of the relief sought in the proceedings and the circumstances which, as the Respondent urged, should preclude its being granted in this case: the matter was fully argued by Counsel when the case came on for hearing. The learned judge, having decidedthatthe Applicant had not established that he was entitled to any of the reliefs claimed, concluded that it was not necessary for him to express any view on whether, in any event, the Applicant should also have been refused the reliefs sought in exercise of the court's discretion.

13

I am satisfied...

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