Blehein v Min for Health and Others

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 16 March 2009
• Neutral Citation: [2009] IEHC 182
• Court: High Court
• Date: 16 March 2009

[2009] IEHC 182

THE HIGH COURT

[No. 8934 P/1995]

Blehein v Min for Health & Ors

BETWEEN

LOUIS BLEHEIN

PLAINTIFF

AND

THE MINISTER FOR HEALTH, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

MENTAL TREATMENT ACT 1945 S185

MENTAL TREATMENT ACT 1945 S186

STATUTE OF LIMITATIONS 1957

STATUTE OF LIMITATIONS (AMDT) ACT 1991

BLEHEIN v MIN FOR HEALTH & ORS 2004 3 IR 610 2004/5/936 2004 IEHC 374

BLEHEIN v ST JOHN OF GOD HOSPITAL UNREP SUPREME 31.5.2002 2002/4/681

MENTAL TREATMENT ACT 1945 S260

CONSTITUTION ART 6

CONSTITUTION ART 34

MENTAL HEALTH ACT 2001

MENTAL HEALTH ACT 2001 (COMMENCEMENT) ORDER 2006 SI 411/2006

MENTAL TREATMENT ACT 1945 S260(1)

CROKE v SMITH & ORS 1998 1 IR 101

CONSTITUTION ART 40.4.2

MENTAL TREATMENT ACT 1945 S172

CONSTITUTION ART 40.4.3

MENTAL TREATMENT ACT 1945 S163

MENTAL TREATMENT ACT 1945 S171

DESMOND v MGN LTD UNREP SUPREME 15.10.2008 2008 IESC 56

PRACTICE AND PROCEDURE

Delay

Motion to re-enter proceedings - Inordinate and inexcusable delay - Balance of justice - Challenge to legislation - Antiquity of factual circumstances on which proceedings founded and multiplicity of proceedings arising out of same factual circumstances considered - Fact that impugned legislation repealed - Croke v Smith No 2 [1998] 1 IR 101 distinguished; Desmond v MGN Ltd [2008] IESC 56 (Unrep, Supreme Court, 15/10/2008) applied - Mental Treatment Act 1945 (No 19) ss 163, 172, 184, 185,186,260 - Mental Health Act 2001 (No 25) - Statute of Limitations Act 1957 (No 6) - Constitution of Ireland art 40 - Motion dismissed (1995/8934P - Laffoy J - 16/3/2009) [2009] IEHC 182

Blehein v Minister for Health

1 Judgment of Miss Justice Laffoy delivered on the 16th day of March, 2009.

2 In the interests of clarity I propose setting out my understanding of how this matter came before the Court on Monday 9 ^th March, 2009.

3 On Monday 2 ^nd February, 2009 there was before the Court a motion brought by the plaintiff, who appeared in person, for an order that the plaintiff's motion dated 21 ^st July, 2005 to re-enter these proceedings, which had been adjourned generally with liberty to re-enter by consent of the parties, "be now heard". On that occasion, counsel for the defendants informed the Court that the defendants were consenting to the order sought being made. Apparently, there was a misunderstanding as to what order the defendants were consenting to, in that what the defendants intended was that an order would be made by consent re-entering the plaintiff's motion of 21 ^st July, 2005, rather than, as the plaintiff may have assumed, an order re-entering the proceedings, which was the relief sought in the motion of the 21 ^st July, 2005. Accordingly, the matter was re-listed for 9 ^th March, 2009, to deal with the substantive issue on the motion of 21 ^st July, 2005.

4 The history of the proceedings to date is as follows:

5 • On 10 ^th November, 1995, the proceedings were initiated by plenary summons, the plaintiff being represented by a firm of solicitors.

6 • On 15 ^th November, 1995, the Chief State Solicitor entered an appearance on behalf of the defendants.

7 • On 27 ^th November, 1995 the plaintiff's statement of claim was delivered. The primary relief sought in the statement of claim was a declaration that ss. 185 and 186 of the Mental Treatment Act 1945, as amended (the Act of 1945) were invalid having regard to the provisions of the Constitution. The plaintiff also sought damages in respect of personal injury, loss and damage which it was alleged he sustained in consequence of three periods involuntary detention in St. John of God Hospital, Stillorgan, pursuant to orders made under s. 185 between 24 ^th February, 1984 and 16 ^th May, 1984, between 26 ^th January, 1987 and 16 ^th April, 1987, and between 17 ^th January, 1991 and 7 ^th February, 1991.

8 • The defendants delivered their defence on 4 ^th March, 1996 in which they denied that ss. 185 and 186 were invalid having regard to the provisions of the Constitution. They also pleaded that the plaintiff's claim was statute-barred by reason of the provisions of the Statute of Limitations 1957, as amended by the Statute of Limitations (Amendment) Act 1991 or, alternatively, that the plaintiff had been guilty of laches.

9 • Notice of trial was served on 9 ^th July, 1996 and the matter was set down. I attach no significance to the fact that a reply was not delivered on behalf of the plaintiff.

10 • Only three steps were taken thereafter before the proceedings were struck out. First, the defendants obtained an order for non-party discovery against St. John of God Hospital by order of this Court (Smyth J.) made on 28 ^th July, 1997. Secondly, by order of this Court (O'Sullivan J.) made on 2 ^nd February, 1998, it was ordered that the solicitors on record for the plaintiff had ceased to act. Thirdly, on 10 ^th March, 1998, the Master acceded to an application of the plaintiff for non-party discovery against Superintendent Martin Lally.

11 • The circumstances in which the proceedings were struck out on 18 ^th March, 1999 are deposed to in the replying affidavit sworn on 20 ^th October, 2005 by Derek Elliott, a solicitor in the office of the Chief State Solicitor, based on enquiries he had made in the Central Office, Apparently, as the plaintiff had not certified the case as being ready for hearing, it was listed in a list of uncertified cases which were called over by the Court on 18 ^th March, 1999. As there was no appearance on the part of the plaintiff or the defendants, the case was struck out.

12 • The plaintiff obviously learned that the case had been struck out. On 30 ^th November, 2000, he wrote to the Chief State Solicitor intimating that he wished to discontinue the case. However, the plaintiff changed his mind and, by letter dated 4 ^th December, 2000, to the Chief State Solicitor, he stated that his letter of 30 ^th November should be regarded as being "withdrawn".

13 • Nothing further happened in these proceedings until the plaintiff issued his motion to have the proceedings re-entered on 21 ^st July, 2005. However, the plaintiff had been involved in other proceedings, which, as I understand the position, had the same factual basis as these proceedings. Of relevance for present purposes are proceedings initiated in this Court in 2002 between the plaintiff and the defendants (Record No. 2002 No. 9652P), in which judgment was delivered in this Court by Carroll J. on 7 ^th December, 2004 ( [2004] IEHC 374) and by the Supreme Court on the defendants” appeal on 10 ^th July, 2008 ( [2008] IESC 40) (the 2002 proceedings). As is explained in the judgment of the Supreme Court, delivered by Denham J., in the 2002 proceedings, those proceedings were preceded, and I would assume prompted, by a judgment of the Supreme Court, delivered on 31 ^st May, 2002 by McGuinness J., in proceedings entitled Blehein v. St. John of God Hospital and Anor. (the Hospital proceedings) ( [2002] IESC 43) in which a late application to amend pleadings to include a constitutional challenge to s. 260 of the Act of 1945 was refused, but it was stated that, if the plaintiff wished to challenge the constitutionality of the legislation, the correct course would be to commence new proceedings by plenary summons. The third defendant was a notice party in the Hospital proceedings. The plaintiff did commence the new proceedings, namely, the 2002 proceedings. As I have stated, in the judgment of the High Court in the 2002 proceedings which was delivered on 7 ^th December, 2004, Carroll J. found that s. 260 was unconstitutional having regard to Article 6 and Article 34 of the Constitution. That decision was upheld by the Supreme Court in its judgment of 10 ^th July, 2008.

14 • The plaintiff's motion of 21 ^st July, 2005 was initiated at a time when the defendants” appeal against the judgment of the High Court in the 2002 proceedings was pending before the Supreme Court. It is common case that the reason the motion of 21 ^st July 2005 was adjourned generally was because the appeal to the Supreme Court was pending, although, as will be clear from what I will outline later, the parties were not ad idem as to the relevance of the pending appeal.

15 The basis advanced by the plaintiff in his grounding affidavit sworn on 20 ^th July, 2005 for...