Blehein v Murphy

CourtSupreme Court
Judgment Date17 January 2000
Docket Number1999 No. 153,[S.C. No. 153 of 1999]
Date17 January 2000


Denham J.

Barrington J.

Barron J.

1999 No. 153



Constitution - Appeal - Practice and procedure - Amendment of proceedings - Mental treatment - Whether to grant leave to applicant to amend proceedings -Whether detention in hospital unlawful and unconstitutional - Whether applicant detained before doctors signed statutory certificate - Onus of proof applicable - Whether substantial grounds for contending that defendants acted in bad faith or without reasonable care - Dispute on facts - Whether claim statute barred - Mental Treatment Act, 1945 (No 19) section 260.

The applicant had sought leave in the High Court to bring proceedings under s.260 of the Mental Treatment Act, 1945. The applicant claimed that he had been unlawfully detained against his will at the St John of God Hospital, in Stillorgan, Co. Dublin. Geoghegan J had refused the applicant leave to bring proceedings. The applicant appealed to the Supreme Court. In this application the applicant sought leave from the Supreme Court to amend his pleadings in order to challenge the constitutionality of s.260 of the Mental Treatment Act, 1945. Denham J delivering judgment dismissed the application and held that there were no exceptional circumstances existing in this instance which would permit the applicant to amend his pleadings.


Judgment of Mrs. Justice Denham delivered on the 17th day of January, 2000.


Louis Blehein, the plaintiff/appellant (hereinafter referred to as the plaintiff) has appealed from the judgment and order of the High Court (Geoghegan J.) delivered on 2nd day of July, 1999, in which the plaintiff was refused leave to issue proceedings. The third named defendant has cross appealed seeking that the order of no order as to costs be set aside and discharged and that in lieu thereof the plaintiff be ordered to pay the costs of the action in the High Court and also that the plaintiff be ordered to pay the costs of the appeal to the Supreme Court. The action is an application under s.260 of the Mental Treatment Act, 1945, for leave for the plaintiff to institute proceedings against two doctors, his own wife and three members of the Garda Siochana in respect of his being taken against his will to St. John of God's Hospital, Stillorgan, Dublin, in 1987. The plenary summons alleges causes of action of fraud, libel, slander, unlawful arrest, unlawful detention, conspiracy and violation of the privacy of the plaintiff's dwelling, being a breach of a constitutional right. Section 260 of the Mental Treatment Act, 1945, provides that leave of the High Court must be sought to institute certain proceedings. The section states:


"260.- (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 granted unless the High Court is satisfied that there are substantial grounds for contending that the person against whom the proceedings are to be brought acted in bad faith or without reasonable care.

  • (2) Notice of an application for leave of the High Court under sub-section (1) of this section 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 sub-section (I) 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."


The plaintiff has applied by notice of motion to amend the notice of appeal by the addition of the paragraph:


"That section 260 of the Mental Treatment Act, 1945 (as amended) is invalid having regard to the provisions of the Constitution of Ireland, 1937".


The plaintiff requested that the appeal be adjourned to allow notice to be served on the Attorney General in compliance with Order 60, Rule 1, of the Rules of the Superior Courts.


The court heard the motion of the plaintiff. In an affidavit accompanying the motion seeking to amend the notice of appeal the plaintiff deposed:


"My understanding of the procedures to be followed in challenging the validity of a statute has at all times been that I could not make such a challenge save in Plenary proceedings and that such a challenge could only be initiated in the High Court. This belief was based on legal advice orally given. 1 have, however, very recently found precedent where such a challenge has been made in proceedings commenced by Motion and the challenge was first mentioned in the Notice of Appeal therein. Further I have also found precedent where this Honourable Court has given leave to amend a Notice of Appeal to include such a challenge and did adjourn the hearing of the said Appeal pending compliance with Order 60, rule 1, of the rules of the Superior Courts.


I say and believe that the said section 260 of the Mental Treatment Act, 1945,shows invalidity on the face of it's (sic) provisions and that the presumption of constitutionality is disappointed and cannot prevail. I say this on the grounds that I believe that the said section 260:

  • (a) Fails to hold all citizens equal before the law contrary to Article 40.1 of the Constitution.

  • (b) Ignores the constitutional guarantee that the State would, by it's (sic) laws, defend and vindicate the personal rights of the citizen.

  • (c) Fails to protect the personal rights of the citizen from unjust attack and is obstructive of vindication in the case of injustice done.

  • (d) Is an interference with the operation of the courts in a purely judicial domain.

  • (e) Purports to subordinate the precepts of justice to the law.

  • (f) Purports to make justice subservient to the law

  • (g) Is deficient in that respect which one great organ of State owes to


  • (h) Is anti-democratic in that

    • (i) in inverts the rule of constitutional law ubi ius ibi remedium;

    • (ii) it ignores the fundamental requirements of the rule of law.

      It is my intention to challenge the validity of the said section 260 sooner or later. I say and believe that it would be reasonable and appropriate to make that challenge in the action herein and before this Honourable Court hears and pronounces judgement on the Appeal herein."


The plaintiff referred to two cases in support of his submission: The State (Gallagher. Shatter & Co.) v. de Valera [1986] ILRM 3 and Goulding Chemicals Ltd. v. Bolger [1977] IR. 211. On these two authorities he sought the amendment of the notice of appeal and the adjournment to serve notice on the Attorney General.


Counsel for the defendants opposed the application. Mr. Mel Christle, S.C., on behalf of the first two defendants, submitted that this was the first time the plaintiff had brought up the question of the constitutionality of s.260 of the Mental Treatment Act, 1945. However, this was not the first time that the plaintiff had sought leave under s.260 to institute proceedings against the first two defendants. Leave was granted by Lynch J. in December, 1993 and the statement of claim in that case made. reference to the incident the subject of this application. The learned trial judge in this case dealt with the matter on the affidavits and there was no query by the applicant as to the constitutionality of the sections. He emphasised that the ground was not argued before the High Court.


Stephen Roche, S.C., counsel for the third named defendant, also opposed the application on the basis that the plaintiff was attempting to start a constitutional action on an appeal. He submitted that the matter should be litigated first in the High Court. He pointed out that the defendants need not be part of a constitutional challenge.


Mr. Craven, B.L., counsel for the fourth, fifth and sixth named defendants, also opposed the application. He distinguished the facts in Goulding Chemicals Ltd. v. Bolger [1977] I.R. 211 and referred to Attorney General (S.P.U.C.) v. Open Door Counselling Ltd. (No. 2) [1994] 2 I.R. 333. He referred to the following statement by McGuinness J. in Melly v. Moran and Ors. (High Court, Unreported judgment of McGuinness J., June 19, 1997) :


"While Counsel for the Plaintiff in his opening submissions referred in some detail to the proposed challenge to the constitutionality of Section 260, he proposed that the first step to be taken by the Court was to decide within the parameters of the present law whether leave should be granted to the Plaintiff to issue his proceedings. This preliminary issue would fall to be decided within the terms of Section 260 and, depending upon the outcome, the Plaintiff could, if necessary, pursue the constitutional issues at a later stage. Counsel for both Defendants and the Attorney General agreed that this was the proper course to follow. Accordingly, the sole issue before the Court at present is whether it is proper to permit the Plaintiff to institute his proposed proceedings. The institution of the proposed proceedings is opposed by the First and Second named Defendants. Counsel for the Attorney General, Mr. Frank Clarke, reserved his position, his role being to deal with the merits of the Plaintiffs claims in regard to the constitutionality of Section 260 and other aspects of the Mental Treatment Act, 1945."


Counsel for the fourth, fifth and sixth named defendants submitted that the plaintiff has not yet exhausted all his remedies; that he could not...

To continue reading

Request your trial
11 cases
  • Minister for Justice and Equality v Horvath
    • Ireland
    • Supreme Court
    • 2 March 2017
    ...none of which apply in this case. 18 This jurisprudence has been explained repeatedly by the Court. As I stated in Blehein v. Murphy [2000] 2 I.R. 231:- ‘Parties, including the Attorney General, have the right to have the issues argued fully in the High Court. Issues may be reargued on app......
  • Blehein v Minster for Health and Children
    • Ireland
    • High Court
    • 24 August 2010
    ...BLEHEIN v MURPHY & ORS UNREP GEOGHEGAN 2.7.1999 1999/3/392 BLEHEIN v MURPHY & ORS 2000 3 IR 359 2000/2/626 BLEHEIN v MURPHY & ORS 2000 2 IR 231 2000 2 ILRM 481 2000/2/599 BLEHEIN v ST JOHN OF GOD HOSPITAL UNREP O'SULLIVAN 6.7.2000 2000/2/612 BLEHEIN v ST JOHN OF GOD HOSPITAL UNREP SUPREME 3......
  • Blehein v Minister for Health
    • Ireland
    • Supreme Court
    • 10 July 2008
    ...593 approved. Cases mentioned in this report:- Blehein v. Minister for Health [2004] IEHC 374, [2004] 3 I.R. 610. Blehein v. Murphy [2000] 2 I.R. 231; [2000] 2 I.L.R.M. 481. Blehein v. Murphy (No. 2) [2000] 3 I.R. 359. Blehein v. St. John of God Hospital (Unreported, Supreme Court, 20th May......
  • Blehein v Minister for Health Children
    • Ireland
    • Supreme Court
    • 31 July 2018
    ...Appeal to include a challenge to the constitutional validity of section 260 was also rejected by the Supreme Court ( Blehein v. Murphy [2000] 2 I.R. 231). (v) A further application was made in July, 2000, again seeking leave under section 260 of the 1945 Act (‘the 1999 proceedings’). The d......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT