Bupa Ireland Limited -v- Health Insurance Authority & Ors, [2005] IEHC 291 (2005)

Docket Number:2005 532 JR
Party Name:Bupa Ireland Limited, Health Insurance Authority & Ors
Judge:Peart J. / McKechnie J.



Record Number: 2005 No. 532 JR


BUPA Ireland Limited



Health Insurance Authority, The Minister for Health and Children,

Ireland and The Attorney General



Voluntary Health Insurance Board

Notice Party

Judgment of Mr Justice Michael Peart delivered on the 22nd day of July 2005:

These proceedings began life on foot of an order of Mr Justice Clarke dated 24th May 2005 when he granted leave to the applicant to seek relief by way of judicial review for an order of certiorari and a number of associated declaratory reliefs in connection with a Recommendation made on the 29th April 2005 by the 1st named respondent ("the Authority") to the 2nd named respondent ("the Minister") whereby the said Authority recommended to the Minister that she should exercise her statutory authority under what has been referred to as the Risk Equalisation Scheme 2003 ("the Scheme") by ordering the commencement of risk equalisation payments.

Certain of the declaratory reliefs (i.e. those at paras (xii) and (xiii) of the said order dated 24th May 2005) impugn the constitutionality of s. 12 of the Health Insurance Act, 1994, and the Scheme.

There is no dispute about the fact that the Voluntary Health Insurance Board ("VHI") is for all practical purposes the only significant beneficiary under the Scheme because of its leading position in the health insurance market in this jurisdiction. This would certainly have been a reason why VHI was joined as a Notice Party to the proceedings and permitted to participate in the proceedings by Order of Mr Justice Quirke dated 30th May 2005 on foot of its own application.

In the affidavit grounding the application by VHI to be joined in these proceedings, the solicitor acting for VHI, Mr David Clarke deposed to certain matters on its behalf. He stated inter alia that "the principal remedy sought in these proceedings is the quashing by way of judicial review of the recommendation made by the Health Insurance Authority". He also stated that "in addition the applicants make certain other claims challenging the legislation and the Scheme on constitutional and EU law grounds." He also pointed to certain of the Statement of Grounds filed by the applicants and to the fact that contained therein were certain claims or assertions as to the situation or conduct of VHI, and he referred specifically in this regard to grounds numbered therein E 1 (xxiii), (xxxiii), (xxxviii) and (l). He also referred to assertions of this kind in the affidavit of Martin O'Rourke, Managing Director of BUPA Ireland which was sworn to ground the application for leave. Mr Clarke went on to say:

"In all these circumstances VHI believes that it is proper that it be a notice party to the proceedings and respectfully suggests that it would in fact not be possible for the Court to properly consider such assertions without hearing VHI in relation to them. It would be the intention of VHI, if joined as a notice party to deliver opposition papers and to oppose the reliefs being sought by the applicants."

That Statement of Opposition has been filed and delivered and it, inter alia, traverses the constitutional and EU law grounds pleaded by the applicant in its Statement of Grounds filed herein.

As appears now from the affidavit sworn on behalf of the applicant's solicitor, Liam Kennedy, to ground the Notice of Motion herein dated 8th July 2005 seeking orders as to pleadings, time and mode of trial, and the further involvement in these proceedings of VHI, the Minister has, since leave was granted herein, publicly indicated that it is not her intention at the present time to act in accordance with the Recommendation of the HIA. The judicial review proceedings, save for the EU law and constitutional challenge to s. 12 of the 1994 Act, have therefore become moot, and will not proceed further. When any further Recommendation is made to the Minister by the HIA that risk equalisation payments should be commenced, no doubt an Order of Certiorari can and will be sought in respect of same, but such a Recommendation has not yet issued and may not do so until the end of October 2005.

In the light of this development, and the absence of any further need to move the application on judicial review grounds, the applicants seek an order discharging the VHI from the proceedings, so that what is left of these proceedings, limited to the challenge to s. 12 of the 1994 Act on constitutional and EU grounds, can be litigated in the normal way as between the applicants and the Attorney General, as if only that issue had been raised in proceedings commenced by way of Plenary Summons. In such a situation, the applicants submit that the VHI would have enjoyed no locus standi to be joined in any such Plenary Summons proceedings, in spite of their very obvious commercial interest in the outcome of the challenge to that section, and that accordingly they should not be permitted to remain in the proceedings simply because for the purpose of judicial review proceedings, which are now moot, they were allowed to join as a notice party and to participate. The applicants submit that in this respect the VHI is no different to any party interested in, and potentially adversely affected by, the outcome of a constitutional challenge to a piece of legislation.

Before setting out what Mr David Clarke, solicitor for VHI has stated in his affidavit sworn on the 14th July 2005, it is perhaps appropriate at this point to say that the Respondents, through their Counsel, Gerard Hogan SC, have indicated that they are broadly supportive of the submissions of the VHI that it should be allowed remain in the proceedings, albeit now limited to the constitutional and EU law challenge.

Mr Clarke states in his affidavit that in seeking, as they now do, to have the VHI discharged from the remainder of these proceedings, BUPA are in effect seeking to a reversal of the order of Mr Justice Quirke dated 30th May 2005 wherein he ordered, inter alia, that VHI be joined as a Notice Party pursuant to Order 84, Rule 22(6) and/or Rule 26(1) Rules of the Superior Courts. I have already referred to Mr Clarke's affidavit grounding that application to be joined as a Notice Party.

He also states that in so far as the applicants rely on the assumption that VHI was joined in the proceedings having regard to its interest in the validity of the Recommendation by the Health Insurance Authority, the applicants are wrong in that regard. He says that the justification for the VHI being in these proceedings is because it has an entitlement to receive the greater part of the funds becoming available under the Scheme, and also because it is evident from the Statement of Grounds and from the affidavit of Mr O'Rourke filed in support of the application for leave, that a number of specific claims and critical assertions are made against the VHI, and Mr Clarke instances some of these in his affidavit. He states that as part of its application to be joined in these proceedings, VHI did not suggest that this was justified by particular reference to the challenge by the applicant to the Recommendation of the HIA, and he does not believe that the order joining VHI was made on that basis. He also avers that it would not be possible for the Court to properly consider the allegations made by the applicants in relation to the position or conduct of VHI without VHI being a party to these proceedings, and he believes that its presence in these proceedings is necessary to enable the Court to effectively and completely adjudicate on the matters in issue in these proceedings.

In relation to the point made by Mr Kennedy in his affidavit that if the constitutional challenge to s. 12 of the 1994 Act had been commenced in the normal way by way of Plenary Summons that VHI would have had no basis for seeking to be joined to those proceedings, Mr Clarke submits that this is not correct. He believes that procedurally there would have been nothing to prevent VHI from applying to be joined in those proceedings having regard to the allegations by BUPA in relation to VHI. He also believes that by ordering the joinder of the VHI to the judicial review proceedings when he did so, Mr Justice Quirke has recognised the validity of the interest of VHI in the proceedings, because of the uniqueness of its position in relation to potential benefit under the Scheme and that any undermining of the Scheme as a result of a successful constitutional or EU law challenge to same in what remains of these present proceedings would correspondingly uniquely affect it also.

Mr Clarke also makes a submission in his affidavit relating to the fact that in proceedings brought by BUPA at the Court of First Instance at Luxemburg VHI was permitted to intervene by order date 2nd April 2004, and that it would be incongruous if the VHI was permitted so to do in those proceedings, and not be similarly allowed to participate in the present proceedings. In relation to this last point I do not propose to consider that submission at length. It seems irrelevant to this Court's consideration especially in view of the different rules as to standing which may prevail at the Court of Justice, and to the rules by which parties are often permitted to intervene and be heard in cases before that court.

Mr Clarke has stated also that the interests of VHI and those of the State parties are not necessarily to be taken as being the same and that for this reason also it is proper that VHI should remain involved in the hearing of the remaining issues before this Court, since these differing interests would lead to different approaches and legal arguments and submissions.

Michael Collins SC on behalf of the applicants has made submissions in line with the averments contained in Mr Kennedy's grounding affidavit. He has referred the Court to a number of authorities in support of the submission that these proceedings, as they...

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