Deane v V.H.I

Judgment Date29 July 1992
Date29 July 1992
Docket Number[S.C. No. 148 of 1992]
CourtSupreme Court

Supreme Court

[S.C. No. 148 of 1992]
Deane v. Voluntary Health Insurance Board
Mary Deane, Nora Cronin, Kathleen Oliver Walsh and Anne Cody
The Voluntary Health Insurance Board

Cases mentioned in this report:—

In re Arthur Average Association for British, Foreign and Colonial Ships (1875) 10 L.R. Ch. App. 542.

Vandyk v. Minister for Pensions and National Insurance [1955] 1 Q.B. 29; [1954] 3 W.L.R. 342; [1954] 2 All E.R. 723.

Competition - Dominant position - Undertaking - Supply of services - Body corporate established by statute to provide health insurance - Insurance cover provided in return for payment of subscriptions - Body corporate to collect only such revenue as necessary to meet its costs - Body corporate to contribute surplus funds to Central Fund - Whether body corporate "engaged for gain" - Whether body corporate "undertaking" - Whether provisions of Competition Act, 1991, applicable - Voluntary Health Insurance Act, 1957 (No. 1), ss. 3 and 4 - Competition Act, 1991 (No. 24), ss. 3 and 5 - Finance Act, 1992 (No. 9), s. 252.

Statute - Interpretation - Statute expressed to be analagous with Articles 85 and 86 of European Economic Community Treaty, 1957 - "Engaged for gain" - Whether "gain"restricted to "profit" - Whether other articles of Treatry to be used as aid to construction - European Economic Community Treaty, 1957, Articles 85, 86, 90, 92, 93 and 94 - Competition Act, 1991 (No. 24), s. 3.

European Communities - European Economic Community Treaty, 1957 - Competition - Whether undertaking providing public service formed for the object of making profit - Whether Articles of Treaty relevant - European Economic Community Treaty, 1957, Articles 85, 86, 90, 92, 93 and 94.

Preliminary Issue.

The plaintiffs commenced a number of actions concerning the continued inclusion of the plaintiffs' hospital in the defendant's schemes of health insurance, and the payment of monies allegedly due for the treatment of the defendant's subscribers in the plaintiffs' hospital. By order of the High Court (Costello J.) made on the 5th February, 1992, the actions were consolidated. The statement of claim alleged inter aliathat the defendant was in breach of the provisions of the Competition Act, 1991, and of a duty owed under s. 5 of the Act of 1991. By notice of motion dated the 31st March, 1992, the defendant sought inter alia:—

  • (a) An order declaring the defendant not to be an "undertaking"within the meaning of s. 3 of the Act of 1991;

  • (b) An order declaring that the Competition Act, 1991, did not apply to the defendant.

The motion came on for hearing before the High Court (Costello J.) on the 8th and 9th April, 1992, and on the latter date an ex temporejudgment was delivered, in the course of which it was held that the words"engaged for gain" were intended to mean that an undertaking, for the purpose of s. 3 of the Act of 1991, had the object of gain. It was further held that the defendant's object was not that of gain, but the provision of a service in the public interest, the revenue of which met its costs.

The plaintiffs lodged a notice of appeal dated the 6th May, 1992. It was ordered by the Supreme Court that both parties should lodge a booklet of submissions on the appeal. The appeal came on for hearing before the Supreme Court (Finlay C.J., Hederman and Egan JJ.) on the 21st July, 1992.

The Competition Act, 1991, is described in its long title as, inter alia,

"An Act to prohibit by analogy with articles 85 and 86 of the Treaty establishing the European Economic Community and in the interests of the common good the prevention, restriction or distortion of competition and the abuse of dominant positions in trade in the State."

Section 5, sub-s. 1 of the Act of 1991 provides as follows:—

"Any abuse by one or more undertakings of a dominant position in trade for any goods or services in the State or in a substantial part of the State is prohibited."

"Undertaking" is defined in s. 3, sub-s. 1 of the Act of 1991 as meaning "a person, being an individual, a body corporate or an unincorporated body of persons engaged for gain in the production, supply or distribution of goods or the provision of a service."

Article 85 of the European Economic Community Treaty, 1957, prohibits agreements between undertakings which have the aim of preventing, restricting or distorting trade.

Article 86 of the Treaty prohibits the abuse by an undertaking of a dominant position within the European Community or a substantial part thereof.

Article 90 of the Treaty exempts "undertakings entrusted with the operation of services of general economic interest or having the character of a revenue producing monopoly" from the application of the rules relating to competition contained within the Treaty, insofar as those rules would obstruct such undertakings in the performance of the particular task assigned to them.

Articles 92, 93 and 94 of the Treaty deal with the circumstances in which state aids to industry are permitted.

The defendant was established pursuant to s. 3 of the Voluntary Health Insurance Act, 1957, to fulfil the functions therein assigned to it.

Section 4, sub-s. 1 of the Act of 1957 provides as follows:—

"The Board shall make and carry out a scheme of voluntary health insurance for defraying, to such extent as the Minister [for Health] may from time to time specify, the costs of persons paying subscriptions to the Board in respect thereof, and to dependants of such persons, of such medical, surgical, hospital and other health services as the Minister may from time to time specify."

By virtue of s. 4, sub-s. 2 of the Act of 1957, the Board may provide other schemes of voluntary health insurance, subject to the consent of the Minister.

Section 4, sub-s.4 of the Act of 1957 provides as follows with respect to...

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