Gannon Maguire v O'Callaghan
| Jurisdiction | Ireland |
| Judge | Ms. Justice Power |
| Judgment Date | 06 October 2020 |
| Neutral Citation | [2020] IECA 273 |
| Docket Number | Record Number: 2019/400 |
| Court | Court of Appeal (Ireland) |
| Date | 06 October 2020 |
[2020] IECA 273
Faherty J.
Ní Raifeartaigh J.
Power J.
Record Number: 2019/400
THE COURT OF APPEAL
Limitations – Constitution – Trial of a preliminary issue – Appellant appealing against High Court judgment ruling that the interests of justice favoured the granting of the respondent’s application for the trial of a preliminary issue – Whether there is an absolute bar to a court ordering the determination of an issue by way of preliminary trial in circumstances where the constitutional validity of legislation will be determined
Facts: The appellant, Ms Maguire, attended Dr O’Callaghan on 5 March 2013 complaining of a lump in her neck. She alleged that Dr O’Callaghan indicated that it was just tissue and nothing to worry about and that he referred her to Temple Street Hospital for a blood test. She attended for the blood test and claimed that, thereafter, she heard nothing further. Later that year, on 30 September 2013, Dr O’Callaghan died. When the appellant was seen by another general practitioner on 25 April 2015, still complaining of the lump in her neck, she was referred for an urgent appointment to the Mater Hospital. A biopsy was taken, and the appellant was diagnosed with papillary thyroid cancer which had spread to her lymph nodes. She was admitted, immediately, for urgent surgery and, thereafter, she underwent radiotherapy. The respondent, Ms O’Callahan, was the widow of the late Dr O’Callaghan and was the executrix of his estate. In the High Court, Noonan J heard and determined the respondent’s application for the trial of a preliminary issue as to whether the appellant’s claim was statute barred by reason of s. 9(2)(b) of the Civil Liability Act 1961 and, if so, whether that provision of law was repugnant to the Constitution. In a judgment delivered on 28 June 2019, he ruled that the interests of justice favoured the granting of the respondent’s application. It was against that judgment that the appellant brought an appeal. At the opening of the appeal, counsel for the appellant indicated that he was asking the Court of Appeal to rule on whether or not there is an absolute bar to a court ordering the determination of an issue by way of preliminary trial in circumstances where the constitutional validity of legislation will be determined. The need to ascertain the answer to this question, it was argued, was based upon the importance of the principle of avoidance and of the Court having regard to the fact that certain factual matters would not be heard which would thus leave the trial court with an evidential deficiency.
Held by Power J that the answer to the question raised by the appellant is that there is no such absolute bar to a court directing the determination of an issue by way of preliminary trial, including, an issue that involves the constitutional validity of legislation. Power J held that the principle of avoidance is not breached by the fact that a constitutional issue may be directed to be determined by way of trial of a preliminary issue provided, as the trial judge in this case directed, that the constitutional issue is the last issue that falls to be determined. Power J held that once that is so, there is no reason, in principle, why a constitutional issue cannot be the subject of a direction for trial of a preliminary issue; whether it is appropriate to do so, in practice, will depend upon the facts—including the agreed facts—of each individual case and the overriding consideration at all times must be whether the interests of justice require the adoption of such a procedure. On the facts of this case, Power J was satisfied that the limitations issue and the constitutional issue were sufficiently precise and capable of a clear answer and that Noonan J did not err in finding that they were appropriate for determination by way of trial of a preliminary issue.
Power J held that the appeal would be dismissed.
Appeal dismissed.
This appeal raises the interesting question of whether there is a bar to a court ordering the trial of a preliminary issue in circumstances where the constitutional validity of legislation will be raised in the proceedings. In cases where the trial court will have to consider the constitutional principle of avoidance of declarations of invalidity, the question to be addressed is whether such matters must be determined only in the context of a unitary trial and not by way of the trial of a preliminary issue.
In the High Court, Noonan J. heard and determined the respondent's application for the trial of a preliminary issue as to whether the appellant's claim was statute barred by reason of s. 9(2)(b) of the Civil Liability Act 1961 (hereinafter ‘the Act’) and, if so, whether that provision of law was repugnant to the Constitution. In a judgment delivered on 28 June 2019, he ruled that the interests of justice favoured the granting of the respondent's application. It is against that judgment that the appellant brings this appeal.
The background facts are set out in the judgment of Noonan J. and may be summarised as follows. The appellant was born on 11 October 1997. When she was 15 years old, she attended Dr. O'Callaghan on 5 March 2013 complaining of a lump in her neck. She alleges that Dr. O'Callaghan indicated that it was just tissue and nothing to worry about and that he referred her to Temple Street Hospital for a blood test. She attended for the blood test and claims that, thereafter, she heard nothing further. Later that year, on 30 September 2013, Dr. O'Callaghan died. When the appellant was seen by another general practitioner (‘GP’) on 25 April 2015, still complaining of the lump in her neck, she was referred for an urgent appointment to the Mater Hospital. A biopsy was taken, and the appellant was diagnosed with papillary thyroid cancer which had spread to her lymph nodes. She was admitted, immediately, for urgent surgery and, thereafter, she underwent radiotherapy.
The respondent is the widow of the late Dr. O'Callaghan and is the executrix of his estate. In defending the proceedings, the respondent pleads that the appellant's claim is statute barred by reason of the operation of s. 9(2)(b) of the Act. Section 9(2)(b) provides that no proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of a deceased person unless they were commenced ‘within the relevant period or within the period of two years after his death, whichever period first expires’.
The significant dates in terms of the legal issue raised in the defence are as follows. The second anniversary of Dr. O'Callaghan's death was 30 September 2015. On 11 October 2015 the appellant attained her majority. She claims that summer 2016 constitutes her date of knowledge for the purposes of the Statute of Limitations (Amendment) Act 1991. On 13 April 2017 she issued a personal injury summons against the respondent. She, therefore, issued these proceedings within two years of her stated date of knowledge and within two years of attaining her majority but not within two years of the date of the death of Dr. O'Callaghan.
In her reply to the defence raised, the appellant denies that the claim is statute barred. She further claims that it is unconscionable on the part of the respondent to rely on the limitation period contained in s. 9(2)(b) of the Act and that the respondent is estopped from so doing. Interpreting s. 9(2)(b) in a manner that is neither repugnant to the Constitution nor incompatible with the State's obligations under the European Convention on Human Rights (‘the Convention’), she argues, obliges the court to find that this section is inapplicable to the appellant's claim and/or does not bar that claim as her ‘date of knowledge’ within the meaning of the Statute of Limitations (Amendment) Act 1991 came on a date more than two years after the death of Dr. O'Callaghan. In the alternative, the appellant pleads that if s. 9(2)(b) of the Act bars her right of action, then the said statutory provision is invalid having regard to the provisions of the Constitution and is, therefore, void and has no application to the defence of the proceedings. Furthermore, she pleads that if s. 9(2)(b) of the Act bars her right of action and if the section is not found to be repugnant to and/or incompatible with the Constitution, then the appellant seeks a declaration under s. 5 of the European Convention on Human Rights Act 2003 that s. 9(2)(b) of the Act is incompatible with the State's obligations under the Convention and she seeks damages and ancillary reliefs pursuant to the 2003 Act by virtue of the alleged breach and incompatibility.
In view of her defence to the claim, namely, that the proceedings are statute barred, the respondent brought an application before the High Court pursuant to O. 25 of the Rules of the Superior Courts (‘RSC’). Order 25 provides: -
“1. Any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by the Judge who tries the cause at or after the trial, provided that by consent of the parties, or by order of the Court on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.
2. If, in the opinion of the Court, the decision of such points of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counterclaim, or reply therein, the Court may thereupon dismiss the action or make such other order therein as may be just.”
Before the High Court the respondent submitted that since the proceedings were issued more than two years after...
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Ciara Gannon Maguire v Eileen O'Callaghan
...J) referred to as ‘the limitations issue’ and ‘the constitutional issue’. The Court of Appeal delivered its judgment on 6 October 2020 ([2020] IECA 273). The appeal was dismissed, and the order of the High Court was upheld. The question of costs was adjourned. The parties were permitted to ......