M (C) v Minister for Health & Children

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 18 February 2011
• Neutral Citation: [2011] IEHC 132
• Date: 18 February 2011
• Court: High Court
• Docket Number: [No. 5 C.T./2009]

[2011] IEHC 132

THE HIGH COURT

[No. 5 C.T./2009]

M (C) v Min for Health

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 5(15) OF THE HEPATITIS C COMPENSATION TRIBUNAL ACT 1997, AS AMENDED BY THE HEPATITIS C COMPENSATION TRIBUNAL (AMENDMENT) ACT 2002 IN THE MATTER OF A CLAIM BY C.M., CLAIMANT; IN THE MATTER OF A HEARING AND DECISION MADE BY THE HEPATITIS C COMPENSATION TRIBUNAL TO THE CLAIMANT, C.M. ABOUT 14 TH MAY, 2009, AND IN THE MATTER OF AN APPEAL OF THE CLAIMANT, C.M.

BETWEEN

C. M.

APPLICANT

AND

MINISTER FOR HEALTH AND CHILDREN

RESPONDENT

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S5(15)

HEPATITIS C COMPENSATION TRIBUNAL (AMDT) ACT 2002

RSC O.122 r8

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S4(1)(A)

RSC O.105A r4(1)(iv)

EIRE CONTINENTAL TRADING COMPANY LTD v CLONMEL FOODS LTD 1955 IR 170

BANK OF IRELAND v BREEN UNREP SUPREME 17.6. 1987 1991/11/2545

BREWER v CMRS OF PUBLIC WORKS IRELAND 2003 3 IR 539

HUGHES v O'ROURKE 1986 ILRM 538

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S5(9)

RULES OF THE SUPERIOR COURTS (NO 7) (APPEALS FROM THE HEPATITIS C COMPENSATION TRIBUNAL) 1998 SI 392/1998

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S11

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S3

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S5(9)(A)

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S5(16)

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S8

RSC O.105A

RSC O.105A r2(1)

RSC O.105A r2(3)

INTERPRETATION ACT 2005 S5

B (D) v MIN FOR HEALTH 2003 3 IR 12

RSC O.105A r2(2)

RSC O.122 r7

HUGHES v O'ROURKE 1986 ILRM 538

PRACTICE & PROCEDURE

Time limits

Appeal - Extension of time - Cross-appeal - Appeal on quantum - Cross-appeal on causation - Respondent informing applicant by letter of intention to appeal - Appeal lodged outside time limit - Whether applicant prejudiced - Whether respondent could put causation in issue in applicant's appeal against quantum - Respondent not party before tribunal - Statutory scheme - Whether Act limited cross-appeal to issue raised by claimant in appeal - Whether respondent entitled to raise by cross-appeal issue restricted from doing by way of appeal - Statutory provision obscure and ambiguous - Intention of Oireachtas - Long title to Act - Court jurisdiction to extend time to cross-appeal - Eire Continental Trading Company Limited v Clonmel Foods Limited [1955] IR 170, Bank of Ireland v Breen (Unrep, McCarthy J, 17/6/1987) and DB v Minister for Health [2003] 3 IR 12 applied - Brewer v Commissioners of Public Works in Ireland [2003] 3 IR 539 and Hughes v O'Rourke [1986] ILRM 538 considered - Hepatitis C Compensation Tribunal Act 1997 (No 34) (as amended), s 5(15) - Rules of the Superior Courts 1986 (SI 15/1986), O 122 - Rules of the Superior Courts (No 7) (Appeals from the Hepatitis C Compensation Tribunal) 1998 (SI No 392 of 1998), O 105A - Extension of time to appeal refused (2009/5CT - Irvine J, 18/2/2011) [2011] IEHC 132

M(C) v Minister for Health

Facts The applicant had brought a claim pursuant to the Hepatitis C Compensation legislation and had been awarded compensation. Subsequently the applicant lodged an appeal in respect of the award of damages. The Chief State Solicitor, on behalf of the respondent, sought an order enlarging the time to "cross-appeal" the decision of the Hepatitis C Tribunal. The respondent contended as the applicant had been aware at an early stage of the respondent's intention to cross-appeal, then they would not be prejudiced if the Court extended the time to lodge an appeal. On behalf of the applicant it was contended that causation was determined in the applicant's favour by the Tribunal and that as a matter of both practice and policy the respondent has invariably accepted the Tribunal's decision on these matters and the time for a cross-appeal had expired. The respondent could not rely upon the applicant's notice of appeal for the purposes of seeking to put causation in issue. On behalf of the respondent it was contended that the wording of s. 5(15) Hepatitis C Compensation Tribunal Act, 1997 permitted the respondent to cross-appeal the decision of the Tribunal in respect of causation where a claimant appealed his/her award in accordance with section 5(9). On behalf of the applicant it was submitted that the decision to appeal was not made within the time prescribed. The delay was unconscionable and there were no good reasons which would justify the Court exercising its discretion to extend time. The Act did not invest the High Court with jurisdiction to entertain, by way of cross-appeal, an appeal against a decision on causation made in favour of a claimant. The provisions of s. 5(15) of the Act confined the respondent to a right to cross-appeal, the issue which was made the subject matter of the appeal which in this case was the award of compensation.

Held by Irvine J in refusing the application. The words used in s. 5(15) were somewhat obscure and ambiguous. The court was satisfied that it was never the intention of the Oireachtas that the respondent would enjoy a right to cross-appeal a decision of the Tribunal on causation where a claimant lodged an appeal against his/her award. If it was the intention of the legislature to provide the respondent with a procedure which would safeguard against flawed decisions of the Tribunal on causation then the Oireachtas could have given the respondent a right to appeal any decision made by the Tribunal in respect of causation. Where a claimant appealed his/her award, the respondent could cross-appeal in the hope of convincing the court to award a lesser sum. Secondly, where a claimant who was unsuccessful before the Tribunal appealed that decision to the High Court, the respondent could cross-appeal that appeal. Had the Act given the respondent a right to cross-appeal the decision of the Tribunal on causation, the extension of time sought would have been granted. The respondent, not having been a party to the proceedings before the Tribunal, prior to being in a position to make a decision as to whether or not to appeal, undoubtedly had to seek legal advice to enable him to make the decision to appeal. Accordingly, the respondent in such circumstances would have otherwise been afforded latitude to grant the extension of time sought in order to make his appeal (had the legislation so permitted).

Reporter: R.F.

Ms. Justice Irvine

1 On 6^th October, 2000, the applicant applied to the Hepatitis C Compensation Tribunal ("the Tribunal") pursuant to the Hepatitis C Compensation Tribunal Act 1997, ("Act of 1997") for compensation in respect of injuries sustained by her as a result of allegedly contracting Hepatitis C ("HCV") from Human Immunoglobulin administered to her on 9^th August, 1977, at the National Maternity Hospital.

2 The applicant's claim was heard by the Tribunal on 14^th May, 2009 and it delivered its decision on the same date. The Tribunal concluded that it was satisfied "as a matter of probability, that [the applicant] contracted HCV as a result of the administration of an injection of contaminated Anti-D following the birth of her daughter in 1977 from Batch 244". It went on to make a total award of compensation in her favour in the sum of €400,480. It awarded a sum of €150,000 by way of general damages. In respect of the applicant's loss of earnings claim, the Tribunal awarded a sum of €250,000 for what it described as a loss of employment opportunity. It also awarded the applicant an additional sum of €480 in respect of medical fees.

3 On 11^th June, 2009, the applicant, through her then solicitors, Messrs. Corrigan & Corrigan, lodged an appeal against her award. This she did by service of the appropriate originating notice of motion and grounding affidavit. The notice of motion sought an order by way of an appeal pursuant to s. 5(15) of the Act in respect of the decision of the Tribunal of 14^th May, 2009. It is clear from the grounding affidavit and also from the fact that causation had been found in her favour that the applicant's appeal was in respect of the award of damages made in her favour. The respondent accepts these facts and has acknowledged that a claimant who successfully establishes that they qualify for compensation having regard to the criteria set out at s. 4 of the Act, can have no reason to challenge that finding in the course of any appeal they may wish to maintain before the High Court.

4 By notice of motion dated 1^st April, 2010, the Office of the Chief State Solicitor, acting on behalf of the respondent, issued a notice of motion pursuant to the provisions of O. 122, r. 8, of the Rules of the Superior Courts seeking an order enlarging the time to permit him to "cross-appeal the decision of the Hepatitis C Tribunal of 14^th May, 2009". It is this notice of motion that is the subject matter of the Court's judgment. It is clear from the grounding affidavit that what the respondent wishes to cross-appeal is the finding of the Tribunal to the effect that the claimant qualified for compensation under the scheme having satisfied the criteria provided for at s. 4(1)(a) of the Act. Whilst it may not be entirely accurate, I will describe a finding of this nature by the Tribunal as a causation finding for the purposes of this judgment.

5 The respondent's notice of motion is grounded upon the affidavit of Mr. Barry Ryan, solicitor, dated 30^th March, 2010, wherein he states that his office was notified of the decision of the Tribunal on 15^th June, 2009. He refers to the decision of the Tribunal to the effect that it was satisfied that the applicant contracted HCV from Anti-D Immunoglobulin from Batch 244 in 1977 and states that the respondent's decision to appeal that determination was not straightforward. It involved the assessment of certain legal issues and also the consideration of material of significant scientific complexity.

6 Mr....