Morrissey v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 26 July 2019
• Neutral Citation: [2019] IESC 60
• Docket Number: [Appeal Nos: 120, 121 and 122/2019]
• Court: Supreme Court
• Date: 26 July 2019

[2019] IESC 60

THE SUPREME COURT

Clarke C.J.

Clarke C.J.

MacMenamin J.

O'Malley Iseult J.

[Appeal Nos: 120, 121 and 122/2019]

Between/

Ruth Morrissey

and

Paul Morrissey

Plaintiffs/Respondents

and

Health Service Executive

and

Quest Diagnostics Ireland Limited

and

Medlab Pathology Limited

Defendants/Appellants

Leave to appeal – Standard of care – Leapfrog leave – Appellants seeking leave to appeal – Whether standard of care issues met the constitutional threshold for leave to appeal

Facts: The defendants/appellants, Health Service Executive, Quest Diagnostics Ireland Ltd and Medlab Pathology Ltd, applied for leave to appeal directly to the Supreme Court. The range of issues sought to be relied on by the first defendant/appellant, the Health Service Executive (HSE), concentrated firstly on questions which may loosely be summarised as the “standard of care” issues, together with questions as to the extent to which the HSE may either potentially be primarily liable or vicariously liable in respect of acts or omissions of the other defendants/appellants. The one separate specific issue which arose was the contention made on behalf of the plaintiffs/respondents, the Morrisseys, which suggested that the HSE should not be allowed to raise the standard of care issues because the HSE had not made submissions on those questions in the High Court. Counsel for the Morrisseys indicated that he was prepared to agree, as a concession, that the HSE might address argument on those issues. Counsel on behalf of the second defendant/appellant, Quest Diagnostics Ireland Ltd, also made some concessions in relation to the grounds of appeal which were sought to be advanced in its application for leave to appeal. The abandonment of grounds was a price which Quest was prepared to pay in order to seek to persuade the Court to grant leapfrog leave to appeal. Thereafter, with one exception, it was said that the remaining grounds, other than the first three (the pure standard of care grounds), were closely connected with that issue. The exception was Ground 12, which concerned causation. It was urged that this ground had at least some potential to apply in other cases. Insofar as a basis was put forward which was said to justify the grant of leapfrog leave, particular reliance was placed on what was said to be the urgency of the case. The Morrisseys accepted that leapfrog leave would be appropriate but only if the appeal was to be confined strictly to the standard of care issues. The grounds urged on behalf of the third defendant/appellant, Medlab Pathology Ltd, were somewhat narrower than those sought to be advanced on behalf of Quest because the case against Medlab was based on narrower issues concerning principally whether the samples considered by Medlab were adequate. Counsel indicated that, to enable a speedy hearing of a direct appeal to the Court, he would not object if the Court were to indicate that leave would not be granted in respect of certain grounds. Counsel relied on the same grounds of urgency as had counsel for Quest and also suggested that a similar causation issue to that identified in the arguments put forward on behalf of Quest arose in the case of Medlab. The one additional issue which arose related to Medlab seeking to appeal certain issues concerning the calculation of damages. The position adopted by the Morrisseys in respect of the application for leave of Medlab was broadly the same as that adopted in respect of the application of Quest.

Held by Clarke CJ that the standard of care issues, at least, would meet the constitutional threshold for leave to appeal generally and, having regard to the urgency which attended its clarification, would meet the additional criteria necessary to grant leapfrog leave. Clarke CJ held that considering the standard of care grounds in the abstract, while issues concerning some of the findings of the High Court remained alive before the Court of Appeal, would be highly unsatisfactory. Clarke CJ was also satisfied that it would be unfair to the defendants/appellants to require them to abandon all of the other grounds as the price for obtaining leapfrog leave. Clarke CJ found that most of those grounds were sufficiently closely connected with the standard of care grounds in any event such that the Court was likely to need to at least get into the facts relevant to those grounds to some extent. Insofar as the causation and, in the case of Medlab, quantum grounds were raised, it seemed to Clarke CJ that those issues could most conveniently be dealt with in the same appeal.

Clarke CJ held that he would grant leave to appeal directly to the Court to each of the three defendants/appellants but would exclude those grounds which were, effectively, either formally abandoned or not actively pursued at the oral hearing.

Leave to appeal granted.

JUDGMENT of Mr. Justice Clarke , Chief Justice, delivered the 26th July, 2019

1. Introduction

1.1 This judgment is directed to three applications for leave to appeal which were respectively brought by each of the defendants/appellants in these proceedings. When the panel assigned to consider those applications for leave to appeal met, it was decided that an oral hearing might be useful for the purposes of clarifying certain matters. In that context, the panel arranged for a letter to be sent to the parties indicating the questions on which the Court required greater clarification. As is usual in the context of applications for leave to appeal, the three notices of application for leave to appeal, together with the respondents' replying notices, are published along with this judgment. In addition, for the purposes of greater clarity, the letter sent on behalf of the Court to the parties is also published. It is, therefore, unnecessary to set out in any detail the issues raised in those documents.

1.1 Thereafter, an oral hearing was conducted on Wednesday, 24 July 2019, as a result of which the Court is now in a position to rule on the respective applications for leave to appeal. It is appropriate to briefly set out the general criteria applied by the Court on applications for leave to appeal as appear in many of in the determinations issued by the Court in respect of leave applications.

2. The General Criteria

2.2 The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3° thereof and the many determinations made by this Court since the enactment of the Thirty-third Amendment, it is necessary, in order for this Court to grant leave to appeal from a decision of the Court of Appeal, that it be established by the applicant that the decision sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that there be an appeal to this Court. In addition, because this is an application for leave to appeal directly from the High Court, it is also necessary that it be established that there are ‘exceptional circumstances’ warranting a direct appeal to this Court.

2.2 The general principles applied by this Court in determining whether to grant or refuse leave to appeal, having regard to the criteria incorporated into the Constitution as a result of the Thirty-third Amendment, have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v. Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v. Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called “leapfrog appeal” direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v. Director of Public Prosecutions [2017] IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this judgment.

2.2 As the applications in this case involves seeking leave to bring leapfrog appeals direct to this Court from the High Court, the additional criteria, as identified in Wansboro, come into particular focus. Appeals in similar terms have already been filed by each of the defendants/appellants before the Court of Appeal but it is the stated preferences of those parties that the issues in question proceed in this Court. It is next necessary to identify the position of the parties on the applications for leave to appeal.

3. The Position of the Parties

3.3 As is clear from the application for leave to appeal filed on behalf of the first named defendant/appellant (‘the HSE’), the range of issues sought to be relied on by that party are relatively narrow, concentrating, as they do, firstly on questions which may loosely be summarised as the ‘standard of care’ issues, together with questions as to the extent to which the HSE may either potentially be primarily liable or vicariously liable in respect of acts or omissions of the other defendants/appellants.

3.3 The one separate specific issue which arose in the case of the HSE was the contention made on behalf of the plaintiffs/respondents (‘the Morrisseys’) which suggested that the HSE should not be allowed raise the...