Society for the Protection of Unborn Children (Ireland) Ltd v Coogan (No. 1)

• Jurisdiction: Ireland
• Judge: McCarthy J.,,FINLAY C.J.
• Judgment Date: 01 January 1990
• Neutral Citation: 1989 WJSC-SC 2408
• Court: Supreme Court
• Docket Number: [1988 No. 7714P]
• Date: 01 January 1990

SPUC v. COOGAN & ORS

BETWEEN

THE SOCIETY FOR THE PROTECTION OF UNBORN CHILDREN (IRELAND)LTD.

Plaintiff

and

DIARMUID COOGAN AND OTHERS

Defendants

1989 WJSC-SC 2408

328/88

THE SUPREME COURT

1 JUDGMENT delivered on the 28th day of July 1989by FINLAY C.J. [Hederman agr.]

2 This is an appeal by the Plaintiff from the Order of the High Court dated the 7th September 1988 refusing its application for an interlocutory injunction restraining the Defendants from printing, publishing or distributing a publication entitled "Welfare Guide UCD 88/89".

3 The Plaintiff is an incorporated body limited by guarantee which was formed with the object of protecting human life, particularly that of the unborn. It is the body at the relation of which the Attorney General instituted proceedings against Open Door CounsellingLimited and The Dublin Well-Woman Centre Limited and obtained a declaration and injunction in the High Court affirmed with minor variations on appeal to this Court the purpose of which was to protect the right to life of the unborn.

4 The Defendants respectively are: eight elected officers of the UCDStudents" Union, a printer and UCD itself.

5 In the High Court the Plaintiffs" Motion was refused by Carroll J. on the grounds that the Plaintiff had not got a locus standi which would entitle it to obtain the injunction. No other issue was determined in the High Court and the learned trial judge expressed no view on the facts proved before her as to whether the Plaintiff had established the probability of an infringement by the Defendants or any of them of the provisions of Article 40.3.3° of the Constitution to the extent that would justify the granting of a quia timet injunction.

6 The only issue to be decided on this appeal,accordingly, is the issue of the Plaintiff's locus standi.

7 When the appeal was first listed before this Court and submissions were heard on behalf of the Appellant and of the Respondents, it became clear that a question arose as to whether, as was contended on behalf of the Defendant, the exclusive right to seek an injunction in the circumstances of this case was vested in the Attorney General.

8 The Court was satisfied that it would be inappropriate to reach any decision on that issue without having given to the Attorny General an opportunity to be heard and to present his views before the Court.

9 Accordingly, the Attorney General was added as a notice party and the hearing was resumed when Counsel on his behalf assisted the Court.

10 On behalf of the Attorney General it was submitted that he did not claim to have any exclusive right with regard to the prosecution ofproceedings of the kind concerned in this case, seeking to enforce compliance with the Constitution.

11 It was further submitted to the Court on his behalf that the appropriate formula for ascertaining as to whether a person seeking to enforce the provisions of the Constitution has a valid locus standi was the test as to whether the proceedings were instituted by reason of a bona fide concern and interest in the actual or threatened constitutional infringement by a person who could establish a proximity to that infringement, proximity being understood as an interest when considered in an objective sense.

12 The Attorney General did not seek to make any submission to the Court or to enter into the area as to whether on the facts of this case the Plaintiff had established such a bona fide concern and therefore such a locus standi.

13 It was submitted on behalf of the Attorney General that a litigant who had not already got alocus standi in an action of this description could not acquire one merely by reason of being an incorporated body whose articles and memorandum appeared to give it a particular interest in the matterconcerned.

14 In the course of my judgment in The Attorney General at the relation of the Society for the Protection of Unborn Children (Ireland) Limited, Plaintiff, and Open Door Counselling Limited and the Dublin Well-Woman Centre Limited, Defendants (1989 ILRM) I stated as follows.

"If therefore the jurisdiction of the Courts is invoked by a party who has a bona fide concern and interest for the protection of the constitutionally guaranteed right to life of the unborn the courts, as the judicial organ of government of the State, would be failing in their duty as far as practicable to vindicate and defend that right if they were to refuse relief upon the grounds that no particular pregnant woman who might be affected by the making of an Order was represented before the courts."

15 I am satisfied that the Attorney General who is the holder of a high constitutional office is an especially appropriate person to invoke the jurisdiction of the court in order tovindicate and defend the right to which I have referred. The Defendant's appeal on the issue of locus standi must, therefore, fail."

16 I see no reason to alter the view expressed by me in that case. Counsel on behalf of the Defendants in this appeal submitted that the paragraphs which I have quoted from that judgment must be construed as being qualified by the reference in the second paragraph to the particular position of the Attorney General and that the view there expreseed did not constitute an expression of view that a person with a bona fide concern and interest for the protection of the right to life of the unborn could invoke the jurisdiction of the courts.

17 I am satisfied that this is not the correct interpretation of the view expressed by me in that case. The issue of locus standi, as the case came before the Supreme Court was one in which the right of the Attorney General to sue was being challenged, and it is for that reason that a particular reference is made to his position but the broad statement ofprinciple contained in the first paragraph remains unqualified.

18 This Court in East Donegal Co-Operative v. The Attorney General1970 I.R. and Cahill v. Sutton 1980 I.R. considered the extent of interest and concern which was necessary to give to a person challenging a statute locus stand to invoke the jurisdiction of thecourts.

19 In the instant case there is no question of challenge to any statutory provision, the remedy being sought by the Plaintiff being the prevention or prohibition of what it alleges is a threatened breach of the Constitution by the Defendants.

20 In such a case I am satisfied that the test is that of a bona fide concern and interest, interest being used in the sense of proximity or an objective interest. To ascertain whether such bona fide concern and interest exists in a particular case it is of special importance to consider the nature of the constitutional right sought to be protected. In thiscase that right is the right to life of an unborn child in its mother's womb. The threat to that constitutional right which it is sought to avoid is the death of the child. In respect of such a threat there can never be a victim or potential victim who can sue.

21 If it were to be accepted as is contended on behalf of the Defendants that only the Attorney General could sue to protect such a constitutional right as that involved in this case, that would, I am satisfied, be a major curtailment of the duty and the power of the courts to defend and uphold the Constitution.

22 On the evidence adduced in the High Court, there can be no question of the Plaintiff being an officious or meddlesome intervenient in this matter. I would accept the contention that it could not acquire a locus standi to seek this injunction merely by reason of the terms of its articles and memorandum of association. The part, however, thatthe Plaintiff has taken in the proceedings to which I have referred, which were successfully brought to conclusion by the Attorney General at its relation, and the particular right which it seeks to protect with its importance to the whole nature of our society constitute sufficient grounds for holding that it is a person with a bona fide concern and interest and accordingly has the necessary legal standing to bring theaction.

23 I would, therefore, allow this appeal and remit the application out of which it arose to the High Court for further hearing.

24 It was suggested at the hearing of this appeal that the matter could only be remitted by this Court to the High Court to be tried in the High Court on the facts already established there as they were in September of 1988. I am satisfied that this is incorrect. This is an interlocutory application, the decision on which was based on a preliminary pointof locus standi or jurisdiction, and upon that decision having been reversed, the appropriate order for this Court to make, in my view, is that the matter should be remitted to be tried by the High Court on such evidence as it (the High Court) sees fit to hear.

25 JUDGMENT delivered on the 28th day of July 1989by WALSH J. [Hedeman agr.]

26 I agree with the judgment which has just been delivered by the Chief Justice. However there are some views I wish to add concerning the question of the status of the plaintiffs in these proceedings.

27 The activities sought to be restrained in the present case are ones which, if proved to exist as alleged, are designed and intended to evade the provisions of Art. 40, s. 3, subs. 3 of the Constitution. The attitude of the respondents to this case has beenunconcealed. They boldly assert that no one but the Attorney General could seek to prevent them from engaging in the impugned activities and, in the absence of such intervention, the Courts and the citizens in general must remain powerless to prevent activities designed not merely to evade the constitutional rights but totally to destroy them. Their expressions of indignation at being asked by the plaintiffs before being sued to give an undertaking to cease the activities complained of cannot be seriously accepted. They would have more justification for indignation if...