Society for the Protection of Unborn Children (Ireland) Ltd v Grogan and Others; Case C-159/90

JudgeFINLAY C.J.,WALSH J.,McCarthy J.,
Judgment Date01 January 1990
Neutral Citation1989 WJSC-SC 2447
CourtSupreme Court
Docket Number346/89,[S.C. No. 346 of 1989]
Date01 January 1990



1989 WJSC-SC 2447

Finlay C.J.

Walsh J.

Griffin J.

Hederman J.

McCarthy J.




JUDGMENT delivered on the 19th day of December 1989by FINLAY C.J. [GRIFFIN CONC] [HEDERMAN AGR]


This is an appeal brought by the Plaintiff against an Order made in the High Court on the 11th October 1989 by Carroll J. on an application made by it for an interlocutory injunction against the Defendants.


By Plenary Summons issued on the 25th September 1989 the Plaintiff claimed against the Defendants


1. A declaration that any publication published or distributed under the aegis of the Defendants which contains information calculated to inform persons (including pregnant women) of the identity and location of and the method of communication with a specifiedclinic or clinics where abortions are performed is contrary to the provisions of the Constitution of Ireland and in particular Article 40.3.3 thereof.


2. An injunction restraining the publication or distribution of such information.


By Notice of Motion dated the 25th September 1989 and made returnable for the 9th October 1989, the Plaintiff sought an injunction by way of interlocutory injunction restraining the Defendants from publishing or distributing or assisting in the printing, publishing or distribution of any publication produced under their aegis providing information to persons (including pregnant women) of the identity and location of and the method of communication with a specified clinic or clinics where abortions are performed.


The Defendants are persons who are members of three separate groups, namely, the Union of Students of Ireland, the Students" Union of University College Dublin, and the Students" Union of Trinity College Dublin.


Affidavits filed in support of the motion for an interlocutory injunction established that each of these three groups had published and asserted that the Defendants, amongst others, were intending todistributethe information mentioned in the injunction claimed.


The affidavits filed on behalf of the Defendants did not dispute that they were publishing and intending to distribute information of the identity and location of and the method of communication with specified abortion clinics in the United Kingdom. In these affidavits and through Counsel at the hearing in the High Court, the Defendants claimed to be entitled to publish and distribute this information by virtue of European Community law. The submission made on their behalf was and is before this Court that pregnant women in Ireland had a right under European Community law to travel to any other Member State where abortion was legal in order to have the service of an abortion performed on them; that a corollary to that legal right was a right to information about the identity, location and method of communication with abortion clinics in the United Kingdom. Having regard to that right vested in a pregnant woman in Ireland, it was urged that the Defendants had a corresponding right vested in them by European Community law to publish and distribute that information.


Having heard submissions on the application for an injunction, Carroll J. decided to refer certain questions to the Court of Justice of the European Communities for apreliminary ruling in accordance with Article 177 of the Treaty Establishing the European Economic Community.


The relevant curial part of the High Court Order of the 11th October 1989 reads as follows:

"And it appearing to the Court that a decision of the Court of Justice of the European Communities on questions to be formulated and submitted to the Court is necessary to enable this Court ot give judgment on the Plaintiffs"said Motion for an Interlocutory Injunction herein it is ordered that the said questions be referred to the said Court of Justice of the European Communities for a preliminary ruling in accordance with Article 177 of the Treaty Establishing the European Economic Community and the Court doth request the said Court of Justice to give a ruling thereon."


There is no express order refusing or adjourning the application for an interlocutory injunction, and when Counsel for the Plaintiff after Carroll J. had delivered judgment inquired what ruling she was making concerning the application for an interlocutory injunction the learned trial Judge stated:

"In order to reach a decision as to whether itshould be granted I need an opinion from the European Court."


Counsel for both parties agree that the probable time required for the delivery of an opinion from the European Court is a minimum of eighteen months, and more probably longer.

Jurisdiction of this Court to entertain this appeal

Counsel for the Defendants has challenged the jurisdiction of this Court to entertain this appeal on the grounds that the only "decision" made by Carroll J. in the High Court was a decision to refer questions pursuant to Article 177 of the Treaty to the European Court of Justice and that having regard to the judgment of this Court in Campus Oil Ltd. v. The Minister for Industry and Commerce and Others 1983 IR 82, such a decision to refer was notappealable.


Counsel for the Plaintiff submits that irrespective of the form of the Order made by Carroll J., she in fact made two decisions, one being to refer the questions pursuant to Article 177 and the other being to decline or refuse an interlocutory injunction.


I have come to the conclusion that the submission made on behalf of the Plaintiff is correct.


The application before the High Court was for an interlocutory injunction, that is, for an injunction lasting only until the trial and determination of the action. The purpose of an interlocutory injunction is, of course, to maintain a particular situation, without alteration, from the time when the order is made until the Court can adjudicate on all the issues involved between the parties. To defer or postpone reaching a decision on such an application for a period which certainly equals and probably exceeds the time necessary to bring the action to hearing is, in my view, to decline or refuse to make an interlocutoryinjunction.


The appellate jurisdiction of this Court in respect of matters arising in the High Court is provided for in Article 34.4.3 of the Constitution, which reads as follows:

"The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed bylaw."


The interests of the Plaintiff are very clearly affected by the ruling of Carroll J. on its application for an interlocutory injunction. In seeking to reverse that ruling by appeal in this Court the Plaintiff is asserting an important constitutional right.


The judgments of O'Higgins C.J. and Walsh J. in The People v.Conmey 1975 IR which formed the majority decision of the Court in that case, both emphasised that for any Act of the Oireachtas to provide an exception or regulation to the constitutional right of appeal from the High Court to the Supreme Court, clear and unambiguous terms would be necessary because of the fundamental nature of that right.


For the same reasons I am satisfied that no mere absence of formal words from a High Court Order could be permitted to remove from the appellate jurisdiction of this Court a determination of a High Court Judge which affects one of the parties involved and has all the characteristics of adecision.


It is clear from the decision of this Court in Campus Oil Limited & Ors. v. The Minister for Energy & Ors. (No. 2) 1983 IR88, that it was open to the learned High Court Judge in this case to grant an interlocutory injunction at the same time as she decided toreferquestions of law for the determination of the European Court ofJustice.


There is, therefore, in my view, no question of her decision to make a reference under Article 177 having automatically the effect of postponing a decision on the application for an interlocutory injunction. Her declining to grant an injunction, therefore, when applied for, clearly, constitutes a decision of the High Court appealable, by virtue of the Constitution, to this Court.


I reject the contention that for this Court to consider an appeal involving the question as to whether or not an interlocutory injunction should be granted at this stage is, in effect, reviewing on appeal a decision to refer under Article 177 in a manner inconsistent with the decision of this Court in Campus Oil Limited v. The Minister for Industry and Energy. The making of the reference remains unaltered, the only matter being reviewed is the question of the granting of an interlocutory injunction. I am, therefore, satisfied that this preliminary objection to the jurisdiction of the Court fails and that the Court must then consider the merits of the Plaintiff's appeal against the decision of the High Court declining to make an interlocutory injunction.

The nature of the injunction sought

The nature of the Plaintiff's asserted cause of action in aid of which the injunction is sought and the Defendants" main defence to it is of fundamental importance for the determination of this appeal.


The Plaintiff seeks to protect by injunction the right to life of the unborn which is acknowledged and guaranteed protection by Article 40.3.3 of the Constitution.


The Defendants assert that the acknowledgment and guarantee of protection to the life of the unborn contained in Article 40.3.3 of the Constitution must, by virtue of the provisions of Article 29.4.3 of the Constitution, be interpreted as being subject to and qualified by a...

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