Y. v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Cross
• Judgment Date: 18 March 2016
• Neutral Citation: [2016] IEHC 136
• Docket Number: [2016 No. 15 I.A.],[2016 No. 15 IA]
• Court: High Court
• Date: 18 March 2016

[2016] IEHC 136

THE HIGH COURT

Cross J.

[2016 No. 15 I.A.]

IN THE MATTER OF THE CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 AND IN THE MATTER OF AN INTENDED ACTION

BETWEEN

MS. Y.

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE, IRISH FAMILY PLANNING ASSOCIATION, SPIRITAN ASYLUM SERVICES INITIATIVE LIMITED TRADING AS SPIRASI, ADEEN HENRY, MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

ATTORNEY GENERAL

DEFENDANTS

Asylum, Immigration & Nationality, S. 19 of the Refugee Act 1996 – S. 27 of the Civil Law (Miscellaneous Provisions) Act 2008 – Protection of Life During Pregnancy Act 2013 – Art. 34.1 of Bunreacht na hÉireann – Undue stress

Facts: The plaintiff sought an order under s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008 to proceed and maintain her claim of negligence and damages against the defendants under a fictitious name in order to keep her identity out of the public domain. The plaintiff who was subjected to rape in the country of origin and having delivered a child in the state of Ireland contended that she suffered from depression and suicidal ideation and that her anonymity in the said proceedings would help her assimilate better in the society. The defendants had not objected to the application brought by the plaintiff in that regard.

Mr. Justice Cross granted an order permitting the plaintiff to proceed the aforesaid claim under the pseudo name and disclose her residence as “Dublin“ under s. 19 of the Refugee Act 1996 but not under s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008. The Court granted an order for prohibition of publication or broadcast of any matter relating to the said proceedings which would likely identify the plaintiff. The Court held that the administration of justice must be done in public except in rare circumstances where there was a risk of unfair trial or the probability of causing irreparable damage or injury to the aggrieved party. The Court observed that the Act of 2008 was an exception to art. 34.1 of the Constitution; however, the said Act provided for reporting restrictions on three grounds, namely, existence of medical condition of concerned person, likelihood of causing undue stress by revelation of said condition and interests of justice. The Court adopted the literal as opposed to liberal interpretation given by Hogan J. in Children's University Hospital Temple Street v. C.D. & Anor [2011] IEHC 1, and held that there was no sufficient evidence to prove that the troubled past history of the plaintiff would likely cause her undue stress, as envisaged under s. 27 (3) (b) of the Act of 2008. The Court, however, deemed it appropriate to invoke the provisions of s. 19 (1) of the Refugee Act, 1996 to grant the desired relief as the plaintiff had been assigned the status of a refugee without undergoing the task of proper interpretation of said s. 27.

JUDGMENT of Mr. Justice Cross delivered on the 18th day of March, 2016

1 The plaintiff in the above intended proceedings is applying to the court pursuant to the provisions of s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008, in effect, permitting the plaintiff to proceed and maintain the proceedings under the pseudo name, ‘ Ms. Y.’ and to disclose her residence as ‘ Dublin’.

2 Following the decision of McCracken J. in Ansbacher (Cayman) Limited [2002] 2 I.R. 517, the appropriate solution to any party wishing to preserve their anonymity under the 2008 Act or otherwise is, without revealing their identity to apply for court permission to maintain proceedings anonymously. I note this procedure was expressly agreed to by Clarke J. in B. Doe and R. Doe [2008] IEHC 5 and this is the procedure correctly followed by the plaintiff in this application.

3 In the intended proceedings, the plaintiff intends to claim damages for negligence, breach of duty, trespass, assault and battery, the alleged reckless and intentional infliction of emotional harm and suffering, false imprisonment, unlawful deprivation of liberty, unjustified intentional negligent infringement of and wrongful interference with or failure to vindicate the plaintiff's constitutional rights and rights pursuant to the European Convention of Human Rights and ancillary declarations against the defendants for alleged failing to vindicate the plaintiff's constitutional or other rights.

4 In the grounding affidavits to this application, the plaintiff's solicitor averred that the plaintiff came to this jurisdiction in March 2014, as a result of alleged kidnapping and being assaulted and raped in her country of origin that when in Ireland she discovered herself pregnant and alleges that she became suicidal and sought a termination of pregnancy and that medical procedures were performed under s. 9 of Protection of Life During Pregnancy Act 2013, and resulted in the safe delivery of a child. In August 2014, the plaintiff was granted refugee status.

5 The plaintiff brought previous judicial review proceedings against the State and was granted an order under s. 27(1) of the Civil Law (Miscellaneous Provisions) Act 2008, for those proceedings, similar to that order now sought.

6 The plaintiff has relied on a number of medical legal reports by Prof. O'Keane who is now the plaintiff's treating psychiatrist. The plaintiff has been found to be isolated (partly of her own volition as she did not want to be identified in her own community and identifying herself as ‘ Ms. Y.’ would prevent her from being assimilated).

7 She was also found to be depressed and traumatised and was a risk of suicide and this had diminished following the birth of her child.

8 Initially an application was made to this Court, based upon an affidavit and exhibits of the plaintiff's solicitor and at the hearing of that application I advised that further affidavit and reports would be necessary to establish whether the intended plaintiff had satisfied the requirements of s. 27 of the 2008 Act. In her report of 25th February, 2016, Prof. O'Keane states that the plaintiff remains extremely vulnerable and sad, she is currently on antidepressant medication. Prof. O'Keane stated:-

‘In order to try as much as possible to move forward, put the overwhelming traumata that she has experienced behind her, it is of extreme importance that her personal identity is not revealed.

She is a very private person and only reluctantly talks to me about her traumata. She has consistently requested that her identity not be revealed. I note this is a significant source of anxiety to her.

I think revealing her identity would cause not just undue stress but irreparable damage to the delicate process of her recovery.’

9 Counsel for the plaintiff advised that none of the intended defendants had objection and were not opposing the application but that counsel for the Attorney General and the Minister, wished to make a particular submission.

10 Counsel for the Attorney General submitted that it was a matter for the court to determine whether the plaintiff had satisfied the provisions of s. 27 of the 2008 Act but that in addition to that Act, she wished to bring to my attention the provisions of s. 19 of the Refugee Act 1996, which, in effect, strengthened the plaintiff's application.

The Law

11 A number of provisions in the Constitution and in statute need to be considered before I consider the case law and whether the plaintiff's application should be granted.

A. The Constitution

12 Article 34.1 of Bunreacht na hÉireann provides:-

‘Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.’

13 Section 27 of the Civil Law (Miscellaneous Provisions) Act 2008, provides:-

‘(1) Where in any civil proceedings (including such proceedings on appeal) a relevant person has a medical condition, an application may be made to the court in which the proceedings have been brought by any party to the proceedings for an order under this section prohibiting the publication or broadcast of any matter relating to the proceedings which would, or would be likely to, identify the relevant person as a person having that condition.

(2) An application for an order under this section may be made at any stage of the proceedings.

(3) The court shall grant an order under this section only if it is satisfied that—

(a) the relevant person concerned has a medical condition,

(b) his or her identification as a person with that condition would be likely to cause undue stress to him or her, and

(c) the order would not be prejudicial to the interests of justice.

…’

14 Section 19 of the Refugee Act 1996, states as follows:-

‘(1) The Commissioner, the Appeal Board, the Minister, the Minister for Foreign Affairs and their respective officers shall take all practicable steps to ensure that the identity of applicants is kept confidential.

(2) Subject to sections 9 (15) and 26, no matter likely to lead members of the public to identify a person as an applicant under this Act shall be published in a written publication available to the public or be broadcast without the consent of that person and the consent of the Minister (which shall not be unreasonably withheld).

…’

15 I am advised that the sections referred to at (2) above are not of relevance to this case.

16 The courts have interpreted the obligation for justice to be carried on in public to include the obligation that the names of litigants be given even where the publication of the names may well negate the purpose of the action itself. Laffoy J. in Roe v. Blood Transfusion Service Board [1996] 3 I.R. 67 at 71, stated:-

‘The plaintiffs stated objective in seeking to prosecute these proceedings under a fictitious name is to keep her identity out of the public...