The Gazette 1980

GAZETTE

DECEMBER 1980

Nominal Plaintiffs and the Irish Constitution

A consideration of the decision in Cahill v. Sutton

by Gerry Whyte, B.C.L., Lecturer in Law, Trinity College, Dublin.

Until quite recently the issue of the 'locus standi' of Irish citizens in constitutional actions had been considered on only one occasion by any Irish court. In East Donegal Co-Operative Livestock Mart and others v A.G. 1 Walsh J., delivering the judgement of the Supreme Court, said, 'obiter',".. . at one end of the spectrum of opinions on this topic one finds the contention that there exists a right ot action akin to an 'actio popularis' which will entitle any person, whether he is directly affected by the Act or not, to maintain proceedings and challenge the validity of any Act passed by the Parliament of the country of which he is a citizen or to whose laws he is subject by residing in that country. At the other end of the spectrum is the contention that no one can maintain such an action unless he can show that not merely do the provisions of the Act in question apply to activities in which he is currently engaged but that their application has actually affected his activities adversely. The Court rejects the latter contention and does not find it necessary in the circumstances of this case to express any view upon the former". 2 He went on to point out that, "the provisions of Art. 34 expressly confer upon this [Supreme] Court and the High Court power to determine the question of the validity of any Act of the Oireachtas without any qualification or condition requiring that there must be in existence a dispute or conflict as to legal rights between the parties and peculiar to the parties". 3 These statements however must now be considered in the light of the recent Supreme Court decision in Cahill v. Sutton. 4 The facts of that case were as follows — in 1968, the Plaintiffattended the Defendant, aconsultantgynaecologist, for treatment of a gynaecological complaint. He prescribed certain tablets for her but after commencing the course of tablets she began to suffer illness and disability. In 1972, four years after she first began to suffer from this illness and disability, she instituted proceedings in the High Court against the Defendant for damages for negligence and breach of contract, on the grounds that he had negligently prescribed incorrect and harmful medication. The defence, in addition to denying the substantive points of the Plaintiffs claim, also pleaded that the Plaintiffs claim was barred by Section Il(2Xb) of the Statue of Limitations Act, 1957, which provides that: "An action claiming damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statue or independently of any contract or any such provision), where the damages claimed by the plaintiff for the negligence, nuisance or breach od futy consist of or include damages in respect of personal injuries to any person, shall not be brought after the expiration of three years from the date on which the cause of action accrued".

This contention was one of a number of preliminary issues which came before Hamilton J. in the High Court in 1975 and he held, on this point, that the plaintiffs claim in contract 5 was barred by Section 11(2) (b). On appeal to the Supreme Court, counsel for the plaintiff applied for liberty to riase the question of the constitutionality of the Section. Permission was granted and this issue was remitted to the High Court for decision. In the High Court, Finlay P. had held that Section 11(2) (b) did not infringe the plaintiffs constitutional rights under either Art 40(1) or Art 40(3). The plaintiff appealed this decision to the Supreme Court and it was in the course of the hearing of this appeal that the question of the plaintiffs 'locus standi' arose for the first time. It arose in the following way: the plaintiff contended that Section 11(2) (b) violated Art 40(1) and Art 40(3) of the Constitution because its absolute and unqualified terms did not permit any extension of the three year period of limitation in a case where the prospective litigant did not know, and could not have learned within that period, of the accrual of the cause of action. If the plaintiff succeeded on this point, then Section 11(2) (b) would be declared invalid and the plaintiffs action could proceed through the ensuing lacuna in the law. The question of the plaintiffs 'locus standi' arose, however, because on the facts of the case, a qualification to Section 11(2) (b) along the lines contended for by her would not protect her in the instant case as at all material times she was aware of the facts necessary to constitute a claim against the defendant. The plaintiff was obliged therefore to rely on the putative constitutional rights of a hypothetical third party who would be protected by such a qualification, in order to attack the constitutionality of Section 11(2) (b). The issue for the Supreme Court then, was whether "such an indirect and hypothetical assertion of constitutional rights gives the plaintiff the standing necessary for the successful invocation of the judicial power to strike down a statutory provision on the ground of unconstitutionality". 6 The decision in the East Donegal Case The leading judgment was delivered by Henchy J. He began by quoting from the decision of the Supreme Court in the East Donegal case 7 but pointed out that Walsh J's remarks in that case were necessarily obiter as it had been held in that case that the plaintiffs would be directly affected by the provisions which they sought to impugn. He continued by observing that Walsh J. had referred to "opinions or contentions" and not to judicial practice, and that neither of the two opinions mentioned appeared to have received authoritative judicial acceptance in any other comparable jurisdiction. In actual fact, judicial practice in such jurisdictions usually required that the person challenging a particular legislative provision must 229