Supporting Documents:
 
THE SUPREME COURT
DETERMINATION MICHAEL O’DRISCOLL (A MINOR) SUING BY HIS MOTHER AND NEXT FRIEND BREDA
O’DRISCOLL PLAINTIFF / APPLICANT AND
MICHAEL HURLEY AND THE HEALTH SERVICE EXECUTIVE DEFENDANTS / RESPONDENTS
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court makes an order allowing an appeal to this Court under Article 34.5.3° of the Constitution from the judgment of the Court of Appeal delivered on the 8th July, 2015, on the recusal issue alone.
REASONS GIVEN:
1. This determination relates to an application brought by Michael O’Driscoll, a minor (suing by his mother and next friend, Breda O’Driscoll), the plaintiff/applicant, who is referred to as “the applicant”.
2. Michael Hurley and the Health Service Executive are the defendants/respondents, and are referred to as “the respondents”.
3. This Court has jurisdiction to hear an appeal from the Court of Appeal in the circumstances described in Article 34.5.3° of the Constitution, which states:-
“3° The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that –
i the decision involves a matter of general public importance, or
ii in the interests of justice it is necessary that there be an appeal to the Supreme Court.”
4. The decision of the Supreme Court under Article 34.5.6° is, in all cases, “final and conclusive”.
5. The constitutional framework established by the 33rd Amendment of the Constitution thus requires, in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal, that it be demonstrated that either “a matter of general public importance” arises, or that “in the interests of justice it is necessary that there be an appeal” to this Court.
6. The statutory framework for the exercise of the right to apply to this Court for such leave is to be found in the Court of Appeal Act, 2014, and in particular the provisions of s. 44 of that Act which inserts a new s. 7 into the Courts (Supplemental Provisions) Act, 1961. The Rules of Court are set out in the amended Order 58.
7. The Constitution has retained the entitlement of one appeal as of right from the High Court to the Court of Appeal, subject to express exclusions or regulation by statute. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined principally to cases where, as a result of the determination of the Court of Appeal, the decision of that Court is such that the issues raised on a proposed appeal would involve a matter of general public importance or would be such that it is in the interests of justice that there be a further appeal to this Court.
8. In this application the applicant seeks to appeal against the whole of the decision of the Court of Appeal.
Application of Applicant
9. The applicant applies for leave to appeal from the decision of the Court of Appeal delivered on the 8th July, 2015, whereby the Court of Appeal:-
(i) refused the preliminary application of the applicant that Irvine J. should recuse herself from the hearing of the appeal on the grounds of objective bias;
(ii) dismissed the applicant’s appeal against the amount of the damages awarded in an assessment of damages in the High Court; and
(iii) ordered that the applicant should pay the respondents’ costs of the appeal.
10. The applicant set out a statement of the facts. This was an assessment of damages which lasted four days in the High Court before O’Neill J. in February, 2013. A judgment was delivered a week after the hearing, on the 20th February, 2013. The High Court awarded the applicant €50,000 for general damages, together with an order for the costs of the action. The case related to an appendectomy negligently performed on the applicant at Kilkenny Hospital on the 28th January, 2006, when the applicant was eight years old. The applicant had to undergo bladder repair surgery, with the necessary catheterisation that that involved, and all the pain and suffering attendant upon that, with eight additional days in hospital, which involved separation from his parents, which the trial judge held was a very upsetting experience for the applicant. The award of the High Court was for pain and suffering to date.
The High Court held:-
“I am quite satisfied that any ill-effects of the bladder repair surgery on the [applicant] are now well and truly in the past and accordingly there will be no award for any future loss or damage”.
11. The Court of Appeal refused the preliminary application that Irvine J. recuse herself, and gave reasons at para. 73 et seq of the judgment.
12. The applicant submitted that the High Court Judge failed to provide any statement, or even summary, in his judgment, of the evidence of the applicant’s experts.
13. The applicant submitted that the trial judge failed to address the fact that it was elicited in evidence that the State Claims Agency was paying a urologist, whose evidence the judge relied on, €10,000 for giving evidence. It is also raised that there had been a previous payment, to him in another medical negligence case for expert evidence, of €19,558. The applicant submitted that the trial judge did not address the fact that no evidence was given at the trial to justify the payment of €10,000.
14. On the substantive appeal the Court of Appeal accepted that there was no mention in the judgment of the High Court of various injuries, but held that these injuries were deemed to be included in the award made. The Court of Appeal held that a trial judge was not obliged to summarise the evidence of the witnesses, but had to give a “clear explanation of his decision”.
Applicant’s Reasons as to why the Supreme Court should grant Leave to Appeal
15. The applicant set out, in the application form, the reasons why he stated this Court should grant leave to appeal. The detail of these reasons may be seen on the application form. In essence the reasons include:-
(i) Irvine J. and the Court of Appeal were in breach of Art 6.1 of the European Convention on Human Rights, in relation to its guarantee of an independent and impartial tribunal, in refusing to accede to the applicant’s application that Irvine J. recuse herself in the circumstances of the case. The circumstances instanced by the applicant included that 1) Irvine J. “chaired and addressed a private Conference run as a promotion by the solicitors defending the said appeal”. The solicitors, it was stated, specialise in the defence of medical negligence actions and were the solicitors on record for the State Claims Agency, who were defending the action. It was stated that the said judge was pictured on an advertisement on the website of the said solicitors, sitting under the said solicitor’s name and logo, and that she was pictured with the head of the State Claims Agency. Further reference was made to the European Convention on Human Rights, Art 6.1 and to two English cases Porter v. Magill [2002] 1 All E.R. 465, and Lawal v. Northern Spirit Ltd [2004] 1 All E.R. 187. It was stated that reliance was placed also on a breach of a corresponding duty at common law and/or under Article 40.3 of the Constitution.
(ii) A further reason for granting leave to appeal was given as the prohibition on cross-examination of a professional expert witness as regards the amount of money paid to him for giving evidence in the action.
(iii) Also, it was submitted that the Court of Appeal cannot attribute to the trial judge an intention which is directly in conflict with a finding of the trial judge, or disregard injuries established in evidence but not adverted to by the trial judge, on the ground that they are not significant in the context of other aspects of the applicant’s claim.
16. The applicant does not ask the Supreme Court to depart from or distinguish one of its decisions. Nor is the applicant asking the Supreme Court to make a reference to the Court of Justice of the European Union.
Respondents’ Notice
17. It is stated on the Respondents’ Notice:
“The Respondents will rely on the entirety of the ex tempore High Court judgment of O’Neill J. and the written judgment of the Court of Appeal at the hearing of the application for leave to appeal”,
This is not helpful, as the Supreme Court considers applications for leave to appeal in a panel, and not usually at an oral hearing.
18. Regarding the “concise statement of facts” set out by the applicant in paragraphs 2 and 3, it is stated by the respondents that they constitute the applicant’s:-
“grounds of appeal to the Court of Appeal which were successfully contested by the [respondent], rejected by the Court of Appeal and continue to be disputed by the Respondents herein”.
19. The respondents contend that the judgment in respect of which leave to appeal is sought does not involve a matter of general public importance. Further, that it is not in the interests of justice, necessary that there be an appeal to this Court.
20. The respondents state that (for the reasons explained in section 5, of the respondents’ notice, which is the section setting out the reasons for opposing an appeal “if it is granted”), the Court of Appeal did not make any such error of law, or fact, to require that in the interests of justice there should be an appeal to this Court.
21. It was submitted by the respondents that the Court of Appeal, in a detailed and comprehensive judgment, carefully reviewed the High Court evidence underpinning the ex tempore judgment of the High Court and upheld the award made by O’Neill J..
22. On behalf of the respondents it was contended that “the allegations of objective bias in respect of Judge Irvine’s chairing of a conference lack the requisite merit such that it could be said that it is in the interests of justice to revisit the Court of Appeal’s findings on this issue” .
23. It was also stated on behalf of the respondents that the contention that the “allegations in respect of the cross –examination of the expert witness and the fees paid to the said expert in separate proceedings lack the necessary substance such as to form the basis of an appeal to the Supreme Court”.
24. Finally, the respondent submitted that it does not appear to be claimed by the applicant, nor could the claim be credibly advanced, that the subject matter constitutes a matter of general public importance.
Decision
25. This is not a court of error correction. The test to be applied in an application for leave to appeal to this Court is stated in the Constitution, and is set out earlier in this determination.
26. In this case the applicant has had an appeal in the Court of Appeal and this is an application for a second appeal.
27. The Court is satisfied that the applicant has met the constitutional threshold on the recusal issue raised, but only on that issue.
28. The Court grants leave to appeal to this Court on the issue of the preliminary application of the applicant that Irvine J. should have recused herself on the grounds of objective bias. The issue certified is: “Whether a judge is disqualified from sitting on a hearing, or on an appeal, on the grounds alleged, or any of them?”
29. The Court is not satisfied that the applicant has met the constitutional threshold on the issue raised in relation to the cross-examination of the expert witness. The test requiring that it be a matter of general public importance, or that it be necessary in the interests of justice, are not met. It is clear from the judgment of the Court of Appeal, paras. 59 et seq, that the ground of appeal was considered carefully, and decided. The Court of Appeal held that the High Court judge afforded counsel a tremendous degree of latitude in terms of the questions he allowed him to ask the expert witness, nor was he forced to pull back from his cross-examination. The Court is satisfied that this ground does not raise a matter of general public importance, or that it is in the interests of justice that there be an appeal to the Supreme Court.
30. On the ground raised: “The Court of Appeal cannot attribute to the trial judge an intention which is directly in conflict with a finding of the trial judge or disregard injuries established in evidence but not adverted to by the trial judge on the ground that they are not significant in the context of other aspects of the [applicant’s] claim”, the Court is not satisfied that the constitutional threshold has been met. This is essentially a matter relating to factual issues and was addressed on appeal by the Court of Appeal. Consequently, leave to appeal will not be granted on this ground.
31. Therefore, the Court grants leave to appeal to this Court on the recusal issue alone, and is satisfied that the applicant has not met the constitutional threshold on any of the other issues raised.
AND IT IS HEREBY SO ORDERED ACCORDINGLY.
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