Supporting Documents:
 
An Chúirt Uachtarach
The Supreme Court
DETERMINATION Anthony McGrath (a person of unsound mind, not so found, suing by his wife and next friend Angela McGrath) Plaintiff AND
Brian J. Whooley and Bon Secours Hospital – Bon Secours Health System Defendant
APPLICATION REFERRED TO IN ARTICLE 34.5.3° OF THE CONSTITUTION
RESULT: The Court declines to make 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 17th October 2016.
REASONS:
1. This determination concerns a decision of the Court of Appeal made on 17th October 2016. In three ex tempore judgments, Ryan P and Irvine and Hanna JJ dismissed an appeal by the plaintiff from a ruling of Barr J in the High Court refusing to confine the defendant surgeon, Brian Whooley, and the hospital to particulars as given and in particular to stop any evidence outside the particulars being given at trial.
2. The background is that the plaintiff had bowel cancer. Part of the bowel was removed. He went back to hospital some years later, on 18th September 2012, to have an endoscope procedure but in the course of that procedure the bowel was punctured. It is claimed that while the procedure was not negligently carried out, consent was compromised by a lack of warnings and that, negligently, no warning was given in aftercare as to the risk of an infection. The plaintiff did suffer an infection, but without appropriate warning, it is claimed, he did not know the full nature of the risk or where the infection might be coming from. The result of not returning to hospital was that the infection spread, becoming meningitis by 28th September and the plaintiff is now very seriously and irreversibly brain damaged.
3. There was much concentration on raising and getting answers to the particulars raised on the defence. This is not surprising as the plaintiff can no longer speak for himself. The particulars furnished were without “prejudice to the oral evidence that will be adduced at the hearing of this action” and added to that were the words that Brian Whooley “reserves the right to adduce further replies to particulars.”
4. The plaintiff claims that this leaves him unknowing as to what evidence will be adduced at trial and that this is a breach of his constitutional rights.
5. Article 34 of the Constitution provides for the public administration of justice; describes the courts established by the Constitution and those which may be established by law; provides for the full and original jurisdiction of the High Court; and under Article 34.2 establishes the Court of Appeal and under Article 34.4.1° sets out its appellate jurisdiction. This reads:
4 1° The Court of Appeal shall—
i save as otherwise provided by this Article, and
ii 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 by law.
6. Article 34.4 of the Constitution also provides for the finality of decisions of the Court of Appeal, save for appeals that may be taken to the Supreme Court from decisions of the Court of Appeal. This is set out in Article 34.5.3° and 4° of the Constitution. The former relates to appeals where there has been a determination by the Court of Appeal and the latter where a litigant seeks to appeal directly from the High Court to the Supreme Court. The article relevant to this appeal, that where the Court of Appeal has already given judgment on a matter, is now quoted:
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.
7. The decision of the Supreme Court under Article 34.5.6° is in all cases “final and conclusive.”
8. Primarily, this Court is now “subject to such regulations as may be prescribed by law”, an appellate jurisdiction from the Court of Appeal. Such an appeal may only be exercised provided that this Court is satisfied either that the relevant decision of the Court of Appeal “involves a matter of general public importance” or, alternatively, that it is, “in the interests of justice”, necessary that there be an appeal to this Court.
9. 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. Naturally, these rulings are inter parties and cannot be a precedent, save in the rarest of circumstances. These determinations are not ones of law but of the nature and importance of a proposed appeal.
10. On the question as to whether there is an issue of general public importance, this cannot be divorced from the factual matrix of this case. This judgment of the Court of Appeal is a preliminary ruling, designed to facilitate a trial. In the course of his concurring judgment, Hanna J stated:
It is entirely proper and appropriate for a defendant to reserve their position with regard to the extensiveness of the detail which they give in reply particulars, and it is equally appropriate and proper for a plaintiff to corral a defendant into a certain position, presumably advantageous to the plaintiff. These are matters for particulars, but each case has to be dealt with, given some facts, and in the particular poignant circumstances of this case, it does become a difficult and sensitive matter to handle … [The] function of the trial judge … is to find a way through all of this in order to achieve justice between the parties. In the fullness of time, there may well be a change in the rules [to witness statements furnished by each side] … and it may well be that we will be having precisely the same debate only in greater detail when we have statements of evidence.
11. The plaintiff claims that he is entitled to a situation where a defendant will state a definite factual situation set out in particulars and that this situation cannot change thereafter. The plaintiff says that this is the only fair state of affairs as, otherwise, he will be without notice of what may occur at trial. Anything else, he claims, would result in him “being ambushed”. This, it is asserted, is what is being “engineered”.
12. For the defendant surgeon, it is said that there is no point of law here sufficient to meet the constitutional test. The rest of the notice deals with an issue with which the Court is not concerned, which is whether the law was correctly stated.
13. The situation with regard to this case is that it is interlocutory. The Court of Appeal applied standard law, as did the High Court. Pleadings concern facts. Particulars relate also to facts. What is required is reasonable notice of facts to each party to a case. Our system does not have many features present in other jurisdictions such as witness deposition prior to trial but nor does it have witness coaching. Our system has the exchange of non-expert witness statements in the commercial list, but not in personal injury cases. But, even in commercial list cases, a latitude is allowed the judge in the interests of justice to enable evidence to be given that is not already in a witness statement. Pleadings may more frequently make out a case in evidential terms, but that is not required by the rules or by the constitution.
14. The application does not meet either of the constitutional criteria.
Accordingly, the application is refused.
AND IT IS HEREBY ORDERED ACCORDINGLY
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