Supporting Documents:

THE SUPREME COURT

BETWEEN

RESULT: The Court does not grant leave to the Plaintiff to appeal to this Court directly from the High Court.

REASONS GIVEN:

1 A 76 year old woman contends that she underwent an unnecessary prophylactic symphysiotomy in 1963 when aged 24 years, and which was carried out 12 days in advance of the birth of her first child. The procedure was carried out in the Coombe Hospital. The defendant is the nominee of the hospital for the purpose of these proceedings. For reasons related to the possible application of the Statute of Limitations and the jurisdiction of the Courts to dismiss claims after substantial lapse time, her claim in negligence had been reduced to a single plea that “there was no justification whatsoever in any circumstances for the performance of antenatal symphysiotomy at the time it was performed”.

2 The plaintiff’s claim was dismissed by Cross J in a judgment on the 1st of May 2015 and by order of the 19th of May 2015. The trial judge also dismissed the defendant’s claims that the proceedings should be dismissed on the grounds that it would be unjust to require the defendant to meet the claim having regard to the lapse of time, and that the claim in any event was barred by the provisions of the Statute of Limitations. The plaintiff seeks to appeal to this Court direct from the High Court decision pursuant to the provisions of Article 34.5.4° of the Constitution under the so called “leapfrog” procedure. The defendant does not resist the application but does not for his part advance grounds why this Court should hear the appeal under the leapfrog procedure. Under Article 34.5.4° the Court may grant leave for an appeal direct from the High Court if there are exceptional circumstances warranting a direct appeal and the criteria for an appeal from the Court of Appeal under Article 34.5.3° are also met, i.e. that the decision involves a matter of general public importance or an appeal is in the interests of justice. As was stated in this Court’s determination in Island Ferries Teoranta v Galway County Council [2015] IESCDET1, the terms of the Constitution suggest that even where an appeal to this Court is constitutionally warranted by reason of it raising a general matter of public importance or it being otherwise in the interests of justice that such an appeal be brought, it is presumed that such an appeal is better taken when the issues have been refined following the hearing and determination of an appeal in the Court of Appeal.

3 Here the plaintiff advances initially three grounds for asserting that the leapfrog procedure is appropriate. First, that the plaintiff is one of 1,500 women on whom the procedure of an antenatal symphysiotomy was carried out in Ireland in the 40 years between 1948 and 1988 (according to the plaintiff) of whom in the region of 100 have commenced proceedings (according to the defendant) and the claim is therefore in the nature of a test case. Second, the plaintiff is at a reasonably advanced age and given the time necessarily involved in a hearing in the Court of Appeal and the fact that the legal issues “will require final determination in the Supreme Court” she may not, it is suggested “survive long enough to bring the appeal to finality”. Finally, it is said that the examination of controversial historic medical practices is a matter of general importance in any free, liberal and democratic society that values the upholding of the rule of law. The plaintiff also relies on the fact of media scrutiny of the practice of symphisiotomy, public discussion, debate in the Dáil, examination by the United Nations Human Rights Committee and the obligations under Article 7 of the International Covenant of Civil and Political Rights which it is claimed is analogous to Article 3 of the European Convention of Human Rights and it is alleged requires that Ireland ought to carry out an independent investigation and provide an effective remedy for damage sustained.

Conclusion

4 The Court points out first that pursuant to the Constitution, the decision whether an appeal should be brought to this Court is one for this Court alone. The agreement, either tacit or express, of the parties, is not sufficient. Where parties are of the opinion that it is a suitable case for an appeal to this Court, either from the Court of Appeal under the general procedure under Article 34.5.3°, or for leapfrog appeal from the High Court under Article 34.5.4°, they should endeavour to assist the Court by explaining why they come to that conclusion, and the precise issues said to justify it. While this case is considerably clarified and simplified by the reduction of the plaintiff’s claim in negligence to a single issue, the Plaintiff has raised a number of issues in her appeal, which raises the possibility that the Court could grant leave on some and not others, which might lead either to separate hearings of separate issues in the Court of Appeal and this Court, or an unnecessarily extensive appeal in this Court in which grounds not themselves raising issues of general importance are included in the appeal in the interests of justice. Similarly the grant of leave to the plaintiff would either necessitate the grant of leave to the defendant on their grounds of cross-appeal (which it is not suggested by any party meet the criteria for appeal to this Court either directly or after hearing by the Court of Appeal) or the separate pursuit of those grounds in the Court of Appeal, neither of which is a desirable course. A decision of the Court of Appeal whether resolving matters finally, or followed (whatever the outcome in the Court of Appeal) by a decision of this Court that no grounds have been made out for further appeal is both the administration of justice, and the examination in public of controversial medical practices, at least those alleged to give rise to causes of action. Even if it were accepted for the sake of argument that the State has an obligation to carry out an investigation and provide an effective remedy and that that is relevant to the resolution of the facts in this case, it cannot be relevant to the only issue arising on this application as to whether an appeal should proceed directly in this Court pursuant to Article 34.5.4°. Nor does the Court necessarily accept that it can be said definitively at this stage that the legal issues raised in the High Court will require determination by the Supreme Court: that may depend upon the outcome of the appeal to the Court of Appeal. The Court notes furthermore that the Appellant does not challenge the decision in Dunne v National Maternity Hospital [1989] I.R.91, or seek to distinguish it. While this is a case of undoubted importance to the Plaintiff and others with similar claims, and furthermore has some claim to expedition, those are not factors in themselves which determine in which court an appeal should be heard. The courts, at all levels in the court system seek by appropriate case management to address such matters within the limits of the resources available to them. The Court is not satisfied that the grounds have been established for an exceptional appeal to this Court under the leap frog procedure and, accordingly, will refuse the application.

And It is hereby so ordered accordingly.