IESC 73 · Supreme Court

THE SUPREME COURT

329/00

Denham J

Murphy J

Geoghegan J

In the matter of the Courts of Justice Act 1924-1961 and

In the matter of the Courts (Supplemental Provisions) Act 1961-1981 and

In the matter of an intended action between Louis Blehein

Applicant/ Appellant

AND

St John of God Hospital (Stillorgan, Co. Dublin)

Respondent

AND

The Attorney General

Notice Party

Judgment of Mr Justice Francis D Murphy delivered the 31st day of July, 2001

The Applicant/ Appellant (Mr Blehein) wishes to institute proceedings against St John of God Hospital (the Respondents) for a

declaration that his detention in St John of God’s Hospital for various periods in 1984, 1987 and 1991 was unlawful and that his

treatment there was unconstitutional and constituted an assault and claim the reliefs set out in the draft plenary summons

exhibited in an affidavit sworn by Mr Blehein on the 27th day of October, 1999.

It is clear, and accepted by Mr Bleihein, that the acts of which he complains were done in pursuance or purported pursuance of

the Mental Treatment Act, 1945. Accordingly it was necessary for him to apply pursuant to s.260 of the Act of 1945 for leave

to institute such proceedings. The application on that behalf was heard by O’Sullivan J who refused the leave for the reasons

set out in the judgment delivered by him on the 6th of July, 2000, and it is from that judgment and the order made thereon Mr

Blehein appeals to this Court.

Section 260 (1) aforesaid provides as follows:-

“No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of this Act save

by leave of the High Court and such leave shall not be granted unless the High Court is satisfied that there are

substantial grounds for contending that the person against whom the proceedings are to be brought acted in bad faith

or without reasonable care.”

Mr Blehein appeared on his own behalf. On the opening of the appeal Mr Blehein submitted that I should recuse myself from the

hearing on the grounds that I participated and delivered a judgment in an appeal entitled Blehein .v. Murphy & Ors (unreported

delivered the 13th July, 2000). The application was made with commendable propriety. Mr Blehein expressed his concern that

my participation in the appeal would or might give the impression of offending the principle nemo iudex in sua causa which he

cited. Whilst I did explain to Mr Blehein that I would be happy to recuse myself I did not think I would be justified in so doing. I

explained I would adopt the procedure suggested by the Chief Justice in his judgment in Rooney .v. The Minister for Agriculture

[2001] 2 ILRM 37. What the Chief Justice suggested there (at page 40) was:-

“Where one or other party does invite a judge to disqualify himself, the established and prudent practice has been for

the judge concerned to disqualify himself if he has any reservations about the matter. On the other hand a judge cannot

permit a scrupulous approach by him to be used to permit parties to engage in a form of shopping under the guise of

challenging the partiality of the Court. The need to ensure the appearance, as well as the reality, of impartiality must be

reconciled with the proper functioning of the judicial system. The dilemma to which these conflicting demands give rise

might be resolved in cases of difficulty by the judge concerned referring the issue - perhaps on the issue of a

memorandum prepared by him or her - to the senior available judge of the Court of which he is a member. Such a

course would be acceptable in cases of particular difficulty but I do not believe that this procedure should develop into

common practice. The disclosure of possible grounds for concern and the sensible reaction of the parties, advised by

their lawyers, has usually been sufficient to dispose of any such difficulty and I do not doubt this will continue to be the

case.”

The further debate which took place in relation to Mr Blehein’s application made it clear that his objection extended to any and

every judge who had made an order in any case refusing leave under s.260 of the Act of 1945. It was argued that apart from

and in addition to the challenge which Mr Blehein proposes to make to the constitutionality of that Section he asserts that no

judge may refuse or impede a potential litigant having access to the Courts.

What Mr Blehein says is that any judge who has refused an application under s.260 aforesaid has in effect prejudged an issue

which arises on the appeal. In my view his concern is based on a misapprehension of the concept or relevance of a reasonable

apprehension of bias.

If the Supreme Court had expressly held that judge of the High Court was entitled to exercise the jurisdiction apparently

conferred upon him by s.260 of the Act of 1945 - whether on foot of the judgment delivered by me or otherwise - then that

would be the law and as such would bind all lawyers and litigants unless and until the Supreme Court took the exceptional, but

not impossible, step of reversing its own decision. An accusation of bias could not be levelled at any judge on the grounds that

it was anticipated that he would apply the law as enunciated by the Supreme Court.

If, however, the position is, as I believe it to be, that the argument on which Mr Blehein now relies has never previously been

addressed to this Court and neither the Court nor any member of it has given judgment on the issue as to whether the

jurisdiction apparently conferred on a judge of the High Court by s.260 aforesaid can be exercised constitutionally then the

question of pre judgment or bias in that regard simply does not arise.

If Mr Blehein was legally represented I would have felt bound to refuse the application to disqualify myself. It was only because

Mr Blehein appeared on his own behalf and without the benefit of legal advice that I felt it appropriate to rely on the procedure

outlined by the Chief Justice in the Rooney Case. Accordingly I deferred to the views of the President of the Court. If Mrs

Justice Denham had any concern that my presence on the Court might give rise to a reasonable apprehension of bias then I

would have withdrawn. Having regard to the judgment which she has now delivered I would not be justified in disqualifying

myself.