Supreme Court grants leave to appeal on general public importance and exceptional circumstances criteria.

THE SUPREME COURT

[Appeal Nos: 120, 121 and 122/2019]

Clarke C.J.

MacMenamin J.

O’Malley J.

Between/

Ruth Morrissey and Paul Morrissey

Plaintiffs/Respondents

and

Health Service Executive and Quest Diagnostics Ireland Limited and Medlab Pathology Limited

Defendants/Appellants

JUDGMENT of Mr. Justice Clarke, Chief Justice, delivered the 26th July, 2019

1. Introduction

1.1 This judgment is directed to three applications for leave to appeal which were respectively brought by each of the

defendants/appellants in these proceedings. When the panel assigned to consider those applications for leave to appeal met, it was

decided that an oral hearing might be useful for the purposes of clarifying certain matters. In that context, the panel arranged for a

letter to be sent to the parties indicating the questions on which the Court required greater clarification. As is usual in the context of

applications for leave to appeal, the three notices of application for leave to appeal, together with the respondents’ replying notices,

are published along with this judgment. In addition, for the purposes of greater clarity, the letter sent on behalf of the Court to the

parties is also published. It is, therefore, unnecessary to set out in any detail the issues raised in those documents.

1.2 Thereafter, an oral hearing was conducted on Wednesday, 24 July 2019, as a result of which the Court is now in a position to rule

on the respective applications for leave to appeal. It is appropriate to briefly set out the general criteria applied by the Court on

applications for leave to appeal as appear in many of in the determinations issued by the Court in respect of leave applications.

2. The General Criteria

2.1 The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3°

thereof and the many determinations made by this Court since the enactment of the Thirty-third Amendment, it is necessary, in order

for this Court to grant leave to appeal from a decision of the Court of Appeal, that it be established by the applicant that the decision

sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that

there be an appeal to this Court. In addition, because this is an application for leave to appeal directly from the High Court, it is also

necessary that it be established that there are “exceptional circumstances” warranting a direct appeal to this Court.

2.2 The general principles applied by this Court in determining whether to grant or refuse leave to appeal, having regard to the criteria

incorporated into the Constitution as a result of the Thirty-third Amendment, have now been considered in a large number of

determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S.

v. Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price

Waterhouse Coopers (A Firm) v. Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be

met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel

of the Court in Wansboro v. Director of Public Prosecutions [2017] IESCDET 115. It follows that it is unnecessary to revisit the new

constitutional architecture for the purposes of this judgment.

2.3 As the applications in this case involves seeking leave to bring leapfrog appeals direct to this Court from the High Court, the

additional criteria, as identified in Wansboro, come into particular focus. Appeals in similar terms have already been filed by each of

the defendants/appellants before the Court of Appeal but it is the stated preferences of those parties that the issues in question

proceed in this Court. It is next necessary to identify the position of the parties on the applications for leave to appeal.

3. The Position of the Parties

3.1 As is clear from the application for leave to appeal filed on behalf of the first named defendant/appellant (“the HSE”), the range of

issues sought to be relied on by that party are relatively narrow, concentrating, as they do, firstly on questions which may loosely be

summarised as the “standard of care” issues, together with questions as to the extent to which the HSE may either potentially be

primarily liable or vicariously liable in respect of acts or omissions of the other defendants/appellants.

3.2 The one separate specific issue which arose in the case of the HSE was the contention made on behalf of the

plaintiffs/respondents (“the Morrisseys”) which suggested that the HSE should not be allowed raise the standard of care issues

because the HSE had not made submissions on those questions in the High Court, despite, it is said, the High Court Judge indicating

that this was one of the matters on which he wished to hear the parties. The HSE indicated that a decision had been taken to allow

the other defendants/respondents to deal with those issues as they were the parties primarily involved in addressing such matters on

the facts.

3.3 However, at the oral hearing, but in the context of a general submission to the effect that leave to appeal should only be granted

in respect of the standard of care issues, counsel for the Morrisseys indicated that he was prepared to agree, as a concession, that

the HSE might address argument on those issues while maintaining his position that the HSE had no entitlement in that regard. This is

one question to which it will be necessary to return.

3.4 Counsel on behalf of the second named defendant/appellant (“Quest”) also made some concessions in relation to the grounds of

appeal which were sought to be advanced in its application for leave to appeal. It was agreed that Ground 7 effectively fell within the

ambit of Ground 2 and did not need to be independently progressed. It was also said that, in the context of the concerns expressed

in the Court’s letter, and in the event that this Court were prepared to grant leapfrog leave, Quest would be willing to abandon its

application for leave to appeal in respect of Grounds 9, 10, 11 and 13. In fairness to counsel, it should be emphasised that it was not

conceded that those grounds were without merit but rather that their abandonment was a price which Quest was prepared to pay in

order to seek to persuade this Court to grant leapfrog leave to appeal.

3.5 Thereafter, with one exception, it was said that the remaining grounds, other than the first three (which might be described as

the pure standard of care grounds), were closely connected with that issue. The exception was said to be Ground 12, which

concerned causation. It was urged that this ground, although independent of the standard of care issue to a large extent,

nonetheless had at least some potential to apply in other cases, even though questions of causation will necessarily be dependent to

a significant extent on the facts of the individual case.

3.6 Insofar as a basis was put forward which was said to justify the grant of leapfrog leave, particular reliance was placed on what

was said to be the urgency of the case. This is, indeed, a factor identified in Wansboro as potentially justifying a direct appeal to the

Supreme Court, even though a similar case might ordinarily more properly give rise to a first appeal to the Court of Appeal. So far as

urgency is concerned, it became clear at the oral hearing that satisfactory arrangements have been entered into between the

solicitors acting on behalf of the Morrisseys and the Chief State Solicitor, on behalf of the Government, as a result of which the

Government has agreed that, irrespective of the ultimate outcome of these proceedings, the full award of damages made by the High

Court Judge in this case will be paid to the Morrisseys. It follows that there is no financial urgency. However, counsel for the

Morrisseys did, quite properly, draw attention to the fact that Ms. Morrissey is ill and that the bringing of early closure to these

proceedings would be of benefit to her.

3.7 In addition, counsel for Quest drew attention to the fact that there are a significant number of other cases in which the general

issue of the standard of care to be imposed in cases such as this may well arise. In addition, attention was drawn to the legislation

establishing the CervicalCheck Tribunal (“the Tribunal”). That legislation, which became law this week, provides for the establishment

for a tribunal which is, most unusually, given the task of assessing legal liability in cases of this type. The Tribunal is, therefore, very

different from other tribunals which have been established for the purposes of providing compensation in circumstances which did not

require applicants to establish full legal liability (such as the scheme in respect of Hepatitis C and HIV, the Residential Institutions

Redress Board and, in the past, the Stardust Victims’ Compensation Tribunal). Thus, the Tribunal will be required to fully apply the law

in respect of liability and quantum in its assessment of whether, and if so to what extent, it should make awards of compensation.

Therefore, the Tribunal will be in exactly the same position as a court and will have to apply the same legal test. It follows that the

Tribunal would be significantly constrained in the extent to which it could advance its work as long as there remains any significant

debate about the proper test to be applied in determining legal liability.

3.8 In essence, counsel for Quest suggested that the urgency which thereby arises would justify a leapfrog appeal. Counsel for the

Morrisseys, as indicated earlier, accepted that leapfrog leave would be appropriate but only if the appeal was to be confined strictly

to the standard of care issues. Thus, in substances, counsel did not oppose leapfrog leave in itself but did oppose leave being

granted to Quest to argue the wider (although somewhat reduced) issues identified in the application and as adjusted at the oral

hearing.

3.9 The grounds urged on behalf of the third named defendant/appellant (“Medlab”) were somewhat narrower than those sought to be

advanced on behalf of Quest because the case against Medlab (or at least that part of it which succeeded) was based on narrower

issues concerning principally whether the samples considered by Medlab were adequate.

3.10 Counsel had not had the opportunity to take instruction on whether it would be appropriate to follow counsel for Quest in

agreeing to drop certain grounds of appeal if that was, as it were, the price for obtaining leave to bring a leapfrog leave. However,

counsel felt that he could go so far as to indicate that he could not object if the Court were to indicate that leave would not be

granted in respect of Grounds 3 and 4. In so doing counsel made the same observation as had been made by counsel for Quest to the

effect that the grounds were still considered meritorious but that there might be merit in their not being pursued to enable a speedy

hearing of a direct appeal to this Court.

3.11 Counsel relied on the same grounds of urgency as had counsel for Quest and also suggested that a similar causation issue to

that identified in the arguments put forward on behalf of Quest arose in the case of Medlab, giving rise to Ground 2 proposed in its

application for leave to appeal.

3.12 The one additional issue which arises in the context of the application for leave to appeal made on behalf of Medlab relates to

Ground 5, under which it is sought to appeal certain issues concerning the calculation of damages.

3.13 The position adopted by counsel on behalf of the Morrisseys in respect of the application for leave of Medlab was broadly the

same as that adopted in respect of the application of Quest, being that there was no objection to the grant of leapfrog leave to

pursue the standard of care grounds alone, but that there was objection to any wider grounds being permitted.

4. Discussion

4.1 There is no doubt but that, ordinarily, it would not be appropriate to grant leapfrog leave in a case such as this. Some of the

issues sought to be raised involve questions of fact or questions where it is said that the trial judge was in error. In those

circumstances, as this Court has consistently pointed out, it is normally appropriate first to pursue an appeal to the Court of Appeal

and only thereafter decide whether, in the light of the case as it then stands, there remains any issue which is open to a further

appeal and which also meets the constitutional threshold for leave to appeal to this Court. That will remain the position in many cases

even though it may be likely that a further appeal will arise, for this Court will be likely to have had the benefit of a narrowing and

clarification of issues in the Court of Appeal so that this Court will be able to concentrate on the real issues of general importance

which arise in the case.

4.2 The true issue is as to whether there is an appropriate basis for departing from that general position in the circumstances of this

case. I am satisfied that the urgency of the situation does provide such a basis. While it is true, as counsel for the Morrisseys pointed

out, that the High Court has managed cases such as this with commendable efficiency and that hearing dates are being readily made

available for those cases which are considered ready for trial, nonetheless there must be a risk that further appeals will be generated

in such cases if the same standard of care issues as have arisen in these proceedings also falls for consideration in those other cases.

4.3 Likewise, there can be little doubt but that the Tribunal would be significantly circumscribed in progressing its work if there

remains doubt about the standard of care to be applied. As already noted, the Tribunal will be required to approach the question of

compensation on exactly the same basis as the High Court would be required to do in deciding whether to award damages. It follows

clearly that the standard of care issues, at least, would meet the constitutional threshold for leave to appeal generally and, having

regard to the urgency which attends its clarification, would meet the additional criteria necessary to grant leapfrog leave.

4.4 The real issue remaining is as to whether any of the other matters which the HSE, Quest and Medlab seek to raise also justify the

grant of leapfrog leave. In my view, the interests of justice do require granting that wider leave. There can be cases where issues

which would not in and of themselves meet the constitutional threshold of general public importance can properly be the subject of

leave to appeal to this Court, because it would not make sense to exclude those grounds if there is going to be an appeal to this

Court in any event.

4.5 The statutory framework is clear. Section 7B(4) of the Courts (Supplemental Provisions) Act 1961, as inserted by s. 9 of the

Court of Appeal Act 2014, makes clear that, when leave to appeal to this Court is granted, then any appeal before the Court of

Appeal on the same grounds must necessarily be discontinued. However, any grounds not the subject of leave to appeal to this Court

can continue to be pursued in the Court of Appeal. It follows that the legislation contemplates the possibility that some grounds of

appeal may be pursued before the Court of Appeal, while others might be pursued before this Court. However, in a determination in

Defender Ltd. v. HSBC Institutional Trust Services [2019] IESCDET 125, the Court drew attention to the fact that, if such a situation

presented itself, the Court would have to take into account as an important factor the potential undesirability of two separate

appeals proceedings in different courts arising out of the same decision of the High Court. That is not to say that such a situation

might not properly arise in some circumstances, but it clearly is a factor to be taken into account.

4.6 It follows that there are only two possibilities. First, this Court might grant leave on the standard of care grounds alone and leave

it to the various appellants/defendants to pursue any other grounds that they might wish before the Court of Appeal. Alternatively,

this Court might indicate that it was only prepared to grant leave to appeal directly to this Court on the standard of care grounds if it

was clear that all other issues would be abandoned before the Court of Appeal.

4.7 It seems to me that neither of those courses of action would be appropriate. Considering the standard of care grounds in the

abstract, while issues concerning some of the findings of the High Court remained alive before the Court of Appeal, would be highly

unsatisfactory. I am also satisfied that it would be unfair to the defendants/appellants to require them to abandon all of the other

grounds as the price for obtaining leapfrog leave. Most of those grounds are sufficiently closely connected with the standard of care

grounds in any event such that this Court is likely to need to at least get into the facts relevant to those grounds to some extent.

Insofar as the causation and, in the case of Medlab, quantum grounds are raised, it seems to me that these issues can most

conveniently be dealt with in the same appeal. A different situation might well have arisen had both Quest and Medlab not effectively

abandoned some of the grounds referred to in their respective applications for leave.

4.8 In those circumstances, I would grant leave to appeal directly to this Court to each of the three defendants/appellants but would

exclude those grounds which were, effectively, either formally abandoned or not actively pursued at the oral hearing. However, before

concluding this judgment, I would make a number of observations both as to the scope of this appeal and as to the process which I

would propose should follow from this grant of leave.

5. Some Observations and Proposed Directions

5.1 First, I would reiterate the point made in the course of the oral hearing to the effect that the appeal will be confined to the issues

in respect of which leave to appeal has been granted. Thus, the parties will be required to accept those findings of fact (and

inferences from findings of fact) as appear in the judgment of the High Court, save to the extent that there is a specific ground of

appeal in respect of which leave to appeal has been granted which challenges the finding concerned. In that context, I would propose

that the Court direct that all relevant parties amend their notices of appeal to reflect the concessions made at the oral hearing and

the content of this judgment. I would also propose that the Court require that such grounds of appeal as involve matters of fact are

reformulated so as to ensure that the grounds do not infringe the jurisprudence of this Court concerning the extent to which

questions of fact can be reopened on appeal. I will shortly turn to the directions which will be required to ensure that this appeal is

given a timely hearing. However, one of the first matters which will need to be attended to during case management is to ensure that

there are notices of appeal which comply fully with the content of this judgment.

5.2 Next, as indicated at the oral hearing, the Court would wish to work towards these appeals being capable of being heard over a

period of not more than three days between Monday, 4 November and Wednesday, 6 November 2019. The case management hearing

will require to be directed towards ensuring that the appeals can be heard within that timeframe. With that in mind, I would propose

that the statutory practice direction be varied by fixing a first case management hearing in advance of the filing by the parties of

their written submissions. I would propose that that first case management hearing take place on Tuesday next, 30 July 2019. In the

context of the comments made earlier, I would propose that the defendants/appellants be required to file amended notices of appeal

in accordance with the terms of this judgment before close of business on Monday next, 29 July 2019, so that the question of the

parameters of the appeal will either be clear by that time or can be clarified at that case management hearing.

5.3 I had indicated earlier that I would return to the question of the position of the HSE in relation to arguing grounds relating to the

standard of care. I did not understand the concession of counsel for the Morrisseys to extend to a situation where the grounds of

appeal in respect of which this Court granted leave went beyond the standard of care grounds. It does not seem to me, therefore,

that the Morrisseys are precluded from seeking to argue on this appeal that the HSE is not entitled to rely on the standard of care

grounds on the basis that such grounds were not advanced by the HSE before the High Court. I would propose, therefore, that it be

left to the Morrisseys and their legal advisors to decide, when putting in their replying submissions, whether they wish to include

argument to the effect that the HSE is constrained in that way in relation to the grounds which it can pursue.

5.4 With a view to bringing greater focus to the first case management hearing, I would also propose that the parties should be in a

position to address the following matters. First, a time scale within which written submissions should be filed by all parties. Second, a

proposed date in September at which a second case management hearing will take place. The issues for that second case

management hearing would include ensuring that the submissions filed on all sides operate within the boundaries of the appeal which

has been permitted. It would be highly undesirable if issues were to arise at the hearing of the appeal concerning the proper scope of

the grounds permitted to be pursued, such that any issues concerning scope of appeal should be determined in advance.

5.5 Finally, I would propose that the first case management hearing give at least some initial consideration to the preparation of the

papers which it will be necessary to file for the appeal itself. It is accepted that it may not be possible to finalise the necessary books

until written submissions have been filed on all sides and the precise basis of the appeals and the response have been identified in

detail. However, if the relatively challenging timeline which must be met in order that the appeals are made ready for hearing in early

November is to be achieved, it seems to me that it will be necessary to at least give some preliminary consideration to the scope of

the books required for the appeal in advance of the proposed September case management hearing.

5.6 I would suggest that any other case management issues can be left over to the first case management hearing, which it is

suggested will take place on Tuesday of next week.

Morrissey & anor v HSE & ors AFL medlab 122.19.pdfMorrissey & anor v HSE & ors AFL Quest Diagnostics 121.19.pdf

Morrissey & anor v HSE & ors AFL HSE 120.19.pdfMorrissey & anor v HSE & ors Resp Notice Quest Diagnostics 121.19.pdf

Morrissey & anor v HSE & ors Resp Notice HSE 120.19.pdfMorrissey & anor v HSE & ors Resp Notice Medlab 122.19.pdf