Supreme Court allows appeal, confirming High Court has jurisdiction to award costs under s. 51 of the Medical Practitioners Act 1978.

THE SUPREME COURT

NO. 173/03

Denham J.

Murray J.

McGuinness J.

IN THE MATTER OF S. 51 OF THE MEDICAL PRACTITIONERS ACT, 1978 AND

IN THE MATTER OF A REGISTERED MEDICAL PRACTITIONER, AND

ON THE APPLICATION OF THE MEDICAL COUNCIL

BETWEEN/

THE MEDICAL COUNCIL

APPLICANT/APPELLANT

AND

P.A.O.

RESPONDENT

Judgment delivered on the 1st day of April, 2004 by Denham J.

1. This is an appeal by the Medical Council from the determination of Finnegan P. on 10th March, 2003, that the court had no

jurisdiction to make an order for costs in respect of the application of the Medical Council under s. 51 of the Medical Practitioners Act,

1978.

2. The background to the case is that on 25th June, 2002, a special summons was issued by the Medical Council seeking a s. 51 order

against the respondent doctor, a complaint having been received from the Garda Síochána relating to the method in which the

respondent was prescribing benzodiazepines to drug addicts. On 28th June, 2002 the President of the High Court granted a s. 51

order on an ex parte basis. The costs of the application were reserved. There were further affidavits filed and on 15th July, 2002,

after submissions, the President of the High Court granted a s. 51 order on an interlocutory basis. The question of costs was reserved

once again. Subsequently, there was a hearing by the Fitness to Practise Committee which found the respondent doctor guilty of

misconduct on eighteen out of twenty nine allegations. In respect of the remaining eleven charges the Committee found that the

facts were proven in some of them but those facts did not amount to misconduct. On 16th December, 2000 the Medical Council

decided to erase the respondent’s name from the register. On 24th February, 2003, on the application of the Medical Council, the

learned President of the High Court directed the Council to erase the name of the respondent from the register. The Medical Council

was awarded costs in relation to that application. On 10th March, 2003 the special summons was listed before Finnegan P. so that

the reserved costs on the s. 51 applications could be dealt with. The President held that he did not have jurisdiction to make such an

order.

3. Section 51 of the Medical Practitioners Act, 1978 states:

“(1) Whenever the Council is satisfied that it is in the public interest to do so, the Council may apply to the High Court for an

order in relation to any person registered in any register maintained under this Act that, during the period specified in the order,

registration of that person’s name in that register shall not have effect.

(2) An application under this section may be made in a summary manner and shall be heard otherwise than in public.

(3) The High Court may make, in any application under this section, such interim or interlocutory order (if any) as it considers

appropriate.”

Section 51 is in Part V of the Medical Practitioners Act, 1978 which is entitled “Fitness to Practise.” Part V establishes a disciplinary

system for registered medical practitioners.

4. The President of the High Court refused the order for costs on a literal construction of s. 51 of the Medical Practitioners Act, 1978.

He stated that s. 46, 47 and 49 of the Act provide expressly for orders for costs while s. 51 does not. Further, he held that if a power

to award costs arose it did so under s. 51 (3) which does not relate to final orders and as costs are final orders it could not provide

for orders for costs.

5. Section 51 is part of a statutory scheme in Part V of the Medical Practitioners Act, 1978, hereinafter referred to as the Act of

1978. It is part of a code relating to medical practitioners and their fitness to practise. It envisages certain procedures. Thus s. 45

provides for an inquiry by the Fitness to Practise Committee into the conduct of a registered medical practitioner. Section 46 provides

for erasure or suspension from the register for professional misconduct, unfitness to practise or failure to pay a retention fee. Section

47 provides for the attaching of conditions for retention on the register. Section 48 gives powers to the Medical Council to advise,

admonish or censure a person whose name is entered on the register. Section 49 enables the erasure from the register of a person

convicted of an indictable crime. Section 51 provides for a “holding situation”, where if the Medical Council is satisfied that it is in the

public interest to do so the Council may apply to the High Curt for an order in relation to any person registered in any register

maintained under the Act that during the period specified in the order registration of that person’s name in the order in that register

shall not have effect. It is an order usually sought pending an inquiry where it is in “the public interest so to do.”

6. Section 46 (3) (c), s. 47 (3) (c) and s. 49 (3) (c) each provide:

“The High Court may direct how the costs of the application are to be borne.”

There is no such provision in s. 51.

7. The Medical Council submitted that the High Court erred in holding that power to award costs had to be found in s. 51 (3). The

Council submitted that a court has power to award costs unless it is expressly excluded by statute.

The court was referred to the history of the law on costs and to the current law. Counsel for the Medical Council submitted that the

court has power to make an order for costs unless expressly excluded, that there is nothing in the Act of 1978 which displaced the

general rule and O. 99 of the Rules of the Superior Courts, 1986. Also, he submitted that the inclusion of costs issues in some

sections in the Act of 1978 did not deprive the court of its general power in others.

8. Decision

Section 51 of the Act of 1978 falls to be considered. Section 51 is in Part V of the Act which established a disciplinary code relating

to registered medical practitioners. A scheme is set out in the legislation. Included in the scheme is the matter of costs in ss. 46, 47

and 49. Section 51 makes no express provision for costs.

An application for an order under s. 51, either ex parte for an interim order or, on notice, for an interlocutory order, is for a court

order to create a “holding position” pending a final decision on the fitness to practise of the medical practitioner. It is part of the

scheme as a whole to provide procedures to inquire into situations as to the fitness of a medical practitioner to practise. Such

applications may arise, for example, where it is alleged a medical practitioner is abusing alcohol or drugs and is consequently unfit to

practise. Clearly an order sought in the circumstances of such allegations is an order in the public interest to protect the public.

However, if is transpires at the subsequent inquiry that the allegations are not substantiated then there will be no order against the

medical practitioner. In such circumstances the medical practitioner would be seeking an order for costs of the application pursuant to

s. 51. If the interpretation of the learned President is correct the respondent medical practitioner would not be entitled to his costs.

Is this the intent of the legislature? The intent of the legislature is to be found primarily in the words of the legislation.

While some sections of the Act of 1978 refer expressly to the issue of costs, s. 51 is silent on the matter. I would respectfully

disagree with the High Court that if a power to make an order for costs arises then it must arise under s. 51 (3). I am satisfied that

while s. 51 (3) is an enabling section for the court in the making of appropriate interim and interlocutory orders, it does not relate to

the issue of costs. Section 51 is silent on the issue of costs. However, the absence of a reference to the issue of costs in s. 51 does

not exclude the general law and rules as to costs. If the legislature intended that no costs orders were to be made in a s. 51

application it would have said so expressly. In the absence of such an express statement the general law stands.

Section 53 of the Judicature Act (Ireland) 1877 provided for orders for costs. It stated:

“Subject to the provisions of this Act and of Rules of Court, the costs of and incident to every proceeding in the High Court of

Justice and Court of Appeal respectively shall be in the discretion of the Court …”

J.R. Wylie gives the background in Judicature Acts and the Rule of Superior Courts (Ireland) 1905 (Dublin, Sealy Bryers & Walker,

1906) (at p. 120) noting that costs were always in the discretion of the Court of Chancery but that costs in Courts of Common Law

were not by Common Law at all, they were entirely creatures of statute. However, the effect of the Judicature Act (Ireland) 1877

was to confer on all courts a discretion as to costs, as had existed previously in the Chancery Courts. By the Courts of Justice Act,

1924 s. 22 the matter of costs was transferred to the Rules of Court. Section 22 of the Courts of Justice Act, 1924 provided:

“The jurisdiction vested in and transferred to the High Court and the Supreme Court and the Chief Justice respectively shall be

exercised so far as regards pleading, practise and procedure generally, including liability as to costs, in the manner provided by such

rules of court as may be made pursuant to this Part of this Act, and where no provision is contained in any such rules of court and as

long as there shall be no rule with reference thereto, it shall be exercised as nearly as possible in the same manner in which it might

have been exercised by the respective courts from which such jurisdiction shall have been transferred, by this Act.”

Subsequently, s. 14 of the Courts (Supplemental Provisions) Act, 1961 provided:

“(1) In this section ‘rules of court’ means rules made under section 36 of the Act of 1924, as applied by section 48 of this Act.

(2) The jurisdiction which is by virtue of this Act vested in or exercisable by the Supreme Court, the High Court, the Chief

Justice, the President of the High Court, the Central Criminal Court and Court of Criminal Appeal respectively shall be exercised

so far as regards pleading, practice and procedure generally, including liability to costs, in the manner provided by rules of

court, and, where no provision is contained in such rules and so long as there is no rule with reference thereto, it shall be

exercised as nearly as possible in the same manner as it might have been exercised by the respective existing courts or judges

by which or by whom such jurisdiction was, immediately before the operative date, respectively exercisable.

(3) Rules of court may, in relation to proceedings and matters (not being criminal proceedings or matters or matters (sic)

relating to the liberty of the person) in the High Court and Supreme Court, authorise the Master of the High Court and other

principal officers, within the meaning of the Court Officers Acts 1926 to 1951, to exercise functions, powers and jurisdiction in

uncontested cases and to take accounts, conduct inquiries and make orders ofan interlocutory nature.”

Consequently, the position is that the jurisdiction as to costs is to be found in the Rules, and if it is not in the Rules then the prior

position applies. The prior position was that the courts had a discretion on the issue of costs.

The Rules of the Superior Courts, 1986 provide for costs in O. 99 r. 1, which states:

“Subject to the provisions of the Acts and any other statutes relating to costs and except as otherwise provided by these

Rules:

(1) The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts

respectively.”

The words “the Acts” refer to the Courts (Establishment and Constitution) Act, 1961 and the Courts (Supplemental Provisions) Acts,

1961 to 1981 (O. 125 r. 1). The general position is stated in O. 99 r. 1 (4):

“The costs of every issue of fact or law raised upon a claim or counterclaim shall, unless otherwise ordered, follow the event.”

And O. 99 r. 5 (1) provides:

“Costs may be dealt with by the Court at any stage of the proceedings or after the conclusion of the proceedings; and an order

for the payment of costs may require the costs to be paid forthwith, notwithstanding that the proceedings have not been

concluded.”

In The People (Attorney General) v. Bell [1969] I.R. 24 the issue of the jurisdiction of the courts and costs was considered. Walsh J.

analysed the historical roots of the law. That case raised for decision the question whether the High Court, in the exercise of its

criminal jurisdiction in a trial on indictment may order the Attorney General to pay costs to an accused person who has been

acquitted by the jury at the trial. The Court answered in the affirmative. In analysing the issue of costs and the jurisdiction of the

courts Walsh J. referred to the historical roots at p. 45:

“As I have mentioned, s. 22 of the Act of 1924 provided that the jurisdiction of the High Court set up under the Constitution of

Saorstát Éireann should be exercised so far as practise and procedure generally, including the liability as to costs, in the manner

provided by rules of court to be made pursuant to the Act of 1924. However, that section provided also that, where no

provision was contained in any such rule of court made under the Act of 1924, then for so long as there should be no such rule

the jurisdiction should be exercised ‘as nearly as possible in the same manner in which it might have been exercised by the

respective courts from which such jurisdiction shall have been transferred, by this Act.’ The effect of this provision was that so

far as transferred jurisdiction was concerned it was ‘frozen’ in the condition in which it was found when the new High Court of

Justice was set up in 1924 and, therefore, to the extent to which that jurisdiction owed its existence to rules made under the

Act of 1877 as well as to the provisions of the statute itself (and any other statute), it was transferred to that extent but no

more; and there was thereafter no power residing in any authority to make rules under the rule-making power granted by the

Act of 1877.”

He continued at p. 47:

“The establishment of the present High Court in 1961 was followed by the provisions of s. 14, sub-s. 2, of the Courts

(Supplemental Provisions) Act, 1961, and by the coming into force of the Rules of the Superior Courts, 1962, on the 1st

January, 1963. The Constitution conferred upon the High Court established in 1961 a universal original jurisdiction in all matters

and questions whether the law or fact, civil or criminal. In addition other jurisdictions were vested in it by virtue of the

provisions of ss. 8 and 9 of the Act of 1961: see the decision of this Court in The State (Browne) v. Feran [[1967] I.R. 147]

dealing with the construction of s. 8 of that Act.

Section 14 of the Act of 1961 speaks of the jurisdiction of the High Court being exercised pursuant to rules of court. …”

I follow and apply the analysis of Walsh J.

Conclusion

Section 51 does not expressly deal with the issue of costs. I am satisfied that s. 51 (3) does not by inference relate to the issue of

costs. Thus the question of its interpretation, literal or otherwise, does not arise.

Nothing in the Act of 1978 expressly or impliedly excludes the jurisdiction of the court to determine the issue of costs. Nothing in the

Act of 1978 excludes the Rules of the Superior Courts. Consequently, I am satisfied that the High Court has jurisdiction under the law

as set out in the Rules of the Superior Courts to determine the issue of costs in an application under s. 51 of the Act of 1978. On this

issue I would uphold the appeal.

In this case there has been a history of litigation and the High Court has not exercised its discretion on the issue of costs.

Consequently, I would remit the matter to the learned President to exercise his discretion as to costs.