The Gazette 1981

GAZETTE

CEMBER

Recent

Irish

Cases

CONSTITUTIONAL LAW

Constitution

-Locus

Standi

of Plaintiff

and whether a Plaintiff had to have a

personal or direct interest In the con-

stitutional Issue being raised —

Statute of Limitations 1957, Section

11 (2) (b). Interest necessary for

Plaintiff.

The Plaintiff sued the Defendant

doctor for negligence and breach of

contract. She alleged that in 1968 she

was negligently supplied with wrong

pills which caused her injury and

disability. Her action for personal in-

juries was commenced four years later

in 1972, and was based on breach of

contract as well as tort. In a

preliminary case tried in the High

Court it was held that the action was

barred by Section 11 (2) (b) of the

Statute of Limitations 1957, which

provided as follows:—

"An action claiming damages for

negligence, nuisance or breach of

duty (whether the duty exists by

virtue of a contract or of a

provision made by or under a

statute or independently of any

contract or any such provision),

where the damages claimed by the

Plaintiff for the negligence,

nuisance or breach of duty consist

of or include damages in respect of

personal injuries to any person,

shall not be brought after the ex-

piration of three years from the

date on which the cause of action

accrued."

The High Court decision was

appealed to the Supreme Court, where

the issue of the constitutionality of the

Section was raised and after leave to

amend was allowed, the case was

remitted to the High Court. The High

Court (per Finlay P.) held that Sec-

tion 11 (2) (b) of the Act of 1957 did

not contravene the Constitution and

specifically Article 40.3.1 and 3.2.

The Plaintiff appealed this con-

stitutional issue to the Supreme Court.

During the appeal the question of the

locus standi

of the Plaintiff was

raised by the Defendant. The main ar-

gument of the Plaintiff was that there

was no protection in Section 11 (2) (b)

for the person who was during the

three year period ignorant of his claim

(similar to the protection introduced

by Section 1 (1) of the U.K.

Limitation Act 1963).

Held(

per Henchy J. with concurring

judgment of O'Higgins C J.):

That as in fact the Plaintiff knew of

her claim that she had no legal

standing to put forward that

argument: and that the Plaintiff could

not act as the champion for the

putative constitutional right of a hypo-

thetical third party; and that such an

indirect or hypothetical assertion of

constitutional rights could not give a

Plaintiff the standing necessary.

Per

Henchy J.:

"If a citizen comes forward in

court with a claim that a particular

law has been enacted in disregard

of a constitutional requirement, he

has little reason to complain if in

the normal course of things he is re-

quired, as a condition of invoking

the court's jurisdiction to strike

down the law for having been un-

constitutionally made, with all the

dire consequences that may on

occasion result from the vacuum

created by such a decision, to show

that the impact of the impugned

law on his personal situation dis-

closes an injury or prejudice which

he has either actually suffered or is

in imminent danger of suffering.

This rule, however, being but a

rule of practice must, like all such

rules, be subject to expansion,

exception, or qualification, when

the justice of the case so requires.

Since the paramount consider-

ation in the exercise of the juris-

diction of the courts to review

legislation in the light of the Con-

stitution is to ensure that persons

entitled to the benefit of a con-

stitutional right will not be pre-

judiced through being wrongfully

deprived of it, there will be cases

where the want of the normal

locus

standi

on the part of the person

questioning the constitutionality of

the statute may be overlooked if in

the circumstances of the case there

is a transcendant need to assert

against the statute the con-

stitutional provision that has been

invoked."

Per

O'Higgins C J.:

"Where the person who questions

the validity of a law can point to no

right of his which has, by reason of

the alleged invalidity, been broken,

endangered or threatened, then, if

nothing more can be advanced, the

Courts should not entertain a

question so raised. To do sowouldbe

to make of the Courts the happy

hunting grounds of the busy-body

and the crank. Worse still, it would

result in a jurisdiction, which ought

to be prized as the citizen's shield

and protection, becoming debased

and devalued. This is not to say,

however, that if those whose rights

are affected cannot act or speak for

themselves the Courts should re-

fuse to hear one who seeks to speak

or act for them, even if his own

rights are not affected. Such

exceptional cases, hopefully rare,

must, of course, be entertained."

Cahill v. Sutton — Supreme Court

(per Henchy J. with concurring

judgment of O'Higgins C.J. and with

Griffin, Kenny, Parke JJ.) - 9 July

1980 - unreported.

GAMING

Gaming on Licensed Premises is

unlawful, unless exempted by Section

9 (2) or Section 9 (3) of the Gaming

and Lotteries Act, 1956.

The Defendant had been convicted in

the District Court for having permit-

ted gaming on his premises on 10

March, 1979, contrary to Section 9

(1) of the Gaming and Lotteries Act

1956 ("the Act"). An appeal to the

High Court by the Defendant by way

of case stated was decided before

D'Arcy J. who dismissed the Defen-

dant's appeal. The Defendant further

appealed to the Supreme Court.

The facts were that the Defendant

permitted to be operated in his bar, a

fruit machine slot machine. The

playing of that machine was clearly

"gaming" as defined by Section 2 of the

Act i.e. "playing a game (whether of

skill or chance or partly of skill and

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