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GAZETTE
DECEMBER 1980
Nominal Plaintiffs and the Irish Constitution
A consideration of the decision in
Cahill v. Sutton
by Gerry Whyte, B.C.L., Lecturer in Law, Trinity College, Dublin.
Until quite recently the issue of the 'locus standi' of Irish
citizens in constitutional actions had been considered on
only one occasion by any Irish court. In
East Donegal
Co-Operative Livestock Mart and others v A.G.
1
Walsh
J., delivering the judgement of the Supreme Court, said,
'obiter',".. . at one end of the spectrum of opinions on this
topic one finds the contention that there exists a right ot
action akin to an 'actio popularis' which will entitle any
person, whether he is directly affected by the Act or not,
to maintain proceedings and challenge the validity of any
Act passed by the Parliament of the country of which he
is a citizen or to whose laws he is subject by residing in
that country. At the other end of the spectrum is the
contention that no one can maintain such an action unless
he can show that not merely do the provisions of the Act
in question apply to activities in which he is currently
engaged but that their application has actually affected
his activities adversely. The Court rejects the latter
contention and does not find it necessary in the
circumstances of this case to express any view upon the
former".
2
He went on to point out that, "the provisions of
Art. 34 expressly confer upon this [Supreme] Court and
the High Court power to determine the question of the
validity of any Act of the Oireachtas without any
qualification or condition requiring that there must be in
existence a dispute or conflict as to legal rights between
the parties and peculiar to the parties".
3
These statements however must now be considered in
the light of the recent Supreme Court decision in
Cahill v.
Sutton.
4
The facts of that case were as follows — in 1968, the
Plaintiffattended the Defendant, aconsultantgynaecologist,
for treatment of a gynaecological complaint. He prescribed
certain tablets for her but after commencing the course of
tablets she began to suffer illness and disability.
In 1972, four years after she first began to suffer from
this illness and disability, she instituted proceedings in the
High Court against the Defendant for damages for
negligence and breach of contract, on the grounds that he
had negligently prescribed incorrect and harmful
medication.
The defence, in addition to denying the substantive
points of the Plaintiffs claim, also pleaded that the
Plaintiffs claim was barred by Section Il(2Xb) of the
Statue of Limitations Act, 1957, which provides that:
"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 statue or independently of any contract or
any such provision), where the damages claimed by
the plaintiff for the negligence, nuisance or breach od
futy consist of or include damages in respect of
personal injuries to any person, shall not be brought
after the expiration of three years from the date on
which the cause of action accrued".
This contention was one of a number of preliminary issues
which came before Hamilton J. in the High Court in 1975
and he held, on this point, that the plaintiffs claim in
contract
5
was barred by Section 11(2) (b). On appeal to the
Supreme Court, counsel for the plaintiff applied for liberty to
riase the question of the constitutionality of the Section.
Permission was granted and this issue was remitted to the
High Court for decision.
In the High Court, Finlay P. had held that Section
11(2) (b) did not infringe the plaintiffs constitutional
rights under either Art 40(1) or Art 40(3). The plaintiff
appealed this decision to the Supreme Court and it was in
the course of the hearing of this appeal that the question
of the plaintiffs 'locus standi' arose for the first time. It
arose in the following way: the plaintiff contended that
Section 11(2) (b) violated Art 40(1) and Art 40(3) of the
Constitution because its absolute and unqualified terms
did not permit any extension of the three year period of
limitation in a case where the prospective litigant did not
know, and could not have learned within that period, of
the accrual of the cause of action. If the plaintiff
succeeded on this point, then Section 11(2) (b) would be
declared invalid and the plaintiffs action could proceed
through the ensuing lacuna in the law.
The question of the plaintiffs 'locus standi' arose,
however, because on the facts of the case, a qualification
to Section 11(2) (b) along the lines contended for by her
would not protect her in the instant case as at all material
times she was aware of the facts necessary to constitute a
claim against the defendant. The plaintiff was obliged
therefore to rely on the putative constitutional rights of a
hypothetical third party who would be protected by such
a qualification, in order to attack the constitutionality of
Section 11(2) (b). The issue for the Supreme Court then,
was whether "such an indirect and hypothetical assertion
of constitutional rights gives the plaintiff the standing
necessary for the successful invocation of the judicial
power to strike down a statutory provision on the ground
of unconstitutionality".
6
The decision in the East Donegal Case
The leading judgment was delivered by Henchy J. He
began by quoting from the decision of the Supreme Court
in the
East Donegal
case
7
but pointed out that Walsh J's
remarks in that case were necessarily obiter as it had been
held in that case that the plaintiffs would be directly
affected by the provisions which they sought to impugn.
He continued by observing that Walsh J. had referred to
"opinions or contentions" and not to judicial practice,
and that neither of the two opinions mentioned appeared
to have received authoritative judicial acceptance in any
other comparable jurisdiction. In actual fact, judicial
practice in such jurisdictions usually required that the
person challenging a particular legislative provision must
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