High Court strikes out s.73 Mental Health Act 2001 application due to re-litigation of prior detention issues.

Neutral Citation Number: [2010] IEHC 473

THE HIGH COURT

[2010 No. 84 I.A.]

IN THE MATTER OF SECTION 73 OF THE MENTAL HEALTH ACT 2001

AND IN THE MATTER OF INTENDED PROCEEDINGS

BETWEEN

M.P.

PLAINTIFF/APPLICANT

AND

THE ATTORNEY GENERAL, THE HEALTH SERVICE EXECUTIVE AND SHEILA CASEY

DEFENDANTS

JUDGMENT of Mr. Justice John MacMenamin delivered on 21st of December, 2010

1. This judgment should be read in conjunction with one concerning the same applicant delivered on 27th April, 2010, (the “April

judgment”). There, I considered an earlier application brought by the plaintiff/applicant seeking leave to institute proceedings

regarding her involuntary detention in the year 2009, pursuant to s. 73 of the Mental Health Act 2001 (the “Act of 2001”). The

section provides:-

“73(1) 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 refused unless the High Court is satisfied:

(a) that the proceedings are frivolous or vexatious, or

(b) that there are reasonable grounds for contending that the person against whom the proceedings are brought

acted in bad faith or without reasonable care.

(2) Notice of an application for leave of the High Court under subsection (1) shall be given to the person against whom it

is proposed to institute the proceedings and such person shall be entitled to be heard against the application.

(3) Where proceedings are, by leave granted in pursuance of subsection (1) of this section, instituted in respect of an

act purporting to have been done in pursuance of this Act, the Court shall not determine the proceedings in favour of the

plaintiff unless it is satisfied that the defendant acted in bad faith and without reasonable care.”

In this judgment I now consider a further application seeking leave to issue proceedings brought by the plaintiff/applicant, and also an

application by the intended defendants for various prohibitory reliefs, including ‘Isaac Wunder’ orders.

2. The April judgment concerned intended proceedings against three defendants arising from the applicant’s detention in Cavan

General Hospital Psychiatric In-Patients Unit between 3rd February and 13th March, 2009. Those defendants were the Health Service

Executive (“HSE”), the Minister for Justice, Equality and Law Reform (“the Minister”) and Dr. Sheila Casey.

3. Two sets of proceedings had by then been brought by the plaintiff/applicant. The first, bearing record number [2009 No. 3538P],

had been issued against the same defendants and was struck out by order dated 9th November, 2009, by reason of the

plaintiff/applicant’s failure to seek leave under s. 73 of the Act of 2001. The plaintiff/applicant then sought to issue a second set of

proceedings, bearing record number [2009 No. 69 I.A.], against the same defendants. The defendants issued cross motions seeking

that the plaintiff/applicant’s proceedings be struck out as frivolous and vexatious. The leave application was refused and the cases

were dismissed in the April judgment. The proceedings were held to be frivolous, vexatious and an abuse of process. The judgment

also established that there was no evidence that any of the defendants had acted in bad faith or without reasonable care in their

treatment of the plaintiff/applicant. (See s. 73(1)(b) of the Act of 2001).

4. Here, in the instant proceedings [2010 No. 84 I.A.], the plaintiff/applicant seeks leave to sue in respect of her detention on

unspecified dates in the year 2010. She seeks further orders compelling the defendants to produce medical records so far withheld

from her, and also for telephone service providers to produce records of phone communications and tapping allegedly carried out upon

her. As will be seen, there is much overlap between the prior cases and the present application.

5. In her grounding affidavit herein, the plaintiff/applicant states that she came to Ireland in 2000 to investigate her deceased sister’s

alleged activities with the IRA in the United Kingdom. She alleges:-

(a) that MI5 provided the Irish Government with incorrect information about herself and her family;

(b) that various persons and agencies have been carrying out surveillance upon her, using listening devices and

hidden cameras;

(c) that she has resorted to various devices to throw these agencies off her trail; and

(d) that British intelligence agencies profiled her as being “bipolar” and that the Irish Government and the HSE (the

second named defendant) accepted this without medical investigation.

These are matters the plaintiff/applicant raised earlier at the hearing of her recent application and in correspondence at that time.

6. The plaintiff/applicant then goes on to depose:-

“I was sectioned twice by the HSE and they attempted to section me on two other occasions whenever I stand up to

them in my homes, neighbourhoods, workplaces or social life. HSE psychiatrists refuse to listen to me that I am mentally

well, acting on behalf of MI5 instead as well as Fianna Fáil. I gave these psychiatrists names and details of my

investigations, but they dismissed these, stating I am psychotic and unwell.” (Emphasis added)

The plaintiff/applicant here made it clear in her submission that her focus now is on her involuntary detention in 2010. But in her

grounding affidavit the applicant refers to earlier matters such as threatening text messages allegedly sent to her by members of An

Garda Síochána and neighbours. She claims these have not been examined by HSE psychiatrists. The plaintiff/applicant suggests

these texts are also of a threatening nature to her child (who was placed in foster care). She says the third named defendant and

also Dr. Vincent Russell of Cavan General Hospital Psychiatric Unit, dismissed these texts as being “imaginary”.

7. The plaintiff/applicant makes complaint concerning alleged intensive surveillance carried out upon her in her private life. She

repeats a complaint about broadcasts which were carried out on RTÉ in December, 2009 “specifically” for her benefit; and an

“intellectual lecture” allegedly aired to guide her out of the country. She repeats complaints about the British Intelligence Services

and an alleged campaign by those services against her. All these issues were raised in the earlier unsuccessful leave application.

There was, and is, no corroborative evidence as to any of these allegations.

8. The contents of this later affidavit, therefore, very closely reflect her earlier testimony and the correspondence which formed the

basis of the April judgment.

9. I should emphasize that in oral submissions in the present application, the plaintiff/applicant clarified that she did not wish to

reopen any earlier issues (where the judgment was not appealed); but rather wished to challenge a second involuntary detention

which she said occurred after April, 2010 and which may have occurred on unspecified dates between July and September of that

year. The plaintiff/applicant has not set out any details of who was involved in that detention, where she was detained or the

reasons therefor. Thus a person unfamiliar with the background might be readily forgiven for concluding that the affidavit sworn in

these intended proceedings deals with precisely the same matters as dealt with in the earlier judgment. I have been assured,

however, that this is not so. But the evidential difference lies only in a couple of sentences.

10. The proceedings are complex. They have been made so by the plaintiff/applicant. It will convenient now to deal with the

defendants in reverse order. I refer to a brief chronology of events thus far. The primary focus here is on the third named defendant

but it will serve as a general outline of what has occurred in regard to each defendant.

Chronology of proceedings against the third defendant

22nd April, 2009: The first plenary summons [2009/3538P] was served on the third named defendant.

1st May, 2009: An appearance was entered on behalf of the third named defendant.

11th May, 2009: A statement of claim was delivered.

24th July, 2009: A motion was issued by the third named defendant to strike out proceedings for failure to seek and obtain leave

pursuant to s. 73 of the Act of 2001, grounded on the affidavit of her solicitor, Ms. Kate McMahon.

5th August, 2009: A statement of claim was delivered claiming damages of €2 million.

23rd September, 2009: The plaintiff/applicant issued a motion [2009/69 I.A.] seeking leave, grounded on an affidavit of the same

date - neither was served on the third named defendant.

5th October, 2009: A statement of claim was delivered claiming damages of €10 million.

12th October, 2009: This was the first return date of third named defendant’s motion to strike out the proceedings. The

plaintiff/applicant did not appear, but telephoned the third named defendant’s solicitor to say she had been in court but had left. The

court directed an adjournment of three weeks and that a replying affidavit be filed within ten days.

2nd November, 2009: This was the adjourned date for the third named defendant’s motion to strike out the plaintiff/applicant’s

proceedings. There was no appearance by the plaintiff/applicant and no replying affidavit had been filed. The court adjourned the

matter for one further week and directed the defendant’s motion be heard with the plaintiff/applicant’s motion for leave in proceedings

numbered 2009/69 I.A.

9th November, 2009: This was the first return date for plaintiff/applicant’s motion to seek leave. No papers were served on the third

named defendant by the applicant. The court struck out proceedings [2009/3538 P] and [2009/69 I.A.] with no order as to costs.

The provisions of s. 73 of the Act of 2001 were explained to the plaintiff/applicant who was present. In particular, she was informed

she must seek leave of the court to bring such proceedings.

23rd November, 2009: No leave application was brought. Instead, a document entitled ‘Statement of Claim (Continuation)’

[2009/3538P] seeking damages of €20 million was received by the third named defendant’s solicitor. A letter of response was

furnished, stating that these proceedings had already been struck out.

3rd December, 2009: A further letter was sent by the third named defendant’s solicitor to the plaintiff/applicant, pointing out that

the proceedings had been struck out.

6th January, 2010: The plaintiff/applicant issued a motion seeking leave, pursuant to s. 73 of the Mental Health Act 2001, grounded

on an affidavit sworn on 23rd September, 2009.

18th January, 2010: The third named defendant’s solicitors received the plaintiff/applicant’s motion.

19th January, 2010: The first return date for the plaintiff/applicant’s motion. No appearance by the plaintiff/applicant.

25th January, 2010: An affidavit was filed by Ms. Kate McMahon, solicitor for the third named defendant, in the Central Office.

29th January, 2010: The matter came before the court for directions. The plaintiff/applicant had still failed to serve a grounding

affidavit on the defendants and was directed to do so. This was done.

11th February, 2010: The affidavit of third named defendant was filed in the Central Office.

17th February, 2010: The application came before the court for mention.

22nd February, 2010: The applications were heard and judgment was reserved. By then all the intended defendants had all brought

motions seeking that the plaintiff/applicant’s proceedings be struck out as being frivolous and vexatious. These were considered

together.

27th April, 2010: Judgment was delivered. There was no appearance by the plaintiff/applicant. The court ordered that the

application for leave be dismissed and found that the plaintiff/applicant’s intended proceedings against each defendant were frivolous

and vexatious. There was no order as to costs.

30th September, 2010: A motion was filed by the plaintiff/applicant seeking leave to issue yet further proceedings [2010/84 I.A.].

These are the proceedings in suit here.

1st November, 2010: This was the first return date for the plaintiff/applicant’s motion which was listed first for mention before the

President of the High Court. The plaintiff/applicant apparently again left the courtroom before her case was called. It is said she

returned to court at the request of the solicitor for the third named defendant. The President of the High Court transferred the matter

back to this Court.

30th November, 2010: The application herein was heard. The plaintiff/applicant sought to leave court. It was again necessary to

persuade her to return as she wished to go back before the President of the High Court, expressing the view that the defendants had

misconstrued the nature of her application.

I have outlined briefly the history as to the third defendant; the pattern of non appearances and non-observance of court procedure

can be found equally in the case of the other two defendants. I turn now to the other defendants.

The second named defendant – the HSE

12. The only employee of the second named defendant identified in the current application is Dr. Vincent Russell, consultant

psychiatrist. As outlined, the plaintiff/applicant’s previous application for leave [2009/69 I.A.] concerned her involuntary admission to

Cavan General Hospital and Psychiatric Department under Dr. Russell’s care between 3rd February, 2009, and 13th March, 2009.

13. Even in the previous proceedings, Dr. Russell swore that, as of 10th February, 2010, he too had his last interaction with the

plaintiff/applicant on 13th March, 2009, when the plaintiff/applicant was discharged from Cavan General Hospital. For the purposes of

these present proceedings, he confirms that he has had no further interaction with the plaintiff/applicant since that date. This is not

disputed.

Summary as to the second and third named defendants

14. It follows, therefore, that insofar as the plaintiff/applicant makes complaints against Dr. Russell and the third named defendant Dr.

Casey, those complaints can only arise out of acts done during the period prior to or during the plaintiff/applicant’s detention in Cavan

General Hospital between 3rd February, 2009, and 13th March, 2009. This Court has already dismissed the plaintiff/applicant’s

application for leave to bring proceedings against both defendants in respect of that period of detention.

The first named defendant – the Attorney General

15. The main substantive allegation against the first named defendant arose from the alleged actions of named gardaí in assisting her

detention. That matter was also considered in the April judgment.

16. The first named defendant was joined because it was alleged that the gardaí had acted in breach of duty in detaining the

applicant pursuant to s. 12 of the Act of 2001. I found there was no such evidence and that the case against the first named

defendant be dismissed.

The order made on foot of the April judgment

17. In April 2010, I sought to identify and apply a proportionate application of the s. 73 of the Act of 2001. Thus, in refusing the

plaintiff/applicant leave to bring proceedings, I held that the order should start as and from the date of the plaintiff/applicant’s first

contact with the third named defendant, that 3rd November, 2008, and end the date of her last contact with Dr. Russell who treated

her in Cavan General Hospital, that is, 13th March, 2009.

18. I would re-emphasise that there was no evidence before the court of any evidence of want of bona fides on the part of the

doctors who treated her, nor was any prima facie case established of breach of duty under s. 12 of the Act of 2001 by members of

An Garda Siochána in detaining the applicant.

19. In the course of the April judgment, I specifically adverted to the possibility that the plaintiff/applicant might, “in some form of

collateral” proceeding, seek “in the future to re-litigate the same grievances or concerns against these defendants under another

guise, or in the form of other proceedings”. I added, “such an action could very well give rise to a finding of abuse of the court

process and might (unless justified) bring into consideration remedies relating to a constitutional right of access to the courts

generally”. Unfortunately, these observations proved accurate.

Legal authorities

20. I have earlier considered the number of authorities in relation to the operation of s. 73 of the Act of 2001, its predecessor Act,

and the inherent jurisdiction of the court to dismiss proceedings that are frivolous or vexatious. These authorities included Murphy v.

Greene [1990] 2 I.R. 566; Blehein v. Minister for Health and Children [2009] I.R. 275; Wunder v. Hospital Trust (1940) Ltd.

(Unreported, Supreme Court, 24th January, 1967) (Unreported, Supreme Court, 22nd February, 1972); Bula Holdings and Others v.

Roche and Others [2008] IEHC 208; (Unreported, Supreme Court, Edwards J. 6th May, 2008), Fay v. Tegral Pipes Ltd. [2005] 2 I.R.

261; Riordan v. Ireland (No. 5) [2001] 4 I.R. 463; Riordan v. Hamilton [2002] IESC 65 (Unreported, Supreme Court, 9th October,

2002) and Riordan v. Government of Ireland [2006] IEHC 312(Unreported, High Court, 6th October, 2006). I rely on the principles

established in these authorities again.

21. Turning to the evidence, suffice it to say that in the new grounding affidavit there is just one, oblique reference to the

plaintiff/applicant having been detained in 2010, and to a large degree repetition of matters already explored in the plaintiff/applicant’s

intended 2009 proceedings. The plaintiff/applicant was given ample warning that any process of re-litigation is not permissible and

might give rise to more serious remedies with regard to access to the courts.

22. For the purposes of this judgment, I propose to take the plaintiff/applicant at her word on one issue. She quite clearly said that

she did not wish to join the third name defendant in the new proceedings at all. This does not explain why she was in fact joined as a

defendant nor does it explain why the new grounding affidavit retraces old ground. The applicant/plaintiff must, by now, be well

aware of the legal principles and the nature of the remedies which are available to the court in order to prevent frivolous and

vexatious proceedings and abuse of the court process. Any objective perusal of the chronology and the series of events which have

taken place thus far can now only lead to the conclusion that not only has the plaintiff/applicant, whether wittingly or not, sought to

re-ignite proceedings held to be frivolous and vexatious, but she has also engaged in abuse of the court process by repeatedly

seeking to litigate the same matter, by failing to advert to directions of the courts aimed at assisting her, by launching and

relaunching proceedings not in accordance with the rules of court and by failing to adhere even to ordinary or accepted standards of

conduct in litigation, in absenting herself from court hearings. There is a public interest aspect to litigation and court time, especially

at a time of scarce national resources.

23. A court must not lend itself to such a situation (see Bula Ltd. (In Receivership) v. Crowley and Others [2009] IESC 35

(Unreported, Supreme Court, 3rd April, 2009) and the observations contained therein from Henderson v. Henderson [1843] 3 HARE

100 at pp. 114 and 115).

24. As Denham J. observed in Bula Ltd. (In Receivership) v. Crowley & Ors (referred to above), at paragraph 59:-

“There is a constitutional right to access the courts. However, it is not an absolute right. With that right comes

responsibility. Circumstances may arise where a person loses the right to initiate proceedings. For example, if there has

been an excessive amount of litigation initiated by a person, or on his behalf, the courts have an inherent jurisdiction, and

indeed, a duty, to review the use of court time. Court time is limited and there is a duty to use it justly.”

25. It is necessary, however, that an order of the court which delimits constitutional rights must be proportionate. The grounding

affidavit simply does not address the plaintiff/applicant’s 2010 detention in any substantive way. I do not think it would be just to

restrain the plaintiff/applicant from initiating any proceedings relating to matters which have not been properly ventilated, or in the

course of this application. But I now make clear that were it to transpire that the plaintiff/applicant again seeks to re-litigate earlier

matters, the court has ample jurisdiction to restrain such conduct, and if necessary any future conduct of litigation on the part of the

plaintiff/applicant.

26. For the moment, the court will again confine itself to making a proportionate order viz that the plaintiff/applicant will be restrained

from initiating or re-litigating against any of the named defendants, their servants or agents, any matter appertaining to actions taken

by such defendants, their servants or agents, with regard to the treatment of the plaintiff/applicant between 3rd November, 2008,

and 13th March, 2009. In plain words, therefore, the plaintiff/applicant is now debarred from initiating any further proceedings against

all of the named defendants and also Dr. Russell in relation to her previous detention.

27. I do not consider that it would be either fair or just to make a radical order against the plaintiff/applicant in relation to any

detention in the year 2010 when, effectively, there is no evidence concerning the circumstances. I will, therefore, simply strike out

the plaintiff/applicant’s application for leave under s. 73 of the Act of 2001. I repeat, however, that any attempt at further re-

litigation of the same issues against these defendants under the guise of a further application for leave under s. 73 of the Act of

2001, could very well lead to significantly broader consequences with regard to her general right of access to the courts. I also

repeat the warning against re-litigating the same issues against other defendants, unless the plaintiff/applicant is able to satisfy the

requirements of s. 73 of the Act of 2001.