Supreme Court rejects mootness argument, holding High Court declaration binds parties on future personal injury claims.

THE SUPREME COURT

Murray C.J. 169/05

Denham J.

Fennelly J.

Between

DECLAN O’BRIEN

Applicant / RESPONDENT

-v-

THE PERSONAL INJURIES ASSESSMENT BOARD

APPELLANT / RESPONDENT

JUDGMENT (ex-tempore) delivered on the 16th day of November, 2006 by Murray C.J.

The application before this Court concerns the appeal brought by the above named appellant / respondent, the

Personal Injuries Assessment Board, (hereafter “the respondent”) against an Order of the High Court obtained by the

above named applicant / respondent, Mr. O’Brien, (hereafter “the applicant”).

The applicant having been successful in the proceedings which he brought before the High Court was granted a

declaration on the following terms:

“The Court doth declare that the respondent in declining to accept or act upon the authorisation dated

16th of August, 2004 (described as “a confirmation and authority by client”) by corresponding directly

with the applicant (and copying such correspondence to his solicitors) is acting in breach of s. 7 of the

Personal Injuries Assessment Board Act, 2003 or without any authority under any other provision of the

Act.”

The Declaration in the High Court Order is grounded upon the conclusion of the learned High Court Judge that the

respondent acted unlawfully in the exercise of their statutory powers by refusing to deal with the applicant’s duly

appointed solicitor in connection with his claim for damages for personal injuries.

In addition the High Court ordered that the applicant should recover costs from the respondent in respect of the

application for leave to bring judicial review, the costs of a substantive hearing of three days and the costs of taking

judgment.

The present application before the Court, brought by the applicant, is by way of a motion seeking the directions of the

Court as to the status of the appeal, the future participation of the applicant at any hearing of the appeal and other

ancillary matters.

The Law Society of Ireland had participated in the High Court proceedings as amicus curiae by order of the High

Court. The status of the Law Society in this appeal has not been determined but counsel for the Law Society was

permitted, de bene esse, to address the Court on the matters arising in relation to this application pending any

determination of its status in a substantive appeal. In this regard I am of the view that where a party seeks to be

accorded the status of amicus curiae in an appeal pending before this Court, whether or not it has had that status at

the hearing in first instance, should be the subject of an application to this Court on notice to the parties to the appeal.

It will then be a matter for this Court to determine on the hearing of the application whether the party concerned

should be accorded the status of amicus curiae.

The circumstances giving rise for the present application are as follows:

In August 2004 the applicant instructed his solicitors to institute proceedings against his employer arising from an injury

which he had suffered in his workplace on 5th November, 2001. On August 16th the applicant signed an authority

retaining his solicitors as his agent to deal exclusively with the matter on his behalf. By virtue of s. 11 of the Personal

Injuries Assessment Board Act, 2003 the applicant was obliged, if he wished to institute a civil claim for personal

injuries, to apply to the respondent in order that an assessment might be made in respect of his case. This was also

necessary in order to prevent time running against his claim pursuant to the provisions of the Statute of Limitations

Act, 1957, as amended. Accordingly on 16th August, 2004 his solicitor wrote to the respondent and enclosed a

completed application form and the appropriate fee of €50.00. This was accompanied by the authority which the

applicant had signed. From the applicant’s point of view it was important that his application to the Board be deemed

to have been duly submitted pursuant to s. 11 of the Act since the claim was liable to become statute barred as and

from 5th November, 2004. The respondent declined to treat the application as a valid application pursuant to s. 11 of

the Act unless and until it received a medical report from the applicant.

In the light of the position adopted by the respondent the applicant instituted these proceedings challenging the legality

of firstly, the respondents’ refusal to register the applicant’s claim and secondly its refusal to abide by the authority

signed by the applicant on 16th August, 2004 and to deal directly with his solicitor as his duly appointed agent. In the

event the applicant’s solicitor furnished to the respondent a medical report on 22nd October, 2004 and the issue

concerning the requirement to provide a medical report with the application pursuant to s. 11 was not pursued further.

Judgment was given in favour of the applicant on 25th January, 2005and an Order made on 11th March, 2005,

perfected 14th April, 2005, in which the High Court made the Declaration and awarded the costs referred to above. A

notice of appeal was filed on 28th April, 2005 by the respondent and a notice of cross-appeal by the applicant on 3rd

May, 2005. The appeal was certified as ready for hearing by the respondent on 23rd November, 2005.

On 26th January, 2006 the applicant received an authorisation from the respondent pursuant to s. 17(6) of the Act to

institute court proceedings in respect of his claim for personal injuries against his employer. These proceedings were

commenced. It is common case that as a consequence of such authorisation and the initiation of proceedings that the

applicant is no longer obliged to deal with the respondent.

Accordingly, counsel for the applicant submits that because the applicant’s claim now falls outside the PIAB system,

so to speak, and there is neither a need nor an obligation to communicate with the respondent the question of the

lawfulness of the respondent’s practice of refusing to communicate with his the applicant’s duly appointed solicitor is

moot and hypothetical. Accordingly the issue in the appeal is moot and should not proceed any further.

As regards the question of costs, the submission of counsel for the applicant was, in summary, that since the

substantive issue on the merits was moot and hypothetical and therefore one which could no longer proceed by way of

appeal, the respondent was bound by the Order of the High Court on the question of costs consequent upon its

determination of the substantive issue on its merits. The respondents’ appeal on the issue of costs could not in itself

provide a ground upon which the Court would embark on hearing an appeal that was otherwise moot.

The question is whether this appeal can be considered moot in the sense of being purely hypothetical or academic.

The respondent is a statutory body exercising statutory powers in relation to claims for damages for personal injuries

alleged to have been suffered by a claimant. Such a claimant is required to make an application pursuant to s. 11 of the

Act as a first step in lieu of the situation pre-existing the Act when a claimant was entitled to take a first step in

proceedings by serving the appropriate writ or pleadings on a defendant.

As a result of the proceedings initiated in the High Court by the applicant the respondent has been sanctioned or

disadvantaged by a High Court finding that the practice which it seeks to follow is unlawful and by an order for what

would be undeniably a substantial amount of costs. Obviously the respondent has a wider interest than the applicant

insofar as the conclusion and Declaration of the High Court affects the manner in which it exercises its statutory

functions, not only vis-à-vis the applicant but with regard to some thousands of other applications made to it. This

situation has been arrived at by virtue of the fact that the High Court determined the obligations of the respondent to

the applicant in the exercise of its statutory powers. It is acknowledged that none of these issues could be considered to

have become moot prior to 26th January, 2006, the date when the applicant was authorised to bring legal proceedings

and no longer had to deal with the respondent.

As Hardiman J. observed in G. –v- Cullins “proceedings may be said to be moot where there is no longer any legal

dispute between the parties”. He cited with approval from Tribe’s American Constitutional Law (Third Edition, New

York, 2000):

“… Mootness doctrine centres on the succession of events themselves to ensure that a person or a group

mounting a constitutional challenge confronts continuing harm or significant prospect of future harm. A

case is moot, and hence not justiciable if the passage of time has caused it completely to lose “its

character as a present, live controversy of the kind that must exist if the Court is to avoid advisory

opinions on abstract propositions of law” (Hall –v- Beals 396 U.S. 45 (1969). Thus, the Supreme Court

has recognised that mootness can be viewed as ‘the doctrine of standing set in a time train: the requisite

personal interest that must exist at the commencement of the litigation (standing) must continue

throughout its existence (mootness).”

Hardiman J. then went on to cite a further passage from a Canadian case of Borwski –v- Canada (1989) 1 S.C.R. 342

at indicating the rationale from modern mootness rules. That passage was:

“An appeal is moot when a decision will not have the effect of resolving some controversy affecting or

potentially affecting the rights of the parties. Such a live controversy must be present not only when the

action or proceeding is commenced but also when the Court is called upon to reach a decision. The

general policy is enforced in moot cases unless the Court exercises its discretion to depart from it.”

While the reluctance or refusal of courts to try issues which are abstract, hypothetical or academic and thus fall within

the notion of mootness is common to most systems of law the breadth of that concept, its rigid or discretionary

application, as the previous passage suggests, is often informed by national judicial policy. It may also be influenced by

the jurisdiction of the court concerned and the nature of the remedies sought. A particular aspect of the United States

jurisdiction also referred to by Tribe is that “if mootness evolves later on appeal, the judgment below normally is

vacated with directions to dismiss the complaint”, citing City of Mesquite –v- Aladdin’s Castle 455 U.S. 283, 289.

Tribe, in a footnote, points out that the effect of such an order “is to deprive the decision below of any precedential

value”. Therefore one must be cautious in applying too literally the principles as expressed or applied in other

countries.

In this case is it quite evident that the respondent has a real current interest in the issues pending on appeal before this

Court for the purpose of a final determination of the controversy between the parties regarding the exercise of its

statutory powers and of course the substantial question of costs. The applicant himself has insisted, that should the

Court for other reasons, such as the consideration of a point of law of public importance, allow the appeal to proceed

that he be permitted to participate and argue on the merits of the appeal, albeit under special terms as to the costs of

the appeal, in order to defend his position concerning the costs awarded to him in the High Court.

Moreover, Article 34.4 of the Constitution provides for a right of appeal from the decisions of the High Court to this

Court (subject to limitations prescribed by law). Where, as in this case, a party has a bona fide interest in appealing

against a declaratory order of the High Court which is not confined to past events peculiar to the particular case which

have been resolved in one way or another the Court should be reluctant to deprive it of its constitutional right to

appeal. In this case the respondent continues to be constrained in the exercise of public powers under statute by virtue

of the Declaration granted in the High Court at the instance of the applicant.

In these circumstances I do not think it can be truly said that a decision on the appeal would not have the effect of

resolving further “some controversy affecting or potentially affecting the rights of the parties”. Nor do I consider

that the passage of time has caused these proceedings to “completely lose ‘its character as a present, live

controversy’”. In fact both parties, although in different forms, have an interest in the outcome of the appeal.

On these grounds alone I would dismiss the application but I do think another aspect of the consequence of the Order

of the High Court is that it defines obligations which the respondent owes under statute to the applicant not only as

regard his past claim but as regards any future claim which he might have for personal injuries. Counsel for the

applicant expressed the view that this was a rather extreme possibility but nonetheless acknowledged, as he was

inevitably bound to do, that if a situation arose in the future where the applicant had a claim for personal injuries he

would rely on the declaration of the High Court as regards s. 7 of the Act as one which required the respondent to deal

with any solicitor appointed to act for him. I do not think it is necessary to consider simply the level of probability in

the applicant being unfortunate enough to have some accident in the future whether at work or on our roads which

might lead him to bring a claim for personal injuries. It seems to me sufficient to state that one cannot preclude that as

a real possibility, and is not one that is so remote as to be purely hypothetical. It seems to me somewhat anomalous, to

say the least, that the applicant in these proceedings would acknowledge his right to rely on the decision of the High

Court at some, at least possible, future occasion but at the same time maintain in these proceedings that the appeal is

entirely moot. The foregoing scenario underscores the fact that in seeking and obtaining the declaration as to the

correct interpretation of s. 7 in these proceedings the applicant obtained a ruling determining how the respondent

should exercise public statutory powers vis-à-vis him which is binding as between the parties not only as regards the

circumstances of the particular case but as regards any future event.

It was argued on behalf of the applicant that if he had lost his claim in the High Court any appeal which he had brought

against an order dismissing his proceedings would, in the circumstances which now apply, be considered moot. That

however it quite a different situation. In such circumstances the respondent would have no adverse order made against

it and the applicant would, in the circumstances which have transpired, not be prejudiced by any action or decision of

the respondent. Their interest, or lack of interest, in a decision on the appeal would be quite different from the present

situation.

Reference was made by counsel on behalf of the Law Society to at least implicit criticism of Keane C.J. in Clarke –v-

Member in Charge [2001] 4 I.R. 171 at 177 of the decision of this Court in Application of Zwann [1981] I.R. 395.

Those of course were obiter and correctness or otherwise of the Zwann decision was not in issue in that case. The

Zwann case, insofar as it might be considered applicable to the circumstances of this case, supports the position

adopted by the respondent that the appeal is not moot. However, both these cases concerned orders for habeas

corpus. Those cases are concerned with very specific relief concerning the liberty of the citizen and whether he or she

is detained in lawful custody. Issues of mootness in such cases are coloured by the fact that the single issue envisaged

by an applicant pursuant to Article 40 is whether his or her detention is unlawful, the single remedy available being his

release from that particular detention. For the purposes of the present case I do not think it is necessary to take

account of those cases and there was certainly nothing in them which would support the contention of the applicant in

this application.

For the foregoing reasons I would refuse this application as the pending appeal should proceed in the normal manner.