Supreme Court dismisses wrongful death appeal, allowing recovery of inquest preparation expenses despite procedural arguments.

[2008] IESC 35

THE SUPREME COURT

248/05

Murray C.J

Hardiman J.

Geoghegan J.

Between:

LIAM GRANT

Plaintiff/Respondent

and

ROCHE PRODUCTS (IRELAND) LIMITED

First defendant

and

F. HOFFMAN-LA ROCHE LIMITED

Second defendant

and

ROCHE HOLDINGS LIMITED

Third defendant

and

R.P. SCHERER LIMITED

Fourth defendant

and

ROCHE PRODUCTS LIMITED

Fifth defendant

and

THE IRISH MEDICINE BOARD

Sixth defendant

and

GILLIAN MURPHY

Seventh defendant

JUDGMENT of Mr. Justice Hardiman delivered the 7th day of May, 2008.

1. In this action the plaintiff claims, on behalf of himself and of the other statutory defendants of Liam Grant Junior, deceased, and on

behalf of the estate of the said Liam Grant Junior:

“Damages for mental distress, loss, damage and expense suffered by the plaintiffs and the statutory dependents by

reason of the negligence, breach of duty and breach of statutory duty of the defendants and each of them their servants

or agents”.

2. The action is, therefore, what is often referred to as a wrongful death claim. The first to fifth named defendants, inclusive, are

referred to below as the “Roche defendants”. The first-named defendant is a limited company having its registered office in

Clonskeagh, Dublin, and was at all material times engaged in the promotion and distribution of a drug known as Roaccutane on its own

behalf and on behalf of the second, third and fifth named defendants. The second-named defendant is a company incorporated in

Switzerland which was at all material times the parent company of the first, third and fifth defendants. The third defendant is also a

limited liability company incorporated in Switzerland. The fourth defendant is a limited liability company incorporated in England and is

the manufacturer of the drug known as Roaccutane. The fifth-named defendant is also a limited liability company incorporated in

England and was at all relevant times the Product License Authorisation holder of the drug known as Roaccutane.

3. The Roche defendants are the moving parties on the present application.

4. The sixth-named defendant is a statutory body corporate established under the Irish Medicines Board Act, 1995 and having the

functions set out in that measure. The seventh-named defendant is a consultant dermatologist carrying on practice in a Dublin

hospital and who was at all material times a person permitted to prescribe the drug Roaccutane. This right was limited to consultant

dermatologists.

The factual background.

5. The factual background to this case, and therefore to this application, is a tragic one.

6. The plaintiff and his late wife had four children, three boys and a girl. The deceased Liam Grant Junior was at the time of his death

a twenty year old second year student of Electrical Engineering in University College, Dublin. He had no history of depression and is

said - without contradiction - to have been a pleasant outgoing relaxed and genial person who was happy in his life and his studies.

There was no family history of depression. He did however suffer from acne and consulted his general practitioner about this. After

several visits and reviews the general practitioner referred him to the seventh-named defendant, a consultant dermatologist. It was

she who prescribed him Roaccutane, to be taken orally on a four month course. In the month following this prescription the deceased

became withdrawn and isolated. On or about the 15th June, 1997, during the final week of the course of prescribed medication, the

deceased took his own life.

7. The plaintiff says that the general practitioner was totally surprised at this tragic development and stated that the deceased was

the last person she would have expected to commit or contemplate suicide. She further expressed concerns to the plaintiff about the

drug Roaccutane and referred to depression as a side effect of it. As a result of this the plaintiff has commenced an elaborate and

expensive process of investigation into the drug and the scientific literature about it, as well as its regulatory history.

8. The plaintiff claims that depression, suicidal ideation and suicide itself are recognised side effects of the drug Roaccutane. He

claims that Roaccutane is a defective product when used for medical treatment in the manner intended by the Roche defendants and

that they were negligent and in breach of duty in the various ways set out in the Statement of Claim. The plaintiff has himself

researched the nature and history of the drug Roaccutane and has retained others to do so for him. He has over the years obtained a

considerable volume of documentation. An example of this, chosen more or less at random, is a:

“Medical Officer’s Review

NDA briefing psychiatric adverse effect”.

9. This document is dated the 15th April, 1998, and refers to Roche Pharmaceuticals as the “sponsor” of the drug there described as

“Accutane”. The document commences with a summary which states:

“In May, 1997, we discussed with the sponsor our increasing concern regarding the seriousness of psychiatric adverse

events being reported with Accutane use (see attached memorandum dated May, 1997, which includes initial consult from

Pharmaco Vigilence). Special emphasis was placed on the pattern of the events and the cases with positive de-challenge

and/or re-challenge. At the time of the Tele-conference most of the sponsor participants did not agree that the reports

reflected effects of Accutane, instead they felt that the reports reflected underlying psychiatric disease in the population

being treated. Nonetheless, the sponsor agreed to investigate further and reply to our concerns in a timely manner.”

10. It seems clear from the documentation assembled that, whatever the validity or lack of it attaching to the plaintiff’s specific

allegations against the defendants, there has been for a considerable time a volume of discussion in scientific and regulatory circles

on the topic of adverse psychiatric events associated or allegedly associated with the drug in question in these proceedings, as well

as alleged birth defects associated with its use by pregnant women.

The present motion.

11. The plaintiff’s proceedings continued with the delivery of a statement of claim on the 6th July, 2000, followed by a long and

detailed notice for particulars by the Roche defendants, replied to in September, 2001. On the 8th February, 2002, the Roche

defendants delivered a defence which is a full denial of liability and of all the plaintiff’s allegations. Specifically there is a denial that

Roaccutane “caused or contributed to the risk of severe depression or psychiatric disorders or suicidal ideation or suicide as alleged to

at all.”

12. On the 18th October, 2004, the solicitors for the Roche defendants issued a notice of motion claiming:

“An order pursuant to the inherent jurisdiction of the Court staying the proceedings herein or, alternatively, restraining

the continued prosecution of the proceedings on the grounds that, in light of the open offer made to the plaintiff by

solicitors for the first, second, third, fourth and fifth named defendants by letter dated the 13th October, 2004, the relief

sought by the plaintiff in the proceedings has been offered to him by these defendants and in those circumstances the

continued prosecution of the proceedings would be an abuse of the process of the court.”

13. This application was grounded on the affidavit of Mr. Roderick Burke, Solicitor, in this he refers to the extensive discovery which

has been made in the case and to further discovery which may be anticipated. He says that on reviewing this:

“It became apparent to my firm and to the Roche defendants that the discovery ordered by the Master could be even

more extensive than that previously estimated. Furthermore it became apparent that even on the basis of the discovery

ordered by the Master any trial of the proceedings could last for many months and would be extremely time consuming

and involve enormous expense. In those circumstances following a careful review of the plaintiff’s claim, the Roche

defendants instructed my firm to write to the plaintiff solicitors an open letter agreeing (without prejudice to liability) to

pay the plaintiff all of the damages which he would be entitled to recover in the proceedings, comprising the damages for

mental distress pursuant to s.49 of the Civil Liability Act, 1961 (as amended) and the Special Damages claimed in the

proceedings together with the plaintiff’s costs to be taxed in default of agreement. My firm wrote to the plaintiff solicitors

in those terms on the 7th September, 2004. It was made in that letter that the offer was being made by the Roche

defendants in full and final settlement of all claims by the plaintiff against all of the defendants and strictly without

admission of liability. The letter stated that the Roche defendants would also pay the costs of the other defendants to be

taxed in default of agreement.”

The letter was exhibited.

14. The plaintiff solicitors rejected the defendants’ offer, describing it as “a cynical attempt to avoid a public trial in relation to [the

Roche defendants] wrongful conduct concerning the drug Roaccutane”.

15. The plaintiff solicitors said:

“As your clients are aware our client has spent the last seven years of his life investigating the drug in question and your

client’s actions in relation thereto and in particular the manner in which your client went about the clinical trials/testing,

obtaining of relevant regulatory approval and subsequent dealings with regulatory authorities, handling/mishandling of

adverse reaction reports and dealings with persons making complaints concerning same. Our client has also had to occur

substantial expenditure in relation to scientific investigations/research into the adverse side effects caused by

Roaccutane including depression, suicidal ideation and suicide.”

16. The plaintiff solicitors went on to make other, legal, points including that the letter of offer “does not constitute either a

lodgement or tender within the context of these proceedings” and that “the writing of such a letter or reliance on same in these

proceedings on any issue as to costs is not provided for by statute or by the rules of court.” They also said:

“On a very basic level the letter does not have any effect as it contains no offer of a specific sum in settlement of these

proceedings. We were about to furnish you with the particulars of special damage and these are enclosed by way of

separate correspondence.”

17. By a further letter of the 13th October, 2004, the defendant solicitors offered a total sum of €30,990.22 in respect of the

plaintiff’s claim for damages being €25,394.76 being the maximum amount payable for mental distress pursuant to s.49 of the Civil

Liability Act, 1961, as amended and the sum of €5,595.46 in respect of funeral expenses. “In addition, as already advised, our clients

will pay your clients costs to be taxed in default of agreement”.

18. The defendant solicitors went on:

“We further confirm that the offer of settlement is made on behalf of the Roche defendants set out in our letter of the

7th September, 2004, in full and final settlement of all claims by your client against all the defendants in the proceedings

to the above action and is strictly without admission of liability. The Roche defendants will also pay the costs of the other

defendants to be taxed in default of agreement.”

19. The defendants also disputed whether the plaintiff’s (very considerable) expenditure on research and explorations of scientific

literature are properly classed as special damages, preferring to regard them as costs to be recovered or not at the discretion of the

Taxing Master.

Statutory background.

20. Part IV of the Civil Liability Act 1961, is entitled “Fatal Injuries”. Both sides to this motion rely on the terms of the sections

constituting this Part in support of their respective claims. It is accordingly convenient to set out part of these sections here.

21. Section 47 relates to definitions. Section 48 states as follows:-

“(1) Where the death of a person is caused by the wrongful act of another such as would have entitled the party injured,

but for his death, to maintain an action and recover damages in respect thereof, the person who would have been so

liable shall be liable to an action for damages for the benefit of the dependents of the deceased.

(2) Only one action for damages may be brought against the same person in respect of the death.

(3) The action may be brought by the personal representative of the deceased or if at the expiration of six months from

the death there is no personal representative or no action has been brought by the personal representative, by all or any

of the dependants.

(4) The action by whomsoever brought, shall be for the benefit of all the dependents.

(5) The plaintiff shall furnish the defendant with particulars of the person or persons for whom and on whose behalf the

action is brought and of the nature of the claim in respect of which damages are sought to be recovered.

(6) The action shall be commenced within three years after the death.”

22. Section 49 states:-

“(1)(a) The damages under section 48 shall be -

(i) the total of such amounts (if any) as the judge shall consider proportioned to the injury resulting from the death

to each of the dependants, respectively, for whom or on whose behalf the action is brought, and

(ii) subject to paragraph (b) of this subsection the total of such amounts (if any) as the judge shall consider

reasonable compensation for mental distress resulting from the death to each of such dependants.

(b) The total of any amounts awarded by virtue of sub-paragraph (ii) of paragraph (a) this subsection shall not exceed

€20,000.

(c) Each amount awarded by virtue of paragraph (a) of this subsection shall be indicated separately in the award.

(d) Subparagraph (ii) of paragraph (a) of this subsection shall have effect only in respect of a death occurring within

three years after the passing of this Act.

(2) In addition, damages may be awarded in respect of funeral and other expenses actually incurred by the deceased, the

dependants or the personal representatives by reason of the wrongful act.”

The remaining subsections are not relevant.

Staying, rejecting, or restraining proceedings.

23. The Roche defendants, as the plaintiff has trenchantly pointed out, have not taken any of the specifically recognised procedural

steps open to a defendant in their position (that is, one willing to pay the entire of the plaintiff’s claim) and set out in the Rules.

Specifically the defendants have not either lodged money in court nor made a tender. The plaintiff points out that, even if they had

lodged money in court they would not have been in a position to compel the plaintiff to take up the money in settlement of the

proceedings, other than by threatening him with adverse consequences in costs if he failed to “beat the lodgement”. Since the Roche

defendants are certainly prepared to part with what they regard as the full value of the plaintiff’s claim, it seems inescapable that

their reason for not lodging is that they do not believe that the plaintiff would take up the lodgement but that he would continue with

the action.

24. However, the fact that the Roche defendants are compelled to invoke the inherent jurisdiction of the Court in circumstances for

which they admit there is no direct precedent in the case law, does not mean that the Court lacks an inherent jurisdiction to stay,

reject or restrain proceedings on the ground that they have become pointless. The most recent Irish authority in this connection

arises in the different context of Henderson v. Henderson (1843) 3 Hare 100 abuse of process. That relates to a situation in which a

party seeks in a new proceeding to agitate a point which he could have, but did not, agitate in previous proceedings. That is not this

case, but the statements of principle supporting the existence of Henderson abuse of process are not without relevance. They were,

as it happens, considered in some detail by this Court in A.A. v. Medical Council [2003] 4 I.R. 302. There, at p.316, the Court

favoured the approach of Lord Bingham in Johnson v. Gore Wood & Co. Ltd. [2002] 2 A.C.1 where he said at p.31:-

“a broad merits based judgment which takes account of the public and private interests involved and also takes account

of all facts of the case, focussing attention on the crucial question of whether, in all the circumstances, a party is

misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”

25. I would adapt that citation to the facts of this case by substituting for the last phrase “by seeking to raise before it an issue

whose resolution would be otiose, improper or oppressive”

26. In that case, the Supreme Court also cited with approval a dictum of Lord Bingham in Gairy v. Attorney General of Granada [2002]

1 A.C. 167. There, speaking of the power of the Court to intervene to stop or restrain proceedings he stated at p.181 that the

principles on which the courts acted are:-

“rules or Justice, intended to protect a party (usually, but not necessarily a defendant) against oppressive and vexatious

litigation.”

27. This Court continued in A.A. at p.317:-

“Rules or principles so described cannot, in their nature, be applied in an automatic or unconsidered fashion. Indeed, it

appears to me that sympathetic consideration must be given to the position of a plaintiff or applicant who on the face of

it is exercising his right of access to the courts for determination of his civil rights or liabilities.”

28. Notwithstanding this, the Court in that case found against the applicant on the basis that he might have raised the point which

he was seeking to agitate (a lack of legal aid for a person such as himself in proceedings before the Medical Council) in previous

proceedings which he had taken against the Council. But he did not do so with the result that the resolution of the complaints against

him had been significantly delayed.

29. The Court went on to consider certain cases from the European Court of Human Rights on the limitation of access to the courts.

In Ashingdane v. United Kingdoms (1985) 7 E.H.R.R. 528 at p.546 the European Court of Human Rights said:-

“the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication

since the right of access by its very nature calls for regulation by the State, regulation which may vary in time and place

according to the needs and resources of the community and of individuals.”

30. Considering the nature of permitted limitations on the right of access to the courts, the same Court said in Tinnelly and Sons Ltd.

& Ors. v. United Kingdom (1999) 27 E.H.R.R. 249 at p.271, quoting from the judgment of Fayed v. United Kingdom (1994) 18 E.H.R.R.

393:-

“a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable

relationship of proportionality between the means employed and the ends sought to be achieved.”

31. Against that background, I propose to consider the issues in the present case.

The Roche defendants case.

32. On behalf of these defendants Mr. Maurice Collins S.C. said that this case featured an open offer. It was not, he conceded a

“Calderbank” offer, and neither was it a tender or lodgement. He agreed that the lodgement/tender process had been in existence for

a long time but said that its consequence is ex poste facto because the issue as to costs can only arise subsequently, after

judgment. The effect of such procedures, said Mr. Collins, is to penalise a plaintiff who rejects a proper offer, even one tendered

without admission of liability. That fact, said Mr. Collins, tended to suggest that there was not an unqualified right of access to the

courts. If there were it would be improper to penalise a party for refusing to accept a proper offer.

33. Mr. Collins went on to submit that this case is “quantifiable to a unique degree”. This was because the proceedings were neither

more nor less than a statutory action in which statute (s.49 of the Act of 1961) provided for all the damages which could be

recovered. This must necessarily imply that the plaintiff’s right to litigate was qualified: he had a right to litigate only to recover the

sums which, by statute, were all that could be awarded to him. This is precisely the same principle as underlies the lodgement

procedure, Mr. Collins contended.

34. Mr. Collins said that he was relying both on the inherent jurisdiction of the Court to strike out reject or stay an action and on the

proposition that the proceedings, if continued, would be an abuse of process. But he wished to emphasise that his clients were not

alleging an abuse of process in the sense of an improper purpose or ulterior motive. There was none such in the present case, he

conceded.

35. The principal authority relied upon by Mr. Collins was McSorley v. O’Mahony (unreported, High Court, Costello J., 6th November,

1996). This was a case where the plaintiffs sought to sue the defendant, their former solicitor, in respect of, inter alia negligence and

breach of contract in relation to the purchase of a property from Cork Corporation. However, they had in previous proceedings had

recovered appropriate damages for their misfortunes from Cork Corporation in relation to the attempt to purchase the property from

another party. In those circumstances, the proceedings against Mr. O’Mahony were stayed. The learned judge said at pp 20 and 21:-

“In my opinion this action should be stayed on the ground that it is vexatious and an abuse of the courts process. When

instituted the cause of action arose from Mr. O’Mahony’s alleged wrongful act in refusing to hand over the title deeds to

the premises so that the sale could be completed. That cause of action no longer exists and only the question of costs

remains to which I will later return. The second cause of action is the claim for damages arising out of the purchase of

the Pearse Square premises. The plaintiff can obtain no benefit from maintaining these proceedings for the purpose of

obtaining an award against the defendant. The Cork Corporation is not insolvent and can pay the damages already

awarded by the High Court or as may be found by the Supreme Court should the appeal proceed and be successful. It is

an abuse of the process of the courts to permit the court’s time to be taken up with litigation which can confer no benefit

on a plaintiff. It is also an abuse to permit litigation to proceed which will undoubtedly cause detriment to a defendant

and which can confer no gain on the plaintiff.”

36. This, indeed, is a compendious statement of the principles upon which the Roche defendants rely. Mr. Collins submitted that the

present proceedings are vexatious and an abuse of process because the plaintiff can obtain no benefit from maintaining proceedings

“for the purpose of obtaining an award against the defendant.”

37. Mr. Collins stated, however, that the plaintiff was obviously desirous of having a determination of liability apart from any question

of damages. That is, in statutory terms, he was desirous of obtaining a finding that the death of Liam Grant Junior had been caused

by the wrongful act of the defendants or some of them. Mr. Collins conceded that the statute spoke in terms of a death caused by a

wrongful act of another person but he said that that was merely a statutory precondition to obtaining an award of damages and the

plaintiff’s action in maintaining the proceedings after it had been offered the full measure of damages amounted to turning a statutory

precondition into an end in itself. He could not do this because it is an abuse for precisely the reasons given by Costello J. in

McSorley. Nor was there any other form of independent action that could be brought for the same purpose, said Mr. Collins.

38. Mr. Collins said that the values which should move the court to stay these proceedings were precisely those underlining the

distinction between a public and a private inquiry. This was a private law action. In a submission which was central to his case Mr.

Collins said that “Private law is wholly about what financial remedy is available. It was about obtaining what was called in McSorley a

“tangible benefit” for the plaintiff and it was about absolutely nothing else. In further discussion of the topic, Mr. Collins agreed that

there was no authority for these propositions but he said they followed inevitably from first principles. In a case such as this, said Mr.

Collins, damages are not only the prime concern, they are the only legitimate concern. Insofar as the law might be conceived as

having a social role (this possibility had been mooted in argument by the Chief Justice) that role was wholly a matter for “criminal or

regulatory law”. Mr. Collins was anxious to stress that he was relying on the test, derived from McSorley of there being “no tangible

benefit” to be got from pursuing the action. He was not relying on the proposition that the proceedings were “completely outside the

ambit” of the statutory provision which gave rise to them, another well established ground for staying proceedings.

The plaintiff’s case.

39. On behalf of the plaintiff, Mr. Paul Burns S.C. said that the plaintiff was seeking the vindication of personal rights in accordance

with Article 40.3.3 of the Constitution. One way in which the State met its constitutional obligation to vindicate those rights was by

the provision of suitable forms of civil action. There was no authority for the proposition that this role is in some way limited to

criminal law. The role of a civil action is more than the allocation of damages; it is one of the ways in which rights are vindicated. The

terms of s.48 (1) of the Civil Liability Act 1961 meant that an action under Part IV was, amongst other things, an inquiry into

accountability for the death because damages could only be awarded “where the death of a person is caused by the wrongful act of

another.” Mr. Burns submitted that the Act had to be viewed in the context of the Constitution and, nowadays, of the European

Convention on Human Rights. The constitutional and convention provisions relied on are set out below. Mr. Burns pointed out that

“there has to be a mechanism” for the vindication of the rights provided in those sources and that any such mechanism must provide

for:

(i) A judicial process which

(ii) Featured a determination of liability, and;

(iii) A pronouncement of liability.

40. Having regard to the fact that a coroner’s inquest, pursuant to the Coroner’s Act 1962, was specifically prohibited by statute from

blaming or exonerating any person in relation to a death, it was clear, said Mr. Burns, that the Oireachtas regarded Part IV as

providing for these matters.

41. Mr. Burns indignantly enquired “Where’s the justice of the situation?” This point, though somewhat rhetorically raised, is not of

course one which the Court can ignore. Mr. Burns referred to the State’s obligation “in the case of injustice done” to vindicate, inter

alia, the right to life of all citizens including the late Liam Grant Junior. How is this to be done if the State provides no mechanism for

enquiring into liability except as a precondition to an award of damages. If such a procedure could be bought off by simply paying the

very restricted amount permitted by way of damages in those circumstances, that would be, submitted Mr. Burns a “rich man’s

charter”, to subvert the vindication to the right of life.

42. In this connection, Mr. Burns relied on Powell v. United Kingdom (2000) 30 E.H.R.R. CD. 362 a judgment of the European Court of

Human Rights of the 4th May, 2000. There, relatives of a deceased child complained that United Kingdom Law provided for no

adequate investigation into their child’s death. But the Court referred to the fact that they had settled a civil action for wrongful

death in the following terms at p.CD. 365:-

“Of greater significance for the Court is the fact that the applicants settled their civil action in negligence against the

responsible health authority and did not pursue individual claims against the doctors. In the Court’s opinion, the applicants

by their decision closed another and crucially important avenue for shedding light on the extent of the doctor’s

responsibility for their son’s death”.

43. The Court continued at p.CD365 that:-

“Having regard to the above considerations, the Court finds that it is not open to the applicants to complain under Article

2 of the Convention that there was no effective investigation into their son’s death. In its opinion, where a relative of the

deceased accepts compensation in settlement of a claim based on medical negligence he or she is in principle no longer

able to claim to be a victim in respect of the circumstances surrounding the treatment administered to the deceased

person or with regard to the investigation carried out into his or her death.”

44. Mr. Burns submitted that that passage clearly indicated that the civil proceedings were seen as part of the State’s machinery

(which was obliged to provide under the Convention) for “shedding light on the extent of the doctor’s responsibility,” i.e. responsibility

for the death.

45. Mr. Burns also relied on the decision of the English Court of Appeal in R (Takoushis) v. Inner North London Coroner [2006] 1

W.L.R. 461 at p.493:-

“where a person dies as a result of what is arguably medical negligence in an N.H.S. hospital, the state must have a

system which provides for the practical and effective investigation of the facts and for the determination of civil liability.

Unlike in the cases of death in custody, the system does not have to provide for an investigation initiated by the state,

but may include such investigation. Thus the question in each case is whether the system as a whole, including both any

investigation initiated by the state and the possibility of civil and criminal proceedings and of a disciplinary process

satisfies the requirement of article 2 as identified by the European Court in cases to which we have referred, namely (as

just stated) the practical and effective investigation of the facts and the determination of civil liability”. (Emphasis

added)

46. Having regard to the fact that one of the defendants is the Irish Medicines Board, a State statutory body charged amongst other

things with the investigation and approval of the medicines to be used in medical practice in the State, Mr. Burns submitted that the

obligations of the State in relation to the death of Mr. Grant Junior are those described in these passages. He emphasised that both

the English and the Strasbourg jurisprudence is quite inconsistent with regarding the civil proceedings as purely a money distributing

exercise and, on the contrary, they are regarded (at least where there is a public element involved in the circumstances leading to

the death) as part of the investigatory process to which the deceased’s relatives are entitled, as is the “determination of civil

liability.”

47. Secondly, Mr. Burns submitted that the question of whether the very considerable expenses incurred by the plaintiff in the

investigation of the circumstances of his son’s death are recoverable, or are recoverable as special damages as opposed to under the

heading of costs, is itself a justiciable issue.

48. Mr. Burns addressed the case of McSorley upon which Mr. Collins had principally relied. He said, firstly, that the death of a human

being, which was what is in question here, was quite a different proposition to the allegedly defective execution of a conveyancing

transaction. There was, at least in Convention jurisprudence, an established right to a proper inquiry in the former case. In any event,

he pointed out, in McSorley there had already been a full hearing on the merits. What was in issue there was a multiplicity of

proceedings. This did not arise here: the Roche defendants were attempting to abort the only hearing which, on their own case, there

could ever be.

49. Finally, Mr. Burns emphasised strongly that the present application took no recognised form but was “made up”. He also

emphasised, which is obvious, that the lodgement procedure could not abort the proceedings: it merely put the plaintiff on a

considerable risk if he was overoptimistic on liability or overvalued his claim. That was a balancing of the rights, public and private,

which are involved in civil litigation. But what was proposed here was a total destruction of the plaintiff’s rights, not a balancing. Mr.

Burns accepted that there was a public interest as well as a private interest in litigation and that there were many circumstances in

which it was proper for the courts to stay or strike out proceedings. But this case, said Mr. Burns, was a case of a real controversy

which should be litigated in the public interest as well as in the Grant family’s private interest.

Reply.

50. In reply, Mr. Collins S.C. invited the court to start its deliberations with a question: what does the section provide? The answer,

he submitted was “damages” for the relatives of the deceased. In other words, the section provided an action for the recovery of

damages and for nothing else.

51. He submitted that the money spent on scientific investigation was clearly not special damages but costs. Returning to his main

theme he said that s.48 of the Act of 1961 did not provide for an investigation but was merely a precondition to the recovery of

damages. He said that sections 48 and 49 simply are not capable of being interpreted in any other way.

52. In another important submission, Mr. Collins submitted that the Roche defendants “are not caught by Article 2 (of the Convention)

because they are not a public body”. The Convention, he said, as applied to this case was merely a “cul de sac”.

53. Finally, Mr. Collins acknowledged the existence of the lodgement rules and the fact that they had not been operated by his clients

in this case but said that the feature was not conclusive.

The High Court judgment.

54. In his judgment of the 27th May, 2005, Finnegan P. (as he then was) may be said to have found the following:

(a) An award of damages is not the only object of a claim;

(b) There is a jurisdiction to strike out proceedings for abuse of process occasioned by the institution or maintenance of

an action without cause or for some improper or wrongful motive;

(c) The plaintiff in this case wishes to establish that the death of his son was caused by the wrongful action of the

defendant. Consequently, he is not seeking to “effect an object not within the scope of the process”;

(d) As the determination of liability is one of the objects of the proceedings, and as there is no admission of liability, the

plaintiff is not acting in abuse of process;

(e) The plaintiff’s right of access to the courts is constitutionally guaranteed;

(g) A risk that the defendant might not recover his costs against the plaintiff is not a factor to be taken into account;

(h) The constitutional rights of the plaintiff take precedence over the consequences in terms of costs for the defendant;

(i) No costs/benefit analysis should be carried out;

(j) The Irish system of procedure penalises in costs a plaintiff who fails to accept a sufficient sum paid into court or

tendered.

Decision.

(a) The Court’s approach.

55. For the reasons set out earlier in this judgment, there is no doubt that a court has a jurisdiction, in a suitable case, to restrict

access to the courts by striking out, rejecting or restraining a claim which is pointless, vexatious, or an abuse of process. The case of

A.A. v. Medical Council, cited above is an example of such a case.

56. Although the point is not significant in this case, I do not see any reason to consider that this entitlement is limited to the

Superior Courts bur rather consider that it applies to any court properly seized of a dispute. But this issue was not fully argued.

57. In the case of Barry v. Buckley [1981] I.R. 306 it was held at p.308 that this inherent jurisdiction to strike out is one that should

be “exercised sparingly and only in clear cases”.

58. In Sung Fat Chan v. Osseous Ltd. [1992] 1 IR 425 McCarthy J. said at p.428:-

“Generally, the High Court should be slow to entertain an application of this kind and grant the relief sought. Experience

has shown that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated at earlier

stages of the proceedings.”

59. I believe that any lawyer of experience would endorse the dictum just cited of McCarthy J. It is clear from a brief perusal of the

documentation gathered in the present case that material whose existence could hardly have been suspected at the time of the

institution of the proceedings has in fact come to light.

60. In D.K. v. King [1994] 1 I.R. 166 Costello J. emphasised that the Court should be reluctant to strike out a case at an interlocutory

stage and that in deciding whether to do so a court should not adjudicate on questions of fact or controversial legal issues raised by

those proceedings. It should confine itself to considering whether the issues raised were frivolous or obviously unsustainable. To the

same effect is the judgment of Murphy J. in Conlon v. Times Newspapers Ltd. [1995] 2 I.L.R.M. 76. There, the learned judge

contrasted an application during a trial to withdraw a case from the tribunal of fact and an interlocutory application to have the same

action struck out. He stated at p.80:-

“It does seem to me that the preference in any case should be that unless these matters [i.e. that the plaintiff’s claim is

clearly unsustainable or that it is bound to fail] are clearly established, that a plaintiff in every case should be afforded

the opportunity of having his case fully heard by a judge and more particularly, a jury, where that is an appropriate

remedy”.

61. The case of A.A. v. Medical Council has been already cited in this judgment, including a general statement to the effect that the

Court’s inclination must be to permit a plaintiff to exercise his right of access to the courts. In a similar vein, Murray J. (as he then

was) said in Jodifern Ltd. v. Fitzgerald [2000] 3 I.R. 321 at pp.334 and 335:-

“It seems to me that if on the basis of the undisputed facts there remains a substantial issue or issues of law as to

whether the plaintiff is entitled to some or any of the relief’s sought, the proceedings can hardly be said to constitute an

abuse of the process of the Court. It may indeed be that since the factual issues are the basis of the plaintiff’s claim has

been identified, that the legal issues arising are susceptible of judicial determination. For this reason it may be tempting,

in the interest of economy of litigation, to do just that. However, to proceed (at least in the absence of agreement

between the parties) to make a final determination of such issues in an application to stay or dismiss proceedings for

abuse of the process of the court “would deprive the plaintiff of the due process of plenary proceedings before the

court.”

62. It would clearly be wrong for this Court, hearing an appeal from a decision on an interlocutory motion, to express any opinion on

the merits or likely outcome of the case. However the Roche defendants’ action in bringing this motion compels and permits me to say

that, on the basis of the information before the Court, I do not consider that the plaintiff’s claim is clearly unsustainable or that it is

bound to fail. I am compelled to add, for the plaintiff’s attention (for it will be clear without further explanation to his lawyers) that

this state of mind is as far as can be from a belief that the plaintiff is bound to, or likely to, succeed. It is simply not possible to come

to this conclusion. If the plaintiff’s action is permitted to proceed he will be taking on difficult proofs against a well resourced and

determined group of defendants in the Roche Companies who have every reason to resist his claim. He is taking on a considerable risk,

hard to quantify precisely at the moment, and risking enormous financial losses but I could not hold, on the evidence before us, that

his claim is bound to fail, which is one of the established grounds on which a claim can be dismissed at this stage.

Abuse of process?

63. Firstly, there can be no doubt that the onus of establishing abuse of process is on the defendants who seek to stay the

proceedings because of it and this onus is “a heavy one”. (See Goldsmith v. Sperrings Ltd. [1977] 1 WLR 478, per Lord Denning M.R.

at p.498):-

64. Secondly, the classic and long established definition of an abuse of process is that of Isaacs J. in Varawa v. Howard Smith

Company Ltd. (1911) 13 C.L.R. 35 at 91:-

“In the sense requisite to sustain an action, the term ‘abuse of process’ connotes that the process is employed for some

purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking horse to coerce the

defendant in some way entirely outside the ambit of the legal claim upon which the Court has asked to adjudicate, they

are regarded as an abuse of process for this purpose”

65. This dictum was adopted by the High Court of Australia in Williams v. Spautz (1992) 174 C.L.R 509. In that case, Brennan J. said:

“if there be a reasonable relationship between the result intended by the plaintiff and the scope of the remedy available in

the proceeding, there is no abuse of process. If there be mixed purposes - some legitimate, some collateral - I would

restate his Lordship’s test [i.e. Bridge L.J. in Goldsmith] that ‘but for his ulterior purpose, [the plaintiff] would not have

commenced proceedings at all.’ So expressed the tests cast on the other party an onus of proving what the plaintiff

would not have done if he had not formed the intention of obtaining a collateral advantage. That onus may be impossible

to discharge”.

66. In the present case, as is set out in the summary of the appellant’s arguments earlier in this judgment, the Roche defendants

have disavowed the Varawa test. I believe that they had no option but to make this concession. Having regard to the terms of s.48

of the Act of 1961 I cannot see how an intention of establishing that the death of the deceased was caused by the wrongful act of

the defendants could be described as “outside the ambit” of the legal claim created by the statute. It was further expressly conceded

that the plaintiff here has no ulterior or improper purpose.

67. Instead of this traditional and well established test, the Roche defendants say that they can meet the less onerous test derived

from the judgment of Costello J. in McSorley, cited above. This is the test that there is quite simply “no tangible benefit” which the

plaintiff can hope to gain by pursuing the proceedings. They are therefore, it is submitted, pointless and thus an abuse of process. In

another sense they are moot by reason of this lack of tangible benefit.

68. I cannot hold that a determination as to whether the death of the deceased was caused by the wrongful act of the Roche

defendants, or any defendants, will not confer a tangible benefit on his father, the plaintiff, and those others for whose benefit the

action is brought. It is quite contrary to any holistic view of human nature to fail to acknowledge that each and every one of these

people will benefit from a resolution of the suspicions which they clearly hold, that the deceased was led to take his own life by the

ingestion of a prescription drug known or believed to be associated with grave adverse psychiatric consequences. Moreover, where a

very young man has died by his own hand, there is a manifest benefit to his father and other relatives in establishing, if it be the

case, that his death had an exogenous cause and was not the result of a free decision on his part. The overwhelming majority of

humanity, including the “reasonable man” beloved of the law, would recognise this instinctively and in my view correctly.

Article 40.3.2

69. I consider that Mr. Burns S.C. is self evidently correct in his submission that the construction of Part IV of the Act of 1961, like

any statute, must be approached in the context of the Constitution. The plangent words of Article 40.3. in relation to the right to life

are almost too well known to require quotation:

“(1) The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the

personal rights of the citizen.

(2) The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done,

vindicate the life, person, good name and property rights of every citizen.”

70. This appears to me to require that the right to life of each individual citizen, including the late Liam Grant Junior, be vindicated.

Since he is unfortunately deceased in circumstances alleged to amount to a statutorily actionable injustice, it appears to me that his

right to life can be vindicated only by hearing, in accordance with law, the plaintiff’s statutory claim that his son’s death was caused

(in the words of the Statute) by the “wrongdoing” of the defendants’ and accepting or rejecting that proposition after a proper

hearing. It is this hearing of an established statutory form of action that the Roche defendants seek to prevent. It is however the

only legal step capable of providing vindication for an alleged injustice “by its [i.e. the State’s] laws”.

71. The foregoing appears to me to follow from an analysis of the constitutional article quoted above, both in its primary, Irish

language, formulation and in English. It will first be noted that the obligation to “vindicate” the life of the citizen arises “in the case of

injustice done”. Accordingly, the word “vindicate” has to be construed if possible in a manner which connotes an appropriate response

to an “injustice”. That injustice is alleged to be the bringing about of the death of the deceased by an act of “wrongdoing”, to quote

the statutory phrase. There is in fact no difficulty in so construing the term, if one has regard to the ordinary and natural meaning of

the word “vindicate” as set out in the Oxford English dictionary. There, the word, which is a transitive verb, said to derive from the

Latin vindicare which is defined as meaning to claim, to set free, to punish, or to avenge. The English term is given the following

meanings:

- avenge, revenge,

- take revenge (on a person) for a wrong,

- claim, assert, or establish the possibility of,

- clear of blame, justify by evidence or argument,

- establish, assert, or maintain,

- defend against encroachment or interference.

72. In this light, it seems to me that, a proper construction of the Article involves a consideration of the primary or Irish language

version as well as the English text. In this connection I wish to acknowledge the invaluable assistance to be derived from “Bunreacht

Na hÉireann, a study of the Irish text” by Mr. Michéal Ó Cearúil, (The All-Party Oireachtas Committee on the Constitution, The

Stationary Office, Dublin 1999). This remarkable feat of scholarship is indeed, in Tennyson’s phrase, “a work of noble note”. The

author points out that the matter expressed in English as “and, in the case of injustice done, vindicate” which is found in the middle

of the English subsection, is found at the end of the Irish version where the same thought is expressed as “agus iad a shuíomh i gcás

éagóra” which means “and vindicate them in case of injustice”. The pronoun “iad” (them) refers to “beatha agus parsa agus dea-chlú

agus maoinchearta an uile shaoránaigh” (the life and person and good name and property rights of every citizen).

73. Here, attention must focus on the use of the term “a shuíomh”, translated as “vindicate”. It will be noted that the same word is

used in the preceding sub-Article, 40.3.1, where it is translated by Mr. Ó Cearúil, literally, as “assert”. The word may also be found in

Article 12.3.1: 12.10.7 and 14.1, where it expresses the notion “is established” or “shown”.

74. The official publication Téarmaí Dlí, translates “Cúis, ceart, a shuí” as “to establish a case, a right”. Dinneen’s dictionary

translates the term as “I set, plant, arrange, dispose, prove, certify, establish, or station (as guards)”. Other meanings cited in Mr.

Cearúil’s work include “fixes, assesses, imposes”, the latter term specifically of laws or legal consequences.

75. In light of the foregoing, and bearing in mind the primacy of the Irish text in the event of deviation, it seems to me that the term

“a shuíomh” or “vindicate” is best rendered, and in a manner which is harmonious as between the Irish and English versions, by a

combination of two of the Oxford English Dictionary definitions those of “defend against encroachment or interference” and “clear of

blame, justify by evidence or argument”. If this meaning is applied to a process which is intended to be a remedy or vindication for an

injustice, then it seems to me to require the three characteristics of vindication which were asserted by Mr. Burns in this case i.e.:

“(i) A judicial process which

(ii) Featured a determination of liability and

(iii) A pronouncement of liability.”

76. It will be noted that, by the terms of the Article quoted, the function of protection or vindication which was imposed as

obligations of the State is to be “carried out by its laws”. It is, therefore, to the body of law in force in the State, i.e. statute law,

common law, and law deriving from any other legitimate source such as the European Convention on Human Rights, that one must

look to for the mechanism of vindication. It is, accordingly, necessary now to turn to Mr. Collins’s contention that such vindication

cannot be found in the civil law of the State, in this case the law of tort, but must be sought exclusively in the “criminal or

regulatory law”.

77. I wish specifically to reject a central proposition upon which the Roche defendants relied, that the vindication of personal rights is

a matter only for the “criminal or regulatory” law and not civil law. This highly artificial distinction has no basis in the Constitution or in

the law itself. Above all, it does not conduce to justice which, by Article 34.1 of the Constitution is what the courts are to administer.

On the contrary, it has been recognised at least since Meskell v. Córas Iompair Éireann [1973] I.R. 121 at pp.132 and 133 that

constitutional rights are capable of enforcement by action, “even though such action may not fit into any of the ordinary forms of

action in either common law or equity” thereby plainly and necessarily establishing that the ordinary forms of action may be used to

enforce such rights where possible. Still more explicitly than the dictum of Walsh J. quoted above is that of Henchy J. in Hanrahan v.

Merck Sharpe and Dohme (Ireland) Ltd. [1988] I.L.R.M. 629 when he said at pp. 635 and 636:-

“I agree that the tort of nuisance relied on in this case may be said to be an implementation of the State’s duties under

those provisions Article 40.3.1 and Article 40.3.2 of the Constitution as to the personal rights and the property rights of

the plaintiffs as citizens.”

78. This is an absolutely express statement of the role of the law of tort in implementing the State’s duties under Article 40.3 and the

personal rights Articles of the Constitution.

79. In a discussion of the “Role of the Law of Tort in the protection of constitutional rights (in Hogan and White, J.M. Kelly: The Irish

Constitution, 4th Ed. (Lexis Nexis, Butterworths 2003) at p.1313, it is considered that “ the courts may either modify the definition of

a tort or permit the plaintiff to sue directly for infringement of constitutional rights”. It may take this novel step “where an existing

tort is ineffective to protect constitutional rights”.

80. There is thus authority both judicial and academic for the proposition that the law of tort is, at least in certain circumstances, an

important tool for the vindication of constitutional rights, and no authority whatever for the proposition that it is concerned

exclusively for the allocation of damages and with nothing else whatsoever. That contention, as we have seen, was central to a

defendant’s case in this motion.

81. Indeed, it seemed to me as the argument went on that the Roche defendants’ case on abuse of process gradually refined itself

almost out of existence. As we have seen, Mr. Collins declined to rely on the Varawa test because he conceded that the object of

the plaintiff in maintaining these proceedings could not be described as “completely outside the ambit of the statutory claim.” But

equally, Mr. Collins wished to emphasise that his clients, the Roche defendants, were not alleging any improper purpose or ulterior

motive against the plaintiff, Mr. Liam Grant Senior. In doing so, it appears to me, the Roche defendants debarred themselves from

relying on another traditional species of abuse of process, an ulterior improper or collateral motive. They were therefore driven to

advance two alternative arguments. The first was that this action was a private law action and private law is wholly concerned with

what remedy is available: it is concerned with nothing else whatever. Secondly, they relied on the “no tangible benefit” argument

which they said arose from the judgment of Costello J. in the McSorley case.

82. I have already indicated that I would reject the view that civil, as opposed to “criminal or regulatory” law has nothing to do with

the implementation of the State’s duty to vindicate personal rights. I believe it to be absolutely contrary to established authority and

to the opinion of the legal academic exponent of the Constitution, the late Professor Kelly. I have already discussed to some extent

the McSorley case, in the course of summarising the arguments for the Roche defendants, above. I wish to say by way of summary

that that was a case where, in the plaintiff’s view, there were two concurrent wrongdoers, Cork Corporation and Mr. O’Mahony,

Solicitor. They sued the first of these and obtained an order for the payment of a specific sum with which they were apparently

dissatisfied. They then proceeded to sue the other alleged concurrent wrongdoer in the hope, apparently, of getting a larger bite of

the cherry. In my view, the form of abuse exhibited on those facts is abuse by multiplicity of proceedings. I believe that the facts of

the McSorley case provide no useful analogy whatever to those of the present case. Here, the plaintiff, so far from multiplying

proceedings, has sued seven defendants in the one set of proceedings, which in my opinion is proper procedure on his part.

83. I also wish to reiterate that I do not accept that the finding that a death was caused by the wrongful act of another person is a

finding which confers no tangible benefit on the relatives of the deceased, in circumstances such as the present, for the reasons set

out above.

Expenditure.

84. We have already seen, in the quotation from the Act of 1961, that a person entitled to sue for the wrongful death of another may

recover funeral expenses and “other expenses actually incurred”. There is, in my opinion, a bona fide and justiciable issue between

the parties as to whether the considerable and expensive research engaged in by the plaintiff preparation for the inquest into the

deceased’s death is expenditure recoverable under the statute. It is clearly expenditure which would not have arisen but for the

death of the deceased and which was foreseeable and appears to me, at least arguably, thus to be recoverable. The plaintiff’s case

may derive some support on this point from the judgment of Barington J. in Condon v. CIE & Ors. (unreported, High Court, Barrington

J., 16th November, 1984). But I do not intend to decide this issue or to consider the cases cited on it, for the reasons given by

Costello J. in D.K. v. King, cited above. It is sufficient to say that the existence of that or any other justiciable issue between the

parties in my view of itself would preclude an order striking out the proceedings at present.

Conclusion.

85. I would dismiss the Appeal and affirm the Order of the High Court.