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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Blehein v. St. John of God  IESC 73 (31 July 2001)
Cite as:  IESC 73
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Blehein, the applicant/appellant, hereinafter referred to as the applicant, has
brought an appeal against judgments and orders of the High Court
(O’Sullivan J.). Judgment was delivered in part on 6th day of July, 2000
and completed on 18th day of July, 2000. The orders were made on 18th day of
July, 2000 and perfected on 21st day of August, 2000. They were adjusted by
consent on 27th day of November, 2000 and the adjusted orders were perfected on
the 7th day of December, 2000.
applicant had sought the leave of the High Court pursuant to section 260(1) of
the Mental Treatment Act, 1945, as amended, to bring proceedings against the
respondent in connection with the exercise of its powers and duties under the
Mental Treatment Act, 1945. The
a judgment delivered on 6th July, 2000, the applicant’s submissions were
treated under nine headings by the High Court. In relation to eight of the
nine headings the High Court held that leave should not be granted to institute
proceedings as the applicant had not established substantial grounds for
contending that the respondent acted either in bad faith or without reasonable
care. On the ninth ground the applicant had submitted that the respondent was
not designated by law as a place of detention. The High Court granted an
opportunity to the respondent to produce a further affidavit. The learned High
Court judge held:
27th November, 2000 the applicant was given leave to institute proceedings
against the respondent hospital challenging the lawfulness of his detention in
1984, 1987 and 1991 on the ground that, at the material times, the respondent
hospital was not designated by law as a place of detention. The applicant was
also given liberty to challenge the constitutionality of section 260 of the
Mental Treatment Act, 1945, as amended.
25th June, 2001 the applicant’s appeal against the orders and judgment of
the High Court (O’Sullivan J.) came on for hearing before the Supreme
Court. There was no issue as to the constitutionality of s.260 of the Mental
Treatment Act, 1945 before the Court. While leave has been granted by the High
Court to the applicant to amend the plenary summons to include the challenge to
the constitutionality of the section this has not yet been done.
the commencement of the hearing the applicant requested that Murphy J. withdraw
from the appeal. He submitted that Murphy J. was a judge in a previous case
where he had exercised the same law against the applicant. He submitted that
in this case the issue was the jurisdiction conferred by s. 260 of the Mental
Treatment Act, 1945. He submitted that a judge who has previously exercised
the same jurisdiction in the same manner could reasonably be expected to be
predisposed to uphold the jurisdiction. He submitted that his appeal would
commence with the argument that the High Court judge had exceeded his
jurisdiction. He submitted that he would be arguing that s. 260 is not a
jurisdiction which the court may exercise having regard to its primary function
of administering justice, that to deny access to the court is to deny justice.
applicant submitted that if a judge has operated s. 260 of the Mental Treatment
Act, 1945 in the past he will operate it in the future. He argued that any
judge who has operated the section should not sit. He argued that if a judge
has given a judgment refusing leave to issue proceedings in any previous case
where s.260 was challenged he or she would do the same again.
for the hospital, noting that Geoghegan J. had dealt with a previous
application under s. 260 whilst a judge of the High Court and Murphy J. had
heard a previous, different, application under s. 260 by the applicant,
submitted that the matter should proceed before the court.
for the Attorney General informed the Court that he had been made a notice
party after the judgment of O’Sullivan J. on 6th July, 2000. At a late
stage the applicant had canvassed the unconstitutionality of s. 260. Pursuant
to the order of the High Court the applicant has leave to amend the plenary
summons. However, he has not yet instituted proceedings to make this
amendment. Counsel submitted that applying logic to the applicant’s
application it would mean that any Supreme Court Judge who had exercised an
appellate function regarding s. 260 would have to withdraw. Similarly, any
person who had acted as a High Court judge on any s. 260 application would also
have to withdraw. Counsel for the Attorney General pointed out that the
Attorney is involved in considerable litigation. It would be inconceivable
that if he had suffered an adverse adjudication on a statute that a judge could
not sit on a subsequent case relating to that statute. As to the particular
situation counsel submitted that unless the Court considered that there had
been participation such as ruled a judge out of sitting in this case the Court
should allow the matter to proceed.
procedure where a party asks a judge to disqualify himself was considered by
the Chief Justice recently. In
v. Minister for Agriculture
 2 I.L.R.M. 37 at pp. 40-41 Keane C.J. stated:
J. did explain to Mr. Blehein that he would adopt the procedure described by
Keane C.J. as set out above in the present case and accordingly defer to my
judgment as to whether he should recuse himself. The applicant moved this
application referring to the issue of bias and the judiciary. There has been
considerable case law on the matter in this jurisdiction in recent times:
Wellwoman Centre Ltd. v. Ireland
 1 I.L.R.M. 408;
Limited (In Receivership) and Ors. v. Tara Mines Ltd. and Ors.
Supreme Court, Unreported, 3rd day of July, 2000;
v. Minister for Agriculture
 2 I.L.R.M. 37;
v. Beaumont Hospital Board
 I.L.R.M. 419;
v. Cassidy (No. 2)
 1 I.L.R.M. 311;
Communications Ltd. v. Director of Telecommunications Regulation
Supreme Court, 1999, No. 224, 18th May, 2000.
applicant’s application is subtle. He does not argue that the judge in
question is biased (either subjectively or objectively) against him. He
submits that a judge who has previously exercised the same jurisdiction in the
same manner could reasonably be expected to be predisposed to uphold the
jurisdiction in any challenge to the jurisdiction; and that this is an appeal
which is a challenge to the jurisdiction in that the applicant is asserting
that the High Court judge exceeded his jurisdiction conferred by s. 260.
constitutionality of s. 260 is not in issue in this case. That is a matter
which the applicant has indicated he wishes to raise, and for which he has got
the leave of the court to so do, at a later stage. Thus in this case neither
this court, not any member of it, has to determine any question as to the
constitutionality of the jurisdiction of s. 260. The section is the law of the
land and under our jurisprudence is presumed to be constitutional.
while the applicant’s application is subtle it is misconceived. All
judges have a duty to uphold the laws of the land and this includes s. 260 of
the Mental Treatment Act, 1945. This means operating the section when
applications are made under the jurisdiction created therein. Thus no judge
could be recused on the ground that on a previous occasion he or she had
exercised a jurisdiction which is the law of the land. If this were so no
judge could hear this appeal who has previously made any order under s. 260.
As this is the only ground upon which the application is made it must fail.
was no claim of bias either subjective or objective. The applicant’s
claim is clouded by his ultimate aim to challenge the constitutionality of s.
260 of the Mental Treatment Act, 1945. However, that is a matter for another
am satisfied that the applicant’s application is misconceived and that he
has not raised a ground upon which Murphy J. should be recused from this case.
Accordingly, also, in accordance with my duty as President of the Court, I am
satisfied that the application should fail. This case should now be put in the
list to obtain a date for hearing.
Applicant/ Appellant (Mr Blehein) wishes to institute proceedings against St
John of God Hospital (the Respondents) for a declaration that his detention in
St John of God’s Hospital for various periods in 1984, 1987 and 1991 was
unlawful and that his treatment there was unconstitutional and constituted an
assault and claim the reliefs set out in the draft plenary summons exhibited in
an affidavit sworn by Mr Blehein on the 27th day of October, 1999.
is clear, and accepted by Mr Bleihein, that the acts of which he complains were
done in pursuance or purported pursuance of the Mental Treatment Act, 1945.
Accordingly it was necessary for him to apply pursuant to
of the Act of 1945 for leave to institute such proceedings. The application on
that behalf was heard by O’Sullivan J who refused the leave for the
reasons set out in the judgment delivered by him on the 6th of July, 2000, and
it is from that judgment and the order made thereon Mr Blehein appeals to this
Blehein appeared on his own behalf. On the opening of the appeal Mr Blehein
submitted that I should recuse myself from the hearing on the grounds that I
participated and delivered a judgment in an appeal entitled
.v. Murphy & Ors
(unreported delivered the 13th July, 2000). The application was made with
commendable propriety. Mr Blehein expressed his concern that my participation
in the appeal would or might give the impression of offending the principle
iudex in sua causa
which he cited. Whilst I did explain to Mr Blehein that I would be happy to
recuse myself I did not think I would be justified in so doing. I explained I
would adopt the procedure suggested by the Chief Justice in his judgment in
.v. The Minister for Agriculture
 2 ILRM 37. What the Chief Justice suggested there (at page 40) was:-
further debate which took place in relation to Mr Blehein’s application
made it clear that his objection extended to any and every judge who had made
an order in any case refusing leave under
of the Act of 1945. It was argued that apart from and in addition to the
challenge which Mr Blehein proposes to make to the constitutionality of that
Section he asserts that no judge may refuse or impede a potential litigant
having access to the Courts.
Mr Blehein says is that any judge who has refused an application under
aforesaid has in effect prejudged an issue which arises on the appeal. In my
view his concern is based on a misapprehension of the concept or relevance of a
reasonable apprehension of bias.
the Supreme Court had expressly held that judge of the High Court was entitled
to exercise the jurisdiction apparently conferred upon him by
of the Act of 1945 - whether on foot of the judgment delivered by me or
otherwise - then that would be the law and as such would bind all lawyers and
litigants unless and until the Supreme Court took the exceptional, but not
impossible, step of reversing its own decision. An accusation of bias could
not be levelled at any judge on the grounds that it was anticipated that he
would apply the law as enunciated by the Supreme Court.
however, the position is, as I believe it to be, that the argument on which Mr
Blehein now relies has never previously been addressed to this Court and
neither the Court nor any member of it has given judgment on the issue as to
whether the jurisdiction apparently conferred on a judge of the High Court by
aforesaid can be exercised constitutionally then the question of pre judgment
or bias in that regard simply does not arise.
Mr Blehein was legally represented I would have felt bound to refuse the
application to disqualify myself. It was only because Mr Blehein appeared on
his own behalf and without the benefit of legal advice that I felt it
appropriate to rely on the procedure outlined by the Chief Justice in the
Rooney Case. Accordingly I deferred to the views of the President of the
Court. If Mrs Justice Denham had any concern that my presence on the Court
might give rise to a reasonable apprehension of bias then I would have
withdrawn. Having regard to the judgment which she has now delivered I would
not be justified in disqualifying myself.