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Cite as:  IESC 35,  4 IR 679
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Judgment Title: Grant -v- Roche Products
Composition of Court: Murray C.J., Hardiman J., Geoghegan J.
Judgment by: Hardiman J.
Status of Judgment: Approved
THE SUPREME COURT
Murray C.J. 248/05
ROCHE PRODUCTS (IRELAND) LIMITED
F. HOFFMAN-LA ROCHE LIMITED
ROCHE HOLDINGS LIMITED
R.P. SCHERER LIMITED
ROCHE PRODUCTS LIMITED
THE IRISH MEDICINE BOARD
JUDGMENT of Mr. Justice Hardiman delivered the 7th day of May, 2008.
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:
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.
The Roche defendants are the moving parties on the present application.
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.
The factual background to this case, and therefore to this application, is a tragic one.
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.
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.
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”.
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:
The present motion.
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.”
On the 18th October, 2004, the solicitors for the Roche defendants issued a notice of motion claiming:
The letter was exhibited.
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”.
The plaintiff solicitors said:
The defendant solicitors went on:
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.
Section 47 relates to definitions. Section 48 states as follows:-
(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.”
“(1)(a) The damages under section 48 shall be -
(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.
The remaining subsections are not relevant.
Staying, rejecting, or restraining proceedings.
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.
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  4 IR 302. There, at p.316, the Court favoured the approach of Lord Bingham in Johnson v. Gore Wood & Co. Ltd.  2 A.C.1 where he said at p.31:-
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”
In that case, the Supreme Court also cited with approval a dictum of Lord Bingham in Gairy v. Attorney General of Granada  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:-
This Court continued in A.A. at p.317:-
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 EHRR 528 at p.546 the European Court of Human Rights said:-
The Roche defendants case.
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.
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.
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.
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:-
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.
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.
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.
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.
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.
In this connection, Mr. Burns relied on Powell v. United Kingdom (2000) 30 EHRR 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:-
“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.”
Mr. Burns also relied on the decision of the English Court of Appeal in R (Takoushis) v. Inner North London Coroner  1 W.L.R. 461 at p.493:-
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.
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.
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.
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.
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.
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”.
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.
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.
(a) The Court’s approach.
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.
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.
In the case of Barry v. Buckley  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”.
In Sung Fat Chan v. Osseous Ltd.  1 IR 425 McCarthy J. said at p.428:-
In D.K. v. King  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.  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 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?
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.  1 WLR 478, per Lord Denning M.R. at p.498):-
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 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.
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.
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.
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.”
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”.
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.
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).
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”.
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.
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.”
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”.
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  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.  ILRM 629 when he said at pp. 635 and 636:-
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…”.
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.
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.
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.
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.
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.
I would dismiss the Appeal and affirm the Order of the High Court.