S72 Clarke v O'Gorman [2014] IESC 72 (30 July 2014)

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Cite as: [2014] IESC 72

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Clarke v O'Gorman
Neutral Citation:
[2014] IESC 72
Supreme Court Record Number:
High Court Record Number:
2010 4248 P
Date of Delivery:
Supreme Court
Composition of Court:
Hardiman J., O'Donnell Donal J., Clarke J., MacMenamin J., Dunne J.
Judgment by:
O'Donnell Donal J.

Judgments by
Link to Judgment
O'Donnell Donal J.
Appeal allowed - set aside High Court Order
Hardiman J., Clarke J., MacMenamin J., Dunne J.

Allow And Set Aside


Appeal No: 347/11

Hardiman J.
O’Donnell J.
Clarke J.
MacMenamin J.
Dunne J.





Judgment delivered on the 30th of July, 2014, by O’Donnell J.

1 Personal injuries cases, in the shape of claims for damages occasioned by accidents at work and increasingly, road traffic accidents, have been the staple diet of civil courts at all levels in Ireland for a century or more. Personal injury litigation is almost the standard unit of civil claims by reference to which other proceedings tend to be compared, measured and analysed. For the most part the law relating to such litigation is well understood and not particularly controversial. The vast majority of cases turn not on any analysis of the law, but on an assessment of contested facts, and the inferences to be drawn from them. It is rather surprising therefore, that the statute law relating to the procedure governing the initiation and processing of this litigation is complex, confusing and poorly aligned.

2 The Personal Injuries Assessment Board Act 2003 (“the 2003 Act” or “the Act”) was introduced to reduce the burden of costs upon insurers in the belief that this would substantially reduce insurance premiums for businesses and motorists and occupiers of premises. Before addressing the details of the Act and its operation in this case, it is perhaps useful to consider its essential architecture particularly in a constitutional context. The basis upon which the Act appears to operate is an assumption that many claims for personal injuries do not involve, or at least should not involve, a serious contest on the issue of liability, and will therefore result in an award to the plaintiff. Furthermore, the range of variables in the assessment of damages for personal injury is not extensive: there are only so many injuries which a human being can suffer as a result of physical accidents which may unfortunately befall them. Most personal injuries actions involve a variation on injuries involving fractures of limbs, loss of limbs or organs, whiplash type injuries, muscular skeletal strains, disfigurement by scarring, and consequential psychological trauma, medical expenses and loss of earnings. Given the high volume of accidents and consequent claims, and the experience developed in dealing with them, it is considered possible to construct a reasonably accurate table of valuations allowing for variation in individual cases and for the severity of injuries. The underlying theory of the Act is that the machinery of civil litigation with its process of ambitious claims met by unrealistic denials each supported by expert evidence and advanced by legal teams, is an unnecessarily costly way of getting to a predictable end point. If however, it were possible to have the valuation of the injuries independently assessed, then that figure could be proffered to both defendant and plaintiff and if the defendant was willing to offer it and the plaintiff to accept, the plaintiff might receive the damages to which they were entitled at an early stage and without the inevitable delay, stress and trauma of court proceedings, and the defendant might be able to pay such damages without incurring all of the costs of defence of the litigation, and the obligation to pay the costs of the successful plaintiff.

3 Whether this is a wise or effective approach in practice, whether it is particularly fair or entirely balanced particularly as far as plaintiffs are concerned, and whether it has secured all the benefits it sought to achieve, are not questions which arise in this case. Indeed some of these issues may not be a matter for legal resolution. What is important for present purposes is that the Act is structured as providing a service for litigants which may remove the necessity for litigation. It is not an abolition of the right to sue for damages for personal injuries.

4 The structure of the Act in this regard in reasonably clear. It does not seek to remove claims for personal injuries from the court system in favour of any compulsory system of arbitration or administrative determination. Indeed, given the provisions of Article 34.2 of the Constitution on the full and original jurisdiction of the High Court, and the concept of the administration of justice contemplated under Article 34.1, it may have been considered that such a compulsory scheme might be problematic. Whether such an assumption was made, and if so, whether it is correct, are not issues that need detain us. The fact is that for whatever reason, the Act leaves firmly alone the entitlement of parties to litigate claims in the courts established under the Constitution. Instead, what it seeks to do is to encourage an early settlement of the bulk of straightforward claims in a manner which minimises the legal and other costs associated with litigation. It seeks to achieve this objective by providing an independent assessment on the value of the claim but also seeking to ensure that parties, and in particular the plaintiffs, consider any offer which is made pursuant to the Personal Injuries Assessment Board (“PIAB” or “the Board”) procedure by compelling plaintiffs in the designated class of cases to submit their claims for assessment before commencing litigation (s.12), and also by for providing for potential cost penalties (s.51A inserted by s.1 of the Personal Injuries Assessment Board (Amendment) Act 2007) if having refused an offer, a plaintiff litigates and recovers less than the amount assessed through PIAB and offered by a defendant.

5 Analysed in constitutional terms, the Act does not seek to achieve its object by any subtraction from the jurisdiction of the courts under Article 34; it is instead a limitation on the unspecified personal right of access to the courts to litigate those claims guaranteed by Article 40.3. A PIAB authorisation is perhaps the most well known, but by no means the only circumstance, in which a party must seek some form of permission or authorisation before commencing a claim. This case does not raise any question of compatibility of this scheme with any provision of the Constitution, but this analysis may be helpful in considering the issues which arise in this case. These proceedings requires the court to consider two aspects of the scheme: what claims are captured by the 2003 Act machinery; and, assuming a claim is indeed a personal injuries claim covered by the Act, what is the correct legal analysis when proceedings in principle captured by the Act are commenced without being processed through PIAB?

6 The plaintiff in this case alleges that she was sexually abused by the defendant, her brother, when she was a child and he an adolescent. The proceedings contain a graphic and detailed description of the abuse alleged. The defendant denies these allegations. Is such a claim captured by the Act, and the procedures it mandates? In fairness to the plaintiff and her advisors, it should be said that the thrust of the PIAB legislation is widely understood to deal with standard claims arising most often in the context of road traffic accidents, accidents at work, or accidents occurring on premises. What each of these cases has in common is that insurance is either compulsory or at least commonplace. Sex abuse claims are certainly not regarded as mainstream personal injuries actions. Furthermore, although the Statute of Limitations Act 1957 as amended by the Statute of Limitations (Amendment) Act 2000 provides for an extended limitation period in the case of sexual abuse, that period is itself limited by reference to certain factors, and the court retains a jurisdiction to dismiss claims where they can no longer be fairly tried, even if commenced within a statutory period. Accordingly, where a claim arising from sex abuse alleged to have occurred a long time ago is mooted, there is an obvious interest in commencing proceedings as soon as possible.

7 Proceedings were commenced by the issuance of a plenary summons on the 5th of May 2010. The endorsement of claim was in the following terms:

“The Plaintiff’s claim is for damages for assault (including sexual assault), damages for battery, damages for trespass to the person, damages for false imprisonment, damages for the negligent and/or intentional infliction of emotional suffering, damages for a physical and/or sexual abuse and/or emotional abuse, damages for negligence and breach of duty including breach of fiduciary duty, damages for breach of Constitutional Rights, aggravated and/or exemplary and /or punitive damages, such further or other Order as this Honourable Court shall deem fit, the costs of the proceedings.”

8 The summons was served on the 28th of May 2010 and an appearance entered on the 29th of September 2010. That document was in standard terms and notified the plaintiff and her solicitors that the defendant had entered an appearance through his solicitors at the central office and required delivery of a statement of claim.

9 In the course of this appeal it was argued on behalf of the defendant, correctly in my view, that a statement of claim which does not repeat any cause of action set out in the endorsement of a claim in a plenary summons, is taken to abandon that claim: See Bullen, Leake and Jacob, Bullen and Leake and Jacob’s Precedents of Pleadings in the Queen’s Bench Division of the High Court of Justice (London; Sweet and Maxwell; 12th edition; 1975) at p. 63. Accordingly, it is necessary to consider the terms of the statement of claim which was delivered on the 2nd of November 2010. Having identified the plaintiff and defendant in paragraphs one and two, paragraph three stated that between 1971 and 1978 when the plaintiff was aged 8 years old and up to the age of 15 years old “she was subjected by the Defendant to repeated and sustained wrongful acts of sexual assault, battery, and trespass to the person in the said family home”. Paragraph 4 asserted that the plaintiff was under the dominion of the defendant. That plea relates, if at all, to the question of the passing of time for the purposes of the Statute of Limitations 1957 as amended in 2000, and is not relevant to the issues which arise on this appeal. There follows what were described as “particulars of assault and battery” which concluded with the statement in the standard, if stilted, language of pleadings:

“The said assault and battery and trespass to the person were perpetrated on the plaintiff by the Defendant. By reason of the matters aforesaid the Plaintiff suffered and sustained severe personal injuries, mental distress, nervous shock, loss, damage, inconvenience and expense.”

Extensive particulars setting out the details of the abuse claimed by the plaintiff and the impact upon her are then set out in narrative form extending over five pages. Thereafter particulars of special damage are set out. Paragraph 5 continues:

“The said personal injuries, mental distress, nervous shock, loss, damage inconvenience and expense were caused to the Plaintiff by reason of the sexual assault and sexual abuse on the part of the Defendant.”

The next paragraph provides:

“And the Plaintiff claims damages for assault, sexual assault, and battery together with interest pursuant to statute and the cost of these proceedings.”

It is apparent that the statement of claim does not repeat the more expansive claims in the plenary summons of false imprisonment, negligence and intentional infliction of emotional suffering, negligent breach of duty including breach of fiduciary duty, or breach of constitutional rights. At face value the statement of claim seems to claim damages for personal injuries, mental distress, nervous shock, loss, damage, inconvenience and expense. The causes of action alleged are assault, sexual assault (insomuch as that is different from assault) and battery and arguably, trespass to the person referred to at paragraph 4.

10 A defence was delivered on the 31st of January 2011. This document, which was in largely formal terms, raised preliminary objections that the plaintiff’s claim was statute barred by the provisions of the Statute of Limitations Act 1957, as amended, and that the plaintiff had also been guilty of an inordinate and excusable delay in the issuance of the said proceedings which, as a result, prejudiced the defence of the proceedings. The defence to the claim was an admission that the defendant resided with the plaintiff, their siblings and parents as alleged but a specific denial that “the Defendant subjected the Plaintiff to the alleged or any acts of sexual assault, battery, and/or trespass to the person as alleged or at all”. Thereafter, the various particulars pleaded were denied and at paragraph 6 it was denied that the plaintiff had suffered “the alleged or any personal injuries, mental distress, nervous shock, loss, damage, inconvenience and/or expense by reason of the matters alleged or at all”. The defence concluded with a plea that the plaintiff had failed to mitigate any loss. Thus far the proceedings and pleadings are in fairly standard and unremarkable form.

11 The case was set down for trial before a jury. Shortly before the end date the defendant’s solicitors raised, by letter, the question of authorisation under the 2003 Act. On the 13th of July 2011 the matter came on for hearing in the High Court before Mr Justice de Valera and a jury. When the jury was empanelled counsel on behalf of the defendant made an application in the absence of the jury to have the plaintiff’s actions struck out on the grounds that the matter was a civil action within the meaning of s.3 of the Personal Injuries Assessment Board Act 2003 and that the plaintiff had not complied with s.11 of that Act in that the matter had not been referred to the Board and the proceedings were not duly authorised by the Board. Apologising to the court for the lateness of the application, counsel for the defendant relied upon the decision of the High Court in Sherry v. Primark [2010] 1 I.R. 407 in support of the submission that the court had no jurisdiction to hear the plaintiff’s action in which case, it was permissible to raise the point at any time.

12 The significance of the point was obvious to all concerned. This was not a procedural objection which could be dealt with by amendment or delivery of further pleadings or particulars with or without adjournment and perhaps some penalty in costs. If the court lacked jurisdiction, the proceedings could not be amended and should be struck out. Since the Civil Liability and Courts Act 2004 reduced the statute of limitations to two years, any fresh proceedings would in all probability face an immediate plea that they were now statute barred, a plea which could now be expected to succeed.

13 The trial judge expressed unhappiness at being asked to decide such an important point at short notice with a jury empanelled and waiting to hear the case. However, having heard brief submissions from either side he accepted the defendant’s argument that the proceedings should be struck out for want of jurisdiction, but agreed to place a stay on that order to permit appeal to this Court. The defendant applied for his costs, but the court refused that application.

14 The argument for the defendant was that these proceedings constituted a civil action for the purposes of the 2003 Act. The long title to the Act provides that it is:

“An Act to enable in certain situations, the making of assessments, without the need for legal proceedings to be brought in that behalf, of compensation for personal injuries (or both such injuries and property damage), in those situations to prohibit, in the interests of the common good, the bringing of legal proceedings unless any of the parties concerned decides not to accept the particular assessment or certain other circumstances apply, to provide for the enforcement of such an assessment, for those purposes to establish a body to be known as the Personal Injuries Assessment Board and to define its functions and to provide for related matters.”

15 The civil actions captured by the Act are identified by a consideration of the provisions of ss.3 and 4 of the Act when taken together. Section 3 provides:

“This Act applies to the following civil actions—

      (a) a civil action by an employee against his or her employer for negligence or breach of duty arising in the course of the employee's employment with that employer,

      (b) a civil action by a person against another arising out of that other's ownership, driving or use of a mechanically propelled vehicle,

      (c) a civil action by a person against another arising out of that other's use or occupation of land or any structure or building,

      (d) a civil action not falling within any of the preceding paragraphs (other than one arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person).”

Section 4 is the interpretation section. It provides that:

“‘Civil action’ means an action intended to be pursued for the purpose of recovering damages, in respect of a wrong, for-

(a) personal injuries, or

(b) both such injuries and damage to property (but only if both have been caused by the same wrong),

but does not include—

      (i) an action intended to be pursued in which, in addition to damages for the foregoing matters, it is bona fide intended, and not for the purpose of circumventing the operation of section 3, to claim damages or other relief in respect of any other cause of action,

      (ii) an application for compensation intended to be made under the Garda Síochána (Compensation) Acts 1941 and 1945,

      (iii) an action intended to be pursued in respect of an alleged breach by the State or any other person of a provision of the Constitution,

      (iv) an action intended to be pursued under section 3 of the European Convention on Human Rights Act 2003.”

16 The first interpretative difficulty which is encountered here is that on its face, it is not clear why s.3 is divided into four separate paragraphs since subsection (d) appears to be a catch all provision which, if slightly amended, would make (a), (b) and (c) redundant. It does appear that subsections (a), (b) and (c) are therefore essentially descriptive. They are illustrations of the most familiar type of case clearly falling within the category of civil action but were not intended to be the only categories of such actions. It appears that these provisions were commenced at different times, with subsections (b) (c) and (d) commenced slightly later than claims in respect of subsection (a). It may have been thought desirable to facilitate such staggered commencement of the Act by separately identifying these categories, but if so it has the unfortunate effect of complicating the subsequent interpretation of the statute.

17 The second interpretative difficulty is more substantial. The Act requires an analysis and understanding of related and intersecting concepts of “wrong” “civil action”, “cause of action” and “action for personal injuries”. “Civil action” is by the interpretation section limited to actions intended to be pursued for the purposes of recovering damages in respect of a wrong for, broadly speaking, personal injuries, subject to the qualifications and exceptions contained in subsections (i), (ii)(iii) and (iv). The concept of “wrong” refers in turn to the Civil Liability Act 1961 (“the 1961 Act”) and is a concept of the broadest application which captures most, if not every, cause of action litigated in civil proceedings at common law. “Wrong” is defined in s.2(1) of the 1961 Act as:

“a tort, breach of contract or breach of trust, whether the act is committed by the person to whom the wrong is attributed or by one for whose acts he is responsible, and whether or not the act is also a crime, and whether or not the wrong is intentional”.

It is important however to note however that a “claim for personal injuries” which is the central concept in the 2003 Act, is not itself a cause of action. Personal injuries are the injuries suffered which, if caused by a wrong, may give rise to a remedy, most often an award of damages. The distinction is illustrated by the provisions of Order 19, Rule 5(1) of the Rules of the Superior Courts which provides that:

“In all cases alleging a wrong within the meaning of the Civil Liability Acts, 1961 and 1964, particulars of such wrong, any personal injuries suffered and any items of special damage shall be set out in the statement of claim or counterclaim and particulars of any contributory negligence shall be set out in the defence.” (emphasis added)

18 Pleadings, and, in particular, a general endorsement in a plenary summons, identify causes of action not injuries suffered. Thus, while proceedings may be described colloquially as proceedings for personal injuries, as a matter of law they are proceedings for remedies flowing from asserted causes of action. In the bulk of cases this poses no problem. Indeed the Act seems to adopt the approach that personal injuries actions may be difficult to define but easy to recognise. In the vast majority of cases with which the Act is concerned (and it might be said that this Act is particularly concerned to effect a general change rather than to address individual or marginal cases), there will be no difficulty. But at the margins, of which this case is an illustration, the requirement to approach proceedings drafted to assert causes of action by reference to whether they are or are not “personal injuries proceedings” causes problems, particularly when there is no standard form required for the drafting of a claim, and pleadings will often seek not so much to identify with precision the claims made, as employ language which is broad enough to facilitate any possible argument which might prove helpful in the course of the proceedings. This is particularly problematic because the Act does not, as it might, provide, for example, that if any claim is made in respect of personal injuries then the entire proceedings are captured by the Act. Subsection (i) of s.4(1) excludes actions for personal injuries from the concept of civil action, if, in addition to any claim for damages for personal injuries, “it is bona fide intended, and not for the purpose of circumventing the operation of section 3, to claim damages or other relief in respect of any other cause of action”. As might have been anticipated, the result has been that the decade subsequent to the adoption of the 2003 Act has seen a significant amount of learning applied to elusive concepts such as causes of action, wrongs and personal injuries, whether damages are claimed in respect of any other cause of action, and whether a particular action or proceedings or procedure is in “respect of a wrong, for - (a) personal injuries, or (b) both such injuries and damage to property (but only if both have been caused by the same wrong)” (s. 4(1) of the 2003 Act).

19 In this case, the defendant maintained that this was plainly an action intended to be pursued for the purpose of recovering damages in respect of a wrong or wrongs for personal injuries, and the trial judge agreed. That was the first limb of the argument. The second limb was that in those circumstances, the defendant maintained that the effect of s.12 was to deprive the court of jurisdiction to hear the case. It was important for the defendant to so characterise the provisions of s.12 because if a matter goes to jurisdiction, it is accepted that the point can be raised without pleadings, and can be raised at even a late stage of the proceedings, and indeed may be raised by the court itself.

20 Section 12 of the 2003 Act states:

“Unless and until an application is made to the Board under section 11 in relation to the relevant claim and then only when the bringing of those proceedings is authorised under section 14, 17, 32 or 36, rules under section 46 (3) or section 49 and subject to those sections or rules, no proceedings may be brought in respect of that claim.”

In a simplified form this section provides that unless and until authorisation is received from the Board in respect of civil actions captured by the Act, no proceedings “may be brought” in respect of such claims. The rest of s.12 goes on to maintain an entitlement to commence proceedings and make an interlocutory application for the purposes of maintaining assets, restraining their dissipation or requiring the preservation of items of property. Relying on the decision of the High Court in Sherry v. Primark the defendant contended, and again the trial judge agreed, that the effect of s.12 was to deprive the court of jurisdiction to hear a case properly falling within the Act in respect of which an authorisation had not been produced.

21 In Sherry v. Primark proceedings had been commenced before the coming into force of the 2003 Act. However after that Act had become law, the defendant sought to join a third party for the purposes of obtaining indemnity contribution. As is commonplace in such circumstances, the plaintiff appeared at the hearing of the motion and sought to have the third party joined as a co-defendant. The co-defendant so joined entered a conditional appearance. An application was brought for judgment in default of defence against the joined defendant but at the hearing of the motion the second named defendant contended that the proceedings were improperly constituted as against it, by reason of the fact that no authorisation had been obtained in respect of the proceedings against it, and accordingly the court had no jurisdiction to deal with the case.

22 The judgment records counsels’ submission in that case. Counsel for the plaintiff submitted that the joining of an additional defendant did not constitute the “bringing of proceedings” by the plaintiff against an additional defendant. Furthermore, it was submitted that the section was procedural rather than jurisdictional. It was submitted that the Act of 2003 was designed to regulate the exercise of jurisdiction and was procedural in nature and compliance with the provision was not a condition precedent to the invocation of the court’s jurisdiction. Section 12 of the Act of 2003 was contrasted with pieces of legislation which both conferred jurisdiction on the High Court and created a time limit which was therefore jurisdictional, such as s.117 of the Succession Act 1975 and s.9 of the Civil Liability Act 1961. The proceedings in respect of personal injuries captured by the 2003 Act were however analogous to proceedings in which an issue arose under s.3(1) of the Statute of Limitations (Amendment) Act 1991 (“the 1991 Act”). It was argued that those sections did not deprive the plaintiff of entitlement to bring proceedings but as a matter of procedure, enabled the defendant to plead by way of defence either a limitation period or, in this case, the failure to obtain an authorisation from the PIAB. In reply, counsel for the second named defendant characterised s.12(1) as a jurisdictional provision. It was submitted that “the foundation stone of personal injuries litigation since the Act of 2003” (para. 21) was the granting of an authorisation. Section 12(1) of the Act contained a statutory prohibition on bringing civil proceedings subject to certain statutory exceptions unless a plaintiff had gone through the Personal Injuries Assessment Board or had been issued with an authorisation. It was submitted that s.12(1) of the Act of 2003, in contra distinction to the Statute of Limitations, had the effect of not permitting the High Court to allow the institution of proceedings without an authorisation.

23 The High Court judge concluded that the effect of s.12 was jurisdictional rather than procedural. He considered the section contained a statutory prohibition on actions being instituted at all unless and until an application was made to the Personal Injuries Assessment Board and an authorisation issued. There were two statutory conditions precedents, application and authorisation, which were inextricably linked, and which had to be fulfilled before an action could be commenced in court. That, he considered, was in marked difference to the language of s.3(1) of the 1991 Act. Furthermore, he considered that the Act of 2003 expressly prohibited the bringing of proceedings unless specified conditions were satisfied, i.e. those set out in s.12(1). He concluded:

“That, combined with the purpose of the Act, as gleaned from the preamble and the general scheme of the Act, as revealed from the foregoing summary of some of its relevant provisions, strongly suggests that the intention of the Oireachtas was to prevent or prohibit the commence of court proceedings until the procedures set out in the Act of 2003 were followed, leading either to an assessment of damages or the issuance of an authorisation. Thus, in my view, the correct conclusion is that s.12(1) operates as a jurisdictional rather than procedural provision, so that a court does not have a jurisdiction to permit the commencement of proceedings in respect of a relevant claim until the foregoing procedures under the Act of 2003 have been exhausted. If it were permissible to commence an action in respect of a relevant claim, leaving the issue of the authorisation as a matter to be raised in defence, it is safe to say the entire scheme of the Act of 2003 would be hopelessly undermined. Looked at in this way, the view that s.12(1) is jurisdictional rather than procedural is greatly reinforced.” (para. 27)

The judge considered that the addition of a defendant, even on a defendant’s application to join a third party application, was the “bringing of proceedings”. Thus the plaintiff’s application for judgment was refused and the order joining the second defendant as a co-defendant was set aside. The Defendant here relied strongly on Sherry v Primark to argue that if this was a personal injuries action captured by the Act, then the absence of an authorisation was a jurisdictional defect which could be raised at any time and which would lead to the striking out of the proceedings.

24 In this appeal the arguments on behalf of the appellant did not really take issue with the decision in Sherry v Primark as meaning that lack of authorisation was a jurisdictional defect. Instead it placed heavy reliance on a recent judgment of Baker J. in the High Court in the case of P.R. v. K.C. Legal Personal Representatives of the Estate of M.C. Deceased [2014] IEHC 126 (“P.R. v. K.C.”) to argue that the claim was not a claim for personal injuries within the Act. P.R. v K.C. , was also a case arising from claims of sexual abuse. The question was whether those proceedings were barred by s.12(1) of the 2003 Act. The central issue addressed in the careful judgment of the High Court Judge was whether the Act of 2003 applied to the claim in that action. The plaintiff argued that as the claim was one for damages for assault, a prior authorisation under the 2003 Act was not required.

25 The judgment observed that not all civil actions are included within the Act of 2003. Certain exclusions applied and relevant to that case (and which also arises in this case), were the provisions of s.4(1)(i) excluding an action intended to be pursued to claim damages or other relief in respect of any other cause of action as well as damages for personal injuries, and s.4(1)(iii) which excluded actions in respect of an alleged breach by the State or any other person of a provision of the Constitution. The starting point in those proceedings was the conclusion in Sherry v. Primark that absence of PIAB authorisation where required, was not a mere fault in procedure but went to the root of the court’s jurisdiction to hear and determine the claim. Thus the issues considered in that case are very similar to those which arise here.

26 The judgment in P.R. v. K.C. analysed carefully the decisions on the 2003 Act and observed that those cases were authority for the proposition that the court in applying the Act must look to the substance of the claim, rather than the manner in which the claim was framed in the pleadings. At paragraph 21 the question was posed: “is this in reality an action for trespass to the person and assault or civil action for personal injuries?” The question was framed in this way because of an argument derived from a suggestion in a recent textbook, Jennings, Scanlan and Sheehan, The Law of Personal Injuries (Dublin; Round Hall; 2011), that an argument could be made that since a plaintiff seeking damages for assault is entitled to claim damages per se, the proceedings were not personal injury proceedings. This line of argument is derived from the fact that as a matter of law, (itself dependent upon distinctions made for reasons related to the historical derivation of the claims) a distinction is made between causes of action which were complete without proof of damage, and those such as negligence, where the tort does not arise until damage is suffered. This rather arcane distinction has continued to have some impact in modern times principally because it allows for a different date for the accrual of a cause of action, and accordingly for a different, and later date for the commencement of the limitation period. In claims actionable per se, the cause of action accrues when the wrongful act is committed, in those in which damage is a component of the tort the cause of action will not accrue until damage is suffered. This distinction is called an aid in the context of the 2003 Act because it is argued that proceedings for sexual abuse or sexual assault are in essence proceedings for trespass to the person, and accordingly any claim for personal injuries can be seen as ancillary to or at least additional to a bona fide claim for damages or other relief “in respect of any other cause of action”. As it was put at paragraph 22 of the judgment:

“This argument is that the plaintiff is entitled to damages merely on account of having been subjected to the trespass and that in those circumstances, the plaintiff does not have to show that any injury in fact flowed from the assault. In those circumstances, a claim for damage to personal injuries could be seen as being ancillary to the claim for damages arising from the trespass to the person itself.”

The judge accepted this argument and concluded that where a plaintiff claimed as his or her primary cause of action damages for assault or trespass to the person or infringement of that person’s constitutional right to bodily integrity (Article 40.3.1) and protection of the person (Article 40.3.2), the primary or substantive claim is a claim for damages arising out of those torts and not a claim for damages for personal injuries. Accordingly, having regard to the characterisation of an act for trespass to the person, the judge concluded that the action was not one for damages for personal injuries.

27 A further argument relied upon by the plaintiff in that case was that the 2003 Act must be read with the Civil Liability and Courts Act 2004 which introduced a new procedural regime for the bringing of actions to recover damages for personal injuries. In that case the definition of personal injuries action expressly excluded a claim for damages which was for false imprisonment or trespass to the person. Furthermore, the judge considered that it was held in Devlin v. Roche [2002] 2 IR 360 that a claim for damages arising from trespass to the person was not a personal injuries claim under the 1991 Act and that the relevant statutory time limit was therefore six years for such a claim. Approaching the case on the basis that the Acts of 2003 and 2004 should be read as being substantially in pari materia, then it is argued the same definition should apply. The Act should be interpreted to avoid the anomaly identified by Kearns J. in Campbell v. O’Donnell & Ors. [2009] 1 I.R. 133 that a person whose cause of action arose from alleged trespass to the person finds himself or herself in an entirely different procedure to the regime which would arise where the action was one for personal injuries. Finally, the court also considered a claim for damages for breach of constitutional rights. The court rejected the contention that it would be possible to simply recast a negligence claim as one for breach of constitutional rights. It was considered that such a procedure would simply be another way of seeking the same relief and would be captured by the Act. However, it was accepted that a claim for breach of constitutional rights could properly lie in a case of trespass to the person or akin to it. Accordingly the conclusion was set out at paragraph 38 of the judgment:

“In the circumstances I conclude that the substance of the action commenced by the plaintiff is not a civil action for personal injuries. It is an action by which the plaintiff seeks to vindicate his personal and constitutional right to bodily integrity and the person, as explained by Hogan J. in F.H. & Ors. v. Staunton & Ors. [2013] IEHC 533.

It is accordingly an action which is founded in a tort which is actionable per se and without proof of actual damage or injury. This plaintiff has pleaded the case in the alternative, in the first place pleading the essence of tort of trespass to the person and then going on to plead the alleged consequences of such trespass in the form of physical injury and emotional suffering. As the plea in substance is a plea for damages for the tort of trespass to the person, it is one which does not as a matter of law require the plaintiff to establish personal injury.

Furthermore, the plaintiff’s claim is excluded from the operation of the Act of 2003 by s.4(1)(iii) being an action for breach of the plaintiffs constitutional rights and not one ancillary to the claim for trespass to the person.

In the circumstances I hold the claim is not one for which prior PIAB authorisation was required.”

The decision in P.R. v. K.C. has not been appealed to this Court. However, the appellant’s submissions in this case closely followed the structure of the judgment in P.R. v. K.C.. In this case however, the argument was complicated somewhat by the fact that any claim for breach of constitutional rights contained in the plenary summons is not repeated in the statement of claim. Nevertheless the appellant relied heavily on the general analysis in P.R. v. K.C. Accordingly it is necessary to consider the decision in that case .

28 I regret that I must, and with respect, differ from the careful judgment of the High Court Judge in P.R. v. K.C.. I accept that the distinction between torts actionable per se and those actionable on proof of damage remains valid for some purposes. However, I cannot see that it resolves the problem in this case. For reasons already touched on, causes of action on the one hand, and claims for personal injuries on the other, are not similar concepts. In my view, it is wrong to pose the question whether this was an action for trespass to the person and assault or, a civil action for personal injuries, as if these were mutually exclusive categorisations. They are not. A cause of action is something logically and legally different from the type of damage suffered as a result of the facts giving rise to the cause of action. The fact that a claim can be described as one for personal injuries does not mean that it is not an action for assault, for example. Since they are different things, the description of the cause of action on the one hand and the damage alleged in consequence on the other, are not mutually exclusive categories of causes of action, but instead overlap and intersect. Some claims for trespass to the person and assault may not involve personal injuries (although that is rare), and there are obviously many actions for personal injuries that do not involve assault (although they may all be, at some technical level, a trespass to the person). But the vast bulk of actions for trespass to the person and assault will also be, and be properly described as, actions for personal injuries. That this is so is reinforced by the provisions of s.17 of the 2003 Act which permits, but does not require, the Board to refuse to provide an assessment in certain cases containing elements out of the ordinary. In particular section 17(1)(ii)(IV) permits this course:

“[I]n case the relevant claim arises out of a trespass to the person, because the making of an assessment of the claim by the means to which assessors are limited to employing by this Act would not respect the dignity of the claimant.”

29 This provision, on its face, implies that claims arising out of trespass to the person are prima facie included in the Act and therefore are claims for personal injuries. I accept that some confusion can be caused by the terms of s. 4(1)(i) which excludes claims where in addition to a claim for personal injuries, it is bona fide intended to claim damages or other relief “in respect of any other cause of action”. This might be read as implying that a claim for personal injuries is itself a cause of action. But I think that it is clear that “other cause of action” means here, other than the cause of action giving rise to the claim for personal injuries. Indeed a reading of s. 4 as a whole makes this clear. A civil action is defined as an action for the purposes of recovering damages in respect of a wrong, for personal injuries. The term “other cause of action” refers back to “wrong” and not “personal injuries”. The phrase “Other cause of action” in s.4(1)(i) means therefore in my view a cause of action other than that in which personal injuries are claimed. Once this is understood much of the conceptual difficulties and complications disappear. The question then becomes whether this is one of those rare cases in which the claim is for damages for assault or trespass to the person not resulting in personal injury. Self-evidently this is not so. The claim for personal injuries is alleged to have been suffered as a result of an assault. The claim is accordingly one for personal injuries and consequently a civil action captured by the Act.

30 The High Court in P.R. v. K.C. also found that the claim was one excepted from the definition of civil action under s.4(1)(iii) as being an action intended to be pursued in respect of the alleged breach by the State or any other person of a provision of the Constitution. The court held that it was not possible to repackage standard personal injuries claims as claims for breaches of constitutional rights. However, it was considered that the claim here was properly a claim to vindicate a personal constitutional right to bodily integrity and the person, and was not ancillary to the claim for trespass to the person and accordingly was excluded by s.4(1)(iii) of the 2003 Act.

31 Again, reliance is based on this line of argument in this appeal. However, here it faces the further difficulty that the claim for damages for breach of constitutional rights must be taken to be abandoned. However, since this is a matter of some importance, and on the assumption that the court might be entitled to look at the essence of the cause of action involved, it is desirable to address this argument.

32 At first sight, it might appear that any cause of action for personal injuries can be characterised as a horizontal claim for breach of constitutional rights. It is not necessary to discuss here the theoretical basis for permitting claims to be brought by one individual against another for breach of the provisions of the Constitution, and any possible limits to such claims. Since Meskell v. Córas Iompair Éireann [1973] I.R. 121 such actions must be taken as permissible in Irish law even if the underlying theory was not there discussed or debated. The Act of 2003 recognises such a possibility. Furthermore, it might be said that there is nothing in the 2003 Act and in particular s.(4)(1)(iii) which qualifies the breadth of the exception. Thus, on the language of s.(4)(1)(iii) it can be argued that any claim which is either characterised, or perhaps is capable of being analysed, as a claim for breach of constitutional rights, is exempted from the statute. Such a conclusion would however, entirely subvert the operation of the statute. Thus a question arises as to whether such a broad interpretation should be given to s.(4)(1)(iii) since it is rare for a statute to provide an exception which swallows the entirety of the Act?

33 The intersection between claims for damages for breach of constitutional rights and claims in tort was discussed in Hanrahan v. Merck Sharp and Dohme Ireland Ltd. [1988] ILRM 629. The effect of that decision is that the existing torts and other causes of action known to common law are to be considered the method by which the State performs its obligation to vindicate the constitutional rights of the citizen. It is only therefore if it can be shown that the existing law does not adequately protect the constitutional rights of the citizen that a separate claim for breach of constitutional rights can be invoked. In my view, it is clear that it is this limited and residual sense that the Act refers to actions for breach of constitutional rights. This is also consistent with the internal logic and structure of the Act. The scheme of the Act is to deal with large numbers of routine claims which can be reduced to reasonably predictable valuations. Where there is any difficulty or complexity, the Act either excludes such claims in limine, or permits the Board to decline make an assessment. By definition, any claim for breach of constitutional rights not itself capable of being pursued within one or other of the established causes of action must be a matter of some novelty, and consequently difficult to assess. Furthermore, it is very unlikely that such claims, if dependent on a novel legal analysis, could result in a consensual settlement on a valuation provided by the Board. Such claims are better left to courts from the outset. It is therefore understandable that such novel claims would be excluded. The same cannot be said for a standard negligence action recast as a claim for interference with the constitutional protection of the person and bodily integrity. Consequently, in my view, quite apart from the pleading point, it is apparent that the plaintiff’s claim does not fall within category contemplated here. It is a claim which if valid, can be fully met by the law of trespass to the person. It does not fall under s. 4(1)(iii) of the Act.

34 Nor do I think that it is a solution to this difficulty to seek to invoke the provisions of the 2004 Act. Ideally the scope of the 2003 Act and the 2004 Act should be identical. But the 2004 Act is not expressed to be in pari materia with the 2003 Act nor is there any obligation to read them together. It is not inherently impossible, even if it is untidy, that a claim can fall under the 2003 Act and require authorisation, but not be required to use the procedures in the 2004 Act. In any event, it seems to me that the interpretation of the two statutes taken together lead to the conclusion that actions for assault are within the 2003 Act and not within the 2004 Act. This is because the definition of “civil action” in the 2003 Act and “personal injuries action” in the 2004 Act use identical introductory language in providing that each action means an action for the recovery of damages “in respect of a wrong, for - (a) personal injuries, or (b) both such injuries and damage to property (but only if both have been caused by the same wrong)” However they depart from each other in the exceptions to the definition. In particular the fact that “an action where the damages claimed include damages for false imprisonment for trespass to the person” (s.2(1) of the 2004 Act) is expressly excluded from the definition of “personal injuries action” under the 2004 Act, is itself a guide which suggests that such actions are not excluded from the definition of “civil action” under the 2003 Act. Had it been intended to align the definition section in each Act, it would have been easy to do so given the fact that identical introductory language was used. I certainly see no reason to use the 2004 Act as a method of retrospective interpretation of the scope of the 2003 Act when had that been intended, it could have been easily achieved by the simpler and clearer route of amending the 2003 Act expressly. Finally, in this regard, I do not think that Devlin v. Roche is of real assistance. In my view, it did not hold that a claim for damages arising from trespass to the person was not a personal injuries claim under the 1991 Act; rather, it held that it was a personal injuries claim but not for breach of duty under the 1991 Act. In any event, the interpretation of those provisions in the 1991 Act and the legislation of the United Kingdom upon which it appears to have been patterned, from the Letang v. Cooper [1964] 2 Q.B. 53, 59 to A v. Hoare [2008] EWHC 1573 (QB), is particularly difficult and unlikely therefore to be a source which clarifies the complex provisions of the 2003 Act. On the first issue, I am thus unable to accept that the claim here can be characterised as anything other than a civil action under s.3(d) of the 2003 Act being an action coming within the general definition set out at s.4(1) and not excluded under s.4(1)(i),(ii) or (iv).

35 However as set out above, the hearing in the High Court proceeded on the assumption that the effect of s.12 of the 2003 Act was jurisdictional and thus the point did not require to be pleaded by the defendant, and could be taken at any time in the proceedings as indeed this case illustrates. It was for this reason that the defendant was able to raise the matter after the jury in this case had actually been empanelled. The parties and the trial judge took the law as that stated in the High Court decision in Sherry v. Primark which was entirely understandable and appropriate. In my view however, that decision, which was not appealed to this Court, requires careful consideration.

36 While many arguments were canvassed in Sherry v. Primark there was no reference to decided authority. The matter proceeded as an argument of first impression from the wording of the section. A further difficulty is caused, at least in my view, by the categorisation of provisions as either “jurisdictional” or “procedural”. This is a little misleading. Section 12 of the 2003 Act cannot be characterised as regulating any procedure, but then the same might be said of s.3(1) of the 1991 Act. Nor can I agree with the premise of the argument on behalf of the defendant in that case that a granting of authorisation under the 2003 Act is a “foundation stone of personal injuries litigation” at least since the coming into force of that Act. Insomuch as this formulation is intended to suggest that the effect of s.12 of the 2003 Act is jurisdictional, it is question begging. I do not think that the 2003 Act, for all its significant impact on the business of personal injuries litigation, can be said to be a foundation stone. The foundation stone for any personal injuries claim is the law, most of it common law, establishing the causes of action, most often negligence, for which damages can be recovered if personal injury has been suffered. The 2003 Act undoubtedly has a very significant impact on the bringing of such claims to court, but it is logically subsequent to the circumstances giving rise to an alleged cause of action and the law which permits such a claim to be made in respect thereof.

37 In my view, s.12 does not operate as a jurisdictional provision. The very concept of jurisdiction is sometimes a broad one, but in this case, I think the word is used in its narrowest and purest sense. The defendant can only succeed here, given the manner in which the application was made and its timing, if the Act deprives the court of jurisdiction to hear and determine the claim. Section 12 is certainly significant. It imposes a legal prohibition. But it is significant that the prohibition is not directed towards the court, but rather towards the parties, and in particular the plaintiff. The operative part of the section provides that “no proceedings may be brought” in respect of any such claim without an authorisation. Manifestly it is the plaintiff who brings proceedings to whom this prohibition is directed. If the section said, as it could have, that unless and until an application was made to the Board and an authorisation granted, a plaintiff or intending plaintiff could not bring proceedings in respect of any claim, the meaning of the section would, in my view, be identical, but it would be more difficult to contend that the impact of the section deprived the court of jurisdiction, rather than imposing a restriction on the right of a plaintiff to bring a claim.

38 This reasoning is, I think, reinforced by a comparison with the various provisions of the Statute of Limitations. Thus, s.3(1) of the 1991 Act provides that:

“[a]n action … claiming damages in respect of personal injuries to a person caused by negligence, nuisance admissions or breach of duty … shall not be brought after the expiration of 2 years from the date on which the cause of action accrued”. (emphasis added)

Section 11(1) of the Statute of Limitations Act 1957 as amended is still perhaps the basic provision creating limitation periods and provides that “[t]he following actions shall not be brought after the expiration of six years from the date …”. Section 11(2) as inserted by the 1991 Act dealing with the general limitation period in respect of tort claims provides again that action “shall not be brought”. The same verb is used in s.2(c) in respect of an action for defamation, in s.11(2)(d) for a claim under the Sale of Goods and Supply of Services Act 1980, in s.11(4) for an action for an account and in s.11(5) providing a 12 year limitation period in respect of various causes of action. The significance of this statutory language is considerable. It is well established that the provisions of the Statute of Limitations, framed in this way for over a century, operate to bar the remedy and not to extinguish the right. Thus, as set out in Brady and Kerr, The Limitation of Actions (Dublin; Incorporated Law Society of Ireland; 2nd Edition; 1994) it is well established that the Limitations Acts in most cases go only to the conduct of the suit leaving the claimants rights otherwise untouched. The authors continue at pages 4 and 5:

“In this sense the Statutes are procedural. If, however, at the expiration of a period prescribed for any person to bring an action to recover land, the title of that person to the land is extinguished such a limitation goes to the cause of action itself and is thus substantive.

A statute which imposes a limitation of time upon an existing right of action is properly called a statute of limitation. If a statute confers a new right and also prescribes a limited time within which that right might be enforced that is not properly called a statute of limitation. In this latter case the provision as a substantive or jurisdiction effect, in that after the expiry of the limited period the right no longer exists and the court has no jurisdiction to entertain a claim.

The Statutes must be specifically pleaded. In other words, a defence under the Statutes must be raised or waived by the defendant as a matter of choice. It is only with jurisdictional provisions that the court will formally raise the matter of time on its own motion. Since it is for the defendant to plead the statute, if he wishes to avail himself of it, it would appear to follow that it is the defendant who has the burden of proving that the plaintiff’s claim is statute barred.”

39 There is no doubt that s.12 of the 2003 Act is expressed in more emphatic terms. It opens with the words “unless and until an application is made …”. Perhaps for this reason, O’Neill J. in Sherry v. Primark considered that there was marked difference between the language used in s.12(1) and that employed in s.3(1) of the 1991 Act. However, to my mind what is much more significant is the employment of the same verb: it is the bringing of proceedings which is restricted in both cases. In using that formulation, the Oireachtas was employing a statutory formulation which was very well known. While distinctions between jurisdictional and procedural limitations are difficult both conceptually and in practice, the fact is that the legal consequence of the Statute of Limitations is one that is well recognised and was well known in 2003 when the Act was enacted. Thus, in O’Reilly v. Granville [1971] I.R. 90 (p. 95) O’Dálaigh C.J. adopted a passage from Lightwood on Limitations (1909) (Lightwood, The time limit on actions being a treatise on the statute of limitations and the equitable doctrine of laches (London; Butterworth; 1909) (p. 3):

“Some statutes, such as the Real Property Limitations Act, 1833 and 1874 … operate by extinguishing the former owners title; others, as the Limitation Act, 1623, bar his right of action only, but leave his substantive right intact, so that he is at liberty to avail himself of it by any means which do not require him to take proceedings to enforce it. This distinction has an important result as regards procedure. When a plaintiff is seeking to assert a title which has been extinguished by statute, the defendant is not bound to plead the statute in his defence; when, on the other hand, the plaintiff’s remedy only is barred, the defendant cannot set up the statute unless he as specially pleaded it.”

In the same case Budd J. said:

“[I]t has long been settled that the effect of these statutes [of limitation] is to bar the remedy and not to extinguish the right. It was then further submitted in the cases where the statute in question only bars the remedy and does not extinguish the right, the relief or defence given by the statute does not operate until pleaded. … I agree with these submissions and take the view that the point as to the applicability of the statute was taken prematurely in the court below.” (p. 108)

Furthermore, it is notable that Order 19, Rule 15 of the Rules of the Superior Courts speaks of a necessity to plead “all matters which show the action … not to be maintainable”. In this case as already noted, the defendant raised two such matters in his defence, that the action was barred by the provisions of the Statute of Limitations, and also that the plaintiff had been guilty of inordinate and excusable delay., but did not raise this issue.

40 Finally, the constitutional structure in which the 2003 Act is set, discussed earlier in this judgment, gives further support to the conclusion that s.12 does not operate to deprive the court of jurisdiction. As it happens, this claim was commenced in the High Court which has full and original jurisdiction to determine all questions of fact and law. The extent of that provision has not been the subject of much litigation or indeed analysis, and it cannot be decisive in any event in this case since personal injuries actions are regularly litigated in the courts of local and limited jurisdiction established under the Constitution. It is not necessary here to address the interesting question as to the extent to which the resolution of claims could be compulsorily transferred from courts to tribunals or other assessment bodies. What is important is that when analysed, it is apparent that the 2003 Act goes to considerable lengths not to do so. As set out above, in constitutional terms, the Act can be best understood as a limitation on the right of access to courts, rather than a subtraction of jurisdiction from those courts, or from the administration of justice more generally. While the Act seeks to achieve a public interest, it is structured as an assistance to litigants by providing an early opportunity for an independent valuation of the case which may facilitate its resolution by settlement. Thus s.13 of the 2003 Act requires the Board to serve a notice of the claim on the party alleged to be liable with a view to ascertainment of that party’s wishes and in particular whether he or she consents to an assessment being made. Section14 then provides that if the respondent consents (or does not object) an assessment will be made. However, under s.14(2), where the respondent states that he or she does not consent to an assessment being made, the Board is obliged to issue an authorisation to the claimant. This illustrates the fact that the Acts maintains the structure of civil litigation as being a dispute between parties which is, essentially, in their control. The PIAB procedure can only result in a resolution of the claim when both parties consent i.e., when the defendant agrees to pay the sum assessed, and the plaintiff agrees to accept it.

41 Even if, contrary to this view, the 2003 Act was conceived of as being jurisdictional, that in itself would not necessarily be an end to the matter. The distinction drawn in the cases on the Statutes of Limitations is between an action barring a remedy and an action barring a right. It seems clear that the 2003 Act does not bar the right i.e., the right to obtain damages for a tort or for a wrong. Furthermore, there are cases in which a knowing consent to jurisdiction can, if not confer jurisdiction, at least deprive a party of a right of any entitlement to raise the jurisdictional defect. In the field of claims against defendants established or resident abroad, jurisdiction is unusually, a function of the rules of court permitting service outside the jurisdiction. In the case of the Brussels Convention, and now Council Regulation (EC) No. 44/2001, the entry of an unconditional appearance will confer jurisdiction, or preclude its challenge, even if the subject matter does not come within the provisions of the Regulation. Similarly, in cases not covered by the Regulation, service outside the jurisdiction is affected under Order 11. However, it is well established that the entry of an unconditional appearance will confer jurisdiction, or at least deprive the defendant of the ability to challenge it. As set out in Delaney and McGrath, Civil Procedure in the Superior Courts (Dublin; Round Hall; 3rd edition; 2012 ), para. 4-11:

“The concept of an appearance to contest jurisdiction derives from the principle of submission to jurisdiction whereby, regardless of whether a court would otherwise have jurisdiction, it will acquire jurisdiction where a defendant submits to the jurisdiction of the court by entering an unconditional appearance to proceedings before that court.”

(See Heffernan v. Atkin [1913] 47 I.L.T.R. 245, Moore v. Moore [1871] I.R. 5 Eq. 172)

It is not necessary to resolve the question whether even if this were a jurisdictional provision it would fall into this category, and even if it did not, whether that is a matter required to be raised by the pleadings under Order 19, Rule 15. It is sufficient to observe that it is not a provision which seeks to control the right to recover damages for a personal injury itself but rather controls part of the manner in which a claim may be brought and compensation received.

42 Finally, in Sherry v. Primark it was argued that to treat the question of an authorisation under the 2003 Act as a matter going to defence only, would completely undermine the Act. O’Neill J. considered that this argument greatly reinforced the view that s.12 was jurisdictional rather than procedural. However, it is not apparent to me that the scheme of the 2003 Act would be undermined if the issue of authorisation was to be raised as a matter of defence. In the first place, there is no factual difficulty on the part of the defendant in raising the lack of authorisation. Quite apart from any practise of notifying a proposed defendant of the existence of a claim and an intention to bring proceedings, the provisions of the Act require notice of a claim to be given by the Board to the proposed defendant. Accordingly, a defendant served with proceedings is in a position to know if the procedures of the Act have been invoked. If they have not, and it is a civil action captured by the 2003 Act, then a plaintiff is at risk of having his or her action defeated and costs awarded against them. In most, if not all, cases where proceedings were commenced without a required authorisation, the result will be just as fatal for the plaintiff therefore, if the provisions of s.12 are treated as going to defence as they would be if treated as jurisdictional. If it is established that the proceedings were brought in breach of s.12 then the Court is obliged to enforce the law and dismiss the claim. The only questions are who should establish that breach and how that should be done. That is ultimately a matter of law since it involves interpretation of the relevant provisions, but if the broader policy issues are relevant to the question of interpretation, I can see no insurmountable difficulty, and some benefits, in requiring the defendant to raise the point by formal pleadings, not least because it would allow for more focussed argument and analysis. Plaintiffs have every incentive to operate the provisions of the Act particularly in those routine cases which are clearly covered by it and which it is the object of the Act to address. Accordingly, I am not persuaded that to interpret the Act as creating a matter of defence rather than jurisdiction would undermine the efficacy of the Act. Nor am I convinced that any procedural implications would have been so obvious at the time at the passage of the Act that they offer any real aid to interpretation.

43 Accordingly, while it was understandable on the state of the authorities, the trial judge here was wrong to dismiss the plaintiff’s claim. The lack of authorisation under the Act had not been raised by the defendant at any time during the process of pleading. It was only mentioned in correspondence shortly before the trial and the application made at the commencement of the trial. No application was brought to amend the pleadings. Since it was not a jurisdictional matter it could only be raised if it was pleaded and therefore relevant to the issues between the parties. There was therefore no basis to hear the application and no basis for the dismissal of the proceedings. Consequently, I would allow the appeal and set aside the Order of the High Court. I should perhaps add that while it would be a matter for any court before which any application was made, the fact that the matter had proceeded so far before any issue was raised, and that in the light of this judgment the correct Order which ought to have been made in the High Court was an Order to reject the defendant’s application (in which circumstances the case would have proceeded to trial and long since have been determined), should weigh heavily against any application to amend the proceedings at this stage to include any plea in relation to the 2003 Act.

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