Supreme Court: Woman suing CMH clinical director awarded costs and granted declaration

Andrew McKeown BL

About this case:

• Citation:
  [2020] IESC 74
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Frank Clarke

Judges ruled the woman is entitled to costs for proceedings before the High Court, Court of Appeal, and Supreme Court, and granted a declaration following from a judgment earlier this year.

Background

In June 2020, the Supreme Court granted declaratory reliefs to a woman, M.C., who claimed that her constitutional and ECHR rights were breached when the Clinical Director of the Central Mental Hospital declined to facilitate variations to the conditions of her release. They overruled the High Court and Court of Appeal, which had held that the proceedings were moot as the Review Board had already unconditionally discharged her.

The Supreme Court found that the proceedings were not moot, and went on to decide that the Clinical Director had not performed his statutory obligation to assess and thereafter make the necessary arrangements to facilitate the operation of the decision of the Mental Health (Criminal Law) Review Board that M.C. be released on a conditional basis. In addition, M.C. sought damages, and whilst she failed in her claim for damages for breach of constitutional rights and/or for breach of statutory duty, her claim for damages under the European Convention on Human Rights was adjourned and subsequently compromised between the parties.

In this decision, the Supreme Court dealt with the form of the declaration and the matter of costs.

Supreme Court

M.C. argued that the primary issues in the appeal were the question of mootness and the interpretation of the relevant legislation. She argued that she succeeded on both of these points, and that she therefore was entirely successful in the appeal. She submitted that there were no factors that would warrant the Court departing from the usual rule that “costs follow the event”. She sought her costs in the Supreme Court, the Court of Appeal and the High Court.

The Clinical Director argued that the Court should employ its discretion, and refuse to order costs. He argued that the “special circumstances” of the case justified such a refusal. Counsel argued that there was no personal criticism made of the Clinical Director for acting upon his understanding of the legislative scheme, and that there was no argument or finding that he acted negligently, recklessly or mala fides.

The notice party, the Review Board did not seek any order regarding its costs on this ruling, and no costs order was sought against it.

The court considered that the “event” properly characterised was its decision that the proceedings were not moot, and that the Clinical Director had a statutory obligation to assess and thereafter put in place the conditions to give effect to the decision of the Review Board that M.C. be released from the Central Mental Hospital on conditions.

In those circumstances, the court took the view that M.C. should be awarded her costs in the Supreme Court, Court of Appeal, and High Court. “While it is appreciated that the Clinical Director was not found to be personally culpable, the action was not against him in a personal or professional capacity, but in his statutory role as Clinical Director of the Hospital.”

Counsel for M.C. argued that the correct form of declaratory order should be a declaration that the Criminal Law (Insanity) Act 2006-2010 s.13A “require the Clinical Director to put in place the arrangements necessary to give practical effect to the proposed conditional order that the Mental Health (Criminal Law) Review Board intended to make in respect of the appellant and that he failed to perform that statutory duty”.

The Clinical Director proposes an alternative wording that the declaration “impose a mandatory obligation on the Clinical Director of the designated centre to give effect to the arrangements set out in the conditional order of discharge of the Mental Health (Criminal Law) Review Board.”

The judges reiterated that there had been an express finding in the original judgment that the Clinical Director had breached the statutory duty imposed upon him and that he had therefore “acted unlawfully”.

The Court said it was cognisant of the judgment, which provided that M.C. would (with the benefit of a declaration) “be enabled to say to the world at large and to her community in particular that a declaration was made by the Supreme Court that her personal and family rights ‘were breached’. That was a factor in the decision of the Court and should be reflected in the order.”

The judges found that it was not necessary that the declaration featured either the words “breach” or “fail” in regard to the failure of the Clinical Director to perform his statutory obligation: “There was no argument or finding that he acted in bad faith and what was involved was a misinterpretation of the statutory provisions.”

The judges did not accept the argument made by counsel for the Clinical Director that a declaration in the form sought by M.C. would be personally embarrassing, as the reliefs sought related to his statutory office, and not his personal or professional practice.

Conclusion

The court was satisfied to make a declaration that the Clinical Director “did not meet the statutory obligations imposed on him” by the mandatory provisions of the Criminal Law (Insanity) Act 2006 – 2010 s.13(A)(2) “to assess and give effect to the arrangements set out in the conditional order of discharge of the Mental Health (Criminal Law) Review Board”. M.C. was awarded her costs.