Standing Notes

Locus Standi

Cahill v Sutton(SC 1980)

Facts

1. The plaintiff suffered injury as a result of an alleged misdiagnosis and mistreatment on the part of doctor.

2. She sued after the expiration of the three year limitation period and her case was held to be statute barred.

3. She then sought a declaration that the statute of limitations was unconstitutional, on the basis that somebody who only became aware of the injuries after the expiration of the limitation period would be unable to sue.

Issue

• Locus Standi – Jus Tertii

Judgment

1. O'Higgins CJ

   • The duty of the Court is to protect the Constitution and the rights contained therein.

   • Thus if a plaintiff cannot point to a constitutional right that has been injured, the Court cannot entertain the claim.

   • It would encourage the abuse of the court by the busybody and the crank.

   • The plaintiff fails.

1. Henchy J

   • Even if the statute was amended so that plaintiffs unaware of the facts of their injury could challenge, it would be of no benefit to the plaintiff in this case.

   • The general rule from the East Donegal Co-op Case is that the plaintiff must adduce circumstances showing how the statute is affecting or poised to affect him adversely.

   • This approach ensures

     • reliance upon arguments that are referable directly to the facts of the case

     • the decision of the court will be based on the facts of the case, and will not preclude others challenging on different facts

   • There are problems with the approach advocated by the plaintiff:

     • lacks the force and urgency of reality-someone who was actually experiencing the hypothetical circumstances may be affected by his case been poorly argued by somebody else

     • Article 26 allows referral of legislation by the President to the Supreme Court to be argued hypothetically. However this does not preclude the Court from adopting measures in other cases which are better adapted to ensure justice is done.

     • The approach would open the process to abuse

   • It would be problematic in terms of the organs of the State – it would not accord with the constitutional framework if there were no threshhold for the challenge of legislation enacted by the Oireachtas. It would allow those who opposed a Bill politically to immediately continue their opposition to it by legal means.

   • The rule of locus standi, being a rule of practise, must be subject to alteration as the interests of justice demand it. e.g. in representing someone who cannot represent themselves, or belonging to a group adversely affected, when it is difficult to separate those affected from those who are not.

   • The plaintiff in this case is unaffected by the unconstitutionality of the Act – she only gains an advantage resulting from the loophole that would exist were it struck down.

Griffin, Parke and Kenny JJ concurred

Crotty v An Taoiseach (SC 1987)

Facts

1. The plaintiff challenged the ratification by the Irish government of the Single European Act.

Issue

• Locus Standi – Constitutional Imperatives

Judgment

1. Finlay CJ

   • Locus Standi

     • Where Legislation upon entering into operation were to affect every citizen in such a way that no citizen could show damage peculiar to himself, then any citizen would have locus standi to challenge.

       • Here the Act if ratified would have a profound effect on the constitutional order and as such its potential ramifications afford locus standi to the plaintiff.

2. Walsh J

   • The Government is granted certain powers in the sphere of foreign affairs by the Constitution, which it does not have the authority to disregard.

   • The courts are not authorised to interfere with executive acts, save where there is a clear disregard on the part of the executive of its constitutional rights and duties.

     • The question is whether in ratifying the treaty the Government is acting outside its constitutional restraints.

       • The Government, in circumscribing its freedom and responsibility to the Dáil in the area of foreign affairs, is acting in disregard of its constitutional duties.

3. Henchy J (posited similar grounds to Walsh J)

4. McCarthy J (concurred with Finaly CJ)

5. Griffin J (concurred with Walsh J)

Society for the Protection of Unborn Children v Coogan (SC 1989)

Facts

1. The plaintiff's objected to the publication by the defendants (SU of UCD) of a book giving contact details for abortion providers in the UK.

2. They sought interlocutory injunctions.

Issue

• Locus Standi – Third Party Rights

Judgment

1. Finlay CJ

   • Depending on the third party right that an applicant takes a constitutional case to protect, the test would be whether or not the applicant has a bona fide concern and interest (i.e. proximity or objective interest.)

     • In this case there cannot be a victim or a potential victim that is capable of taking a case, and in the absence of evidence that the applicant is being officious or meddlesome they must be afforded standing to take the case.

2. Walsh J

   • The protection of the private right in this case is of public interest.

   • The protection of this public interest requires individuals to take cases throught the courts.

     • The unborn itself cannot take cases in its defence, thus concerned and interested individuals must be afforded standing to do so.

     • It is for the courts to decide on a case by case basis, whether someone whose private interest is not adversely affected can maintain an action.

       • In this case they can, as they have established a bona fide interest.

3. Griffin J (concurred with Finlay CJ)

4. Hederman J (concurred with Walsh J and Finlay CJ)

5. McCarthy J (dissenting)

   • Where constitutional rights are in immediate danger of being breached, then it must be open to anyone with a bona fide concern to defend them.

     • Once the immediate danger is over however, it falls to the Attorney General to litigate against the attack

McGimpsey v Ireland (SC 1990)

Facts

1. The Anglo-Irish agreement affirmed the status of Northern Ireland as belonging to the UK and allowed for a number of cooperative measures to be implemented between the UK and Republic as...

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