The Supreme Court heard an appeal by Louis Blehein against the Minister for Health and Children, Ireland and the Attorney General. In a judgment delivered on 31 July 2018, Mr Justice Peter Charleton agreed with Mr Justice McKechnie’s judgment but differed from Mr Justice Hogan’s reasoning on constitutional torts.
Charleton J said damages for civil wrongs ordinarily arise under established tort law, where a plaintiff proves recoverable harm caused by conduct meeting the definition of the tort pleaded. He said the Constitution could provide a basis for damages where a constitutional right had been infringed and no existing civil wrong supplied a remedy, referring to the approach taken in Meskell v CIÉ.
He described constitutional tort claims as a limited response to gaps in the law. Examples in earlier cases included interference with privacy, withholding a prisoner’s letters, and denial of access to legal aid. In Sullivan v Boylan (No 2), he noted, damages were awarded after nuisance was found unsuitable to protect the individual resident’s rights in that case.
But Charleton J warned that resort to a constitutional tort was uncertain and required restraint. He said courts should use the Constitution as a source of a new remedy only where existing common-law remedies were definitely inadequate, and any such tort should be precisely defined and consistent with precedent. He linked that caution to legal certainty and the constitutional allocation of lawmaking power to the Oireachtas.
The judgment also addressed claims for the trouble and cost of litigation. Charleton J said a declaration or other successful outcome could vindicate a right, and that there was no general entitlement to additional damages simply for the time and trouble of bringing an action.
This is Charleton J’s judgment on the appeal. The supplied text records his concurrence with McKechnie J and disagreement with Hogan J’s reasoning; it does not state the appeal’s final order or the relief granted.