Action arising from breach of constitutional rights was subject to relevant tortious limitation periods

Relief sought in action: Challenge to constitutionality of legislation concerning challenges to involuntary detention for mental health reasons; damages for infringement of constitutional rights.
Application before the court: Appeal from dismissal of claim for damages on grounds of being statute-barred.
Outcome: Appeal dismissed
Grounds: Action was one in personal injuries, and the relevant limitation period applied, notwithstanding that the client had established that the relevant legislation was unconstitutional.

McKechnie J: Mental health - section 260 of the Mental Treatment Act 1945 - section 73 of the Mental Health Act 2001 - issue of civil proceedings - whether reasonable grounds for contending that a person acted in bad faith or without reasonable care - history of litigation by appellant - history of detention - three periods of detention - whether limitation periods could apply to a damages claim following a breach of constitutional rights - how to classify claim - relevant limitation periods - entitlement to redress for breach of rights - whether a breach of constitutional rights equated with a tort.

"On the principle of ubi jus ibi remedium (‘for every wrong, the law provides a remedy’) the court itself may be called upon to create and define such a remedy, but only where this becomes necessary. In so doing, the court would be exercising its judicial power, as the organ of the state ultimately responsible for the enforcement of constitutional rights. However, it will be called upon to so do only in very rare circumstances."

"It is inconceivable that the common law, be it either pre-1937 or post-Article 50 of the Constitution, could restrict not simply the power but the duty of the court to declare, uphold and protect fundamental rights. That obligation whilst resting with all organs of the state, lies at the forefront of one of the most important responsibilities which the courts of this country have. The fundamental basis of this jurisdiction is the most basic law of all, which is the Constitution itself."

"On any view of the facts therefore, it is clear that the essence of Mr. Blehein’s personal injury claim, howsoever pleaded, falls squarely within the existing parameters of the law of tort. Applying that law as it stands, his claim is therefore subject to the relevant tortious limitation periods. This is precisely the route followed by the learned trial judge. If this is correct, as I believe it to be, then section 11 of the 1957 Act and sections 2 and 3 of the 1991 Act apply to this case: accordingly, it has to follow that the three year limitation period covers all claims referable to personal injuries and that, if such should exist, the outer limit for any other claim must be six years."

Charleton J (concurring): Entitlement to recover damages for civil wrongs - entitlement to damages for infringement of constitutional rights where no civil wrong exists - constitutional torts - danger of expanding entitlement to damages.

"There are not two existing systems for the award of proportionate damages. There is the law of tort and, where necessary, because of a definite gap in the remedies the common law provides, the ability to have resort to the Constitution as the source of justice. Any such resort is not to a parallel system but rather to an existing law. Judicial restraint and the duty not to legislate requires any such resort to be only where it is absolutely necessary. In that context, judicial restraint requires precise definitions of whatever constitutional tort is invoked. The principle of legal certainty which is the foundation of a system of justice requires this, and that any constitutional tort adheres to precedent and thus to intelligibility. While freedom of judicial action may be alluring, resort to the ‘Chancellor’s foot’ to decide cases can erode the rule of law."

Hogan J (dissenting): Whether declaration of unconstitutionality of compulsory detention was sufficient remedy - claims in tort - time and expense associated with applications - constitutional torts and separation of powers.

"For my part, however, I would nonetheless award him a relatively modest sum on an ex aequo et bono [according to the right and good] basis in respect of the time and expense which he was obliged to incur in pursuing the two s. 260 applications in what turned out ultimately to have been a legal nullity and unnecessary. Contrary to what Laffoy J. suggested in the High Court, I think it is necessary to go slightly further and to make this award in order more fully to vindicate the infringement of Mr. Blehein’s rights by this section in the manner required by Article 40.3.1 of the Constitution. I would accordingly allow the appeal in that one minor respect only and award Mr. Blehein €500 in respect of each of the two s. 260 applications which he was required to make pursuant to the unconstitutional legislation in question, making a total sum of €1,000."