Locus Standi vs. Jus Tertii

• Locus Standi = You must have an interest to take a case, it relates to the ability to bring a case in the first place.

• Jus Tertii = This relates to the arguments that can be made in the context of such a case.

> In Doherty v Ireland [2010], the court decided that while the plaintiff had the right (standing) to bring the case, this didn’t mean they could make any argument they wanted, their arguments had to be based on the real facts of their case, not on imagined or hypothetical scenarios.

Cahill v Sutton [1980] IR 269

Factual Background:

• After she began to suffer illness and disability immediately after commencing treatment from defendant (a gynecologist who practiced in Cork), plaintiff initiated proceedings against the defendant seeking damages for negligence and breach of contract.
• Delay in Bringing Suit: The plaintiff filed her claim four years after the alleged harm occurred and under Section 11(2)(b) of the Statute of Limitations Act 1957, actions for personal injury must be brought within three years of the cause of action accruing. Her claim was therefore statute-barred.
• The plaintiff renounced to her tort claim (action en responsibilité délictuelle/demande d'indémnisation) and pursued only a breach of contract claim, which was still barred by the statutory limitation.

Procedure:

• The High Court held that since the claim is not one for tort and is now solely one for damages for personal injuries arising from an alleged breach of a contractual duty, the plaintiff is statute barred under s. 11(2)(b).
• Therefore, the plaintiff appealed, arguing that the absolute time limitation in Section 11(2)(b) was unconstitutional and specifically argued that the statute failed to provide exceptions for cases where claimants were unaware of their injury until after the limitation period had expired.

Decision:

1- The court found that this argument didn’t apply to her case because she already knew all the facts about her injury and the alleged breach of contract well within the three years, she simply didn’t act in time.

2- Her constitutional challenge was based on hypothetical situations - because the law wasn’t unfair to her specifically, she was trying to argue that it could be unfair to other people (hypothetical third parties) in different situations.

Legal principles established:

General Rule on Locus Standi: !! A plaintiff must demonstrate that their own rights or interests have been adversely affected or are in imminent danger of being affected by the challenged law !! - courts avoid engaging in abstract or hypothetical constitutional questions to ensure that cases are decided on concrete facts.

Prohibition on Jus Tertii: A plaintiff cannot base a constitutional challenge on the rights of third parties unless exceptional circumstances exist, such as when affected individuals are unable to assert their rights or when the law impact a collective interest involving the challenger and others.

Key judicial observations:

• Justice Henchy Rationale: Judicial self-restraint is necessary to ensure that any judicial decision is rooted in real-world circumstances, adding clarity and relevance to the ruling.
• O’Higgins CJ’s Position: Where no specific personal right of the person who questions the validity of the law has been breached, endangered, or threatened, the courts should not entertain constitutional challenges.

SPUC v Open Door Counselling Ltd [1988] IR 593

• Open Door Counselling Ltd and others (the defendants) offered advice and assistance to women with unwanted pregnancies, including referrals to abortion clinics in the UK.
• The Society for the Protection of Unborn Children (SPUC) argued that this activity violated Art. 40.3.3 of the Irish Constitution, which guarantees the right to life of the unborn.

Legal Arguments:

• SPUC sought to stop the defendants from providing abortion-related counseling and referrals of abortion clinics, arguing that these activities were contrary to the constitutional protection of the unborn.
• The defendants argued that SPUC lacked the necessary locus standi and jus tertii because the case did not involve any specific pregnant woman or unborn child who might be affected by their services and also contested the broader principle of allowing SPUC, a third party, to bring such claims.

Court's Decision:

• Locus Standi for SPUC:
• The court held that SPUC had standing because they had a bona fide ("good faith") concern and legitimate interest in protecting the constitutional right to life of the unborn.
• Chief Justice Finlay emphasized that the courts, as the judicial organ of the state, had a duty to vindicate constitutional rights when a party with a genuine interest invoked their jurisdiction, even if they're not directly affected.
• Role of the Attorney General:
• The defendants suggested that only the Attorney General could bring a case of this nature, but the court disagreed and acknowledged that the Attorney General was an appropriate party but stressed the importance of allowing groups like SPUC to act as advocates for public/constitutional rights when they are at risk.
• Court stressed that constitutional rights, such as the right to life of the unborn, are of such fundamental importance that they must be protected, even if no specific individual is directly before the court.

=> This case expanded locus standi by expanding the scope of who could bring constitutional claims, particularly in cases involving public or fundamental rights and served as a precedent in later cases involving locus standi and public interest litigation, such as SPUC v Coogan [1989] and Friends of the Irish Environment v The Government of Ireland [2021].

SPUC v Coogan [1989] IR 734

This case is built on the principles established in SPUC v Open Door Counselling Ltd [1988], focusing on the ability of public interest groups like SPUC to bring claims to enforce constitutional rights.

• Coogan and others associated with the Students’ Union at UCD (the defendants) intended to publish a "Welfare Guide" containing information on abortion services and addresses of abortion clinics, which SPUC argued was a breach of Art. 40.3.3 of the Irish Constitution (the constitutional protection of the right to life of the unborn).
• The High Court dismissed SPUC’s claim, ruling that SPUC lacked locus standi because only the Attorney General, as the guardian of the public interest, was the appropriate party to bring such proceedings but SPUC appealed, arguing that they had a bona fide interest and concern in protecting the constitutional right to life of the unborn.

Supreme Court Decision:

The Supreme Court ruled in favor of SPUC, recognizing their standing to pursue the case.

• Bona Fide Concern and Interest: C.J Finlay reaffirmed the principle from SPUC v Open Door Counselling that a party with a genuine concern for a constitutional right could have standing to bring a claim and emphasized that SPUC's activities were directly aligned with the constitutional right they sought to protect.
• Role of the Attorney General: While the Attorney General is a key figure in defending the Constitution, the court clarified that they do not have an exclusive right to bring proceedings for public or constitutional rights and that other parties, such as SPUC, may also bring actions if they demonstrate a legitimate interest.
• Distinction from Jus Tertii Cases: The court distinguished this case from situations involving jus tertii arguments (where a party attempts to assert rights on behalf of others) - here, SPUC was advocating for the constitutional right to life of the unborn, which had broad public interest implications and did not rely on hypothetical third-party claims.

Judgments:

• Walsh J disagreed with the defendant’s assertion that only the AG can sue in respect of public rights and highlighted that while the AG has a duty to protect constitutional rights, all citizens (private citizens or groups) have an interest in ensuring the Constitution is upheld and can therefore invoke the courts.
• Griffin J noted that the AG did not claim an exclusive right to bring proceedings for the protection of constitutional rights and therefore, the matter was not fully argued before this court.
• McCarthy J expressed concern about private groups like SPUC pursuing cases without the involvement of the AG and worried this could lead to inconsistencies in the protection of constitutional rights.

Irish Penal Reform Trust Limited v Governor of Mountjoy Prison [2005] IEHC 305

• The Irish Penal Reform Trust Limited (IPRT), an organization advocating for penal reform and two former prisoners who had personal experience with the alleged deficiencies in prison conditions (the plaintiffs) challenged the prison conditions in Mountjoy Prison (defendant), arguing that they were unconstitutional and violated the rights of prisoners, particularly those with psychiatric illnesses.
• Plaintiffs argued that the systemic nature of the deficiencies required their involvement and claimed that the affected prisoners, especially those with psychiatric illnesses, were in a particularly vulnerable position and therefore unable to adequately assert their constitutional rights.
• The defendant contested IPRT’s standing, asserting that the organization was not directly affected and that the challenge could be pursued by individual prisoners if they had grievances.

High Court’s Decision:

• The court relied on Cahill v Sutton [1980], which established that standing rules can be relaxed in situations where justice requires it and acknowledged that vulnerable prisoners with psychiatric illnesses might not be in a position to assert their rights due to fear of reprisal or lack of access to legal resources. This created a compelling reason to relax the standing rules in favor of IPRT.

The court stressed that advocacy groups like IPRT can be granted standing when:

• The individuals directly affected are vulnerable and unable to adequately assert their rights.
• The challenge involves systemic issues that extend beyond the interests of any single individual (individual claims might not effectively address the widespread and systemic nature of the deficiencies in Mountjoy Prison, therefore, the involvement of IPRT was deemed essential to ensure a comprehensive evaluation of the alleged constitutional breaches).

=> This case expanded the scope for public interest litigation in Ireland, especially in cases of significant societal importance, particularly when the rights of vulnerable groups are at stake.

Crotty v. An Taoiseach [1987] IR 713

• The case arose from an attempt by the Irish Government to ratify the Single European Act (SEA), which would have given additional powers to the European Economic Community.
• The plaintiff, Crotty, was an individual who challenged the Government’s ability to ratify the SEA on the grounds that it altered the Irish Constitution by shifting powers from the national state to a supranational organization which violated the sovereignty of the Irish people.

Court's Ruling:

• The Court held that any citizen who can show that they are affected by an issue with sufficient personal interest may have the standing to bring the case, even if their personal legal rights are not directly infringed.
• In this case, the Court recognized that the act of ratifying the SEA was likely to affect the rights of all Irish citizens, as it altered Ireland's relationship with the European Community and could have a lot constitutional implications.
• Therefore, Crotty had locus standi and jus tertii to challenge the infringement of rights that belong to third parties (in this case, the entire population of Ireland) because the court determined that the impact of the SEA on the Irish Constitution was so significant that it justified review, not just for the individuals directly affected, but for the nation as a whole.

=> The ruling in Crotty v An Taoiseach expanded the doctrine of locus standi, allowing a broader category of individuals to bring cases where there is a direct public interest at stake, especially a violation of constitutional principles.

=> The case clarified that citizens may challenge the constitutionality of actions that affect the structure of the state or the distribution of powers, even if those actions are unlikely to directly violate an individual’s rights, especially when such actions have the potential to affect the nation’s constitutional integrity.

=> The impact of the SEA was deemed so significant to the structure of the Irish state that an individual could bring a case even in the absence of a direct personal violation.

Lancefort Ltd v An Bord Pleanála, Ireland, Attorney General (No. 2) [1999] 2 IR 270

• The case involved a challenge to planning permission granted by An Bord Pleanála, the Irish planning authority (defendants with the AG of Ireland) for the development of a site of historical and cultural significance in Dublin.
• Lancefort Ltd sought judicial review to nullify the decision of An Bord Pleanála, arguing that the planning permission was unlawful due to its potential impact on Dublin's cultural heritage.
• The defendants argued that Lancefort Ltd lacked locus standi because it was not directly affected by the planning decision and had no specific legal interest in the matter.

Supreme Court Decision:

• The court reaffirmed that a party seeking judicial review must demonstrate a "sufficient interest" in the matter and in this case, the court found that Lancefort Ltd did not meet this requirement because he couldn't show that the planning decision directly impacted any property or economic interests of the company.
• While the court acknowledged the importance of public interest challenges, it cautioned against granting standing too freely and clarified that being a corporate entity doesn't automatically preclude a party from having standing.
• The majority found that Lancefort Ltd was essentially created after the decision which raised concerns about its bona fides and undermined its claim to standing, therefore reinforcing a restrictive view of standing, particularly for newly formed entities seeking to challenge public decisions.

Dissenting Opinion (Denham J):

• J.Denham emphasized the importance of environmental preservation and the broader public interest at stake and argued that environmental issues inherently affect the community and that standing rules should be more flexible in such cases.
• Denham J also noted that the fact that Lancefort Ltd was a company formed after the planning decision should not bar it from pursuing litigation if it acted in good faith.

=> Corporations may have standing in public interest cases, but they must demonstrate genuine interest and proximity to the matter.

=> Denham J's dissent highlighted the unique nature of environmental challenges, where the harm may affect the public at large rather than specific individuals which later influenced broader interpretations of standing in environmental cases, such as Friends of the Irish Environment v The Government of Ireland [2021].

Digital Rights Ireland v Minister for Communications [2010] 3 IR 251

• Digital Rights Ireland Ltd (DRI), a company advocating for the protection of digital rights and privacy challenged the Minister for Communications, Ireland, and other state actors on the legality of data retention laws that authorized telecommunications companies to store personal data, arguing these laws violated: Constitutional privacy rights, European Union data protection laws and the ECHR.
• DRI argued that the data retention laws infringed on the right to privacy of individuals (including its members) and potentially its own right to privacy as a corporate entity and that the retention and potential misuse of personal data posed a systemic threat to fundamental rights.
• The state contended that DRI lacked locus standi because:
• As a corporate entity, DRI could not assert personal rights, such as the right to privacy, which are individual.
• The case involved a general claim about the law’s impact on society rather than specific harm to the plaintiff.

High Court Decision:

• The court acknowledged that while certain constitutional rights, such as marital privacy, could not apply to corporations, certain rights, such as the right to communicate and protection from unlawful data retention could be relevant to corporate entities and therefore recognized DRI’s right to privacy in the context of its communication data.
• The court relied on Crotty v An Taoiseach [1987], which established that in cases of general public importance, standing may be granted to ensure judicial oversight of laws that affect everyone.
• The court referred to SPUC v Coogan [1989] and the comments of Denham J in Lancefort Ltd [1999], highlighting that public interest groups can have standing if they demonstrate a genuine and bona fide interest in the matter.
• The court noted that the challenge also raised significant questions under EU data protection laws, further justifying the importance of addressing the systemic issues presented by DRI.

Legal Principles Established:

• Corporations can claim certain constitutional rights, such as the right to privacy or freedom of communication, if those rights are directly relevant to their operations or interests but cannot assert purely personal rights like marital privacy or bodily integrity.
• In cases of systemic violations or laws impacting the entire population, a plaintiff does not need to show specific harm if the issue is of significant public interest.

Friends of the Irish Environment v The Government of Ireland [2021] 3 IR 1

• Friends of the Irish Environment (FIE), a company advocating for environmental protection challenged the validity of the National Mitigation Plan from the Gov. of Ireland (defendant, along with related state entities), which outlined Ireland's strategy for addressing climate change and argued that the plan was inconsistent with the Climate Action and Low Carbon Development Act 2015 and violated constitutional rights such as the right to life and the right to bodily integrity because it allowed for an increase, rather than a decrease, in emissions, contradicting the goal of net zero emissions by 2050.
• FIE argued that it had standing to represent the interests of individuals whose rights were impacted by the government’s failure to act effectively on climate change and that the systemic nature of climate change and its broad societal impacts warranted a relaxation of traditional standing rules.

Supreme Court Decision:

• The court held that corporations can assert constitutional rights only if the rights are directly applicable to them as a legal person (e.g., property rights, freedom of expression) but cannot claim inherently personal rights.

=>Therefore, FIE could not invoke the constitutional rights of individuals, that were the right to life and bodily integrity, on their behalf unless it demonstrated that individuals could not adequately assert those rights themselves and the court found no evidence that such individuals were unable to bring the case.

• The court distinguished this case from others where advocacy groups were granted standing (e.g., Irish Penal Reform Trust v Governor of Mountjoy Prison [2005]) because unlike those cases, FIE was not representing a vulnerable or disadvantaged group unable to litigate their claims.

=> Public interest groups must show either a direct interest in the issue or that the individuals affected cannot adequately assert their own rights.

=> Even in systemic challenges like climate change, standing requirements cannot be bypassed unless exceptional circumstances are demonstrated.

Mohan v Ireland [2021] 1 IR 293

• Mohan, a member of a political party who wanted to contest the 2016 Dáil general election as a candidate challenged the constitutionality of Section 17(4B) of the Electoral Act 1997, which imposed financial penalties on political parties that failed to meet a minimum threshold of gender diversity (male and female candidates) among their general election candidates.
• Mohan’s political party issued a directive stating that the candidate selected in his constituency had to be female to comply with the gender quota under the Electoral Act which effectively prevented him from being selected as a candidate, which he argued was unconstitutional.

Supreme Court Decision:

• The court reaffirmed the principle from Cahill v Sutton [1980] according to which to establish standing, a plaintiff must show that their "interests" have been adversely affected or are in real or imminent danger of being affected by the operation of the statute.
• Mohan satisfied this requirement because:
• His interest in being nominated as a candidate had been directly impacted by the legislation.
• The gender quota provision effectively excluded him from consideration, demonstrating a real and specific adverse effect.
• The court noted that the term "interests" is deliberately broad, encompassing more than just constitutional or legal rights, therefore, an exclusion from a legitimate opportunity such as an election candidacy is sufficient to establish standing.