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1. This is the trial of an issue which arose in unusual procedural circumstances which I will endeavour to explain in the course of the judgment. Essentially what is at issue is the interpretation and implementation of Section 2, Sub-section (1), of the Health (Amendment) Act, 1986. To use language which will be familiar to personal injury practitioners, the correctness of "the Kinlen Order" is being challenged. The sub-section reads as follows:-

2. If the former is correct there is no further problem. If, however, the latter is correct a further problem does arise, namely, what is the proper method of determining a so-called reasonable charge. More precisely, the actual issue in the case is whether the calculation of the charge by the division of the annual costs of a particular hospital by the number of occupied hospital bed days in that hospital during the same year is reasonable and intra vires the 1986 Act. That is the basis contended for by the Eastern Health Board. F.B.D. Insurance Plc. on the other hand argue in the first instance that what is intended is a Section 55 charge but that if it is wrong in that argument the services must at least be charged for on the basis of the actual service rendered to the particular plaintiff. If the health board's contention is correct, the Beaumont Hospital charge would now be about £525 a day.

3. Having outlined what the case is all about I think it desirable briefly to explain its procedural history. Derek Crilly was a Plaintiff who was very seriously injured. He underwent treatment in Our Lady of Lourdes Hospital, Drogheda and Beaumont Hospital, Dublin. As his injuries resulted from a motor accident, the 1986 Act came into play. The most expensive part of his treatment was in Beaumont Hospital where he was under, in particular, neurosurgeons and urologists. The Eastern Health Board claimed a charge calculated on the average daily cost of running the hospital as explained above. The action was tried by Mrs. Justice Denham, then a Judge of the High Court, and she delivered a reserved judgment on 26th August, 1992 awarding the Plaintiff £1,667,078.20. When dealing with hospital charges she said the following:-

4. Following on the judgment it was decided to take up the invitation of the Judge and after various procedural manoeuvres, to which it is not necessary to refer, it was ultimately decided that there be an issue between the Eastern Health Board and the insurer, F.B.D. Insurance Plc. in relation to the Beaumont Hospital bill. The insurers, however, ultimately decided to pay the bill and then pleaded in the issue that the issue could no longer proceed because it was now a moot. Since then, F.B.D. has abandoned that defence and is in agreement with the Eastern Health Board that it is desirable that the issue be tried.

5. When the case was opened to me and before I was aware that the "moot" point had been raised in any pleading, I myself expressed concern about the matter. I had regarded it as a well established principle that litigation should only be conducted in relation to a genuine claim still outstanding and not for the purpose of having some legal principle decided. However, it was strongly urged on me by both sides that although the money had been paid there was still Declaratory relief sought in the Statement of Claim and that that Declaratory relief related to a very real issue which arose every day of the week as between the Eastern Health Board and F.B.D. A great deal of time, energy and expense had been applied in getting the issue to a hearing and in those circumstances I acceded to the request of both parties that the issue should proceed accordingly.

6. It would appear that the first question which has to be decided is whether the charge under Section 2 of the Health (Amendment) Act, 1986 should be the Section 55 charge under the 1970 Act. To some extent this matter has been carefully considered by Kinlen J. in Rourke -v- Scott , in an unreported judgment of 25th November, 1993. The case had been a personal injury action in the Galway List which had settled on every matter except the health board charges. The charges had been calculated on the basis contended for by the Eastern Health Board in this case resulting in what seemed to Kinlen J. to be a very high figure. With the consent of all the parties the Judge joined the health board, in that case the Western Health Board, as a co-plaintiff so that the health board could be properly represented. The claim was for £58,493. The plaintiff was a very small farmer with a net income of just over £3,000 per annum. The claim was broken down as to charges for Merlyn Park Hospital of £27,111 and for University College Hospital of £31,382. The plaintiff had been in hospital for 329 days. Kinlen J. pointed out in his judgment that:-

7. If that is what the legislature meant that is what it should have said. It did not choose to do so."

8. Kinlen J. went on to refer to the decision of Denham J. in this particular case and he also referred to a decision of O'Hanlon J. dated 10th May, 1993. He was unable to ascertain the name of the case with any certainty but believed it to be McNamee -v- Dunphy . In it O'Hanlon J. apparently stated as follows:-

9. Kinlen J. went on to observe as follows:-

10. Like O'Hanlon J., Kinlen J. fixed a maximum of £100 per day. As far as I am aware (apart from an updating of the figure) that has been the practice ever since in the case of Judges ruling on infant settlements. In recent times the figure has increased to £150 a day. The Judge in ruling on the infant settlement is invariably asked to make what has become known as "the Kinlen Order". I mention this last fact with a view to indicating how well-known the practice is. It is rare for a Judge's name to be attached to an Order and indeed the Tomlin Order in England is the only other example that comes to mind. In these circumstances it seems strange that no steps have been taken in the six years which have now passed to amend the legislation making it crystal clear how the charge is to be imposed. Instead of that there is an unnecessary legal battle between the health boards and the insurance industry.

11. In considering this matter afresh as I have been asked to do, I must pay considerable respect to the views expressed by both O'Hanlon J. and Kinlen J. Indeed I think it would be fair to say that Denham J. also indicated misgivings as to the basis on which the health board charges were being made. However, I do acknowledge that the issue has been argued before me in a much fuller way than it was in the other cases and also that new matter has been put before me if I am prepared to look at it which was not before the other Judges, a question to which I will be returning. I have also had the benefit of evidence as to the practicalities of different methods of charging.

12. Without having regard to any such new matter and applying the traditional canons of construction as restated by Blayney J. in his Supreme Court judgment in Howard -v- Commissioners for Public Works , [1993] I.L.R.M. 665, Section 2(1) of the Health (Amendment) Act, 1986 cannot be interpreted as requiring the health board to make a charge similar to the charge under Section 55 of the Health Act, 1970. Section 55 of the 1970 Act provides for a fixed charge, i.e., a charge to be fixed from time to time by the Minister. There is no reference anywhere in Section 2(1) of the 1986 Act to a fixed charge. It is perfectly clear as pointed out by Kinlen J. that the Act does not give any assistance as to what kind of charge it is to be. When an Act provides for an unspecified charge to be made by a public body for the provision of services to a private person, I can see no reason in principle why the assessment of that charge should not be governed by identical principles as those that apply when there is provision for an unspecified charge in a written contract. The charge must be a reasonable one. That of course begs the question as to what is a reasonable charge and to some extent that is the real issue in this case. If an unspecified charge was provided for in a written sale contract the amount of the charge would be assessed on a quantum meruit basis, i.e., a charge of an amount which both parties could have reasonably agreed to. It might be argued and indeed it is argued in the written submission of F.B.D. that principles appropriate to the law of contract have no place in considering the nature of a statutory obligation to make a payment. I cannot agree. If in theory a private person (though I appreciate that in reality it is the indemnifier of the defendant) is obliged in certain circumstances as in this case to pay for a service then there is for all practical purposes a kind of statutory contract between the public body and that person in relation to the services. I think, therefore, that for a charge to be reasonable it must be reasonable vis-à-vis both parties. I do accept that an ordinary person might not be sufficiently informed to enable him or her to make a proper assessment of what a reasonable charge might be in relation to hospital and medical services. But even if he or she got expert advice on this matter, the expert advice would have to relate to the wording of the sub-section. The charge which the health board is obliged to make upon a person such as the Plaintiff in this case, is a charge in respect of the actual in-patient services or out-patient services which that Plaintiff received. That is perfectly clear from the wording of the sub-section. This does not mean that there can be no element of averaging because some averaging may be necessary in order to assess with any practicality a reasonable price for the services given. But on any reading of Section 2(1) of the 1986 Act it is difficult to see how a health board would be entitled to charge a patient in Beaumont Hospital with a broken toe, the identical daily charge as a similar type plaintiff who had to undergo expensive brain surgery. If the Oireachtas intended that a charge should be made on a global basis then there should have been a sub-section which so provided. I am completely in agreement with Kinlen J. on this point. It is of some interest in this connection how the nearest equivalent legislation in the U.K. is drafted. The relevant provision is Section 157 of the English Road Traffic Act, 1988. It provides where damages are paid on foot of a road traffic liability by an authorised insurer and the insurer knows that the plaintiff has received in-patient or out-patient treatment in a hospital in respect of his injuries, the insurer must pay the expenses "reasonably incurred in hospital in affording the treatment". The section however goes on to expressly define "expenses reasonably incurred" as meaning:-

13. It will be noted that the general averaging is only to be done in relation to in-patient treatment and the Act specifically and expressly provides for it. I should add that in the 1988 Act the contribution from the insurer was not to exceed £2,000.37 for a person treated as an in-patient or £200.04 for a person treated as an out-patient.

14. The general averaging is, in my view, quite clearly an artificial way of determining price and could not fall within any quantum meruit concept. If intended it would have to be expressly provided for.

15. Returning to the "broken toe" example, I would accept that it would be legitimate to average out the cost of orthopaedic services, if that was the only reasonably practical way of assessing a charge for "broken toe" treatment. But that is very different from the general averaging proposed. In this particular case it is possible that general averaging would have benefited the insurer of the Defendant. But in many cases that would not be so. I do not accept the argument that as the real payers are the insurance industry it is immaterial that some charges will be effectively too high and others too low. A plaintiff suing an uninsured defendant in circumstances where the Motor Bureau is not involved will be liable. Likewise, in a case where the Motor Bureau is involved a defendant will be bound to indemnify the Bureau. In theory at least therefore the liability for the charge does not exclusively lie with the insurance industry. As I have already pointed out the insurers are not mentioned in the legislation.

16. In summary, therefore, applying the ordinary rules of construction I am satisfied that the charge under Section 2(1) of the 1986 Act must be a reasonable charge in the quantum meruit sense. Insofar as a plaintiff will have received treatment within a particular speciality some averaging within that speciality would be acceptable in arriving at the charge but the general averaging as contended for could not be contemplated as a reasonable basis for a charge unless there was a special provision in the section covering it.

17. In case I am wrong in the view which I have taken, I think that I should now consider whether and to what extent I take into account also a statement made by the Minister when piloting through the bill as has been urged on me by Counsel for the health board. Traditionally, of course, this was forbidden in common law jurisdictions. But that has now changed somewhat. In England, the House of Lords departed from it in Pepper -v- Hart , [1993] 1 All ER 42 but set down limits. I do not think that there is any point in my analysing the speeches in that case because it is quite clear that the Supreme Court in People (D.P.P.) -v- McDonagh, [1996] 2 I.L.R.M. 469 has gone much further. The judgment of the Court in that case was delivered by Costello P. and at p. 473 he observed as follows:-

18. It would seem to me that nothing could be clearer than this statement. Not only is it possible for an Irish Court to look at parliamentary papers to assist in the construction of a statute but it is not limited to doing so only where there is ambiguity. I do not think that that decision is in any way in conflict with Howard -v- Commissioners for Public Works , [1993] I.L.R.M. 665 because in that case the question of introducing external elements such as parliamentary papers did not arise. That was a case dealing with the traditional method of interpreting a statute. Furthermore, it is important in my view to note the limits of the decision in McDonagh's case . It is certainly not direct authority for the proposition that an explanation as to the meaning of a section by the relevant Minister when piloting the bill through the Dail can be used as an aid to construction. That point did not arise in that case. The passage from the judgment of Costello P. which I have cited begins with the words "it has long been established". Quite clearly it has not long been established in Ireland that a Minister's statement could be used in aid of construction. I do not think that Costello P. had that in mind at all when he used that expression. But at the same time I think that it is well within the spirit and intent of the passage cited to deduce from it that he would have been of the view that in certain circumstances such a ministerial statement could be availed of. This view would seem to correspond to that taken by Shanley J. in In Re National Irish Bank Ltd. , [1999] 1 ILRM 321 and Kearns J. in Lawlor -v- Mr. Justice Feargus Flood, unreported judgment, 2nd July, 1999. What Costello P. was referring to in McDonagh's case was material such as advice of committees and commissions in advance of legislation, the history of a particular bill passing through parliament such as for instance the significance of amendments that might have been made along the way, the link with English legislation etc. Not too much significance can be attached to his reference to travaux preparatoires because that was in the context of construing an Act which itself had its foundation in an international treaty. Nevertheless, I think that the following propositions can be stated with accuracy:-

19. In practice, ministerial statements in the Dail will not usually be of assistance to a Court in construing a statutory provision. Counsel for the health board, Mr. Gallagher, however, has asked me to look at what the then Minister for Health in 1986 said to the Dail when piloting the bill which became the 1986 Act. No point has been taken on the absence of notice of intention to raise this point. As the interpretation is of great importance for future cases, I think that in the circumstances and in case there should be any doubt about the interpretation which I have already given I should look at what the Minister said which was as follows:-

20. This statement does assist in the interpretation of the section but only by implication. The fact that the Minister told the Dail that the charge would normally be the average daily cost per bed day in the hospital concerned means that as far as the Minister was concerned at least it was never intended that the Section 55 charges should apply. I think that I would be entitled to draw an inference that the members of the Oireachtas who voted in favour of the Act did so on the assumption that the charge was not intended to be calculated by reference to the charge specified by the Minister under Section 55 of the 1970 Act. Of course I had already formed that view independently of reading the ministerial statement.

21. I have come to the conclusion that I should pay no attention to the remaining part of the Minister's statement. He points out that the charge payable is not specified but that of course is self-evident and insofar as he goes on to say that it would normally be the average daily cost per bed day in the hospital concerned, he is merely indicating departmental policy. That policy was restated in the circular already referred to which was sent to the health boards on 8th August, 1986, some three months after the Act came into force. While obviously the departmental memo can be of no assistance to the construction of the Act passed before it, I do not consider that the ministerial statement can be of any assistance either. It is ultimately for the Court and only the Court to decide whether a charge calculated in the manner suggested by the Minister can be regarded as a quantum meruit charge. For the reasons which I have indicated earlier in this judgment, I do not think that it can. Accordingly, the Declaration sought by the Eastern Health Board must be refused.