Bridget M. Roe (plaintiff) v the Blood Transfusion Service Board, the Minister for Health, the National Drugs Advisory Board, Ireland and the Attorney General (defendants).

Practice - Pleadings - Application to prosecute claim under fictitious name - Fear of injustice using real name - Constitutional provision for justice to be administered in public save here prescribed by law - Whether court has any jurisdiction to allow the use of an alias - Constitution of Ireland 1937, Article 34.1.

The High Court (before Miss Justice Laffoy); judgment delivered 14 February 1996.

WHERE a plaintiff sought to prosecute her claim against the defendants using a fictitious name, the court had no jurisdiction to permit such a course of action. This was so having regard to the mandatory nature of article 34.1 which provides that justice shall be administered in public save where prescribed by law and where the plaintiffs case did not fall within any such prescription of law. The rationale of this article was to allow the general public to see for themselves that justice was done and there was no rule of law or of the courts which permitted the use of an alias.

Miss Justice Laffoy, in the High Court, so held in refusing the plaintiffs application.

John Rogers SC, Eoin McGonigal SC, Michael Cush BL and David McParland BL for the plaintiff; Paul Gallagher SC, Donal O'Donnell SC and Paul Coughlan BL for the first defendant; Ian Finlay SC and Michael O'Donoghue BL for the second, fourth and fifth defendants; Garret Cooney SC and Denis McDonald BL for the third defendant.

MISS JUSTICE LAFFOY said that the plaintiff sought damages for personal injuries, loss and damage from the defendants whom she alleged were responsible for her being treated with infected anti-D immunoglobulin which caused her to contract the hepatitis C virus.

In her statement of claim delivered on 28 July 1995 the plaintiff adopted the name `Bridget M Roe' and gave as her solicitor's address for her own. The first defendant claimed in its defence that the proceedings were not properly constituted and the second, fourth and fifth defendants contended that the plaintiff was not entitled to adopt an assumed name. The third defendant did not object to the plaintiff prosecuting her claim under an assumed name.

Miss Justice Laffoy said that the plaintiff brought a motion on notice to the defendants seeking to maintain the proceedings under an alias. The grounding affidavit averred that the plaintiff desired to protect her privacy not merely to prevent embarrassment to her, but as a matter of preventing real injustice to her. The plaintiffs solicitor further averred that, from her experience, she was aware that persons who are known to carry the hepatitis C virus were subject to invidious discrimination and many women have found that knowledge of their illness can lead to them becoming socially ostracised.

Miss Justice Laffoy said that the true identity of the plaintiff and her address and other personal information were disclosed to all the defendants and were on the record of the court. While the plaintiff accepted that the trial of the action would have to be in public she sought to be allowed prosecute the litigation anonymously using an alias.

Having set out Article 34.1 of the Constitution, which provides that justice shall be administered in public save in special and limited cases prescribed by law, Miss Justice Laffoy said that the underlying rationale of this article was explained in In Re R Ltd [1989] IR 126. In that case, Mr Justice Walsh had said that while the presence of the public was never necessary, the administration of justice in public required that the doors of the court be open so that members of the general public, who may have no particular interest in the case or the business of the court, can see for themselves that justice is done. The Supreme Court in Re R had held that the expression prescribed by law in Article 34.1 meant prescribed by a law enacted, or re enacted, or applied by a law enacted by the Oireachtas and the Constitution removed any judicial discretion to have proceedings heard other than in public save where expressly conferred by statute.

Miss Justice Laffoy said that it was common case that the plaintiff's case did not fall within any of the statutory provisions permitting the administration of justice otherwise than in public.

It was submitted on behalf of the plaintiff that as the plaintiff was not seeking a hearing otherwise than in public, Article 34.1 was not an impediment. Miss Justice Laffoy said that it was urged that the court should follow the practice adopted by the American courts which allow plaintiffs use fictitious names in special circumstances.

While the plaintiffs objective in proceeding under a fictitious name was to keep her identity out of the public domain, Miss Justice Laffoy said that the rationale of Article 34.1 was that public disclosure of the true identities of parties to civil litigation was essential if justice was to be administered in public. In a case where the parties know the identity of the plaintiff but the public do not, Miss Justice Laffoy said that members of the general public could not see for themselves that justice is done.

Miss Justice Laffoy referred to a similar application in The Claimant v The Board of St James's Hospital and Others (High Court, Hamilton P, unreported, 10 May 1989). In that case application was made by persons who were haemophiliacs and alleged that they had been infected with the HIV virus as a result of blood products supplied to them. The application was for liberty to issue a plenary summons and statement of claim without disclosing the name and address of the plaintiff although it was acknowledged that the hearing of the action would be in public.

In that case, Mr Justice Hamilton refused the application having regard to the mandatory nature of Article 34.1 and on the grounds that there was nothing in the law or in the rules of court which would permit the application.

Miss Justice Laffoy said that in substance the plaintiffs case was identical to the application refused by Mr Justice Hamilton. The court had no jurisdiction to allow the plaintiff prosecute the proceedings under a fictitious name as to do so would contravene Article 34.1 of the Constitution.

Accordingly, Miss Justice Laffoy refused the application.

Solicitors: Ivor Fitzpatrick & Co (Dublin) for the plaintiff; McCann FitzGerald (Dublin) for the first defendant; Chief State Solicitor for the second, fourth and fifth defendants; Eugene F. Collins (Dublin) for the third defendant.