Bailey v The Commissioner of an Garda Síochána

JurisdictionIreland
JudgeMs. Justice Finlay Geoghegan
Judgment Date14 March 2018
Neutral Citation[2018] IECA 63
Date14 March 2018
CourtCourt of Appeal (Ireland)
Docket NumberNeutral Citation Number: [2018] IECA 63
Between
Ian Bailey
Plaintiff/Appellant
and
The Commissioner of An Garda Síochána, The Minister for Justice, Equality and Law Reform, Ireland

and

the Attorney General
Defendants/Respondents

[2018] IECA 63

Finlay Geoghegan J.

Finlay Geoghegan J.

Birmingham J.

Hogan J.

Neutral Citation Number: [2018] IECA 63

Record No. 2015/503

THE COURT OF APPEAL

Wrongful disclosure – Right to privacy – Confidential information – Appellant seeking to appeal from High Court decision– Whether issues should be left to the jury in relation to a claim for damages for breach of a constitutional right to privacy

Facts: Judgment was delivered on the 26th July, 2017, by the Court of Appeal on the appeal of the plaintiff/appellant, Mr Bailey, from the decision of the High Court in the plaintiff’s claim heard before a judge and jury (the first judgment). The Court dismissed both the appeal and cross appeal brought by the defendants/respondents, the State, save in respect of one identified ruling of the trial judge “that the claim in respect of the alleged wrongful disclosure of the information by the Gardaí in advance of the defamation proceedings in December 2003 was statute barred”. In respect of that claim alone the Court stated it was directing a retrial. The Court indicated, in accordance with common practice, that it would give the parties an opportunity of considering the judgment and adjourned the matter to hear and consider the question of costs and the form of order to be made. Prior to the adjourned date (4th October, 2017) the Chief State Solicitor on behalf of the respondents notified the Registrar of the Court that it was proposed to make an application to the Court to reconsider its judgment in relation to the matters referred to at paras. 49 – 52 incl. for reasons set out which were repeated in subsequent submissions. On the 4th October, 2017 having heard counsel, the Court indicated that it would hear submissions in relation to the jurisdiction of the Court to reconsider, at the request of the respondents the relevant portion of its judgment and if it decided that it should do so the consequences for the decisions made on the appeal and cross appeal in the first judgment.

Held by Finlay Geoghegan J that if the trial judge failed to give a ruling on the question as to whether an issue or issues should be left to the jury in relation to the alleged claim for damages for breach of a constitutional right to privacy by reason of alleged unlawful disclosures of confidential information namely witness statements or a list of names of persons who gave statements by the Gardaí, such failure was not such as to have prejudiced the plaintiff in his trial.

Finlay Geoghegan J held that the appeal of the plaintiff and cross appeal of the respondents should be dismissed.

Appeal and cross appeal dismissed.

Judgment of the Court delivered by Ms. Justice Finlay Geoghegan on the 14th day of March 2018
1

On the 26th July, 2017 judgment was delivered (Birmingham and Hogan JJ; Finlay Geoghegan J concurring) on the appeal of the plaintiff from the decision of the High Court in the plaintiff's claim heard before a judge and jury (‘the first judgment’).

2

The ultimate conclusion in the first judgment was set out in the final paragraph 122:

‘As will have been seen, we are, accordingly, of the view that, save in one minor respect, the appeal should be dismissed and the cross-appeal brought by the State defendants should also be dismissed. We would, however, allow the appeal in respect of the ruling that the claim in respect of the alleged wrongful disclosure of the information by the Gardaí in advance of the defamation proceedings in December 2003 was statute-barred and direct a re-trial in respect of that part only of the plaintiff's claim.’

3

As appears the Court dismissed both the appeal and cross appeal brought by the State save in respect of one identified ruling of the trial judge ‘that the claim in respect of the alleged wrongful disclosure of the information by the Gardaí in advance of the defamation proceedings in December 2003 was statute barred’. In respect of that claim alone the Court stated it was directing a retrial in respect of that part only of the plaintiff's claim.

4

At the time of delivery of the judgment the Court indicated, in accordance with common practice, that it would give the parties an opportunity of considering the judgment and adjourned the matter to hear and consider the question of costs and the form of order to be made.

5

Prior to the adjourned date (4th October, 2017) the Chief State Solicitor on behalf of the respondents notified the Registrar of the Court that it was proposed to make an application to the Court to reconsider its judgment in relation to the matters referred to at paras. 49 – 52 incl. for reasons set out which are repeated in subsequent submissions.

6

On the 4th October, 2017 having heard counsel, the Court indicated that it would hear submissions in relation to (1) the jurisdiction of the Court to reconsider, at the request of the respondents the relevant portion of its judgment and if it decided that it should do so the consequences for the decisions made on the appeal and cross appeal in the first judgment.

7

The Court received written submission from the respondents and the plaintiff on these two issues and oral submissions at a hearing on the 13th December, 2017.

Background
8

The background to the plaintiff's proceedings is fully set out in the first judgment. In short the plaintiff's claim was for damages and aggravated damages in respect of a number of alleged torts central to which was an allegation that members of An Garda Síochána engaged in a conspiracy to injure his reputation and to violate his constitutional rights in the investigation of the murder of Mme. Sophie Toscan du Plantier on 22/23 December, 1996. The allegations included that the Garda Síochána engaged in a conspiracy to procure statements, which would incriminate the plaintiff, from a number of persons including a Ms. Marie Farrell.

9

The proceedings commenced by the delivery of a plenary summons on the 1st May, 2007. They ultimately came on for trial in the High Court before Hedigan J. and a jury on the 4th November, 2014. Many witnesses were called by both parties. Ultimately on day 60 of the trial the respondents made an application that the claim be withdrawn from the jury primarily upon the grounds that all or almost all of the plaintiff's claim was statute barred and in respect of any part not stature barred on certain other grounds including insufficiency of evidence. Submissions were heard from counsel on days 60 and 61 of the trial and on day 62 the trial judge made a ruling on the respondents' application. The conclusion of the ruling was that certain of the claims were determined either to be statute barred or for other reasons not capable of being pursued and were not permitted to go to the jury. However the trial judge ruled that whether the alleged conspiracy by named gardaí to implicate the plaintiff in the murder of Ms. Toscan du Plantier by obtaining from Ms. Farrell statements they knew to be false happened or not was a matter for the decision of the jury; further it was a continuing cause of action and not statute barred and that two identified questions remained for determination by the jury. The jury answered each of the relevant questions in the negative and the plaintiff's claim was dismissed.

10

The appeal and cross appeal related primarily to the ruling of the trial judge on day 62 and a limited number of earlier rulings. There were multiple issues on the appeal and cross appeal addressed in the first judgment.

11

One of the main issues in the appeal and cross appeal was the correctness or otherwise of the trial judge's rulings on the statute of limitations in relation to the plaintiff's causes of action including the cause of action in conspiracy. The first judgment ended its consideration of that aspect of the appeal and cross appeal at paras. 47 – 52 incl. by stating:

‘47. Accordingly, in the light of the comments of McCarthy J. in Taylor, we find ourselves compelled to the conclusion that, subject to two important exceptions, Mr. Bailey's cause of action in conspiracy crystallised at this point – at all events no later than 1998 – because on his version of events the conspiracy was executed by members of the Gardaí during this period. It is not necessary for this Court to determine precisely what the relevant dates in 1997 and 1998 for this purpose actually were, because, on any view, these events long pre-dated 2nd May 2001, i.e., the last day of the six year time period permitted by s. 11 of the 1957 Act (read in conjunction with s. 11(6) of the 1961 Act) given that these proceedings were issued on 1st May 2007.

48. There are, we think, two exceptions to this. First, we agree with the ruling of Hedigan J. to the effect that if the plaintiff's fundamental contention was correct and there had been a conspiracy on the part of the Gardaí to suborn Ms. Farrell as a witness, this was a continuing conspiracy which operated die de diem. After all, Ms. Farrell's statement implicating Mr. Bailey remained on the Garda file and it was capable of being acted upon by the authorities. In this respect, therefore, we agree with Hedigan J. that this particular aspect of the plaintiff's claim was not statute-barred and that he was accordingly correct in allowing this matter to go to the jury. To that extent, therefore, we would dismiss the State defendant's cross-appeal against this aspect of the findings of the trial judge.

49. The other exception relates to the alleged unlawful disclosure of confidential information by the Gardaí to the media in anticipation of the hearing of the defamation proceedings by the Circuit Court in November/December 2003. It is true that an order for third party discovery of...

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