Berry v The Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Ms Justice Marguerite Bolger
• Judgment Date: 08 December 2023
• Neutral Citation: [2023] IEHC 699
• Court: High Court
• Docket Number: [Record No. 2019 5651 P]

Between

John Matthew Berry

Plaintiff

and

The Commissioner of An Garda Síochána

First Named Defendant

and

Noel Shannon

Second Named Defendant

[2023] IEHC 699

[Record No. 2019 5651 P]

THE HIGH COURT

Counsel for the plaintiff: Paul O'Higgins SC, Mark Lynam SC

Counsel for the first named defendant: Conor Power SC, Mark D. Finan BL

JUDGMENT of Ms Justice Marguerite Bolger delivered on the 8 ^th day of December 2023

1 . This is the first named defendant's application to remit the proceedings to the Circuit Court pursuant to O. 49, r. 7 of the Rules of the Superior Courts. For the reasons set out below, I am refusing this application.

Background

2 . The plaintiff's claim arises from a photograph of him that was placed on a bulletin board in a Garda station entitled “Active Criminals” which identified him by his name and address. The second named defendant was a tradesperson working unsupervised in that office, who took photographs of the bulletin board and circulated them on social media and WhatsApp. The plaintiff is not and never was involved in crime. He claims that anyone looking at the photographs circulated on social media would conclude that he was.

3 . The plaintiff issued a plenary summons on 16 July 2019 and filed a statement of claim on 6 January 2020, in which he claims damages under a number of headings, including defamation, breach of his constitutional and Convention rights, breach of the Data Protection Acts and negligence. He does not claim damages for personal injuries, although he does refer in his statement of claim to having suffered personal injuries by virtue of the exacerbation of his mental health condition. In replies to particulars of 17 November 2020, he expanded on his loss and damages in explaining that his confidence, health, everyday life and recreational activities had been affected. He also set out particulars of the mental health problems he suffered as had been requested by the first named defendant in their notice for particulars.

4 . The first named defendant's defence of 18 January 2020 denies any wrongdoing, denies that the plaintiff is not a criminal and claims that the publication was true or substantially true that they are entitled to a defence of honest opinion. The first named defendant later filed two amended defences, to which the plaintiff consented, in which they removed the reference to the plaintiff having received the benefit of the Youth Diversion Programme but continued to deny that the plaintiff was not involved in crime, although the first named defendant has admitted that the plaintiff has no previous convictions. The amended defence took issue with the plaintiff's failure to secure a PIAB Authorisation. The first named defendant says the plaintiff has claimed damages for personal injuries and therefore cannot proceed before a jury.

5 . The first named defendant asserts in this application that the plaintiff's claim taken at its height would only attract compensation within the jurisdiction of the Circuit Court. The plaintiff disagrees, relying on the decision of the Supreme Court in Higgins v. Irish Aviation Authority [2022] 2 ILRM 61 where a publication by email viewed by a limited audience was found to fit within a third band of...