Bookey (A Minor) v Links Creche Southside Ltd and Others

• Jurisdiction: Ireland
• Judgment Date: 07 August 2015
• Neutral Citation: [2015] IEHC 562
• Date: 07 August 2015
• Court: High Court

[2015] IEHC 562

THE HIGH COURT

[No. 1795 P/2014]

Bookey (a minor) v Links Creche Southside Ltd & Ors

BETWEEN

MEGAN WALSH BOOKEY (A MINOR) SUING BY HER MOTHER AND NEXT FRIEND JULIANNE CULLEN

PLAINTIFF

AND

THE LINKS CRECHE SOUTHSIDE LIMITED, THE LINKS CRECHE AND MONTESSORI LIMITED, DEIRDRE KELLY, PADRAIG KELLY AND HEALTH SERVICE EXECUTIVE

DEFENDANT

Practice & Procedures – Assault – S. 94 of the Courts of Justice Act 1924 – S. 1 (1) of the Courts Act 1988 – Jury trial v trial by judge – Dominant claim

Facts: Following the institution of the proceedings by the mother of the plaintiff for assault, battery and mistreatment meted out to the infant plaintiff at the childcare facility of the first and second named defendants, the defendants now sought an order for setting aside the notice of trial by a judge and jury in those proceedings. The defendants also sought an order for transferring the within proceedings to the personal injuries list for trial by a judge sitting alone. The defendants alleged that the core claim of the subject proceedings pertained to negligence in relation to the management of the creche facility and breach of trust and thus, trial by a judge would be sufficient.

Mr. Justice Hedigan refused to grant an order for setting aside the notice of trial by a judge and jury. The Court held that the essence of the claim of the plaintiff rested upon the alleged assault and maltreatment of her daughter in the creche facility managed by the defendants as evidenced by the footage of images that were seen on TV. The Court observed that the existence of further incidences of negligence by the staff of the defendants could not replace the dominating incidence and thus, the right of jury trial for the plaintiff would be preserved.

1 JUDGMENT on the defendant's motion delivered the 7th day of August, 2015

2 1. In this application the defendant's seek the following relief:

3 (a) An order setting aside the notice of trial by a judge and jury herein dated the 12 ^th of May 2015;

4 (b) An order transferring the within proceedings to the personal injuries list for trial by judge sitting alone;

5 (c) If necessary an order extending time for the making of the within application and

6 (d) Costs.

7 2. The proceedings herein are one of a number of sets of proceedings which arise from the alleged assault, battery and mistreatment occasioned to young children including the infant plaintiff whilst they were attending the first and second named defendant's childcare facility, "Links Abington Malahide". Most, but not all, of the children on whose behalf these various sets of proceedings have been issued attended that part of the crèche known as the "wobbler room". The plaintiff in these proceedings attended the wobbler room between October 2012 and May 2013.

8 3. As is set out in the pleadings herein, this crèche was one of three premises which were the subject of a broadcast by the RTE Primetime programme on the 28 ^th of May 2013. This programme entitled "Breach of Trust", featured footage which had been recorded on RTE's behalf in each of the premises investigated by an undercover reporter. The footage recorded in the crèche, the subject matter of these proceedings, was filmed in or around March of 2013 and showed what has been described in the defence delivered herein as "inappropriate" behaviour whereby some of the first to fourth named defendant's staff yelled, swore at, pulled, flipped, or pushed and generally mishandled the young pre-verbal children who had been left in their care. As is set out in the statement of claim, the first to fourth named defendant appear to have been alerted to the various incidents of assault, unwarranted bodily interference and/or restraint, mistreatment and...