O'Brien v Governor of Cork Prison and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Micheál O'Higgins
• Judgment Date: 05 February 2025
• Neutral Citation: [2025] IEHC 56
• Docket Number: [Record No. 2021/768JR]

Between

John O'Brien

Applicant

and

The Governor of Cork Prison

&

The Irish Prison Service

&

The Minister for Justice and Equality

&

Ireland

&

The Attorney General

Respondents

and

Irish Human Rights and Equality Commission

Notice Party

[2025] IEHC 56

[Record No. 2021/768JR]

THE HIGH COURT

JUDICAL REVIEW

Appearances:

For the applicant, Glen Gibbons SC and Rachel McGovern BL instructed by Burns Nowlan Solicitors LLP.

For the respondents, Remy Farrell SC and Conor Duff BL instructed by the Chief State Solicitor's Office.

JUDGMENT delivered by Mr. Justice Micheál O'Higgins on 5 ^th February 2025

Contents

Introduction	2
Background	3
Summary of submissions on behalf of the applicant	7
Summary of the respondents' submissions	12
Plea that the case is outside the three-month time limit for judicial review	15
Respondents' complaint concerning the paucity of facts in the pleadings	17
Was there an effective remedy under Irish law prior to Simpson?	17
Analysis of the judgments in Simpson	18
Claim of an impossible standard and no clear limitation period	20
Consideration of the judgment of MacMenamin J. in Mulligan	21
Malicious intent or evil purpose	22
Claim that the absence of a successful damages claim pre- Simpson proves the absence of an effective remedy	23
Claim that reliance on the limitation clause is disproportionate and a violation of Article 6(1) of the ECHR	24
Conclusion	26

Introduction

1 . The applicant was detained in Cork Prison for certain periods between March 2013 and April 2014. He had no in-cell sanitation, and was required to urinate and defecate in a bucket in his cell, sometimes in the presence of other prisoners. He then had to “slop out” the contents of the bucket in the morning when his cell door was opened.

2 . In February 2020, in the wake of the Supreme Court judgment in Simpson v. Governor of Mountjoy Prison & Ors. [2019] IESC 81, [2020] 3 IR 113, the State Claims Agency established a settlement scheme (“the Scheme”) to enable prisoners who had been subjected to the indignity of a “slopping out” regime to claim compensation without having to go to court. The eligibility criteria for this non-statutory scheme included a requirement that the claimant's claim, or at least part thereof, not be statute-barred.

3 . The applicant applied for compensation under the Scheme in November 2020 and, more formally, in March 2021. By letter dated the 27 ^th May 2021, the solicitors for the respondents rejected the application on the ground that the claim was statute barred.

4 . This judicial review seeks to quash that decision, and claim damages for breach of the applicant's right to an effective remedy, and certain other reliefs which I will return to presently. The respondents oppose the proceedings on their merits, but also raise the following arguments: that, pursuant to O. 84 r. 21 RSC, the proceedings were brought outside the 3 month time limit set down thereunder; an objection that the applicant's legal arguments are not sufficiently grounded in factual evidence; and an objection that the case as pleaded is vague, theoretical and overly generalised.

Background

5 . The case has a somewhat complicated legal and procedural background. The applicant formally opened his application for leave on the 11 ^th August 2021 during the long vacation. Leave was granted by Meenan J. on the 22 ^nd November 2021 and opposition papers were filed in response. In January 2024, the applicant sought leave to amend his statement of grounds. The motion to amend came on for hearing before Phelan J. on the 29 ^th January 2024. My task in writing this judgment has been made much easier as a result of the comprehensive judgment delivered by Phelan J. on the 1 ^st February 2024 ( [2024] IEHC 109]). The judgment considers the law on amending pleadings, traces developments in “slopping out” cases in Ireland and other jurisdictions, and identifies legal issues arising in such cases.

6 . As noted by Phelan J., the practice of slopping out has been condemned by the European Court of Human Rights as contributing to findings of breaches of Articles 3 and/or 8 of the European Convention on Human Rights. In the Scottish case of Napier v. The Scottish Ministers [2004] S.L.T. 555, a combination of slopping out and prison overcrowding led to findings of inhuman and degrading treatment under Articles 3 and 8 of the Convention.

7 . In Mulligan v. Governor of Portlaoise Prison [2010] IEHC 269, a claim was advanced on both constitutional and ECHR grounds. The High Court (MacMenamin J.) rejected the claim on both grounds following a detailed consideration of the evidence and the case law. MacMenamin J. found that the Strasbourg jurisprudence did not support the proposition that slopping out per se was necessarily inhuman and degrading for the purpose of Article 3, or unlawful under Article 8, in all places and at all times. Importantly, whether a breach of Articles 3 and/or 8 was established was found to depend on all the circumstances of the case. MacMenamin J. held that the cumulative effect of the conditions of detention must be considered when assessing whether damages should arise. As it transpired in Mulligan, the applicant's case for damages failed. MacMenamin J. emphasised that the applicant did not have to share a cell at any stage and did not make significant complaints as to the manner in which the staff dealt with the sanitation issues on a day-by-day basis.

8 . Phelan J. also referenced the leading case of Simpson where the Supreme Court found that the practice of slopping out evidenced in that particular case infringed the personal rights of the citizen as guaranteed by Article 40.3 of the Constitution, and damages were awarded in that case in the sum of €7,500 for the said breach. The damages were measured with reference to conditions of detention occurring in the six-year period prior to the commencement of the proceedings. The proceedings issued in 2014 in respect of the period of detention occurring between February and September 2013. The claim for damages for breach of rights under Articles 3 and 8 of the Convention, which was advanced under s. 3 of the European Convention of Human Rights Act 2003 (the “2003 Act”), was found to be largely statute-barred insofar as it related to periods of detention occurring more than one year prior. Phelan J. notes that this finding was not appealed. Moreover, it was observed by MacMenamin J. in the Supreme Court regarding the decision not to appeal that “this was a prudent and correct decision”.

9 . The Supreme Court delivered the substantive judgment in Simpson on the 14 ^th November 2019. Following delivery of the judgment, which reversed the decision of the High Court refusing damages, the Scheme under consideration in this case was introduced in February 2020.

10 . Returning to the present applicant's case, it was originally listed for hearing in March 2023. However, it was adjourned on the respondents' application pending the determination of the Supreme Court appeal in McGee v. Governor of Portlaoise Prison & Ors. [2023] IESC 14, which was an appeal from the decision of the High Court in that case ( [2022] IEHC 210). The judgment of the Supreme Court was delivered in May 2023. The Supreme Court found that where a vindication of constitutional rights takes the shape of permitting a claim for damages against other wrongdoers, such a claim is properly characterised as an action founded upon a civil wrong, and therefore, an action founded upon tort. It follows that such a claim is subject to s. 11 of the Statute of Limitations Act 1957.

11 . Following the delivery of the Supreme Court judgment in McGee in May 2023, the applicant in the present case sought to amend his statement of grounds to include a claim for damages under s. 3 of the 2003 Act, and a declaration of incompatibility in respect of s. 11(2) of the Statute of Limitations Act 1957, under s. 5 of the 2003 Act.

12 . In the concluding part of her judgment Phelan J. stated the following:

“47. Where the Scheme was established as a remedy for breach of rights arising from the practice of slopping out and it is established by the Applicant that there was no effective remedy contemporaneous with those breaches such that the inclusion of a retrospective limitation period and its application to the Applicant to exclude his claim renders the Scheme ineffective as a remedy, then I consider it is arguable (recalling again the low threshold which applies on an application for leave to amend) that the exclusion of the Applicant under the Scheme coupled with the unavailability of any other remedy, if this is established, is in breach of his right to an effective remedy (contrary to Articles 6 and/or 13 of the Convention), albeit it seems to me that to get to consideration of this argument the Applicant must first engage with the question of a constitutional right to an effective remedy as protected within the ambit of Articles 34 and/or 40.3 of the Constitution.”

13 . Having reviewed the relevant case law and affidavits, Phelan J. determined that the interests of justice favoured granting the applicant liberty to amend the statement of grounds so as to permit the applicant inter alia to bring:

• (i) A claim for damages under s. 3 of the 2003 Act for breach of a right to an effective remedy in respect of rights infringed by the practice of slopping out contrary to Article 6 and/or 13 of the Convention at para. D(iv) of the statement of grounds; and

• (ii) If necessary, an application, pursuant to s. 3(5) of the 2003 Act and/or O. 84 r. 21 RSC for an extension of time within which to bring the proceedings.

14 . Phelan J. refused the amendment sought at the proposed para. D(v) where a declaration of incompatibility was sought in respect of s. 11 of the Statute...