Carol Collins v Minister for Justice, Equality and Law Reform and Others

 
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[2015] IECA 27

THE COURT OF APPEAL

Peart J.

Irvine J.

Hogan J.

Appeal No. 578/2014
Collins v Min for Justice & Ors
[Article 64 Transfer]
Carol Collins
Plaintiff/ Respondent

and

The Minister for Justice, Equality and Law Reform, Ireland and the Attorney General
Defendants/Appellants

578/2014 - Peart Irvine Hogan - Court of Appeal - 19/2/2015 - 2015 IECA 27

False imprisonment – Breach of constitutional rights – Inordinate and inexcusable delay – Plaintiff seeking damages for assault, battery, false imprisonment and breach of constitutional rights – Whether there was an inordinate and inexcusable delay in prosecution of proceedings

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JUDGMENT of the Court delivered on the 19th day of February 2015 by Ms. Justice Mary Irvine.

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1. This is an appeal against the judgment and order of the High Court (Cross J.) delivered on 23 rd July 2012, in which he refused the defendants' application to dismiss the plaintiff's claim on the grounds of inordinate and inexcusable delay. The within appeal falls to be determined by this Court pursuant to a direction of the Chief Justice (with the concurrence of the other members of the Supreme Court) further to the provisions of Article 64 of the Constitution.

Relevant background facts
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2. By plenary summons dated 16 th August 2003, the plaintiff, a factory worker bom in 1978, commenced proceedings seeking damages from the defendants for assault, battery, false imprisonment and breach of her constitutional rights. She alleges mistreatment at the hands of members of An Garda Síochána between 1998 and 2001, complaints first agitated on her behalf by her solicitor, Mr. Fitzpatrick of Smithwick Solicitors, in the months of January and February 2001.

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3. The plaintiff purported to deliver a statement of claim on 1 st June 2007 wherein she identifies some eighteen instances of abuse allegedly perpetrated by Gardaí. These include allegations of arrest and searches of her person, some of which were purportedly carried out when exercising their powers under the Misuse of Drugs Act 1997, as amended. She maintains that these incidents were motivated by spite and malice and were intended to humiliate her. The plaintiff contends that each arrest and detention was unlawful and amounted to false imprisonment. Her final claim relates to an incident which she maintains occurred in November 2000 when she was allegedly subjected to an unlawful and negligently performed highly invasive and terrifying internal examination which left her bleeding and requiring further medical treatment. All of these events, she maintains, have caused her great anxiety, loss of reputation, humiliation as well as other loss and damage.

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4. The defendants' solicitors refused to accept delivery of the Statement of Claim in circumstances where a Notice of Intention to Proceed, which had been served on 8 th February 2006, had expired. As a result a further notice of intention to proceed was served on 30 th August 2007 and yet another on 3 rd September 2007. However, notwithstanding the delivery of these documents the statement of claim was never served.

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5. On 19 th October 2009 the defendants brought an application seeking to dismiss the plaintiff's proceedings pursuant to O. 27 r. 1 of the Rules of the Superior Courts and/or O. 122 r.11 thereof and/or pursuant to the court's inherent jurisdiction to dismiss the claim on the grounds of inordinate and inexcusable delay.

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6. At the hearing of that motion the plaintiff's solicitor sought to excuse the delay in the prosecution of the proceedings by relying upon a number of factors, namely:

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i i. That there had been a delay in delivery of the plenary summons as it was expected that the defendants would forward to him the results of a Garda investigation which was taking place into the allegations made by the plaintiff in correspondence in January and February 2001.

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ii ii. That the plaintiff was out of contact because she had moved address twice between the time the plenary summons was issued and May 2007.

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iii iii. That the litigation file had been handed to another colleague within the same firm of solicitors after which it had been mislaid and then inadvertently closed when that solicitor left the firm.

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7. It is not disputed that Quirke J, on the hearing of that application, concluded that the plaintiff had been guilty of delay which was both inordinate and inexcusable and that he had formed the view that the time that had elapsed "was far too long for a fair trial to occur". However, having regard to the fact that the allegations made against the defendants were grave and the fact that the defendants had not referred to any particular prejudice arising from the delay, he felt the balance of justice lay in favour of allowing the claim to proceed. Consistent with his conclusion that her delay had been both inordinate and inexcusable, the learned High Court judge dismissed the plaintiff's claim " for want of prosecution on the grounds of inordinate and inexcusable delay" but put a stay on that order provided that she deliver her statement of claim (to include full particulars) on or before 21 January 2010. It is not disputed that he also advised the plaintiff that she must proceed expeditiously with her claim.

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8. The statement of claim was delivered on 21 st January 2010. A notice for particulars was then raised by the defendants on 4 th May 2010 and a defence delivered on 12 th October 2010. In their defence, the defendants admitted that records had been located detailing the detention of the plaintiff on eight occasions between August 1998 and February 2001. However, they went on to deny every allegation of impropriety and wrongdoing alleged against them in the Statement of Claim.

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9. The plaintiff's solicitors replied to the defendants notice for particulars on 18 th January 2011 and later served notice of trial on 21 st July 2011. Given that the nature of the claim advanced by the plaintiff included an allegation of assault, that notice of trial sought that her action be determined by a judge sitting with a jury. Consequently, the proceedings appeared in the jury list to fix dates on 12 th October 2011.

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10. It is common case that the Notice of Trial was struck out on 12 th October 2011 due to the fact that neither solicitor nor counsel attended the list to fix dates on the plaintiff's behalf. While the defendants were represented before the court it remains unclear as to whether or not they asked the court to strike out the notice of trial or whether the court, of its own motion, decided upon such an approach. It is however accepted that in the aftermath of the event that the defendants' solicitor did not notify the plaintiff's solicitor as to what had occurred.

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11. The next step in the proceedings was taken by the defendants on 23 May 2012. On that date they issued their second notice of motion seeking to dismiss the plaintiff's claim on the grounds of inordinate and inexcusable delay. That application was heard by Cross J on 23 rd July 2012 and it is his judgment and order made on that motion that is the subject matter of the within appeal.

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12. This Court has been furnished with a note of the ex tempore judgment of the learned High Court judge. That note, taken at face value, would suggest to the reader that the trial judge had confined his consideration to one issue, namely, whether or not there had been inordinate and inexcusable delay during the period post dating the order of Quirke J made on 14 th December 2009. However, on the hearing of this appeal, counsel for the plaintiff maintained that Cross J. had in fact considered the entire period of delay, even though in pronouncing his decision he made reference only to the fact that he was satisfied that the plaintiff had established a valid excuse for the delay which had occurred subsequent to the hearing of the first motion, that being a mistake on the part of her solicitor which had resulted in the notice of trial being struck out for non attendance.

Evidence before Cross J.
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13. The affidavit grounding the defendants second motion to dismiss the plaintiff's claim on the grounds of inordinate and inexcusable delay was sworn by Ms. Frederique Duchene. In that affidavit she referred to the history of the proceedings leading up to the first motion to dismiss the plaintiff's claim, which was heard by Quirke J. on 14 th December 2009. She referred to in some detail to his ruling, details whereof have been referred to earlier in this judgement,

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14. Ms. Duchene, for the purposes of demonstrating to the court the delay in the prosecution of the action, then set out a chronology of events post dating the order of Quirke J. on 14 th December 2009.

i.

4 th January 2010:

Plaintiff delivers statement of claim

ii.

1 st March 2010:

Plaintiff's solicitors demand delivery of the defence

iii.

4 th March 2010:

Defendants serve a notice for particulars.

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