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

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMs. Justice Mary Irvine.
Judgment Date19 February 2015
Neutral Citation[2015] IECA 27
Date19 February 2015

[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

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

Facts: The plaintiff, Ms Collins, commenced proceedings in 2003 seeking damages from the defendants, the Minister for Justice, Equality and Law Reform, Ireland and the Attorney General, for assault, battery, false imprisonment and breach of her constitutional rights. She alleged mistreatment at the hands of members of An Garda Síochána between 1998 and 2001. In 2009 the defendants brought an application seeking to dismiss the plaintiff”s proceedings pursuant to O. 27 r. 1 and/or O. 122 r.11 of the Rules of the Superior Courts and/or pursuant to the court”s inherent jurisdiction to dismiss the claim on the grounds of inordinate and inexcusable delay. On the hearing of the application, the High Court (Quirke J) concluded that the plaintiff had been guilty of delay which was both inordinate and inexcusable and dismissed the plaintiff”s claim. The High Court put a stay on that order provided that she deliver her statement of claim on or before 21 January 2010. In May 2012, the defendants issued their second notice of motion seeking to dismiss the plaintiff”s claim on the grounds of inordinate and inexcusable delay. In July 2012 the High Court (Cross J) refused the defendants” application. The defendants appealed to the Court of Appeal against that judgment, submitting that the trial judge erred in focusing only on the delay subsequent to Quirke J”s order and in finding that the delay was excusable. They argued that the trial judge should have considered the delay that had occurred throughout the entirety of the proceedings. The defendants claimed that they had suffered both general and particular prejudice arising from the delay. The plaintiff maintained that Cross J had indeed considered the delay that had occurred throughout the entire proceedings, asserting that the judge had engaged with counsel in relation to the delay from the inception of the claim. The plaintiff submitted that that her legal team had made a procedural error as a result of which the notice of trial had been struck out. She submitted that the defendants ought not to be allowed to rely upon any delay resulting therefrom, as they had not advised the plaintiff”s solicitors as to what had occurred.

Held by Irvine J that Cross J fell into error when he concluded that the plaintiff had not been guilty of inordinate and inexcusable delay. The Court of Appeal was satisfied that Cross J incorrectly focused entirely on the delay post dating the order of Quirke J in December 2009 or alternatively attributed insufficient weight to a number of factors. The Court was also satisfied that it was not open to the High Court judge to excuse the delay subsequent to the 14th December 2009 by reference to the mistake on the part of the plaintiff”s solicitor as to his understanding concerning the manner in which a date might be obtained for the trial of the action. The delay in the prosecution of the claim was considered by Irvine J to be hard to understand or excuse given the claim”s lack of complexity. It was also, in the Court”s view, material that every reason advanced to excuse the delay related to matters concerning the plaintiff and her own advisors. The Court was satisfied that the defendants had established that they would have been significantly prejudiced in their ability to defend all claims if the action had been allowed to proceed to trial. Irvine J noted that from the earliest of times the defendants made it clear that they expected that the rules of court would be complied with, thus the Court held that it could hardly be said that the defendants by their conduct added in any material way to the delay in the prosecution of the action.

Irvine J held that, having reconsidered all of the evidence before the High Court judge and having given due weight to his conclusions, the Court of Appeal was satisfied that the proceeding must be dismissed and therefore allowed the appeal.

Appeal allowed.

1

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

2

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
3

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.

4

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.

5

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.

6

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.

7

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.

9

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.

10

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.

11

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.

12

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.

13

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...

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