Christopher McGee v Governor of Portlaoise Prison, Minister for Justice and Equality, Ireland and The Attorney General
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 06 April 2022 |
| Neutral Citation | [2022] IEHC 210 |
| Docket Number | [Record No. 2014/10869 P] |
| Year | 2022 |
| Court | High Court |
[2022] IEHC 210
[Record No. 2014/10869 P]
THE HIGH COURT
JUDGMENT of Mr. Justice Barr delivered electronically on the 6th day of April, 2022.
The plaintiff was an inmate in Portlaoise Prison from 2000 to 2004. During that time he was detained in a single cell. He was required to engage in the practice of “slopping out”, whereby he had to use a bucket with a specially designed lid, for toileting purposes. He was required to empty and wash the bucket at various intervals during the day.
On 14th November, 2019, the Supreme Court gave judgment in Simpson v. Governor of Mountjoy Prison [2019] IESC 81, which held that the practice of “slopping out” was a breach of a prisoner's rights under Art. 40.3 of the Constitution.
On 22nd December, 2014, the plaintiff instituted the present proceedings by issuance of a plenary summons. On 10th August, 2020, the plaintiff served a statement of claim in which he sought damages, including aggravated and exemplary damages, for breach of his constitutional rights.
On 19th March, 2021, the defendants filed their defence, in which they pleaded, inter alia, that the plaintiff's action against them was statute barred having regard to the provisions of s.11(2) of the Statute of Limitations, 1957.
In his reply to defence, the plaintiff pleaded as follows:-
“In respect of the plea that the action is barred by the statute of limitations, the plaintiff's claim arises under the Constitution and is not a claim in tort and it is in the circumstances not barred by s.11(2) of the statute of limitations, or subject to any limitation period provided for in that statute.”
The issue before this Court concerned the trial of a preliminary issue as to whether the plaintiff's action against the defendants is barred pursuant to the provisions of s.11(2) of the Statute of Limitations 1957, as amended.
The relevant provisions in s. 11 of the Statute of Limitations 1957, as amended, are as follows:
“(2) (a) Subject to paragraph (c) of this subsection and to section 3 (1) of the Statute of Limitations (Amendment) Act, 1991, an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.”
The defendants were the moving party on this application. Mr. Farrell SC submitted that s.11(2) of the Statute of Limitations 1957, applied a time limit of six years for actions “founded on tort”. While the breach of the right to bodily integrity and the right to be treated with dignity, as established in the Simpson case, concerned what might be termed a “constitutional tort”, it was submitted that case law prior to that time and the Simpson decision itself, made it clear that such causes of action come within the normal rules relating to actions “founded on tort”: see McDonnell v. Ireland [1998] 1 IR 134; Blehein v. Minister for Health and Children [2014] 2 IR 38.
Insofar as the plaintiff sought to argue that those cases and the Simpson case, only apply to cases where a “constitutional tort” could be mapped onto an existing tort at common law, and that the dicta therein did not apply to what might be termed a “pure constitutional tort”, being causes of action that were recognised in respect of breaches of rights guaranteed under the Constitution, which were not mirrored in existing torts at common law; it was submitted that that argument had been explicitly rejected by the Court of Appeal in Savickis v. Governor of Castlerea Prison [2016] 3 IR 292. In this regard, counsel referred to dicta in the judgment of Hogan J. at p.305/306, which established that for the purposes of the third schedule to the Courts (Supplemental Provisions) Act 1961, actions that came within the description of being “pure constitutional torts” were actions “founded on tort” as provided for in that statutory provision.
It was further submitted that insofar as the plaintiff had referred to Art. 3 of the European Convention on Human Rights, as providing an absolute prohibition on inhuman and degrading treatment, that was not relevant, as it ignored the fact that people had a right of action under the European Convention on Human Rights Act 2003 to seek a declaration of incompatibility of a measure, or practice, with the provisions of the Convention, but that right of action was subject to a time limitation, insofar as persons affected could seek a declaration of incompatibility under s.5 of the Act. In addition, they could bring an action before the European Court of Human Rights in respect of an alleged breach of their rights under the Convention, once they had exhausted all their domestic remedies. However, that right was subject to a limitation, in that they had to institute their proceedings before the European Court of Human Rights within six months of obtaining a decision from the final domestic court.
It was submitted that what the plaintiff was attempting to do, was to put himself in a position that no other plaintiff could hope to attain, being in the position of being able to bring his action without any limitation at all as to a time limit. It was submitted that that was not warranted under the correct interpretation of s.11(2) of the 1957 Act. It was submitted that the 1957 Act referred, not to particular torts, but to causes of action in a generic way. In sub-s.(1) it referred to actions founded on “simple contract” and “quasi-contract”, neither of which were specific terms of art or law, but were general descriptive terms of the type of action that was regulated by the statute. It was submitted that on the basis of the decisions mentioned above and in particular, on the basis of the Savickis decision, the plaintiff's action was one “founded on tort” and therefore came within the statute. That being the case, the plaintiff's action against the defendants was clearly statute barred.
On behalf of the plaintiff, Mr. Dermot Sheehan BL submitted that, while there were dicta in the cases mentioned that “constitutional torts”, which had the indicia of torts, were subject to the normal defences and limitations on such causes of action; where one was dealing with a “pure constitutional tort”, meaning one that recognised rights that were solely guaranteed under the Constitution, rather than being mirrored in rights that were protected under the law of tort at common law, it could not be argued that such causes of action were actions “founded on tort”. Therefore, they did not come within the provisions of s.11(2) of the 1957 Act.
It was submitted that as the plaintiff's action was based on the right to dignity, respect for his private life and the right not to be subjected to inhuman and degrading treatment, as guaranteed in Art. 40.3 of the Constitution and as recognised in the Simpson case, his cause of action was one for damages for a “pure constitutional tort”.
Counsel submitted that that did not mean that people whose rights under the Constitution had been breached were completely at large in relation to when such actions could be brought. It simply meant that the limitation period was not that imposed by s.11(2) of the 1957 Act.
It was submitted that a claim made along the lines of that which had been made in the Simpson case, was not a tort, nor did it have the indicia of a tort. That had been stated by the Supreme Court when it recognised this particular cause of action. This was due to the nature of the claim under the Constitution, being in respect of the State's absolute duty to prevent torture or inhuman treatment. It was submitted that it was not equivalent to a tort, nor did it give rise to a concurrent tort claim. Therefore, it was not subject to the limitation period in s.11(2) of the 1957 Act. The McDonnell case and previous cases in respect of the application of the Statute of Limitations to constitutional claims, arose in situations that were also concurrent torts. The legal system, in giving a remedy in the circumstances, was entitled to impose a limitation on the remedy.
It was submitted that a Simpson claim was an exclusive constitutional cause of action. If it was to be subject to any judicial limitation, that ought to be under the delay and laches doctrine, rather than by the application of the Statute of Limitations. In this regard, counsel noted that a number of actions in equity, such as an action for specific performance of a contract, were not subject to limitation periods under the 1957 Act; rather their exercise was regulated by the judicial application of the doctrine of laches and acquiescence.
It was submitted that, as the plaintiff's constitutional rights here were alleged to have been breached by the practice of “slopping out”, but the plaintiff had not suffered personal injuries as such, the court was entitled to have regard to the absolute nature of the prohibition on inhuman and degrading treatment as contained in Art. 3 of the European Convention on Human Rights, which was reflected in the rights guaranteed under Art. 40.3 of the Constitution. Where it had been held in the Simpson case that such rights had been breached by the practice of “slopping out”, this meant that it was correct to say that such cause of action was not one founded on tort, but was a pure constitutional tort, not within the provisions of the 1957 Act.
The issue of actions for breach of a person's constitutional rights and their relationship to the law of torts at common law, has been recognised in a number of cases. In McDonnell v. Ireland, a man who had been employed in the postal service, had been convicted by the Special Criminal Court of membership of a proscribed organisation on 30th May, 1974....
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McGee v The Governor of Portlaoise Prison and Others
...preliminary hearing and determination in the High Court. Barr J. held that the appellant's claim was barred by s.11(2) of the 1957 Act ( [2022] IEHC 210). Leave to appeal to this Court was granted on 8 November, 2022 ( [2022] IESCDET 123). 13 . S. 11(2) of the 1957 Act, as amended provides ......