Coffey v Governor of Limerick Prison and Others; Collopy v Governor of Limerick Prison and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Siobhán Phelan |
| Judgment Date | 21 February 2023 |
| Neutral Citation | [2024] IEHC 99 |
| Court | High Court |
| Docket Number | [RECORD NO.: 2022/649 JR] |
[2024] IEHC 99
[RECORD NO.: 2022/649 JR]
[RECORD NO.: 2022/650 JR]
THE HIGH COURT
RULING of Ms. Justice Siobhán Phelan, delivered on the 21st February 2024.
. The Applicants in these two proceedings have served custodial sentences in Limerick Prison commencing on different dates in 2021 in each case. At the date of their incarceration and immediately prior to the filing of court papers in intended judicial review proceedings on their behalf, they were both incarcerated for periods of time in single person cells lacking in cell sanitation and were required to engage in a practice known colloquially as “ slopping out”. There have been important developments since proceedings were filed in each case in that in cell sanitation became available for all prisoners in Limerick Prison before the end of 2022 with the result that the Applicants' conditions of detention had improved by the time these proceedings were first listed before a Court.
. By way of general background, the practice of slopping has been condemned by the European Court of Human Rights in contributing to findings of breaches of Articles 3 and/or 8 of the European Convention on Human Rights (hereinafter “the Convention”) in several cases. That practice has also been challenged as unlawful in cases before the Irish courts. Notably in Mulligan v. Governor of Portlaoise Prison [2010] IEHC 269 a claim was advanced both on constitutional and Convention grounds and was rejected following a detailed consideration of the evidence and the caselaw. A further claim was advanced several years later in Simpson v Governor of Mountjoy Prison [2019] IESC 81; [2020] 3 I.R. 113; [2020] 1 I.L.R.M. 81 (“ Simpson”) where it was found in a judgment delivered by the Supreme Court in November, 2019 that the practice of slopping out evidenced in that case infringed the personal rights of the citizen guaranteed by Article 40.3 of the Constitution. Damages were subsequently awarded in the sum of €7,500 for breach of personal rights protected under Article 40.3 of the Constitution in a separate judgment ( [2020] IESC 52).
. Following the decisions in Simpson a Scheme of Settlement [hereinafter “the Scheme”] was introduced and administered by the Third Named Respondent. It was a term of the Scheme that compensation in amounts measured under the Scheme would be payable on compliance with conditions of the Scheme in respect of three different categories of case and subject to band caps. The practice of the Third Named Respondent in administering the Scheme is to make an open offer of a sum of money measured in accordance with the terms of the Scheme. A claimant may reject this offer and pursue civil proceedings if so desired.
. Both Applicants were incarcerated in Limerick Prison after the decision in Simpson at a time when it had been clearly determined by the Supreme Court that the practice of slopping out could result in a breach of constitutional rights. Although their conditions were alleviated by the fact that they were not sharing cells, the single cells in which they were incarcerated lacked in cell-sanitation and in consequence they were eligible to apply under the Scheme. The Scheme provides for a pro rata rate of €76 per week capped at €2,500 for persons who were required to slop out but were not sharing a cell with any other person at the time.
. The Applicants in each of the two cases before me made an application under this Scheme, albeit in Mr. Coffey's case he did not do so until February 1 st, 2024 being the date the matter was listed before me for hearing of the leave application.
. Notwithstanding that he did not make a formal application under the Scheme until February 1 st, 2024, Mr. Coffey's solicitor wrote on his behalf by letter dated the 10 th of June, 2022. In this correspondence it was asserted that Mr. Coffey remained subject to the practice of slopping out found unconstitutional in Simpson in November, 2019. Compensation was sought “whether under the Scheme or otherwise” including compensation in respect of aggravated or exemplary damages and requesting a response within fourteen days. There was no response to the said letter.
. In Mr. Collopy's case he applied for compensation under the Scheme. By letter dated the 7 th of June, 2022, solicitors for the Third Named Respondent offered him €2,500 on an open basis together with appropriate legal costs due under the scheme in the amount of €1,000. The offer of settlement was expressed to be contingent on Mr. Collopy signing and returning the Settlement and Payment Authority Form.
. By letter dated the 10 th of June, 2022, Mr. Collopy's solicitors wrote to advise that he was still subjected to the practice of slopping out despite the finding of the Supreme Court in the Simpson case in November, 2019 that this practice was unconstitutional. Proposals for settlement to include aggravated or exemplary damages, “ whether under the Settlement Scheme or otherwise” were invited. This letter was not responded to. Mr. Collopy has not accepted the offer made under the Scheme.
. The proceedings come before me as an application for leave to proceed by way of judicial review on notice to the Respondents. The application was moved on foot of papers filed in the Central Office in July, 2022 but only listed before a Judge in October, 2022 at which time the applications were adjourned to the 19 th of December, 2022 without being dealt with. These delays are to be regretted particularly considering that the Applicants initially moved for reliefs which included interim and interlocutory relief of an injunctive nature.
. Finally, on the 19 th of December, 2022, the applications were opened to the Court on an ex parte basis. I am informed that the Applicants' cases were outlined to the Court supported by written legal submissions. It is my understanding that by the time the leave application was opened to the Court, the practice of slopping out had ceased in Limerick Prison with the result that the injunctive relief pleaded had become moot albeit this may not have been clearly acknowledged at that time.
. On hearing the ex parte applications in December, 2022 the Court directed the Applicants to put the Respondents on notice of the applications and adjourned the applications without granting leave. The Respondents duly filed an Affidavit and written submissions opposing the application for leave in April, 2023. Thereafter, the matters stood adjourned until it was transferred to me on the 1 st of February, 2024 for hearing of the leave applications. On that date it was confirmed that the case urged in support of an application for leave had materially changed from July, 2022. Specifically, as noted above, the Applicants were no longer detained without in-cell sanitation with the result that claims for injunctive relief originally sought were confirmed to be moot and other relief directed to alleviating their conditions of detention were not being pursued.
. In addition to the abandonment of a significant part of the case as originally pleaded, it further transpired, however, that the Applicants sought leave to argue an additional substantive ground which I was informed had been canvassed before the Court in December, 2022. This is confirmed by the fact that this argument was addressed in the written legal submissions filed at that time in support of the ex parte leave application. The additional relief and grounds addressed in the written submissions had not been included in a draft amended Statement of Grounds and counsel advises that it was hoped to deal with the issue on the hearing of the leave application without the necessity for further application.
. Having heard the leave application I directed that a draft amended Statement of Grounds removing the relief and grounds no longer being pursued and including the relief and grounds which had been omitted and which were relied upon in seeking leave. Thereafter, I adjourned the matter to allow for consideration of the amended Statement of Grounds and affidavit evidence addressed to developments since proceedings had issued so that all matters were properly before me on ruling on these applications.
. The test to be applied on an application for leave (save for special statutory exceptions) to proceed by way of judicial review is set out in O.84, r.20 of the Rules of the Superior Courts, 1986. The application of the test was considered by the Supreme Court in its decision in G v Director of Public Prosecutions [1994] 1 I.R. 374, albeit on an unopposed application. Finlay C.J., with whom the other two judges agreed, set down the test in the following terms at pp. 377 to 378:
“An applicant must satisfy the court in prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:- (a) That he has a sufficient interest in the matter to which the application relates to comply with rule 20(4). (b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review. (c) That on these facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks. (d) That the application has been made promptly and… within the … [relevant] time limits… (e) That the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be in order by way of judicial review or, if there be an alternative remedy, that the...
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