Costello v Commissioner of an Garda Síochána
| Jurisdiction | Ireland |
| Judge | Mr. Justice Keane |
| Judgment Date | 17 January 2017 |
| Neutral Citation | [2017] IEHC 112 |
| Court | High Court |
| Docket Number | [2005 No. 4481P] |
| Date | 17 January 2017 |
[2017] IEHC 112
THE HIGH COURT
Keane J.
[2005 No. 4481P]
AND
Practice & Procedures – O. 36, r. 6 of the Rules of the Superior Courts – Right to jury trial in civil proceedings – S. 48 of the Judicature Act (Ireland) 1877 – The Courts Act 1988 – Nature of claim.
Facts: The plaintiffs sought interlocutory orders for a direction that the present action should be tried by a judge and jury. The plaintiffs also sought an extension of time for making the relevant application to that effect. The plaintiffs claimed that they had been wrongfully detained by the members of An Garda Siochana on many occasions for the purpose of the search of the first plaintiff and had suffered tortuous acts from those members. The plaintiffs argued that such an action came within the ambit of jury trial under s. 13 of the Courts Act 1988. The defendant argued that the main complaint of the plaintiffs were in relation to “watching and besetting” not amounting to false imprisonment or trespass and thus, the plaintiff's claims could best be considered under tort of private nuisance.
Mr. Justice Keane refused the plaintiffs' application. The Court held that the present action came within the purview of s. 1(1)(a) of the Courts Act 1988 namely, a claim for damages for personal injuries caused by negligence, nuisance or breach of duty. The Court observed that the listing of the plaintiffs' action for trial in the non-jury list was appropriate. The Court noted that even if it was assumed that the plaintiffs were entitled for jury trial, the delay in filing the present application could not be condoned as there was no good and sufficient reason for exercising that discretion.
The plaintiffs move for interlocutory orders directing that this action be tried by judge and jury; that it be transferred into the jury list for that purpose; and that time be extended to permit the application to be made.
The plaintiffs delivered their statement of claim on the 13th January 2006. In it, they seek a wide range of reliefs against the defendant. Those reliefs include four separate permanent injunctions restraining any member of An Garda Síochána from: 1) attending at the plaintiffs' home; 2) watching or besetting the plaintiffs at their home; 3) driving up to or alighting from a vehicle at or near the plaintiffs' home; and 4) watching, besetting or following the first plaintiff wherever he may go. The plaintiffs further seek damages for trespass to the person by harassment, watching and besetting, intimidation and the intentional infliction of emotional suffering; damages for repeated wrongful arrest; and damages for criminal slander.
These proceedings commenced as long ago as the 21st December 2005, when a plenary summons issued on behalf of the plaintiffs. On the same date, Laffoy J granted interim injunctions in the same terms as the permanent injunctions already described. On the 29th December 2005, on consent between the parties, Finlay Geoghegan J. granted a narrower interlocutory injunction, pending the trial of the action, restraining members of An Garda Síochána from entering the plaintiffs' property except under authority of a warrant or at the request of a member of the household.
A defence was delivered on the 23rd March 2006. Since then, progress towards the trial of the action has been slow. On the 3rd October 2007, pursuant to the terms of O. 19, r. 27 of the Rules of the Superior Courts 1986, as amended (“the RSC”), Laffoy J struck out certain parts of the plaintiffs' statement of claim that alleged various incidents of watching and besetting, or harassment and intimidation, as tending to prejudice the fair trial of the action, because the incidents concerned had not been dated even by reference to the year in which each was alleged to have occurred. The plaintiffs appealed that decision to the Supreme Court, which dismissed the appeal on the 5th February 2010.
A reply to defence was delivered on the 26th February 2010. Having joined issue with the defence, it pleads, in response to the defendant's denial of watching and besetting, intimidation or harassment, and further denial that any such cause of action as “watching and besetting” is known to law, that the relevant plea in the statement of claim “amounts to and constitutes a claim for misfeasance of public office.”
On the 14th October 2014, White J refused the defendant's application for an order dismissing the proceedings on the ground of the plaintiffs' inordinate and inexcusable delay in prosecuting them, but awarded the defendant his legal costs of that application and, perhaps more significantly, discharged the interlocutory injunction that Finlay Geoghegan J had granted almost nine years before.
The plaintiffs' then solicitors served four separate notices of trial in 2011. They were dated the 26th February, the 19th March, the 21st June, and the 6th July respectively. Each gave notice of the trial of the action “before a Judge and Jury.”
On the 12th July 2011, just less than a week after the last such notice of trial was served, the defendant issued a motion seeking orders striking it out and directing the transfer of the proceedings into the non-jury list for trial before a judge sitting alone.
By fax dated the 21st July 2011, the plaintiffs' then solicitors notified the defendant's solicitors that the matter had been set down and assigned a number in the non-jury list on the 18th July 2011, and requested confirmation that the defendant's motion to strike out the plaintiffs' notice of trial could be struck out on that basis with no order for costs.
When the defendant's motion came before the Court shortly afterwards it was struck out on consent. On behalf of the defendant, Inspector Jeremiah Keohane of An Garda Síochána has averred that, in opposing the defendant's application for his legal costs of the motion, Counsel for the plaintiffs submitted to the court that it had been the plaintiffs' intention at all times to set the matter down before a judge sitting alone but a notice of trial before a judge and jury had issued in error. Murphy J awarded the defendant his costs of that motion.
The plaintiff now moves for an Order directing that these proceedings should be tried by a judge and jury, pursuant to O. 36, r. 6 of the RSC, and an Order extending the time for bringing the application for that Order, pursuant to the same rule or, alternatively, O. 122, r.7.
Order, 36, rule 6 of the RSC provides, in substance, that in all cases in which the parties are entitled to a jury trial, the party serving a notice of trial shall state in it whether he requires a jury trial or not, and the case shall be tried in accordance with that election, unless it is for trial by a judge sitting alone and another party to the action then elects for a jury trial in writing within 14 days of the service of the notice or within such further time as the court may allow. Order 122, rule 7 of the RSC provides in material part that, subject to any relevant provision of statute, the Court shall have power to extend or abridge the time permitted for doing any act under the Rules, even where an application to extend time is made outside the time permitted.
The application is grounded on the affidavit of John Geary, the...
To continue reading
Request your trial