Cully v The Commissioner of an Garda Siochana
| Jurisdiction | Ireland |
| Judge | Mr. Justice Binchy |
| Judgment Date | 02 August 2022 |
| Neutral Citation | [2022] IECA 185 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record Number: 2017/82 |
[2022] IECA 185
Noonan J.
Faherty J.
Binchy J.
Court of Appeal Record Number: 2017/82
THE COURT OF APPEAL
Malicious prosecution – Intentional infliction of emotional suffering – Damages – Appellant seeking a retrial – Whether the appellant was subjected to malicious prosecution
Facts: The appellant, Mr Cully, on 27 March 2007, issued proceedings by way of plenary summons claiming damages for unlawful arrest, false imprisonment, malicious prosecution, assault including trespass to the person in the form of intentional infliction of emotional and physical harm, harassment, intimidation and oppressive behaviour. The proceedings came on for hearing before a High Court judge and a jury over a period of 14 days, between 10 February 2016 and 29 February 2016. During the course of the trial, the judge made a number of important rulings, some of which were the subject of appeals to the Court of Appeal. A notice of appeal was delivered on behalf of the appellant on 28 February 2017. The appellant’s grounds of appeal were as follows: (1) the trial judge erred in refusing to permit the appellant to adduce evidence as to the proceedings taken against him in the District Court; (2) the judge erred in finding that the tort of malicious prosecution of a disciplinary investigation is unknown to law, and in striking out that claim as a result, or in refusing to allow it to be considered by the jury; (3) the judge erred in discontinuing or striking out the claim of the appellant insofar as it consisted of an action for malicious prosecution, and/or in refusing to allow that cause of action to be considered by the jury; (4) the judge erred in refusing to allow the appellant to adduce evidence of the criminal convictions of Mr Keenan, taxi driver; (5) the judge erred in finding that there was no, or no adequate evidence of malice in the prosecution of the appellant; (6) the judge erred in finding that there was no evidence of the absence of reasonable or probable cause to prosecute the appellant; (7) the judge erred in finding that the decision to prosecute the appellant was made on the basis of a belief (or a reasonable belief) that he was guilty of the relevant offences; (8) the judge erred in placing restrictions on the cross examination of a Garda Lowney in regard to previous misconduct on the part of the said Garda Lowney; and (9) the judge erred in finding that those elements of the appellant’s case which were withdrawn from the jury had materially or substantially increased the costs of the proceedings, and in awarding the appellants only 65% of his costs as a result.
Held by the Court that the trial judge fell into error in withdrawing the issue of malicious prosecution from the jury, since if the appellant succeeded with his claims of assault and false imprisonment, it followed that he had to succeed in a claim of malicious prosecution. The Court held that the judge fell into error in ruling that the claim of intentional infliction of emotional suffering should go to the jury, in circumstances where the appellant was also claiming damages for assault and false imprisonment. The Court held that the proceedings should be referred back to a freshly empanelled jury to: (1) assess and measure the appropriate amount of damages that the appellant should receive in respect of malicious prosecution on the basis that malicious prosecution had been established by the determination of the first jury that the appellant was assaulted by the Gardaí, and on no wider a basis; (2) assess and measure the appropriate amount of damages the appellant should receive in respect of the false imprisonment and assault committed upon him; (3) assess and measure the appropriate amount of damages that the appellant should receive in respect of aggravated damages; and (4) consider whether or not the appellant should receive an award of exemplary damages in respect of the torts committed upon him, and, if so, assess and measure the appropriate amount of exemplary damages.
The Court held that the respondents, the Commissioner of An Garda Síochána, the Director of Public Prosecutions, Ireland and the Attorney General, should discharge the costs of the appellant incurred in the High Court, less the costs of one day which should be paid by the appellant to the respondents, in each case to be determined by adjudication in default of agreement. The Court held that the order should provide for a set off of the latter against the former.
Appeal allowed in part.
JUDGMENT of Mr. Justice Binchy delivered on the 2 nd day of August 2022
. The events giving rise to these proceedings occurred in the early hours of 24 April 2004. At approximately 3.35 a.m. on that date, at Camden Street, Dublin, the plaintiff, who is the appellant in this appeal, had engaged the services of a taxi. Almost immediately, he had a verbal disagreement with the taxi driver about the fare. The taxi driver drove a short distance to where two Gardaí were standing. The Gardaí asked the appellant to get out of the taxi and he did so. There followed a scuffle as between the appellant and the two Gardaí. During the scuffle, the appellant was brought to the ground by the Gardaí and thereafter was arrested and detained and brought to Harcourt Terrace Garda Station. He was released at approximately 6.50 a.m.
. Later that day, which was a Sunday, a decision was taken by Chief Superintendent Bill Donoghue to prosecute the appellant with offences contrary to ss. 4, 6 and 19 of the Criminal Justice (Public Order) Act, 1994 (the “Act of 1994”). The reason that the decision to prosecute routine public order offences was taken by such a senior officer of An Garda Síochána was because the appellant himself was at the time an off duty Garda (he informed the Court during the hearing of this appeal that he had recently retired). On 27 April 2004, the appellant contacted a Superintendent Tom Conway and made a complaint to Superintendent Conway about his treatment by the Gardaí on 24 April. It is understood that by this complaint, the appellant claimed, inter alia, that he had been arrested without cause and assaulted by the Gardaí.
. In due course, summonses charging the appellant with offences contrary to ss. 4, 6 and 19 of the Act 1994 issued. An investigation into a possible breach of the Garda code of discipline by the appellant was also initiated. Inspector Mary Murray of B District was appointed to conduct this investigation. She was appointed to do this by Chief Superintendent Donoghue. B District was also the District to which the Gardaí who arrested and detained the appellant were attached, a fact upon which the appellant places much emphasis.
. The criminal charges were dismissed following a full hearing in the District Court on 7 September 2005. The disciplinary investigation was subsequently discontinued, although not for about another five months.
. On 27 March 2007, the appellant issued these proceedings by way of plenary summons claiming damages for unlawful arrest, false imprisonment, malicious prosecution, assault including trespass to the person in the form of intentional infliction of emotional and physical harm, harassment, intimidation and oppressive behaviour. A Statement of Claim was delivered on 26 September 2008 and a Defence was delivered on 25 May 2009. Notices for Particulars were raised and replied to by each of the parties during 2009 and 2010.
. Notice of Trial was served on 19 March 2014 and a reply to the Defence was delivered on 22 May 2014.
. I have already summarised above the content of the Plenary Summons. The Statement of Claim delivered on 26 September 2018 is a detailed and lengthy document. The appellant claims that at approximately 3.35 a.m. on 24 April 2004, he engaged the services of a taxi, driven by a Mr. Michael Keenan. He told Mr. Keenan that he wanted to go to Lucan and was informed that the fare would be €35. However, the appellant informed Mr. Keenan that the fare should be in the region of €18, and that in any case he would pay whatever was on the meter. It is stated that Mr. Keenan then drove a short distance to where two Gardaí were standing and Mr. Keenan got out of his car and spoke to the Gardaí. It is claimed that the Gardaí then ordered the appellant to get out of the car, and when he did so he was pulled roughly by two Gardaí, a Garda Keogan and a Garda Lowney from the footpath to the street. The appellant claims he was verbally abused by the Gardaí and he started to walk away. The appellant claims that he told the Gardaí that he would report them, and the taxi driver, and that they should “mind their jobs”. The appellant claims that he was then “rugby tackled” to the ground and assaulted by several Gardaí, sustaining injuries in the process. He was pinned face down to the ground and handcuffed. An Inspector King arrived at the scene and spoke to the appellant. He was arrested and taken to Harcourt Terrace Garda Station.
. The appellant claims that while in the station, he was asked if he wanted to go home, and he was told that that would “be the end of it”. He was also warned that he could be summonsed. He claims that he warned a Garda at the station that this was “compounding the wrong” and that “the clock is ticking on this”. The appellant was eventually released at 6.50 a.m.
. The appellant claims that three days later, on 27 April 2004, he telephoned a Superintendent Conway (at Pearse Street Station) and made a complaint about his treatment to him. He claims that he was assured by Superintendent Conway that an officer would be appointed to investigate his complaints. The appellant made written complaints by letters dated 27 April...
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