D. K. v Crowley and Others

• Jurisdiction: Ireland
• Judge: MR. JUSTICE ABBOTT
• Judgment Date: 29 July 2005
• Neutral Citation: [2005] IEHC 375
• Court: High Court
• Date: 29 July 2005

[2005] IEHC 375

THE HIGH COURT

DUBLIN

Case No. 1999 43 JR

K (D) v JUDGE CROWLEY & ORS

D. K.

PLAINTIFF

and

JUDGE TIMOTHY CROWLEY, IRELAND and THE ATTORNEY GENERAL

DEFENDANTS

DE ROSSA v INDEPENDENT NEWSPAPERS PLC 1999 4 IR 432

Abstract:

Damages - Constitutional rights - False imprisonment - Barring order - Whether the plaintiff was entitled to damages for breach of constitutional rights and false imprisonment.

The plaintiff’s wife sought and obtained an interim Barring Order against the plaintiff in November 1998. As a result of a breach of that barring order the plaintiff spent two days in Garda custody. Subsequently, in 2002, the Supreme Court determined that the District Court Order making the interim barring order was unconstitutional, that is to say, the legislation enabling the making of such order was held to be unconstitutional. Consequently, the plaintiff sought damages for breach of his constitutional rights and for false imprisonment arising from the making of the interim barring order.

Held by Abbott J. in awarding the plaintiff damages: That the plaintiff was entitled to an award of damages in the amount of EUR214,000 compensating him for loss of rent, loss of convenience of housing, false imprisonment, loss of amenity through work activities, breach of his constitutional right to the enjoyment of privacy, marital privacy including access to his children and his house, loss of his good name and psychological and emotional suffering resulting from the making of the unconstitutional barring order and his arrest and detention following a breach of that order.

Reporter: L.O’S.

DRAFT JUDGMENT DELIVERED BY

1 MR. JUSTICE ABBOTT ON FRIDAY, 29 JULY 2005 - DAY 4

2 I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named matter.

APPEARANCES

For the PLAINTIFF:

MR. M. O'KENNEDY SC

MR. D. GOLDBERG SC

Instructed by:

MAURICE H. WALSH

48 ABBEYFIELD

KILLESTER

DUBLIN 5.

For the DEFENDANTS:

MR. B. O'MOORE SC

MR. P. WARD BL

Instructed by:

CHIEF STATE SOLICITOR

OSMOND HOUSE

LITTLE SHIP STREET

D8

3 COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services

4 MR. JUSTICE ABBOTT DELIVERED HIS JUDGMENT ON FRIDAY 29TH JULY 2005

5 MR. JUSTICE ABBOTT: In this case the Applicant, who is now in the position of Plaintiff, is seeking damages as a result of a breach of constitutional right and false imprisonment arising from the making of an interim Barring Order on 6th November 1996. It is necessary for me to make some comment generally in relation to the Plaintiff's background. He had an unfortunate episode of meningitis when he was a child which resulted, apparently, in him not being good at school, resulting in him being illiterate notwithstanding one-to-one teaching.

6 In 1991 he married his wife L. who had one child by another relationship at the time and with whom the Plaintiff had a child, who was six at the time of the incident complained of.

7 The Plaintiff was not in employment in the usual sense of the word, he was on Unemployment Assistance, or some other Social welfare benefit relating to unemployment, but he did a certain amount of work, driving a van for a subcontractor to a milk supply company, which was done on a casual basis. He said himself that if he did a full day he would tell the Department of Social welfare and his means tested unemployment Assistance was adjusted accordingly and if he did a part of a day that might have been overlooked.

8 Initially the couple got a one bedroom flat in the Ballybough area and later they a got a two bedroom apartment more or less in the same area. The evidence of the Applicant himself in terms of its consistency and the consistency with the information he gave Dr. D., who gave evidence of his emotional and psychological suffering and problems as a result of the matters complained of in this case arising from the making of an interim Barring Order on 6th November 1998 (I think I said 1996 but it was 1998).

9 In any event there were a number of inconsistencies between the account given to Dr. D. of what he was told by the Applicant and what the Applicant said himself. In addition, the Applicant was inaccurate in relation to one date in his grounding affidavit in relation to Judicial Review, which was corrected later. That leaves me in a position where I cannot absolutely depend on the evidence of the Applicant in all cases. There were certain instances where there was a conflict of evidence between the Applicant and his wife L., and I will deal with credibility issues as I go through the evidence and the way in which I resolved credibility issues on the various issues I feel constrained to resolve in reaching judgment in the case against that background and I will thus be in a position to give a detailed account and every time I relate to an issue I will resolve it one way or another as against husband or wife.

10 I hold as follows: The incident which provoked the whole history of this case occurred on 5th November 1998. There are two conflicting accounts as to how it happened. The Plaintiff/Applicant described the incident where he was told by one of his children to come downstairs to see where his wife was having some kind of intimate contact with a person with whom she has now had a relationship for the past few years and in fact now has a child. He went down to investigate and his evidence was that he was disturbed and attacked by a number of men and he was followed upstairs by these men with implements of various descriptions.

11 The account of his wife L. was not so dramatic in terms. She admitted that she was downstairs talking to a friend and contested that she was in any intimate relationship whatsoever, never mind having intimate contact with the man she is alleged to have been with by the Plaintiff in the downstairs flat. She did say however that the Plaintiff himself kicked up a rumpus and shouted and caused difficulty with the neighbours.

12 In relation to resolving the two accounts, having regard to the fact of what I said in relation generally to my reluctance to believe everything the Plaintiff said I think there are objective reasons why I prefer his account on this occasion for two reasons: Number one, his wife when she later gave evidence described the situation where the marriage had broken down for some time for various reasons and they were sleeping in separate beds, she was in the children's room and he in the marital bedroom. Notwithstanding that she asserted that for the purpose of going to O'N. pub three times a week and having a few pints with her husband that things may have looked okay to Mr. L., the proprietor of O'N., but she was putting on a show, in other words conducting a sham marriage. That portrays a situation where whatever might have been going on between the couple in terms of disputes and possible violence and annoyance the marriage outwardly to the public was not one where the Applicant was rowdy or created an open breach of the peace before. Apart from one incident on the night of 14/15 ^th November, which I will later describe in more detail, the Applicant does not seem to have been a person to cause a breach of the peace notwithstanding living in very challenging conditions and going through the City of Dublin in circumstances where one would expect that he would get into some scrape of other. Both before and since November 1998 there seems to be no great tendency on the part of the Plaintiff to publicly demonstrate any violent or rowdy characteristics. I can only conclude from that that it is more probable that he was incensed by finding his wife with a person with whom she was having a relationship, albeit probably at its early stages, but it is likely that his account is more preferable, as I said, and that there was some type of relationship going on between his wife and her present partner, and father of her youngest child, at the time of 15th.

13 On the basis of such an event it is easy enough to understand why a District Court would, not withstanding the view I have taken in relation to the account of the matter, make the Barring Order on the basis that here is a situation where violence was erupting and were it not for the unconstitutionality of the section I could see lots of socially justifiable reasons why a Barring Order, as it is generally known, would be made subject to the adherence to the natural constitution of justice to stop this matter going on and the whole of the situation pending an early consideration of the situation by the court in the interests of the safety of the spouse and in the express of the children, and possibly the interests of the children, and having regard to the general consideration of the Family Law Acts in place and the policy of the State towards ensuring these difficult problems are dealt with.

14 I hold that the Applicant applied for a discharge having heard that his wife had obtained an interim Barring Order on 6th November after the incident involving the downstairs flat the day before. He applied with the advice of a friend for the discharge of the Barring Order to the return date of 23rd November 1998.

15 In the meantime an incident arose on the night of 14th/15th November, some days after that, the Plaintiff says that he was invited by his wife to mind the children, she contests that. I have no means of resolving that particular dispute and having regard to my general comments at the start of my judgment I would be inclined to say that there is no proof of the Plaintiff's allegations but rather the...