Darren Fitzpatrick v The Minister for Justice Equality and Law Reform, The Commissioner of an Garda Síochána, Ireland and The Attorney General
Jurisdiction | Ireland |
Judge | Mr. Justice Binchy |
Judgment Date | 15 April 2021 |
Neutral Citation | [2021] IECA 111 |
Docket Number | Record No. 2020/121 |
Court | Court of Appeal (Ireland) |
Date | 15 April 2021 |
[2021] IECA 111
The President
Binchy J.
Pilkington J.
Record No. 2020/121
THE COURT OF APPEAL
Delay – Damages – Balance of justice – Appellants seeking to strike out the proceedings brought by the respondent on grounds of inordinate and inexcusable delay – Whether the appellants would suffer a general prejudice in their defence of the proceedings such as to justify their dismissal on the balance of justice
Facts: The respondent, Mr Fitzpatrick, claimed damages against the appellants, the Minister for Justice, Equality and Law Reform, the Commissioner of An Garda Síochána, Ireland and the Attorney General, for assault, battery, false imprisonment and breach of the respondent’s constitutional rights. The appellants appealed to the Court of Appeal from an order of the High Court (Cross J) dated 16th March 2020, whereby it dismissed the application of the appellants to strike out the proceedings brought by the respondent on grounds of inordinate and inexcusable delay. It was not disputed that there had been an inordinate delay on the part of the respondent in prosecuting the proceedings. Nor was it seriously disputed that the delay was inexcusable. The appellants submitted that the delay was the result of a unilateral decision taken by the respondent, and was a delay of the order of four years. While the appellants did not contend that they would suffer any specific prejudice in the defence of the proceedings as a result of the delay, they claimed that in proceedings such as these, which include allegations of assault and false imprisonment, and the outcome of which would be determined on the basis of the oral testimony of the witnesses, the appellants would inevitably suffer a general prejudice in their defence of the proceedings, such as to justify their dismissal, on the balance of justice. The appellants further submitted that, while the decision of the trial judge on an application such as this was one within his discretion, and with which the Court should not lightly interfere, nonetheless the Court had jurisdiction to do so and should do so in this case, relying in that regard upon the decision of Irvine J in Collins v Minister for Justice, Equality and Law Reform and ors. [2015] IECA 27. The respondent submitted that any prejudice that the appellants might suffer by reason of the delay was mitigated sufficiently by the statements made by all of the members of An Garda Síochána involved in the arrest and detention of the respondent, together with the other Garda records in the possession of the appellants. The respondent submitted that the trial judge applied the correct test, and having done so, his conclusions were supported by the records of the appellants.
Held by Binchy J that the question the Court needed to ask itself in considering the balance of justice was where the greater injustice lay i.e. in the dismissal of an action in which some of the basic facts had been admitted in the pleadings (i.e. the arrest and detention of the respondent), or in permitting the continuation of the proceedings after such a long period of time, even though the appellants in the proceedings had available to them detailed statements and other information, and had admitted certain key facts in the pleadings (though no tort had been admitted). Binchy J considered that it was clear that the greater injustice was likely to result from the dismissal of the proceedings, and that the trial judge was correct in the manner in which he exercised his discretion.
Binchy J held that as the respondent had been entirely successful in the appeal, his provisional view was that the respondent was entitled to his costs both in the Court of Appeal and the High Court. Binchy J also considered it appropriate to place a stay on the execution of that order pending the determination of the proceedings.
Appeal dismissed.
JUDGMENT of the Court delivered on the 15 th day of April 2021 by Mr. Justice Binchy
. This is an appeal from an order of Cross J. dated 16th March 2020, whereby he dismissed the application of the defendants/appellants to strike out the proceedings brought by the plaintiff/respondent on grounds of inordinate and inexcusable delay.
. In these proceedings the respondent claims damages against the appellants for assault, battery, false imprisonment and breach of the respondent's constitutional rights. The incident the subject of the proceedings is alleged to have occurred on 15th January 2011, and proceedings were issued by plenary summons dated 10th August 2012. While it is not stated in the papers before the Court when this was served, the statement of claim is stated on its face to have been delivered the following day, 11th August 2012, so it is reasonable to assume that that is the date of service of the plenary summons also. An appearance to the proceedings was entered on behalf of the appellants on 28th March 2013. A defence was delivered on behalf of the appellants on 18th July 2013. A notice for particulars dated 26th September 2013 was served and replies thereto were delivered on 13th November 2013.
. The defence is a full defence denying each and every allegation of wrongdoing. However, it is accepted that the respondent was arrested by a member of an Garda Síochána and that he was brought to Finglas Garda station where he was detained, placed in a cell and subsequently searched. It is pleaded that the respondent was released after approximately 40 minutes, which in this respect is broadly consistent with the statement of claim in which it is stated at paragraph 4 that the respondent was “put in a cell for about half an hour and later released.”
. At paragraph 13 of the defence it is pleaded as follows:
“It is further denied that eight members of An Garda Siochana were involved in his arrest, or that he was pushed to the ground in the course of his arrest. It is expressly pleaded that the Plaintiff, in the course of resisting his arrest caused the arresting member and himself to fall over a low garden wall. The defendants, their servants and/or agents were unaware and were not made aware of the fact that the Plaintiff had been injured, which is denied. It is denied that the Plaintiff made any complaint whatsoever with regard to same.”
. Following delivery of the defence, there were no further developments in the proceedings until the respondent, through his solicitors, served a notice of intention to proceed on 7th June 2018. Thereafter, the appellants, on 20th July 2018, caused the issue of a notice of motion seeking to have the respondent's claim struck out pursuant to O.122, r.11 of the Rules of the Superior Courts, for want of prosecution. In the alternative, the appellants sought an order pursuant to the inherent jurisdiction of the Court, striking out the respondent's claim on the basis of inordinate and inexcusable delay.
. On 19th September 2018 the respondent caused the issue of a motion for discovery, seeking discovery of his custody record for 15th January 2011 and the statements made in relation to his arrest and detention on that date. Both motions came on for hearing before Cross J. on 16th March 2020. While the respondent sought to have the motion for discovery dealt with first, Cross J. acquiesced to the submissions of the appellants that the motion to dismiss should be dealt with first, since it issued first in time.
. At the hearing before Cross J., the respondent accepted that there had been an inordinate delay in the prosecution of the proceedings. In his affidavit resisting the application however, he provided an excuse, which was that at the time of the incident he was in a relationship with a woman who was an independent witness to the incident, but that relationship broke down soon afterwards, and for some considerable time thereafter he had no contact at all with that person. He considered that he had no chance of succeeding with his case without the evidence that she would be able to give. However, he is now on speaking terms again with that person and she has confirmed that she will give evidence at the trial. The respondent also avers that he has been unemployed and did not have sufficient means to fund the commencement of the trial and he further avers that an unspecified portion of the delay was caused by his legal team.
. The respondent's affidavit was quite scant. He provides no details at all as regards the time the relationship referred to broke down, nor when contact resumed again. He did not claim that he was advised that he could not succeed with his case without the evidence of the independent witness, or that he had even discussed the matter with his solicitors. Nor did he provide any supporting affidavit from that witness.
. The affidavit sworn on behalf of the appellants grounding the motion is also light on detail. It really does no more than recite the progress of the pleadings and request the court for an order in the terms of the notice of motion. There is no reference to any prejudice likely to be suffered by the appellants in defending the proceedings. It is not claimed that any of the defence witnesses are not available. It is not claimed that no statements were made by any of the personnel involved in the arrest and detention of the respondent, or that there are no records of the events giving rise to these proceedings.
. Cross J., in an ex-tempore decision, dealt first with the issue of delay, which, as I have said above, the respondent conceded was inordinate. Cross J. considered that the delay was also inexcusable. He held that any delay caused by legal advisers cannot be a good reason for failing to advance proceedings. Nor did...
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