Flynn v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 22 October 2015
• Neutral Citation: [2015] IEHC 672
• Court: High Court
• Date: 22 October 2015

[2015] IEHC 672

THE HIGH COURT

Record No.1486P/2005

Flynn v Min for Justice & Ors

Between:

BRIAN FLYNN

Plaintiff

-and-

THE MINISTER FOR JUSTICE,

THE COMMISSIONER OF AN GARDA SÍOCHÁNA,

IRELAND AND THE ATTORNEY GENERAL

Defendants

-and-

Damages & Restitution – Dismissal of proceedings – Inordinate delay – Constitutional right to access to Courts – Art. 6 (1) of European Convention on Human Rights – Fair trial

Facts: Following the initiation of proceedings by the plaintiff for damages for assault and false imprisonment against the defendants, the defendants now sought an order for the dismissal of the said proceedings for want of prosecution and inordinate delay on the part of the plaintiff.

Mr. Justice Max Barrett granted an order for the dismissal of the proceedings of the plaintiff. The Court in consonance with the principles laid down in Farrell v Arborlane Limited & ors [2015] IEHC 535, para. 30, held that the Court possessed an inherent jurisdiction to dismiss a claim on the ground of culpable delay in the interest of justice provided the defendant had not acquiesced in the plaintiff's delay and that there was a real risk of an unfair trial. The Court found that in the present case, there was a four-year delay on the part of the plaintiff in prosecuting his case, which outweighed the delay caused by the defendants in issuance of the notice of trial.

1 JUDGMENT of Mr Justice Max Barrett delivered on 22nd October, 2015.

PART I: BACKGROUND FACTS

2 1. In April 2002, a number of members of An Garda Síochána sought to arrest Mr Flynn outside a pub. It seems to be common case that the arrest was not easily effected.Several Gardaí were eventually involved. It is alleged that Mr Flynn's then girlfriend sought to intervene. In the end,Mr Flynn had to be hand-cuffed and was brought to a Garda station in Carlow Town where, heclaims, his head was struck against a door. Three years after the arrest, in April 2005, Mr Flynn sued the defendants for damages for assault, false imprisonment, trespass to the person, breach of his constitutional rights and failure to vindicate his constitutional rights. More than thirteen years after the events that led to the commencement of the said proceedings, the matter still has not come to trial. Perhaps unsurprisingly, the Defendants now come to court seeking a dismissal of Mr Flynn's action for want of prosecution and inordinate and inexcusable delay on the part Mr Flynn in the prosecution of these proceedings.

PART II: SUMMARY TIMELINE

3 2. The court sets out below a summary timeline of the key events arising in the within proceedings:

28.04.02	Arrest effected and alleged wrongs done.
27.04.05	Plenary Summons issues.
17.05.05	Memorandum of Appearance filed by Chief State Solicitor's Office.
21.03.06	Statement of Claim delivered.
18.08.06	Notice for Particulars issues from Chief State Solicitor's Office.
18.08.06	Defence delivered.
27.09.06	Replies to Notice for Particulars issue.
27.09.06	Letter seeking voluntary discovery issues from Mr Flynn's solicitors.
22.11.06	Letter seeking voluntary discovery issues from Mr Flynn's solicitors.
07.02.07	Notice of Motion for discovery issues from Mr Flynn's solicitors.
06.07.07	Master of High Court issues order for discovery.

19.12.07	Solicitors for Mr Flynn forward just-received order to Chief State Solicitor's Office.
16.01.08	Letter seeking Affidavit of Discovery issues.
04.02.08	As above.
19.02.08	As above.
01.04.08	As above.
10.07.08	Master adjourns motion to strike out to 16 thOctober.
14.10.8	Affidavit of Discovery sworn.
23.02.8	Mr Flynn's solicitors request certain documents referred to in Affidavit of Discovery.
09.03.09	As above
15.05.09	As above.
06.07.09	As above.
10.07.09	Chief State Solicitor's Office apologises for delay and seeks consent to late entry of Affidavit of Discovery.
15.07.09	Conditional consent issues from Mr Flynn's solicitors to late entry of Affidavit of Discovery.
-.08.09	Discovery documents sent by State to Mr Flynn's solicitors.
22.10.10	Letter issues from Mr Flynn's solicitors seeking further and better discovery.
26.11.10	As above.
21.12.10	As above.
16.02.10	As above.
07.04.11	As above.
31.05.11	As above.

23.06.11	As above.
12.09.13	Letter warning of intention to issue motion compelling discovery.
11.06.13	Notice of Intention to Proceed filed by Mr Flynn's solicitors.
12.09.13	Letter warning of intention to file Motion compelling discovery.
10.12.13	Notice of Motion filed by Mr Flynn's solicitors seeking: strike-out of defence for non-compliance with discovery order of 06.07.07; or order compelling compliance with said order.
21.01.13	Master strikes out motion, there being no attendance for Mr Flynn.(It appears that a diary error led to the non-attendance).
26.05.14	Letter from Mr Flynn's solicitors indicating documents being sought.
27.05.14	Letter of reply issues from Chief State Solicitor's Office.
12.06.14	Letter from Mr Flynn's solicitors indicating documents being sought.
13.06.14	Letter of reply issues from Chief State Solicitor's Office.
05.09.14	Further letter of reply issues from Chief State Solicitor's Office.
10.09.14	Holding letter issues from Mr Flynn's solicitors.
29.09.14	Mr Flynn's solicitors issue later indicating concerns assuaged re.discovery following recent correspondence.
30.09.14	Chief State Solicitor's Office seeks medical reports.
15.10.14	Chief State Solicitor's Office issues letter seeking that Mr Flynn attends for medical check.
30.01.14	Notice of Trial issues from Mr Flynn's solicitors.
17.10.14	Notice of Motion issues from Chief State Solicitor's Office seeking dismissal of proceedings for want of prosecution and/or inordinate and inexcusable delay.

PART III: SOME CONCLUSIONS REGARDING TIMELINE

4 3. There are a number of conclusions to be drawn from the above timeline and such affidavit evidence concerning same as has been placed before the court:

5 State delay

6 · - first, from April 2002 to December 2007 matters proceeded much as one would expect and there was little or no delay arising. However, the smooth progress of matters was interrupted by a ten-month delay on the part of the State before the Affidavit of Discovery was sworn. Throughout this period the solicitors for Mr Flynn were entirely active in pressing the State to act.

7 · - second, the six-month delay between February and August 2009 in furnishing Mr Flynn's solicitor with documents referred to in the Affidavit of Discovery is notable, though not perhaps especially excessive. Throughout this period the solicitors for Mr Flynn wereagain entirely active in pressing the State to act.

8 · - third, the fact that no timely reply issued from the State to the letters of October 2010 onwards is to be regretted; however, it is overshadowed by the quite remarkable delay that Mr Flynn manifested between June 2011 and October 2013.

9 · - fourth, the State took eight-plus months from the issuance of the Notice of Trial to the issuance of the motion now before the court.

10 Mr Flynn's delay

11 · - fifth, the 14-month delay on Mr Flynn's part in prosecuting matters further between August 2009 and October 2010 is striking.

12 · - sixth, the 27-month delay on Mr Flynn's part in prosecuting matters between June 2011 and September 2013 is striking.

13 4. If one ignores the period to December 2007, during which there was little or, at least, no major delay on either side, and focuses instead on the sevenyear period that preceded the issuance of the strike-out motion that is the subject of the within application, one can see that within that seven-year period there have been almost four years (14 months + 27 months) of delay on the part of Mr Flynn. Yes, there were (lesser) delays on the part of the State, but this is Mr Flynn's claim and it is for him to prosecute it at an appropriate pace. Within the context of a seven-year period, a nearfour-year period of delay appears to the court to be, by any standard, inordinate and inexcusable.

PART IV: SOME APPLICABLE PRINCIPLES

14 5. When it comes to the issue of inordinate and inexcusable delay, there seems little point in the court ploughing afresh a field of law that has been well furrowed in recent years. Instead the court confines itself to a summary of what it considers the key principles to be derived from recent judgments of the superior courts....