Flynn v Minister for Justice

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Irvine
• Judgment Date: 31 May 2017
• Neutral Citation: [2017] IECA 178
• Date: 31 May 2017
• Docket Number: Neutral Citation Number: [2017] IECA 178 Appeal No. 2015/622

BETWEEN/

BRIAN FLYNN

PLAINTIFF/APPELLANT

- AND -

THE MINISTER FOR JUSTICE, THE COMMISSIONER OF AN GARDA SÍOCHÁNA, IRELAND,

AND

THE ATTORNEY GENERAL

DEFENDANTS/RESPONDENTS

[2017] IECA 178

Irvine J.

Irvine J.

Hogan J.

Hedigan J.

Neutral Citation Number: [2017] IECA 178

Appeal No. 2015/622

COURT OF APPEAL

Want of prosecution – Inordinate and inexcusable delay – Balance of justice – Appellant seeking to appeal against the order and judgment of the High Court – Whether trial judge’s treatment of the balance of justice issue was unsatisfactory to the point that it should be reconsidered by the Court of Appeal in the interests of the administration of justice

Facts: The appellant, Mr Flynn, maintained that on the 28th April 2002 he was assaulted, beaten and falsely imprisoned by members of An Garda Síochána at Leighlinbridge, Co. Carlow. As a result of the respondents’ alleged wrongdoing he claimed that he experienced a wide range of psychiatric symptoms including panic attacks and depression which were treated with a combination of medication, counselling and inpatient treatment. The respondents denied each of the allegations of wrongdoing and maintained that at all times they acted with due care for the safety and welfare of Mr Flynn. The High Court (Barrett J) dismissed the plaintiff’s proceedings (i) for want of prosecution and (ii) for inordinate and inexcusable delay. The appellant appealed to the Court of Appeal against the order and judgment of the High Court dated respectively the 10th November and the 22nd October, 2015. The appellant made a range of submissions to establish that the trial judge’s treatment of the “balance of justice” issue was unsatisfactory to the point that it should be reconsidered by the Court in the interests of the administration of justice. The respondents, the Minister for Justice, the Commissioner of An Garda Síochána, Ireland and the Attorney General, submitted that the trial judge’s finding that the balance of justice favoured dismissal of the action was correct as a matter of law having regard to all of the relevant circumstances.

Held by Irvine J that, having regard to the fact that there was no appeal from the decision of the High Court judge that the appellant was guilty of inordinate and inexcusable delay in the manner in which he had prosecuted his claim, the question for the Court was whether the trial judge erred in law or in fact when he determined, in light of that finding, that the interests of justice warranted the dismissal of the proceedings. Irvine J held that the trial judge acted in accordance with the evidence and the relevant legal principles when he decided to dismiss the proceedings for the reasons advanced in his judgment. Further, having considered those aspects of the evidence not specifically addressed by the trial judge in the course of his judgment, Irvine J was satisfied that there was nothing in that evidence sufficient to warrant interference by the Court with the decision made by the High Court judge.

Irvine J held that she would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Irvine delivered on the 31st day of May 2017

1 This is an appeal against the order and judgment of the High Court (Barrett J.) dated respectively the 10th November and the 22nd October, 2015, whereby he dismissed the plaintiff's proceedings (i) for want of prosecution and (ii) for inordinate and inexcusable.

Background

2 The appellant (‘Mr. Flynn’) maintains that on the 28th April 2002 he was assaulted, beaten and falsely imprisoned by members of An Garda Síochána at Leighlinbridge, Co. Carlow. As a result of the respondents alleged wrongdoing he claims that he experienced a wide range of psychiatric symptoms including panic attacks and depression which were treated with a combination of medication, counselling and in patient treatment. Suffice to state that the respondents deny each of the allegations of wrongdoing and maintain that at all times they acted with due care for the safety and welfare of Mr. Flynn.

Chronology

3 As is customary on an appeal from an order dismissing proceedings for want of prosecution or on the basis of a finding of inordinate and inexcusable delay, it is necessary to consider the judgment of the High Court judge in the context of the time line relevant to the proceedings. In this case I have adopted, subject to slight amendment, the timeline from the judgment of the High Court judge, as the same is not contentious.

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 the High Court issues order for discovery.

19.12.07: Solicitors for Mr. Flynn forward order for discovery to Chief State Solicitor's Office.

16.01.08: Letter sent requesting the respondent's affidavit of discovery.

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 16th October. 2008.

14.10.08: Respondent's affidavit of discovery is sworn.

23.02.09: Mr. Flynn's solicitors request copies of certain documents referred to in affidavit of discovery.

09.03.09: Reminder sent by Mr. Flynn's solicitors.

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 filing of affidavit of discovery.

15.07.09: Conditional consent issues from Mr. Flynn's solicitors to late filing of affidavit of discovery.

30.07.09: Discovery documents sent by Chief State Solicitor's Office to Mr. Flynn's solicitors.

22.10.10: Letter issues from Mr. Flynn's solicitors seeking further and better discovery and also copy documents in respect of which privilege had been claimed.

26.11.10: Reminder letter from Mr. Flynn's solicitors.

21.12.10: As above.

16.02.11: As above.

07.04.11: As above.

31.05.11: As above.

23.06.11: As above.

12.09.13: Letter from Mr. Flynn's solicitors warning of intention to issue motion concerning demand for discovery as per letter of 22nd October, 2010.

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 the 6th July, 2007; or order compelling compliance with said order.

21.01.14: Master strikes out motion, there being no attendance for Mr. Flynn. (It appears that a diary error led to the non-attendance).

22.01.14: Letter from Chief State Solicitor's Office stating that the documents sought were privileged. Letter refers to the ten year delay and ensuing prejudice. Offer to have proceedings struck out with no order as to costs.

30.01.14: Notice of trial issues from Mr. Flynn's solicitors.

20.02.14: Chief State Solicitor's office suggests remittal of action to Circuit Court.

26.05.14: Letter from Mr. Flynn's solicitors identifying documents being sought and indicating his desire to have his action heard before a jury.

27.05.14: Letter of reply issues from Chief State Solicitor's Office threatening motion to dismiss for want of prosecution.

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 confirming that no statements from independent witnesses exist.

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 letter indicating concerns assuaged regarding discovery following recent correspondence.

30.09.14: Chief State Solicitor's Office asks if Mr. Flynn is willing to share his medical reports on a without prejudice basis.

10.10.14 Chief State Solicitor's Office issues Motion to dismiss.

15.10.14: Chief State Solicitor's Office issues letter requesting Mr. Flynn to attend for medical evaluation.

The judgment of the High Court

4 Having first set out in some detail the principles to be applied by a court when asked to invoke its inherent jurisdiction to dismiss proceedings on the grounds of inordinate and inexcusable delay, the trial judge expressed himself satisfied that during what he considered to be the relevant period, i.e., the seven years between December 2007 to December 2014, that Mr. Flynn's ‘near four-year period of delay’ was by any standard inordinate and inexcusable.

5 In particular the trial judge highlighted what he described as a striking fourteen month period of delay from August 2009 to October 2010 and a further ‘quite remarkable’ delay between June 2011 and October 2013. It is perhaps relevant to record that he did not consider any delay prior to December 2007 to be relevant and he also noted with some particularity those periods of delay to be ascribed to the respondents.

6 The High Court judge then, as obliged so to do by the prevailing jurisprudence, turned his attention to the factors material to his assessment as to whether, notwithstanding the finding of inordinate and inexcusable delay, the balance of justice favoured permitting the action to proceed to trial or dismissing it in accordance with the relief sought by the respondents.

7 In addressing this particular issue the High Court judge dealt in some detail with the submission made...