Gaffney v Commissioner of an Garda Síochána
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gerard Hogan |
| Judgment Date | 27 February 2017 |
| Neutral Citation | [2017] IECA 52 |
| Date | 27 February 2017 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2017] IECA 52 Record No. 2016/226 Record No. 2016/227 |
[2017] IECA 52
THE COURT OF APPEAL
Hogan J.
Peart J.
Sheehan J.
Hogan J.
Neutral Citation Number: [2017] IECA 52
Record No. 2016/226
Record No. 2016/227
AND
AND
Undue delay – Striking out proceedings – Negligence – Appellants seeking to appeal against an order striking out proceedings – Whether the balance of justice favoured permitting the appellants to proceed with their respective actions
Facts: The plaintiffs/appellants, Ms Gaffney and Mr Gaffney, are mother and son respectively. They both reside at 67 Basin St. Flats, Dublin 8. On the 17th February 2008 the plaintiffs were asleep in the house when they alleged a number of Gardaí forcibly entered the dwelling, apparently without a valid warrant, and assaulted both plaintiffs. In particular, it was alleged that the Gardaí woke Mr Gaffney (then an 18 year old) and struck him on several occasions with batons while his mother was restrained and locked in a bathroom as all of this was happening. Arising from this alleged incident proceedings were issued on 13th May 2010 in which the plaintiffs alleged negligence, assault and trespass, false imprisonment and damages for breaches of various constitutional rights. In addition a criminal prosecution was commenced against the members of the Force alleged to have participated in this incident following the lodging of an earlier complaint by the plaintiffs with the Garda Síochána Ombudsman Commission (GSOC). Following the completion of the GSOC investigation and the submission of a file to the prosecution authorities, the DPP directed that the Gardaí in question should be prosecuted. The first trial proceeded in the Circuit Court in October 2010 when the trial apparently collapsed. The accused Gardaí were acquitted by a jury following a re-trial in July 2011. The plaintiffs’ solicitor made a request for discovery in March 2012 seeking voluntary discovery of the book of evidence and other matters arising from the criminal prosecution. The Chief State Solicitor’s Office responded on 28th May 2012 informing them that the documents sought were held by both GSOC and the DPP. This discovery request was not progressed and no further steps had been taken by either plaintiff in those proceedings until the defendants issued a motion on 23rd November 2015 seeking to have both sets of proceedings struck out on the grounds of undue delay. In an ex tempore judgment delivered on 26th April 2016 O’Regan J acceded to this request and struck out both actions. The plaintiffs appealed to the Court of Appeal against the order striking out the proceedings.
Held by Hogan J that the balance of justice favoured permitting the plaintiffs to proceed with their respective actions.
Hogan J held that the Court would allow the appeal and would make the following orders: (i) the plaintiffs must serve a notice of intention to proceed within two weeks of the perfection of the Court’s order; (ii) at the expiration of the period of one month envisaged by Ord. 122, r. 11 following the service of the notice of an intention to proceed, the plaintiffs must within 21 days of the expiration of that notice period then issue and serve a motion returnable before the judge having charge of the jury list in the High Court within one further month of that date seeking directions as to an early trial and for case management of the proceedings (including any necessary applications for discovery) so that the proceedings can proceed without any further delay to a speedy trial in the High Court.
Appeal allowed.
The plaintiffs (and appellants) in these proceedings are mother and son respectively. They both reside at 67 Basin St. Flats, Dublin 8. On the 17th February 2008 the plaintiffs were asleep in the house when they allege a number of Gardaí forcibly entered the dwelling, apparently without a valid warrant, and assaulted both plaintiffs. In particular, it is alleged that the Gardaí woke Mr. Owen Gaffney (then an 18 year old) and struck him on several occasions with batons while his mother, Ms. Fidelma Gaffney, was restrained and locked in a bathroom as all of this was happening.
Arising from this incident (or alleged incident) the present proceedings were issued on 13th May 2010. In those proceedings the plaintiffs allege negligence, assault and trespass, false imprisonment and damages for breaches of various constitutional rights. A statement of claim was delivered on 5th July 2010 and a defence followed on 4th April 2011.
In addition to these proceedings, however, a criminal prosecution was commenced against the members of the Force alleged to have participated in this incident following the lodging of an earlier complaint by the plaintiffs with the Garda Síochána Ombudsman Commission (‘GSOC’). Following the completion of the GSOC investigation and the submission of a file to the prosecution authorities, the Director of Public Prosecutions directed that the Gardaí in question should be prosecuted. The first trial proceeded in the Circuit Court in October 2010 when the trial apparently collapsed. The accused Gardaí were acquitted by a jury following a re-trial in July 2011.
Returning to the civil proceedings, the plaintiff's solicitor made a request for discovery in March 2012 seeking voluntary discovery of the book of evidence and other matters arising from the criminal prosecution. The Chief State Solicitor's Office responded on 28th May 2012 informing them that the documents sought were held by both GSOC and the DPP. This discovery request was not progressed and no further steps had been taken by either plaintiff in those proceedings until the defendants issued a motion on 23rd November 2015 seeking to have both sets of proceedings struck out on the grounds of undue delay.
In an ex tempore judgment delivered on 26th April 2016 O'Regan J. acceded to this request and struck out both actions. The plaintiffs have now appealed to this Court against the order striking out the proceedings.
In her judgment O'Regan J. observed that the most relevant authority was perhaps the decision of this Court in Gorman v. Minister for Finance [2015] IECA. She then said:
‘It is clear in these cases it will be nine years between the injury and the trial and I note from Paragraph 1.1.3 of Delaney and McGrath the case of Collins is referred to and the Court said in that case nobody should have to wait ten years to clear their name. While the delay in this case is not ten years I believe a delay of nine years is a very significant delay between the date of the injury and the date of the trial. In the O'Gorman case there was an assertion made against the defendants that they were tardy and they were culpable for some of the delay. I note it is suggested by counsel on behalf of the plaintiffs there is no prejudice here however I feel litigation must be conducted in a timely fashion and I am conscious of Article 40.3.2 of the Constitution and that this is a reputation case. The ECHR is also applicable in that it is for the courts to ensure that litigation is concluded in a timely fashion. There is nothing to indicate an excuse in this case for the delay. The defendants in this case have not done anything to excuse the delay on the part of the plaintiff and in my view no issue arises against the Defendants for not moving until now. In the O'Gorman case Ms. Justice Irvine outlines in her decision that in her view it will be of very little assistance to a witness to have made statement when a manner comes on for trial after many year. While there was an earlier hearing in Gorman in relation to the delay, I am afraid in this case the delay is so close to the ten year referred to in the O'Gorman case that in my view the cases should be dismissed. I am acceding to the defendants' application in both cases.’
Over the last decade or so the courts have become increasingly conscious of the adverse consequences for both the litigants and the legal system of what Hardiman J. memorably described as a culture of ‘almost endless indulgence’ on the part of a minority of dilatory litigants: see Gilroy v. Flynn [2004] IEHC 98, [2005] 1 I.L.R.M. 290. Part of this has come about through the influence of Article 6(1) ECHR and the concomitant duty of the courts of the Contracting States to ensure that a hearing is had within a reasonable time: see, e.g., the judgment of the European Court of Human Rights in MacFarlane v. Ireland [2010] IEHC 1272.
In addition, however, the courts have also stressed the nature of relevant constitutional principles which they are obliged themselves to uphold, a point which a series of judgments of this Court have consistently emphasised. Quite apart from the inherent unfairness of any procedure which facilitated or tolerated very stale claims (a point which Henchy J. stressed as far back as 1984 in O Domhnaill v. Merrick [1984] I.R. 151, 157-158), the judicial obligation contained in Article 34.1 to administer justice presupposes ‘that the court itself will strive to ensure that litigation is conducted in a timely fashion’: see Millerick v. Minister for Finance [2016] IECA 206, per Irvine J. In a judgment delivered a year earlier, Gorman v....
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