Gildea v Hipwell

• Jurisdiction: Ireland
• Judgment Date: 22 May 1942
• Court: Supreme Court
• Date: 22 May 1942

Supreme Court

Gildea v. Hipwell.

JAMES GILDEA

Plaintiff

and

JAMES F. HIPWELL

Defendant.

False imprisonment - Plaintiff detained in custody by Governor of prison - Release on application for order of habeas corpus - Whether Governor of prison estopped from denying illegality of detention - Contempt of Court - Practice - Execution - Committal order of High Court in Bankruptcy - Plaintiff ordered to be committed to custody of Governor of a prison specified in order - Arrest after interval of 16 months - Whether order still in force- Plaintiff detained in prison other than that specified in order - Whether detention illegal- Rules of the Supreme Court (Ir.), 1905, Or. XLII, rr. 8 and 20; Or. LXXXVIII, r. 94 - Rules of the High Court and Supreme Court, 1926, Or. XXIII - Bankruptcy (Ir.) Act, 1872 (35 & 36Vict. c. 58), s. 72 - Criminal Justice Administration Act, 1914 (4 & 5Geo. 5, c. 58), ss. 17 and 43 - Order of Lord Lieutenant made thereunder (Stat. R. & Or., 1919. No. 1870).

Witness Action.

The plaintiff, James Gildea, of Corlara, Hillstreet, in the County of Roscommon, brought a Civil Bill against the defendant, James F. Hipwell, Governor of Sligo Prison. After notice of trial had been served the defendant applied to the Circuit Court to have the action transferred to the High Court pursuant to s. 48 of the Courts of Justice Act, 1924, and an order to this effect was made, by consent, on the 25th March, 1941.

The plaintiff's claim, as set out in the indorsement of claim in the Civil Bill, was as follows:—

"The plaintiff's claim is for the sum of £300 damages for that the defendant falsely imprisoned and kept in prison the plaintiff in Sligo Gaol in the County of Sligo during the period December 4th, 1940, to December 19th, 1940, whereby the plaintiff suffered pain of body and mind and was exposed and injured in his credit and circumstances and was prevented from providing for his family and incurred expenses in obtaining his liberation from imprisonment.

Particulars of Expenses.

Agent's and solicitor's costs and expenses incurred in endeavouring to secure liberation from imprisonment, £10 10s. 0d."

The defendant traversed the averments contained in the plaintiff's indorsement of claim and further pleaded as follows:—

"5. In the alternative, if the acts alleged in the Civil Bill to have been committed by the defendant were committed by him (which is denied) the defendant says that the same were done by him in bona fide execution of his duty as Governor of Sligo Prison and in pursuance of an ordèr of committal issued out of the High Court of Justice in Bankruptcy on the 24th day of July, 1939, in 'the Matter of James Gildea of Corlara, Drumana, Roscommon, in the County of Roscommon, licensed grocer, a bankrupt'; and the defendant further says, that at all material times, there was in force for the imprisonment and detention of the plaintiff, a valid order, that is to say, the said order of committal.

6. The defendant says that, at all material times, he was a ministerial officer of the High Court of Justice in Bankruptcy, and, as such officer, that he was bound pursuant to the said order of committal to receive the plaintiff into his custody and to detain him therein; and the defendantbona fide so received and detained the plaintiff.

7. The said order of committal was within the jurisdiction of the High Court of Justice in Bankruptcy, and the said order appeared on its face to have been regularly issued thereout. The said order was correct in form, and no invalidity, want or excess of jurisdiction, which would have entitled the defendant to refuse to execute the same, was disclosed on the face thereof.

8. By way of further defence the defendant relies on the provisions of the General Prisons (Ir.) Act, 1877, (40 & 41 Vict. c. 49) and the Criminal Justice Administration Act, 1914 (4 & 5 Geo. 5, c. 58) and on the Orders and Regulations made thereunder, and in particular on the Order made thereunder by the Lord Lieutenant, dated the 9th day of December, 1919."

The action was tried by Martin Maguire J. with a jury, and, at the conclusion of the plaintiff's case, it was agreed that the jury should assess damages provisionally, the amount assessed by the jury to be accepted by the parties, the questions of law to be determined by the Judge. The jury assessed damages at the sum of £13 16s. 6d.

The further facts are sufficiently stated for the purposes of this report in the judgment of Martin Maguire J.

By s. 17 of the Criminal Justice Administration Act, 1914, as applied to Ireland by s. 43 of the Act, it is provided (sub-s. 1) that the Lord Lieutenant may from time to time by any general or special rule under the Prisons (Ir.) Acts, 1826 to 1907, appropriate, either wholly or partially, particular prisons within his jurisdiction to particular classes of prisoners (sub-s. 2) that a prisoner sentenced to imprisonment or committed to prison on remand, or pending trial, or otherwise, may be lawfully confined in any prison to which the Prisons (Ir.) Acts, 1826 to 1907, shall apply; (sub-s. 3) that prisoners shall be committed to such prisons as the Lord Lieutenant may from time to time direct; and may on the like direction be removed therefrom during the term of their imprisonment to any other prison.

In pursuance of the powers conferred by s. 17, an Order was made by the Lord Lieutenant on the 9th December, 1919. By the first paragraph of the Order the prisons specified in the First Schedule to the Order were appropriated to persons committed for trial at, or committed from, Assizes, Commissions and Quarter Sessions, while by the second paragraph the prisons specified in the Second Schedule were appropriated to persons remanded or sentenced to imprisonment by a magistrate or magistrates, at Petty Sessions or otherwise, or by a Divisional Justice of the Police District of Dublin Metropolis. In the third paragraph of the Order it is provided as follows:—

"Persons who may lawfully be committed to an ordinary prison in Ireland, and who are committed otherwise than as described in the foregoing paragraphs and in the First and Second Schedules referred to therein shall be committed to the prisons named in the Third Schedule attached hereto, as therein set forth [Mountjoy Prison and Sligo Prison were among the prisons named in this Schedule];

Provided that where the arrest of a person for whose committal to prison a warrant has been issued takes place in any other county than that in which the warrant has been issued, such person may be committed to any one of the prisons to which he might have been committed if the warrant had been issued in the district where the arrest takes place, even though the prison may not be the prison named in the warrant."

The plaintiff sued the defendant for damages for false imprisonment. He had been detained in Sligo Prison in the custody of the defendant, the Governor of that prison, who purported to act on a warrant given under the seal of the High Court in Bankruptcy and issued in pursuance of an order of committal made by the Court on the 7th July, 1939. By that order the plaintiff, who had failed to carry out an undertaking given by him to the Court, was adjudged guilty of contempt and ordered to be committed in the custody of the Governor of Mountjoy Prison. The warrant was issued on the 24th July, 1939, directing the Gárda Síochína to deliver the plaintiff to the Governor of the said prison and directing the Governor to receive him and keep him until further order. On the day the warrant was issued the plaintiff went to England, and he did not return until the 21st November, 1940. He was arrested in Roscommon on the 4th December 1940, taken to Sligo Prison and delivered to the defendant. He was released from custody on the 19th December, 1940, by order of the High Court made on an application for an order of habeas corpus (reportedante p. 485).

Held by Martin Maguire J.:—

(1) The fact that the plaintiff's release had been ordered by an order of habeas corpus did not per se entitle him to succeed in an action for damages for false imprisonment.

Dictum of FitzGibbon J. in O'Conghaile v. Wallace, [1938] I. R. 526,at p. 559, applied.

(2) The committal order was not in the nature of an order for attachment or a writ of execution which required to be renewed after one year from the date of issue under Or. XLII, r. 20, of the Rules of the Supreme Court (Ir.) 1905; accordingly the order was still in force at the date of execution.

(3) The Order made by the Lord Lieutenant on the 9th December, 1919, under the powers conferred by s. 17 of the Criminal Justice Administration Act, 1914, was a sufficient authority for the detention of the plaintiff in a prison other than that specified in the committal order.

(4) Inasmuch as the committal order was valid on its face, the defendant in obeying it was protected against an action for false imprisonment, notwithstanding that it was not addressed to him but to the Governor of Mountjoy Prison, and that the last-mentioned prison was specified in the order as the place of imprisonment.

(5) The committal order was not made under the powers of s. 72 of the Bankruptcy (Ir.) Amendment Act, 1872, which enables a Judge in Bankruptcy to direct imprisonment in "such convenient prison as the Court thinks expedient" but was made by virtue of the powers of a Judge of the High Court, to which Court the bankruptcy jurisdiction was transferred by the Supreme Court of Judicature (No. 2) (Ir.) Act, 1897, and by s. 17 of the Courts of Justice Act, 1924. Even if the order were made under the powers of s. 72, that section was merely an enabling one, enabling the Judge to specify what he considered to be a convenient prison and did not operate to prevent a person from being imprisoned in another prison.

Accordingly the plaintiff was lawfully detained in custody and the action must be dismissed. On appeal to the Supreme Court:

Held by...