Kennedy v Director of Public Prosecutions

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins
• Judgment Date: 21 December 2020
• Neutral Citation: [2020] IECA 360
• Docket Number: Appeal No 2018/343
• Court: Court of Appeal (Ireland)
• Date: 21 December 2020

BETWEEN

GILES KENNEDY

PLAINTIFF/APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS/ RESPONDENTS

[2020] IECA 360

Costello J.

Collins J.

Pilkington J.

Appeal No 2018/343

THE COURT OF APPEAL

CIVIL

Declaratory relief – Strike out – Reasonable cause of action – Appellant seeking a declaration that s. 12(3) of the Road Traffic Act 1994 is inconsistent with Bunreacht na hÉireann – Whether the proceedings failed to disclose a reasonable cause of action

Facts: The plaintiff/appellant, Mr Kennedy, sought a declaration that s. 12(3) of the Road Traffic Act 1994 is inconsistent with Bunreacht na hÉireann. Mr Kennedy also sought a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 12(3) is incompatible with the State’s obligations under the provisions of the European Convention on Human Rights. Damages were also sought by him for breach of his constitutional rights and pursuant to s. 3 of the 2003 Act. Mr Kennedy appealed to the Court of Appeal from the judgment given on 14 June 2018 ([2018] IEHC 351) and order made on 6 July 2018 of the High Court striking out the proceedings on the basis that they failed to disclose a reasonable cause of action. As well as opposing Mr Kennedy’s appeal, the defendants/respondents, the Director of Public Prosecutions, Ireland and the Attorney General, cross-appealed from the High Court’s failure to dismiss the proceedings on the basis of Henderson v Henderson (1843) 3 Hare 100, arguing that all of the necessary ingredients for a finding of abuse of process had been established and that the Judge was in error insofar as he appeared to consider that some “ulterior motive” on the part of a litigant had to be demonstrated. In his oral submissions, Mr Devally SC for Mr Kennedy submitted that the High Court had made its decision on the basis of the findings made by the Circuit Court Judge regarding the alleged hearing disability of Mr Kennedy; it was on the basis of those findings that the High Court had held that the proceedings were founded on a ius tertii and should not be permitted to proceed. While not challenging the status of those findings as such, Counsel submitted that, when properly analysed, those findings were not such as to preclude Mr Kennedy from maintaining his challenge to s. 12(3).

Held by the Court that in light of the findings made by the Circuit Court Judge, Mr Kennedy was not entitled to pursue his constitutional challenge to s. 12(3). The Court held that, even if s. 12(3) allowed for a defence of inability or incapacity (as Mr Kennedy asserted it must), it was evident that, having regard to those findings, such a defence – whatever its precise form – would not have availed Mr Kennedy; the argument that s. 12(3) is unconstitutional because it fails to provide for such a defence therefore involves the assertion by him of a ius tertii which, the authorities made clear, ought not to be permitted. For the same reasons, the Court was of the opinion that Mr Kennedy could not properly pursue his claim for a declaration of incompatibility in respect of s. 12(3). The Court held that the damages claim made by Mr Kennedy derived from and was dependent on his claims that s. 12(3) is inconsistent with the Constitution and/or incompatible with the Convention and cannot be maintained independently of those claims. Accordingly, the Court held that it would affirm the order made by the High Court striking out these proceedings.

The Court held that the defendants’ cross-appeal failed and Mr Kennedy’s appeal succeeded to the extent that the Court had concluded it would be contrary to the interests of justice to hold that these proceedings were an abuse of process in the Henderson v Henderson sense; however, that had no effect on the actual outcome of this appeal.

Appeal dismissed.

JUDGMENT of Mr Justice Maurice Collins delivered on 21 December 2020

BACKGROUND

1 The Appellant (“ Mr Kennedy”) appeals from the judgment and order of the High Court (O' Connor J) striking out these proceedings (hereafter “the proceedings” or “the plenary proceedings”) on the basis that they fail to disclose a reasonable cause of action. The judgment of the High Court was given on 14 June 2018 ( [2018] IEHC 351) and the relevant order was made on 6 July 2018.

2 The proceedings were commenced by plenary summons issued on 2 October 2015. A statement of claim was delivered on 5 October 2015. The primary relief sought is a declaration that section 12(3) of the Road Traffic Act 1994 (as substituted by section 2 of the Road Traffic Act 2003 1) is inconsistent with Bunreacht na hÉireann. Mr Kennedy also seeks a declaration pursuant to section 5 of the European Convention on Human Rights Act 2003 (“ the 2003 Act”) that section 12(3) is incompatible with the State's obligations under the provisions of the European Convention on Human Rights (“the Convention”). Damages are also sought by him for breach of his constitutional rights and pursuant to section 3 of the 2003 Act.

3 Section 12 has subsequently been substantially repealed and replaced but, as at April 2007, it provided that a member of the Gardai could require a person in charge of a motor vehicle in a public place to provide a preliminary breath specimen in certain circumstances, including where the member formed the opinion that the person concerned “[had] consumed intoxicating liquor.” Any person who refused or failed to “comply immediately” with such a requirement was guilty of an offence and liable on summary conviction to a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both: section 12(3). Section 12(4) empowered a member of the Gardai to arrest a person who, in that member's opinion, was committing or had committed such an offence.

4 Mr Kennedy was stopped by Gardai while driving on the East Wall Road in Dublin on the evening of 25 April 2007. The relevant Garda member, Garda Coyne, formed the opinion that Mr Kennedy had consumed alcohol and required him to provide a preliminary breath specimen. No specimen was provided, though Mr Kennedy ostensibly attempted to do so. He was then arrested under section 12(4) of the 1994 Act. On the following day, he was charged with failing to provide a breath specimen contrary to section 12(3), as well as a separate offence under section 13(2) of the 1994 Act arising from his alleged failure to provide breath specimens at Store Street Garda Station following his arrest. He was convicted of both offences in the District Court in April 2011. He appealed to the Circuit Court and was ultimately convicted of the section 12(3) offence (but acquitted of the section 13 offence) on 12 May 2016, following a 3-day hearing. Thus, a period in excess of 9 years elapsed between Mr Kennedy being arrested and charged and the conclusion of the “summary” proceedings against him.

5 In the plenary proceedings, Mr Kennedy asserts that section 12(3) is unconstitutional because (so he pleads) it creates an “ absolute offence”. While he claims to have had “ a defence based on inability/incapacity” no such defence was available to him under section 12(3). Furthermore (so Mr Kennedy pleads) section 12(3) did not require mens rea on his part or provide for a “ defence based on inability or incapacity to provide a specimen of breath.” The availability of such a defence is, he says, “ constitutionally mandated 2” and the absence of any such defence from section 12(3) means that it is inconsistent with the Constitution. Mr Kennedy asserts that his right to a fair trial and to due process has been/will be denied and also alleges that he has not been treated equally before the law. Similar grounds are relied on by Mr Kennedy in support of his claim that section 12(3) is incompatible with the Convention.

6 Mr Kennedy has never claimed to have been physically unable to provide a breath specimen when required to do so on the East Wall Road on 25 April 2007. Rather, as it is put in his Statement of Claim, he claims that “ a hearing incapacity prevented him from complying with [the] requirement made under ss 12 … of the 1994 Act at East Wall Road”. He says that his failure to provide a breath specimen arose from the fact that his hearing incapacity meant that he could not hear the instructions given to him by Garda Coyne and therefore did not understand what he needed to do in order to provide the breath specimen required of him.

7 Mr Kennedy clearly gave evidence to this effect in the District Court. However, as the Statement of Claim pleads - tersely but unambiguously - the “ District Court judge in convicting [Mr Kennedy] did not accept [his] evidence.” 3

8 The plenary proceedings issued while Mr Kennedy's appeal was pending in the Circuit Court. The Defendants' motion was also issued before the appeal was heard (and in advance of any defence being delivered by them). The motion sought an order pursuant to the High Court's inherent jurisdiction striking out the proceedings “ on the basis that they are barred by reason of estoppel by omission and/or abuse of process”. In the alternative, an order was sought pursuant to Order 19, Rule 28 and/or the inherent jurisdiction of the Court striking out the proceedings on the basis that they disclosed no reasonable cause of action and/or frivolous or vexatious “ in circumstances where the Circuit Court has yet to make any findings of fact such as could properly ground a defence of inability/incapacity”. Finally, the Defendants sought – again in the alternative – an order staying the plenary proceedings until the conclusion of Mr Kennedy's appeal in the Circuit Court.

9 By the time this motion came on for hearing in the High Court on 16 May 2018, Mr Kennedy's appeal had been heard and determined by Judge Codd in the Circuit Court and he had once again been convicted of the section 12(3) offence, with the Court imposing a fine...