L.M. v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: O'Donnell J
• Judgment Date: 03 November 2015
• Neutral Citation: [2015] IESC 81
• Court: Supreme Court
• Docket Number: 143/2011,[S.C. Nos. 18 & 143 of 2011]
• Date: 03 November 2015

Between:

L.M.

Plaintiff/Appellant

and

The Commissioner of an Garda Síochána,

The Minister for Justice, Equality and Law Reform,

The Director of Public Prosecutions, Ireland and

The Attorney General

Defendants/Respondents

Between:

Belinda Lockwood

Plaintiff/Appellant

and

Ireland, The Attorney General, and the Commissioner of an Garda Síochána

Defendants/Respondents

[2015] IESC 81

Denham C. J.

Hardiman J.

O'Donnell J.

McKechnie J.

Laffoy J.

143/2011

18/2011

THE SUPREME COURT

Negligence – Duty of care – Preliminary issue – Appellants seeking damages for negligence – Whether the respondents owed a duty of care to the appellants

Facts: The first plaintiff/appellant, LM, made a formal complaint of rape against her father to An Garda Síochána in 1990. Her complaint was validated by examination at Crumlin Children"s Hospital. However, nothing further occurred for six years. In 1996, the English Child Protection Authority (CPA) contacted An Garda Síochána. The plaintiff"s father was at that stage living in England. Following contact from the plaintiff"s mother, the CPA had been alerted to the complaint about the plaintiff"s father by a social worker in Tallaght. An investigation was commenced by the Gardaí and eventually the plaintiff"s father"s surrender was sought. He returned voluntarily from England, and was tried and convicted in the Central Criminal Court. However, on appeal, the Court of Criminal Appeal quashed the conviction and ordered a retrial. Thereafter, the accused man sought judicial review prohibiting the retrial on grounds of blameworthy prosecutorial delay. The application succeeded in the High Court and that decision was not appealed. In 2004, the plaintiff issued proceedings claiming damages for negligence, breach of her constitutional rights and her rights protected by the European Convention of Human Rights. By 2009, the case had only reached the stage where discovery was being sought, which was resisted by the defendants/respondents, the Commissioner of An Garda Síochána, the Minister for Justice, Equality and Law Reform, the Director of Public Prosecutions, Ireland and the Attorney General. The application for discovery precipitated a motion by the defendants seeking the trial of preliminary issues of law. A preliminary issue was fixed, and subsequently heard, in the High Court. In 2011, the High Court held that on the facts alleged, An Garda Síochána owed no private law duty to the plaintiff to avoid causing her distress, following Hill v The Chief Constable for West Yorkshire [1989] AC 53. Accordingly, the High Court dismissed the claim. The second plaintiff, BL, alleged that she was the victim of a rape by a man, JW. He was arrested in 1999, and the trial commenced. Inculpatory statements made by JW while in garda custody were excluded from evidence on the basis that he had been unlawfully arrested. JW was acquitted. The plaintiff contended that there was a basic error, and therefore negligence on the part of the arresting garda, for which the state parties were responsible, and that she suffered distress, loss and damages as a result. In 2010, an application was brought by the defendants for an order directing the trial of a preliminary issue. The High Court held that the defendants did not owe a private law duty of care to the plaintiff giving rise to a claim for damages in respect of the erroneous invocation of the power of arrest. LM and BL appealed to the Supreme Court against the High Court orders.

Held by O"Donnell J that the combined effect of the importance and complexity of the legal issue raised in these cases, the procedural inadequacies and confusions, the lack of factual and legal precision even after a number of years, the unlikelihood that even the bluntest answer will resolve all issues in such cases, and the possibility, at least, that the Court might not be able to offer more than a highly qualified, contingent or abstract answer, all led the Court to the conclusion that the determination of the preliminary issue in these cases was an inadequate and inappropriate vehicle for the determination of the important issues raised. O"Donnell J held that while the point raised was an important and absorbing one from the point of legal theory, it was also of particular importance at a human level, not least to the individual plaintiffs whose experience of the legal system in its broadest sense, could not be said to have been positive. O"Donnell J held that it was important that these cases were properly and fairly determined, which meant that the plaintiffs should be allowed bring their cases to trial.

O"Donnell J held that the Court would allow the appeals, set aside the orders of the High Court in each case, and direct that the matters proceed in the High Court.

Appeal allowed.

Judgment delivered on the 3rd of November 2015, by O'Donnell J .

1 These cases are appeals against orders of the High Court in L.M. v. The Commissioner for An Garda Síochána, The Minister for Justice, Equality and Law Reform, The Director of Public Prosecutions, Ireland and The Attorney General [2012] 1 I.L.R.M. 132 (' LM'), (Hedigan J., 20th January, 2011) and Belinda Lockwood v. Ireland, The Attorney General and The Commissioner of An Garda Síochána [2011] 1 I.R. 374 (' BL'), (Kearns P., 10th December, 2010) dismissing the respective claims either in whole or in that part relating to a claim in negligence, after a determination in each case of a preliminary issue that the defendants in each case did not owe a duty of care to the plaintiffs. (No issue was raised in this Court as to the title of the proceedings and accordingly I have followed the approach taken in the High Court in the respective cases). It follows from the fact that the cases were determined after the trial of a preliminary issue that no evidence was heard or facts found. Accordingly, it should be understood that the facts hereafter set out are the matters alleged by the plaintiffs which the Court must assume to be true or to be capable of being established at trial in order for the determination of the preliminary issue.

LM v The Commissioner of An Garda Síochána & Ors

2 The plaintiff was born in 1978. In May, 1990, at the age of twelve, she made a formal complaint of rape against her father to An Garda Síochána. A statement was taken from her in May, 1990, and a short statement was taken from her mother in December of that year. It is said that the plaintiff's complaint was validated by examination at Crumlin Children's Hospital. (I understand this to mean that on medical examination, the plaintiff's condition was found to be consistent with her complaints of sexual abuse). However, shamefully, nothing further occurred in this jurisdiction for six years. In 1996, the English Child Protection Authority ('CPA') contacted An Garda Síochána. The plaintiff's father was at this stage living in England. It appears that following contact from the plaintiff's mother, the CPA had been alerted to the complaint about the plaintiff's father by a social worker in Tallaght. An investigation was commenced by the gardaí and eventually the plaintiff's father's surrender was sought, he returned voluntarily from England, and was tried and convicted in the Central Criminal Court. However, on appeal, the Court of Criminal Appeal quashed the conviction and ordered a retrial. Thereafter, the accused man sought judicial review prohibiting the retrial on grounds of blameworthy prosecutorial delay. The application succeeded in the High Court and that decision was not appealed. Accordingly, the prosecution came to an end.

3 The High Court Judge had regard to the fact, described by him as extraordinary, that records had been mislaid and that there was no system to track and date records. The explanation, such as it was, offered for the delay was that papers had been lost somewhere in the prosecution service and subsequently located in archives. It was also said that the two officers in the investigation/prosecution service had died. The plaintiff had been assessed in 1999 for the purposes of a victim impact report in respect of the first trial and had been described then as relaxed, pleasant and good humoured. However, it is contended that following the quashing of the conviction and/or the prohibition of the retrial, her condition had deteriorated significantly. It is alleged that she suffers from post traumatic stress disorder. She feels she has been denied justice.

4 In 2004, the plaintiff issued proceedings claiming damages for negligence, breach of her constitutional rights and her rights protected by the European Convention of Human Rights ('the Convention'). By 2009, the case had only reached the stage where discovery was being sought, which was resisted by the defendants. The application for discovery precipitated a motion by the defendants seeking the trial of preliminary issues of law. On consent of the plaintiff, a preliminary issue was fixed, and subsequently heard, in the High Court. On the 20th January, 2011, the High Court held that on the facts alleged, An Garda Síochána owed no private law duty to the plaintiff to avoid causing her distress. In doing so, the High Court followed a decision of the High Court in W v. Ireland, The Attorney General and The Government of Ireland (No 2) [1997] 2 I.R. 141 (' W v. Ireland') and persuasive UK authority Hill v. The Chief Constable for West Yorkshire [1989] A.C. 53 ('Hill'). Furthermore, judgement had been delivered in the case of BL in the period between the hearing of the preliminary issue and the judgment in this case, and the judge considered that the two decisions were consistent. Accordingly, the order of the High Court recorded that the claim was dismissed in its entirety.

5 It is useful at this point to mention briefly something of the facts of W v. Ireland and Hill, both of which are striking and which...