Leonard Gorman v Minister for Justice, Equality and Law Reform and Others
 IECA 41
THE COURT OF APPEAL
561/2014 - Irvine Hogan Mahon - Court of Appeal - 3/3/2015 - 2015 IECA 41
Appeal against judgment - Want of prosecution - Inordinate and inexcusable delay - Damages - Alleged assault, battery and false imprisonment - Discovery - Balance of justice - Public interest dimension - Primor plc v Stokes Kennedy Crowley  2 I.R. 499 principles applied
1. This an appeal against the judgment and order of the High Court (Hedigan J.) delivered on 10 th July 2012 whereby he dismissed the plaintiff's claim for want of prosecution and on the grounds of inordinate and inexcusable delay.
2. By plenary summons issued on 29 th January 2003 the plaintiff commenced proceedings in the High Court seeking damages from the defendants in respect of acts of assault, battery and false imprisonment which are alleged to have taken place at Dundalk Garda Station on 15 th January 2001.
3. In his statement of claim delivered on 10 th February 2003 the plaintiff pleaded that whilst in a cell in the station he was viciously attacked by three members of the Gardai who beat him around the body with batons and kicked him while he lay on the ground. As a result he maintains that he was extremely shocked and suffered severe bruising all over his body.
4. A defence was delivered on 17 th July 2003 wherein the defendants maintained that at all material times the plaintiff had been held in lawful custody. They denied all allegations of assault, negligence and impropriety and pleaded that any injuries he sustained were as a result of his intoxication, his failure to cooperate and the fact that he repeatedly assaulted members of An Garda Síochána.
5. The notice of trial was served in the proceedings on 30 th September 2003. This was later struck out due to non attendance on 18 th January 2005.
6. By letter of 8 th October 2003 the defendants raised particulars arising from the statement of claim. This notice was replied to on 9 th January 2004.
7. Voluntary discovery was sought from the defendants in October 2003. In May 2004 the Master made an order for discovery and the defendants complied with that order in May 2005.
8. On the 2 nd March 2004 a supplemental notice for particulars was raised by the defendants. This was replied to on 20 th march 2012.
9. On 22 March 2004 particulars were sought by the plaintiff solicitors arising from the defence and these were replied to on the 30 th November 2005.
10. On 4 th May 2004 the defendants were ordered to make discovery. A draft affidavit of discovery was delivered in November 2004 and the sworn affidavit on 6 th May 2005.
11. On the 30 th Nov 2005 the defendants sought discovery of the plaintiffs GP records and his hospital admission records held in Louth Co Hospital. The hospital records were furnished on the 18 th May 2006.
12. It was intended that the defendants would have the plaintiff medically examined on 18 th October 2005. That appointment was cancelled as the particulars of injury sought by letter dated 22 nd March 2004 and the plaintiff's medical records had not yet been furnished.
13. On 12 th October 2011, the defendants were requested to agree to the reinstatement of the Notice of trial. They refused and that refusal spawned two court applications; the first an application by the Plaintiff to reinstate the Notice of trial and the second a motion issued by the defendants to dismiss the claim for want of prosecution and further on the grounds of inordinate and inexcusable delay.
14. Both motions were listed for hearing before Hedigan J. on 10 th July 2012.
15. Having considered the principles to be applied on such an application, which were agreed between the parties, the High Court judge dismissed the proceedings. He reached the following conclusions, namely:-.
i i. that the delay in the prosecution of the proceedings had been both inordinate and inexcusable,
ii ii. that any lack of cooperation on the part of the defendants in furnishing a copy of a video which they had sought ought to have been remedied by court application,
iii iii. the fact that eleven and a half years had passed since the events in question was unacceptable in such a straightforward action,
iv iv. that the balance of justice favoured dismissal. The case would not be heard until 2013, by then regardless of the existence of witness statements, prejudicial delay was inevitable,
v v. That while the claim involved a grave allegation with a public interest dimension, that such interest would have somewhat diminished over the years.
16. Insofar as the delay prior to November 2005 was concerned, counsel for the plaintiff maintained that this could not be attributed to the plaintiff as the defendants had delayed in complying with an order for discovery that had been made in May 2004. The sworn affidavit was not delivered until 26th May 2005.
17. As to the delay post November 2005, counsel submitted that there was ongoing correspondence between the parties mostly in relation to a videotape which the plaintiff's legal advisers felt was a material proof required to advance the claim. This was not a case where the plaintiff's solicitors had been idle for any extended period. There was extensive correspondence concerning the videotape evidencing the plaintiff's clear intention of advancing his claim.
18. Counsel submitted that even if the trial judge was entitled to find that the delay_had beeninordinate and inexcusable, he should nonetheless, have concluded that the balance of justice favoured allowing the action proceed for the following reasons,
i i. the allegations the subject matter of the claim were grave and there was a public interest in having such serious allegations fully investigated,
ii ii. the plaintiff had no alternative remedy,
iii iii. the defendants had not been able to point to any specific prejudice arising from the delay and they had a number of contemporaneous witness statements in relation to the events in question,
iv iv. there was no period of complete inactivity such that the defendants might have been lulled into believing that the plaintiff was not proceeding with his claim,
v v. the conduct of the defendants was not without fault. They had been guilty of delay in dealing with the plaintiffs solicitors requests in relation to the videotape in a timely manner and had generated some delay in furnishing discovery,
vi vi. there had been no complaint from the defendant's solicitor urging expedition or warning that any prejudice was emerging due to the rate at which the proceedings were advancing.
19. Counsel for the defendants submitted that the trial judge had correctly concluded that the plaintiff's delay had been inexcusable. This, he reminded the court, had been accepted by the plaintiff in the court below. The claim was, as was stated by the High Court judge, not a complex one and should have been capable of being advanced to trial in a modest time frame.
20. Counsel submitted that the judge had correctly concluded that the unavailability of a readable copy of the video tape sought by the plaintiff's solicitor afforded no valid excuse for the delay. Further he maintained that the claim could have proceeded in its absence as the wrongdoing the subject matter of the claim is all alleged to have taken place in a Garda cell and the video relates to events prior to the plaintiff's arrest at or near MacDonald's takeaway restaurant in Dundalk. Accordingly, the content of the video could never be determinative of the liability issue. Further, the plaintiff had not acted with any degree of expedition in seeking to obtain the videotape and could have made a court application if satisfied that the defendants were in breach of their obligations.
21. As to whether the balance of justice was correctly assessed by the High Court judge, counsel submitted that the judge's approach could not be faulted. Counsel agreed with his finding that delay of the type that had occurred in this case was bound to be prejudicial regardless of the absence of any identifiable or specific prejudice. The existence of witness statements did not negate that type of general prejudice. A jury should not, he submitted, be asked to decide between two different accounts of what had happened 10 years previously.
22. As to the conduct of the defendants, the fact that the defendants had engaged in a significant amount of correspondence with the plaintiff solicitors over the years did not disentitle them to bring the appropriate application. They were not...
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