McGuinness v The Commissioner of an Garda Síochána and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 24 January 2025
• Neutral Citation: [2025] IECA 10
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2024/175

Between/

Francis McGuinness

Plaintiff/Appellant

and

The Commissioner of An Garda Síochána, Ireland and The Attorney General

Defendants/Respondents

[2025] IECA 10

Allen J.

Burns J.

Hyland J.

Appeal Number: 2024/175

THE COURT OF APPEAL

CIVIL

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Allen delivered on the 24 ^th day of January, 2025

Introduction

1 . This is an appeal by Mr. Francis McGuinness against the judgment of the High Court (Nolan J.) delivered on 29 ^th May, 2024 ( [2024] IEHC 283) and consequent order made on 13 ^th June, 2024 dismissing Mr. McGuinness's action against the Garda Commissioner and the State, with costs.

2 . The grounds of appeal are set out in sixteen numbered paragraphs, but the gravamen of the appeal is that the Garda Commissioner and the State failed to prove that a search of Mr. McGuinness's business premises on 23 ^rd August, 2014 was carried out pursuant to lawful authority. Specifically, the argument is that because the Garda Commissioner and the State failed to produce to the High Court the original warrant authorising the search, the action should have succeeded.

Background

3 . On the morning of Saturday 23 ^rd August, 2014 a number of Gardaí attended at Mr. McGuinness's yard at Pinnock Hill, Cloghran, County Dublin. Some were detectives, others were in uniform, and yet others were members of the Garda armed response unit. It was suggested by counsel in the course of the trial that there were up to 40 Gardaí in eleven vehicles but Mr. McGuinness was not at the yard when the search took place and did not call any witness who was. By no fault on the part of the Garda Commissioner or the State, the trial took place nearly ten years after the event. The four Gardaí who gave evidence – and who were involved in the search – could not precisely recall the number of Gardaí but it is clear enough that there were a good few, with a commensurate number of vehicles.

4 . There were two metal gates to the yard, which were locked. The Gardaí used cutting equipment to cut the locks and bolts on the gates. They entered and searched the yard and offices and took away papers and materials.

5 . Mr. McGuinness reacted swiftly and indignantly. He immediately engaged an engineer to survey and photograph his premises and then instructed solicitors to write to the Garda Commissioner.

6 . In a letter dated 28 ^th August, 2014, Mr. McGuinness, by his solicitors, asserted that his premises had been searched by approximately 40 Gardaí – who had arrived in eleven vehicles – and who had destroyed the gates by cutting them with oxy-acetylene torches. The Gardaí – it was said – had ransacked Mr. McGuinness's office and taken his books of account and two envelopes of cash. In addition – it was said – the Gardaí had taken three boxes of documentation relating to two of Mr. McGuinness's U.K. companies, the removal of which would hamper a U.K. VAT audit. Besides – it was said – two sets of keys for two new BMW vehicles had been removed and a cheque book for another U.K. company had been removed and was missing.

7 . The substance of the complaint in relation to the search was that:-

“No search warrant or warrant of any kind was presented to the person who was on the premises and none has been presented to our client in the interim or since. …

In the absence of your demonstrating the legal authority upon which your servants or agents acted in raiding our client's premises, it is clear to us that the actions of members of your force represent a conscious and deliberate violation of our client's constitutional rights and his property rights. We call upon you to forthwith produce and furnish to us a copy of any warrant that may exist for the actions of your members by immediate return.

Even if a warrant was applied for and obtained (and we reserve our client's position regarding the validity of any such warrant and we request a copy of any sworn information grounding any application for a warrant along with a copy of the warrant itself together with details of what court issued same) the actions of your members were clearly disproportionate to the damage that was caused.”

8 . The letter suggested that it was inconceivable that it had been necessary to cut both gates. Rather – it was said – the yard could have been accessed by the Gardaí opening a pedestrian garden gate to the adjoining residential property – which was also owned by Mr. McGuinness – and then crossing a low garden wall.

9 . In a page and a half, the letter set out Mr. McGuinness's complaints in relation to the search which had been carried out on the morning of 23 ^rd August, 2014. Over the following three pages the letter set out in detail complaints in relation to previous engagements between Mr. McGuinness and various Gardaí, which – as the letter made clear – were already the subject of Circuit Court and High Court proceedings.

10 . I pause here to observe that it was not unambiguously suggested that the Gardaí had searched Mr. McGuinness's premises without a warrant. The premise of the complaint of unwarranted heavy handedness and the request for a copy of the warrant, a copy of the sworn information, and details of the court which issued the warrant, was that there was a warrant.

11 . Mr. McGuinness's solicitors' letter was acknowledged by the Garda Head of Legal Affairs on the following day, when it was said that a comprehensive investigation file had been sought and would be forwarded to the State Claims Agency, to which any further correspondence should be directed.

The High Court proceedings

12 . By plenary summons issued on 2 ^nd September, 2014 Mr. McGuinness issued proceedings against the Garda Commissioner and the State claiming damages for negligence and breach of duty and breach of statutory duty; damages for misfeasance in public office; damages for unlawful interference, conversion, trespass and/or detinue; an order requiring the Garda Commissioner “to return the items seized from the premises”; an order requiring the Garda Commissioner “to furnish the plaintiff with a copy of any warrant authorising or purporting to authorise Garda entry on his premises”; an order restraining the Garda Commissioner from interfering with Mr. McGuinness's property and/or premises or his person without notice to his solicitors; damages for breach of constitutional rights; aggravated and exemplary damages; interest; and costs.

13 . On the following day – by leave of the High Court (Cross J.) – Mr. McGuinness issued a motion returnable for 9 ^th September, 2014 for orders requiring the Garda Commissioner to return the items seized; to furnish a copy of any warrant authorising or purporting to authorise the entry onto the premises; and an order restraining the Garda Commissioner from interfering with Mr. McGuinness's property or person without notice to his solicitors.

14 . Neither the summons nor the notice of motion identified the items alleged to have been seized.

15 . Mr. McGuinness's motion was grounded on an affidavit which in substance replicated the assertions which had been set out in his solicitors' letter of 28 ^th August, 2014 and referred to and exhibited the correspondence from the Garda Head of Legal Affairs. He also exhibited a copy of the pleadings in a Circuit Court action commenced on 4 ^th August, 2011 and a statement of claim delivered on 6 ^th February, 2012 in High Court proceedings which had been commenced in 2011. Following an exchange of affidavits, that motion came before the High Court (Keane J.) on 15 ^th October, 2014, when – in circumstances to which I will come – it was struck out.

16 . Following a motion to dismiss for failure to deliver a statement of claim, Mr. McGuinness's statement of claim was delivered on 22 ^nd January, 2015. It, too, more or less reflected the complaints made in the initial letter in relation to the search carried out on 23 ^rd August, 2014. It was said that the “dawn raid” was unlawful and even if lawfully authorised, was carried out in an unlawful manner. It was pleaded that the Gardaí had wrongfully damaged two gates to the premises and had unlawfully seized and had retained “business documents” and two envelopes containing cash. By the prayer to the statement of claim Mr. McGuiness claimed damages; an order for the return of all of the items seized from his premises; and an order compelling the Garda Commissioner to furnish him with “a legible copy of any warrant and the sworn information authorising or purporting to authorise the Garda entry on his premises.”

17 . The reference to “any” warrant perpetuated Mr. McGuinness's non-acceptance that there was a warrant but again the premise of the request for a legible copy and the sworn information was that there was one.

18 . By notice for particulars dated 3 ^rd February, 2015 further particulars of the claim were sought and – following two motions on behalf of the Garda Commissioner and the State – were provided on 6 ^th October, 2015.

19 . In the meantime, on 10 ^th March, 2015 a motion was issued on behalf of Mr. McGuinness seeking:-

“(a) an order compelling the [Garda Commissioner] to furnish the plaintiff with a copy of the sworn information grounding the application for the search warrant of the plaintiff's premises at Pinnock Hill, Swords, Co. Dublin.

(b) if necessary, an order compelling the [Garda Commissioner] to furnish the plaintiff with a legible copy of the said search warrant.” [Emphasis added.]

20 . That motion was grounded on an affidavit of Mr. McGuinness's solicitor, Mr. John Geary, which was sworn on 9 ^th March, 2015. Mr. Geary recalled that from his first correspondence with the Garda Commissioner on 28 ^th and 29 ^th August, 2014 he had “sought a copy of the sworn information grounding the … application for a search warrant …” and that “neither the warrant nor the information were furnished to me prior to the issue of the...