McGuinness v The Commissioner of an Garda Siochana and Others
| Jurisdiction | Ireland |
| Judge | Mr Justice Dignam |
| Judgment Date | 29 June 2023 |
| Neutral Citation | [2023] IEHC 436 |
| Court | High Court |
| Docket Number | [Record No.] 2014 7727 P |
[2023] IEHC 436
[Record No.] 2014 7727 P
THE HIGH COURT
Unlawful search – Inordinate and inexcusable delay – Balance of justice – Defendants seeking to dismiss the plaintiff’s claim – Whether there was inordinate and inexcusable delay
Facts: The premises of the plaintiff, Mr McGuinness, were searched on the 23rd August 2014 by members of An Garda Síochána. The plaintiff claimed, inter alia, that the search was unlawful in that it was conducted on foot of a warrant which was based on flawed sworn information, was conducted in an unlawful manner in that the warrant was not shown to the person on the premises at the time or at any time prior to the institution of proceedings and it involved disproportionately excessive numbers and the exercise of excessive force which caused avoidable damage to the plaintiff’s premises. The plaintiff also claimed that business documents and two envelopes containing cash were seized and unlawfully retained. The defendants, the Commissioner of An Garda Síochána, Ireland and the Attorney General, applied to the High Court to dismiss the plaintiff’s claim for inordinate and inexcusable delay or for failure to prosecute the claim or delay in the prosecution of his claim.
Held by Dignam J that the defendants had established that the delay was both inordinate and inexcusable. It seemed to Dignam J that it was of significance that part of the plaintiff’s claim was for the return of property that was allegedly seized during the search. Dignam J held that if it was correct that property was seized and had not been returned then the effect of the proceedings being dismissed would be to deprive the plaintiff of the opportunity to obtain the return of that property. It seemed to Dignam J that this must be of considerable weight in the assessment of the balance of justice. The effect of the dismissal of any proceedings is to deprive the plaintiff of the opportunity to obtain a remedy but there seemed to Dignam J to be a qualitative difference between relief directed towards compensation, for example, and relief which was directed towards the return of property which the plaintiff claimed was his property. In Dignam J’s view, when account was taken of this, it was not established that the balance of justice was clearly against allowing the claim to proceed or that the hardship of denying the plaintiff access to a trial of his claim would be proportionate and just, citing Cave Projects v Gilhooley [2022] IECA 245 and Gibbons v N6 (Construction) Limited & Galway County Council [2022] IECA 112, notwithstanding the risk of moderate prejudice to the defendants.
Dignam J refused to dismiss the proceedings. Dignam J held that if there was any further significant delay it would be entirely open to the defendant to make a fresh application to have the proceedings dismissed. Dignam J held that it was essential to move the proceedings on with dispatch to minimise the risk of increasing the likelihood of prejudice and unfairness. Dignam J proposed making directions to achieve that end. Dignam J gave the parties an opportunity to agree directions but emphasised that the obligation to move the proceedings on with dispatch was primarily that of the plaintiff, particularly where he had already been guilty of inordinate and inexcusable delay. Dignam J envisaged a very tight timeline. It seemed to Dignam J that against the background of this case a failure to comply with any such direction by the plaintiff without good reason would have to place the plaintiff at very significant risk of the proceedings being struck out. Dignam J noted that by the time the matter came on for trial, the balance of justice and in particular the question of prejudice may have altered and it would be a matter for the trial judge to determine whether, at that point, based on the recollection of witnesses, the delay was such that the continuation of the proceedings must be dismissed on that ground.
Application refused.
Judgment of Mr Justice Dignam delivered on the 29 th day of June 2023
This matter comes before me by way of an application to dismiss the plaintiff's claim for inordinate and inexcusable delay or for failure to prosecute the claim or delay in the prosecution of his claim.
The proceedings arise from a search of the plaintiff's premises on the 23 rd August 2014 by members of An Garda Síochána. The plaintiff claims, inter alia, that this search was unlawful in that it was conducted on foot of a warrant which was based on flawed sworn information, was conducted in an unlawful manner in that the warrant was not shown to the person on the premises at the time or at any time prior to the institution of proceedings and it involved disproportionately excessive numbers and the exercise of excessive force which caused avoidable damage to the plaintiff's premises. The plaintiff also claims that business documents and two envelopes containing cash were seized and unlawfully retained.
The application arises in the following circumstances and against the following chronology:
23 rd August 2014 — Date of the search of the plaintiff's premises;
2 nd September 2014 – Plenary summons issues;
3 rd September 2014— Ex parte Order of Cross J granting the plaintiff short service of a motion seeking Orders: compelling the first-named defendant to return items seized in the search; compelling the first-named defendant to furnish the plaintiff with a copy of any warrant authorising or purporting to authorise Garda entry to the premises; and restraining the first-named defendant from interfering with the plaintiff's property and/or premises or his person without notice to his solicitor that the first-named defendant requires access to his property and/or premises or requires to interview him. The plaintiff issued the motion on the same day;
8 th September 2014 — Appearance entered on behalf of the defendants;
15 th October 2014 — Order of Keane J striking out the plaintiff's motion of the 3 rd September 2014;
22 nd December 2014 – Defendants issue motion to dismiss the plaintiff's claim for want of prosecution for failure to deliver a Statement of Claim;
22 nd January 2015 — Statement of Claim delivered;
26 th January 2015 – Order of White J striking out the defendants' motion of the 22 nd December 2014 seeking to dismiss the plaintiff's claim for want of prosecution, with costs to the defendants;
3 rd February 2015 — Defendants serve a Notice for Particulars;
10 th March 2015 – Plaintiff issues motion to compel the first-named defendant to furnish a copy of the sworn information grounding the application for a search warrant of the plaintiff's premises and a legible copy of the search warrant;
23 rd March 2015 – Defendants issue motion to compel delivery of Replies to Particulars;
24 th June 2015 — Order of Keane J striking out the defendants' motion to compel Replies to Particulars and extending the time for delivery of Replies by two weeks. The plaintiff's motion to compel the first-named defendant to provide a copy of the sworn information and a legible copy of the search warrant is heard;
30 th July 2015 – Defendants issue motion to dismiss the plaintiff's claim for failure to comply with the Order of Keane J of the 24 th June 2015 in relation to the delivery of Replies to Particulars;
6 th October 2015 — Plaintiff furnishes Replies to the defendants' Notice for Particulars;
12 th October 2015 — Consent Order of Gilligan J striking out the defendants' motion to dismiss plaintiff's claim for failure to comply with the Order of Keane J of the 24 th June 2015, i.e., for failure to deliver Replies to Particulars;
14 th December 2015 — Defence delivered;
28 th October 2016 — Order of Keane J refusing the plaintiff's motion to compel the first named defendant to furnish a copy of the sworn information;
14 th December 2016 — Plaintiff files Notice of Expedited Appeal of the Order of Keane J of the 28 th October 2016;
18 th December 2017 — Order of the Court of Appeal dismissing the plaintiff's appeal against the Order of Keane J of the 28 th October 2016;
19 th December 2017 — Defendants write to plaintiff's solicitor advising of the outcome of the appeal;
24 th November 2022 – Defendants issue motion to dismiss the plaintiff's claim for inordinate and inexcusable delay.
It is important to note that some of the steps and events in this chronology were overlapping. For example, while the defendants' motion to compel Replies to Particulars was before the Court the plaintiff's motion to compel the first-named defendant to provide a copy of the sworn information was also before the Court.
There is a significant volume of judgments dealing with the question of the Court's jurisdiction to dismiss proceedings for delay and want of prosecution, some of which were very helpfully reviewed by Roberts J in her recent judgment of Carroll v M & P Sales and Marketing Limited & anor [2023] IEHC 54. Many of the authorities are fact specific but the general principles applying to such applications are very well established and it seems to me that there is no significant dispute between the parties as to the principles to be applied. As is often the case, the dispute rather turns on what conclusion should be reached on the basis of those general principles on the precise facts of this case. I therefore do not propose to recite the applicable principles in great detail.
It was held in Primor v Stokes Kennedy Crowley [1996] 2 IR 459:
“ (a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;
(b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the...
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