Muldowney v The Governor of Mountjoy Prison and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 01 December 2023
• Neutral Citation: [2023] IEHC 718
• Court: High Court
• Docket Number: [2019] 5553P

John Muldowney

Plaintiff

and

The Governor of Mountjoy Prison, The Minister for Justice and Equality, The Attorney General and Ireland

Defendants

[2023] IEHC 718

[2019] 5553P

THE HIGH COURT

Ex tempore judgment ofMr. Justice Mark Heslindelivered on 1 December 2023

1 . On 20 July 2022, the defendants issued a motion seeking an order pursuant to s. 10 (3) (a) (ii) of the Civil Liability Act 2004 (“the 2004 Act”) seeking a dismissing the plaintiff's claim; and further, or in the alternative, an order dismissing the plaintiff's claim for want of prosecution, pursuant to this court's inherent jurisdiction.

2 . I have considered, with care, the contents of all the following:-

• (i) the pleadings in this case; in particular

• (ii) the affidavit grounding the present motion, which was sworn on 14 July 2022 by Ms Caoimhe Malone, solicitor in the State Claims Agency, being the solicitors on record for the defendants;

• (iii) exhibit CM1 to that affidavit;

• (iv) the affidavit sworn by Ms Malone on 23 March 2023;

• (v) exhibits CM1 and CM2 to that affidavit;

• (vi) the affidavit of Mr Brian Leahy, of Messrs Brendan T. Muldowney, the solicitors on record for the plaintiff, being an affidavit which was sworn on 20 April 2023;

• (vii) exhibits A to J to Mr Leahy's affidavit; and

• (viii) the replying affidavit of Ms Malone, sworn on 12 May 2023.

3 . Later in this ruling I will refer to certain averments and correspondence.

Legal principles

4 . Before proceeding to look at the evidence and the facts which emerge from it, it is appropriate to make reference to relevant provisions and legal principles.

Civil liability and Courts Act 2004

5 .Section 10(2) of the Civil Liability and Courts Act 2004 (the “2004 Act”) provides inter-alia that a Personal Injuries Summons shall specify the following:-

“…. (d) the injuries to the plaintiff alleged to have been occasioned by the wrong of the defendant,

(e) full particulars of all items of special damage in respect of which the plaintiff is making a claim”

I pause to say that no special damage is itemised in the personal injury summons. Subsections (f) and (g) are of particular relevance and I now quote them as follows:-

“(f) full particulars of the acts of the defendant constituting the said wrong and the circumstances relating to the commission of the said wrong,

(g) full particulars of each instance of negligence by the defendant”.

6 . Whilst I will presently look at the personal injuries summons, it is appropriate to note at this juncture that the plaintiff failed to comply with s. 10 (2) as a result of which an order was made on 21 June 2021 placing a stay on the plaintiff's proceedings until he complied with s. 10 of the 2004 Act.

7 . In the manner I will presently return to, it was subsections (f) and (g) which the defendants put the plaintiff ‘squarely’ on notice of, as to the deficiencies in the personal injuries summons and that is clear from correspondence I will presently come to.

8 . It is also appropriate to note that, despite the passage of almost two and a half years since this Court's order made on 21 June 2021, it remains the position that the plaintiff has failed to comply with s. 10 in particular subs. (2) (f) and (g).

9 . Subsection 3 of s. 10 goes on to state:-

“(3) Where a plaintiff fails to comply with this section—

(a) the court may—

(i) direct that the action shall not proceed any further until the plaintiff complies with such conditions as the court may specify, or

(ii) where it considers that the interests of justice so require, dismiss the plaintiff's action”.

10 . In ‘net’ terms, an order has already been made under s. 10 (3) (a) (i) and, today, the defendants seek an order under s. 10 (3) (a) (ii) of the 2004 Act, as well as dismissal of the plaintiff's claim on delay grounds.

Delay

11 . Turning to the principles governing this Court's approach to delay, recalling that relief under this heading is also sought in the alternative, the leading judgments remain, of course, the Supreme Court's decision in Primor plc v. Stokes Kennedy Crowley[1996] 2 I.R. 459 (“ Primor”), as well as an earlier decision by the Supreme Court in O'Domhnaill v. Merrick[1984] IR 151 (“ O'Domhnaill”).

12 .Primor remains the ‘touchstone’, or the primary approach. The principles set out by Hamilton C.J. (at pp. 475/76 of the reported judgment) are well known and are set out in the written submissions. Therefore, it is unnecessary to quote them verbatim, but it is these principles which have guided this Court's approach to the defendants' application.

13 . It is fair to say that Primor requires this Court today to ask three questions in sequence:-

(1) is the delay inordinate?

(2) if so, is it inexcusable?

(3) if the delay is both, is the balance of justice in favour of, or against, allowing the case to proceed?

14 . There is a separate but somewhat overlapping jurisdiction to dismiss proceedings which arises where there is a real and serious risk of an unfair trial and/or an unjust result, namely, the principles which emerge from O'Domhnaill, and the authorities derived from same.

15 . There are distinctions between Primor and O'Domhnaill ‘tests’. Those distinctions were made clear in the Court of Appeal's decision in Cassidy v. The Provincialate[2015] IECA 74 (at paras. 33 to 38).

16 . The first of those distinctions is that, whilst inordinate and inexcusable delay are essential elements of the Primor test, they are not so under the O'Domhnaill approach. Under the latter approach, it is not necessary for a defendant to meet the burden of proof of establishing ‘culpable’ delay on the plaintiff's part. In other words, even a plaintiff who is entirely blameless in relation to the delay can face their proceedings being dismissed if there is a real risk that a fair trial is no longer possible.

17 . A second difference is that, under the Primor test, if inordinate and inexcusable delay have been established, then a case may, depending on the particular circumstances, be dismissed if what the authorities call “ moderate” prejudice has been established.

18 . In short, it is not necessary, per the Primor approach that what is often called “fair trial” prejudice be established. By contrast, under the O'Domhnaill test, nothing short of establishing prejudice likely to lead to a real risk of an unfair trial or an unjust result will be sufficient to justify dismissal.

19 . Therefore, the Primor approach focuses ‘squarely’ on the plaintiff's action (or, inaction) before moving to a consideration of the balance of justice, if extraordinary inaction is established and is not excused. By contrast, O'Domhnaill focuses ‘squarely’ on whether a fair trial is possible, regardless of how blameworthy, or not, the plaintiff may be.

20 . This court also has the benefit of written submissions by both sides in which they canvas a range of authorities and I have had careful regard to the submissions. It is fair to say that all those authorities are addressed in a very comprehensive decision by Collins J. in the Court of Appeal in Cave Projects Limited v. Gilhooley & Ors.[2022] IECA 245. In that judgment, Collins J. set out a comprehensive analysis of the jurisprudence in the area, in particular, at para. 36 (between pages 27 and 37, inclusive) wherein he referred to each of the authorities which the parties to this application have cited in their respective submissions.

21 . Having set out the landscape or position in terms of legal principle, it is now appropriate to look at the particular circumstances of this case and that is, of course, vital because while the principles I have touched on refer to all cases in delay applications across the board, this particular case is unique.

22 . Therefore, this Court's role must be, in the present application, to provide a ‘bespoke’ response to the specific facts and circumstances, guided by the interests of justice. I emphasise the interests of justice because there is a commonality as between (i) the legislative provision in terms of s. 10 (3) (a) (ii); and (ii) the third limb of the Primor test. Both make explicit that the underlying question is the interest of justice.

The Personal Injuries Summons (issued on 12 July 2019)

23 . Turning to the pleadings, a personal injuries summons was issued on 12 July 2019. It pleads that the plaintiff was at all material times employed as a prison officer at Mountjoy prison, having commenced employment on or about 21 August 2006.

24 . The wrong alleged against the defendants is, per paragraph 8: “Negligence and breach of duty to include breach of statutory duty and breach of contract”.

25 . At para. 10 of the Personal Injuries Summons, the plaintiff pleads: “From in or about the year 2010 the plaintiff was subjected to ongoing and repeated bullying behaviour by the governors at Mountjoy prison”.

26 . I pause at this stage to say that, whilst it is not a criticism at all of the submissions made with such skill and force this morning by the plaintiff's solicitor, any attempt to suggest that the ‘clock’ does not ‘start’ in 2010 for the purposes of a consideration of relevant events is, with respect, a submission which ignores the explicit plea that, from in or about the year 2010, the plaintiff was subjected to ongoing and repeated bullying behaviour.

27 . At this juncture it is appropriate to recall what section 10 (2) (f) and (g) of the 2004 Act require, namely “ full particulars of the acts of the defendant constituting the wrong”; and of the “circumstances relating to the commission of the wrong”; as well as “particulars of each instance of negligence by the defendant”.

28 . Despite these requirements, para. 10 goes on to plead:

“ This unwarranted and bullying behaviour consisted of the plaintiff being bullied and harassed on a continual basis by the governors of Mountjoy Prison”...