Murphy v Callinan

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 30 November 2018
• Neutral Citation: [2018] IESC 59
• Court: Supreme Court
• Docket Number: Appeal No. 435/2012
• Date: 30 November 2018

[2018] IESC 59

THE SUPREME COURT

Baker J.

Clarke C.J.

Dunne J.

Baker J.

Appeal No. 435/2012

BETWEEN/

PETER MURPHY

APPELLANT

-AND-

GARY CALLINAN, JULIE CARROLL,

AND

ARB UNDERWRITING LIMITED, THE COMMISSIONER OF AN GARDA SÍOCHÁNA

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Data protection – Criminal convictions – Plaintiff contending data held was inaccurate – Supply of information leading to cancellation of insurance policy – Data Protection Act 1988

Facts: The plaintiff was a motor trader whose insurance policy was cancelled by the third defendant, as he was considered to have made a false declaration he had never been convicted of a motoring or criminal offence. This decision was made because of information supplied by the state defendants, which the plaintiff contended was inaccurate. The plaintiff had brought plenary proceedings and separate judicial review proceedings, both of which were dismissed. The plaintiff now appealed in respect of the plenary proceedings.

Held by Baker J, that the appeal would be dismissed in part. The judge below had correctly identified that the plaintiff had failed to adduce evidence of negligence, injurious falsehood, bias or loss, and that the claim failed on that basis. The plaintiff’s appeal on one limited point would succeed in respect of whether the judicial review proceedings were res judicata.

JUDGMENT of Ms. Justice Baker delivered on the 30 ^th day of November, 2018

1 This is an appeal from the dismissal of these plenary proceedings by MacMenamin J. on 9 May 2012 on the application for non-suit brought by the defendants at the conclusion of the plaintiff's evidence. 2. The plaintiff, a litigant in person, runs a motor trading business. He commenced the action by plenary summons dated 24 October 2006, after his motor insurance policy with ARB Underwriting Ltd. (‘ARB’), the third named defendant, was cancelled as he was considered to have falsely stated on the policy application form that he had never been convicted of any motoring offence or of any criminal non-motoring offence. The information on foot of which the policy was cancelled came to the attention of ARB from the first defendant, a member of An Garda Síochána who, at all material times, acted in his professional capacity.3. The proceedings were issued against six defendants, four of whom, the first, fourth, fifth, and sixth will be collectively referred to as the ‘State defendants’. The second named defendant was, at all material times, acting as an employee of ARB, and she and the third defendant will be collectively referred to as ‘ARB’ as the claim against her relates to her actions in the course of her employment.

Background

4 The plaintiff never contested the cancellation of the motor insurance policy and accepted the returned premia. After the cancellation, he exercised his right of access pursuant to the then operative data protection legislation, the Data Protection Act 1988, as amended by the Data Protection (Amendment) Act 2003 transposing Directive 95/46/EC on the Protection of Individuals with Regard to the Processing of Personal Data (‘the 1988 Act’) and thereafter requested that the State defendants and ARB erase/rectify data showing criminal convictions for fraud. 5. The plaintiff's claim before MacMenamin J., as well as the related judicial review proceedings, have at their core a contention as to the accuracy of the records of the previous convictions of the plaintiff held by the State defendants and ARB and an assertion that the State should no longer keep record of stale or old convictions. 6. The Plaintiff's pleaded claims against the State defendants are, in essence, twofold:

(i) A claim in injurious falsehood that, in breach of section 20(1) of the Defamation Act 1961 (the ‘1961 Act’), the first defendant knew, or ought to have known, that the information held by An Garda Síochána concerning his past convictions was false and inaccurate and that communication of that data would damage the Plaintiff's vehicle dealership business and was unlawful. (ii) A claim in negligence, breach of duty, and breach of Constitutional rights as a result of the communication of incorrect data to the second and third defendants.

7 The plaintiff's claim against ARB is for damages for breach of statutory duty under the 1988 Act on account of its pleaded failure to rectify identified errors in the data it holds concerning him.8. It is important to observe that the complaints concern events in 2006 and requests under the 1988 Act made between June and September of that year, and the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC (General Data Protection Regulation) (‘GDPR’) and changes made by the Data Protection Act 2018 are not engaged. 9. MacMenamin J. dismissed the plaintiff's claim in the light of the evidence and applied the principles identified by the Supreme Court in Hetherington v. Ultra Tyre Services Ltd. [1993] 2 IR 535, and O'Toole v. Healy [1993] 2 IR 544, although he noted that a court was not, as a result of the approach identified in those authorities, precluded from engaging in some degree in an analysis or scrutiny of the evidence. 10. No error is identified in that approach taken by the trial judge.

The judicial review proceedings

11 The appellant issued separate proceedings by way of judicial review on 23 January 2007 (the ‘Judicial Review proceedings’) involving the same parties and, essentially, the same facts as those upon which he relies in these plenary proceedings. 12. The Judicial Review proceedings were heard and determined in the High Court and an ex tempore judgment was delivered by Charleton J. on 25 July 2008. He made the factual determination that both answers given by the plaintiff on the proposal form were wrong ‘whether as a result of being filled in quickly or by an agent’.13. The applicant's appeal of that decision was dismissed by the Supreme Court and an ex tempore judgment was given by Fennelly J. on 12 June 2009 with which the other judges agreed.

The plenary proceedings and the findings of the High Court

14 The plaintiff continued to pursue this plenary action after the determination by the Supreme Court of the Judicial Review proceedings and ARB made an application for dismissal on the grounds of res judicata. Having taken the view that ‘as a matter of justice’ the plaintiff ‘should be given the opportunity of completing his evidence […] being cross-examined […] and calling his son’, MacMenamin J. fairly postponed the consideration of the application until the plaintiff finished his oral evidence. Only two witnesses gave evidence, the plaintiff and his son, and the matter then proceeded as an application for a non-suit by the State defendants before any evidence was called by the defendants and where they had indicated that they would go into evidence if the application was refused. 15. The grounds of that application by the State defendants were that the plaintiff had not made out a prima facie case and/or that the plaintiff's claim (or part thereof) was res judicata and/or an abuse of process. 16. ARB's application that the matters were res judicata was then revisited and re-submitted. 17. In his written judgment dismissing the plaintiff's claim against the second and third defendants for damages, MacMenamin J. found, inter alia:

(a) That the plenary action and the earlier judicial review proceedings cannot be dissociated from each other as the issue in the judicial review was the integrity of the conviction records; (b) That the plaintiff was in fact convicted of an offence pursuant to s. 18 of the Theft and Fraud Offences Act 2001 in the District Court for possession of a stolen chequebook. On appeal, the Circuit Court found the facts proved and, without proceeding to a conviction, dismissed the charge under the Probation Act and that this order of the Circuit Court on appeal was not equivalent to a finding of not guilty; (c) That the plaintiff did have recorded criminal convictions for matters other than traffic road offences, and ‘a couple’ of convictions under the Road Traffic Acts from the early 1990s;(d) That the plaintiff had failed to make out any loss.

18 At p. 17 of his ruling, the conclusion of MacMenamin J. was that the matter was res judicata in its strict sense, as the matters in issue had already been determined in a way that met the test set out in the authorities, that courts had ‘exercised their judicial mind on the issue’, the words used by Shaw L.J. in Bradshaw v McMullan [1920] 2 IR 412. In the alternative, he concluded that the plaintiff should not be permitted to proceed with this action on the grounds that to do so would be an abuse of court process. 19. In regard to the claim against the State defendants for injurious falsehood, MacMenamin J. did not rely on a finding of res judicata and made other findings against the plaintiff which were dispositive, inter alia:

(a) The proofs had not been met and no evidence was adduced either by interrogatories or by direct evidence of an unlawful publication; (b) That the evidence adduced on the conviction order under s 18 of the Theft and Fraud Offences Act 2001 and the road traffic offences establishes the truth of the relevant statements.

20 In dismissing the plaintiff's claim against the State defendants for negligence, breach of duty, and breach of constitutional rights, MacMenamin J. found, inter alia:

a) That the claims ‘overlap in every respect those which were made in the judicial review proceedings’;b) That the plaintiff ‘simply has not addressed the question as to whether it is open to him to by-pass the Commissioner, and simply pursue an action for negligence or breach of constitutional rights’ and...