Murray & Air Ambulance Services Ltd v Fitzgerald and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice John MacMenamin |
| Judgment Date | 27 February 2009 |
| Neutral Citation | [2009] IEHC 101 |
| Docket Number | [No. 13487 P/2000] |
| Court | High Court |
| Date | 27 February 2009 |
[2009] IEHC 101
THE HIGH COURT
BETWEEN
AND
AND
RSC O.25 r1
RSC O.25 r2
ROAD TRAFFIC ACT 1994 S41
ROAD TRAFFIC ACT 1961 S56(3)
ROAD TRAFFIC ACT 1994 S41(5)
ROAD TRAFFIC ACT 1994 (SECTION 41) REGS 1995 SI 89/1995 REG 4
NYEMBO v REFUGEE APPEALS TRIBUNAL & NICHOLSON UNREP SUPREME 19.6.2007 2008 1 ILRM 289 2007/45/9443 2007 IESC 25
KILTY v HAYDEN 1969 IR 261
TARA MINES v MIN FOR INDUSTRY 1975 IR 242
F (BT) v DPP 2005 2 IR 559 2005 2 ILRM 367 2005/24/4872 2005 IESC 37
WINDSOR REFRIGERATOR CO LTD v BRANCH NOMINEES LTD 1961 CH 375 1961 2 WLR 196 1961 1 AER 277
RSC O.25
PRACTICE AND PROCEDURE
Preliminary issue
Question of law - Tort of conversion - Whether dispute of fact - Whether trial of preliminary issue possible where dispute of fact - Whether public interest in avoiding lengthy trial of relevance - Whether granting of application would effectively set aside order consolidating proceedings - Kilte v Hayden [1969] 1 IR 261 and Tara Mines v Minister for Energy and Commerce [1975] IR 242 applied; N v Refugee Appeals Tribunal [2007] IESC 25 [2008] 1 ILRM 289, BTF v DPP [2005] IESC 37 [2005] 2 ILRM 367 and Windsor Refrigeration Co Ltd v Branch Nominees Ltd [1961] Ch 375 considered - Road Traffic Act 1994 (No 7), s 41 - Rules of the Superior Courts 1986 (SI 15/1986), O 25, rr 1 and 2 - Application for preliminary determination refused (200/13487P, 2005/308P, 2005/3836P, 2006/4012P, 2006/4013P, 2006/4014P, 2006/4015P, 2006/4016P, 2006/3852P and 2005/309P - MacMenamin J - 27/2/2009) [2009] IEHC 101
Murray v Ireland
In these proceedings the plaintiffs seek an order pursuant to O. 25 rr. 1 and 2 of the Rules of the Superior Courts for the preliminary determination of a number of points of law. These points of law are identified in the Notice of Motion in the following terms:-
"1.
(a) Does the Road Traffic Act1994 or any regulations made thereunder enable An Garda Síochána to lawfully seize/confiscate a Mercedes Benz ambulance, registration mark 90D 24748;
(b) Did An Garda Síochána as servants of the first defendant or otherwise commit the Tort of Conversion at Coolevin Road, Ballybrack, on 23rd August, 2000, or elsewhere, when An Garda Síochána seized/confiscated the said ambulance; and
2. As a matter of law on what basis are damages to be assessed for the Tort of Conversion."
2 "1. Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the judge who tries the cause at or after the trial, provided that by consent of the parties, or by order of the court on the application of either party the same may be set down for hearing and disposed of at any time before the trial.
2. If in the opinion of the court the decision of such point of law substantially disposes of the whole action or of any distinct cause of action, ground of defence, set off, counter claim, or reply therein, the court may thereupon dismiss the action or make such other order therein as may be just.
The plaintiffs rely on both rules in pursuit of the relief claimed.
3. As may readily be inferred from the title to these consolidated proceedings, this matter has a considerable history. In essence the plaintiffs claim damages (including aggravated or exemplary damages) inter alia for conspiracy, malicious prosecution, misfeasance in public office, breach of duty and conversion by members of An Garda Síochána. They also seek a mandatory injunction directing the return of a Mercedes Benz ambulance registration no. 90D 24748, seized in circumstances later generally outlined.
4. In the Statement of Claim the first plaintiff is described as being an emergency medical technician and helicopter pilot. Thereafter the reference is made mainly to the first plaintiff. The second plaintiff is Mr. Murray's company. Mr. Murray formerly lived in Dalkey, Co. Dublin. It is said that through his company he provided emergency and non-emergency medical transportation to persons who were socially and financially disadvantaged. In this context, references to "the plaintiff" in this judgment unless indicated otherwise, may be taken as comprising both the plaintiff and his company.
5. The Statement of Claim is a lengthy one. It makes extensive allegations about the actions of various members of the gardaí and State agents against the plaintiff and his company. These include but are not confined to (i) malicious prosecutions for failing to have insurance on a number of vehicles including the ambulance; (ii) alleged disproportionate force by gardaí in stop and search procedures; (iii) false accusations of assault on members of the gardaí by Mr. Murray; (iv) unlawful failure on the part of the gardaí to take action against a named party, one Raymond Kinsella, who is accused of having assaulted, threatened and spread false rumours concerning the first plaintiff in his business which in turn lead to the seizure of another ambulance, and ejectment proceedings against the second plaintiff. Allegedly and as a result of this concerted campaign, Mr. Murray claims that his wife's health suffered, their relationship deteriorated and ultimately their marriage broke down. He claims that he was forced to migrate to the midlands to avoid further acts of intimidation.
6. The defence in the consolidated proceedings runs to some 128 paragraphs. In it, the defendants deny any wrongdoing whatsoever, contend that the gardaí were acting in the course of their duty in their relationship with the plaintiffs and deny the existence of any campaign or conspiracy.
7. A number of defence pleas are particularly relevant to this application. The first is the contention that the plaintiffs failed to mitigate their loss if in fact there was any actionable loss or damage. The court was informed by counsel for the plaintiffs that the claim being advanced by the plaintiffs' ranges between a minimum value of€10 million and a maximum value of €15 million. I make no comment on this claim in this ruling, save insofar as it is hotly disputed by the defendants.
8. The second relevant defence issue is whether there exists in law a statutory defence to a claim in conversion. Third there arise issues of credit. The questions of who is to be believed and reasonableness will it is said loom large in any consideration of the case.
9. It is now necessary to focus on the particular reliefs sought in the motion. The first plaintiff claims that on 23rd August, 2000, he was driving an ambulance and conveying a patient to her home. He says he was stopped by one of a number of gardaí. Mr. Murray claims that without any introductory enquiry or explanation that one garda stated that he was seizing the vehicle under s. 41 of the Road Traffic Act. A question arises as to whether ownership transfer documents were completed at the time. Apparently the vehicle had formerly been owned and operated by Dublin Fire Brigade.
10. Mr. Murray says he was opening the rear ambulance doors to remove a patient from it. He contends that the gardaí were not interested in the patient. He alleges that the gardaí unjustifiably called for back up as a crowd of 20 or 30 onlookers had gathered round. He says another garda said that he had a false insurance disc. Mr. Murray states that he provided the name and address of the insurer of the ambulance and invited a member of the garda to contact the insurer. He says the garda stated that he was not obliged to do so. Mr. Murray says that he produced a letter from Dublin Fire Brigade to the effect that notification of change of ownership of the ambulance from Dublin Corporation to himself had not been effected.
11. The plaintiff pleads that further documents were proffered to the gardaí, but they refused to release the ambulance. By letter dated 28th August, 2000, the plaintiff demanded the return of the ambulance.
12. By way of defence, it is said the gardaí found this documentation relating to ownership and payment of charges for detention of the vehicle unsatisfactory. In the Statement of Claim in the consolidated proceedings dated 9th January, 2008, it is said that the ambulance even now continues to be detained at Dun Laoghaire Garda station compound, parked in a position where it can be viewed by the general public. It will be noted that this is now some eight years after the events complained of.
13. The defence deals with the germane issues to this motion in some 31 paragraphs. It states
(i) that the garda member who stopped the plaintiff did so on foot of information that the vehicle had no insurance;
(ii) that the garda called on the Mr. Murray to...
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