Murray v Minister for Education and Science

JurisdictionIreland
JudgeMs. Justice Finlay Geoghegan
Judgment Date21 July 2017
Neutral Citation[2017] IECA 216
Date21 July 2017
CourtCourt of Appeal (Ireland)
Docket NumberNeutral Citation Number: [2017] IECA 216 Appeal Numbers 400, 401, 402, 403 & 404/2016 High Court Record Numbers [1999 No. 1257 P, 2005 No. 797 P, 2003 No. 13968 P, 2000 No. 12607 P & 2001 No. 9812 P]

[2017] IECA 216

THE COURT OF APPEAL

Finlay Geoghegan J.

Finlay Geoghegan J.

Peart J.

Hogan J.

Neutral Citation Number: [2017] IECA 216

Appeal Numbers 400, 401, 402, 403 & 404/2016

High Court Record Numbers [1999 No. 1257 P, 2005 No. 797 P, 2003 No. 13968 P, 2000 No. 12607 P & 2001 No. 9812 P]

BETWEEN
PAUL JOSEPH MURRAY, RICHARD LEONARD, JOHN ALLEN, GERARD PATRICK REGAN

AND

EUGENE HEAPHY
PLAINTIFFS/APPELLANTS
-AND-
THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND

AND

THE ATTORNEY GENERAL

AND

OTHERS
DEFENDANTS/RESPONDENTS

Notice of discontinuance – Inherent jurisdiction – Setting aside – Appellants seeking permission to withdraw a notice of discontinuance – Whether the High Court has an inherent jurisdiction to set aside a notice of discontinuance

Facts: The High Court (Barrett J), on 26th May, 2016, by reason of the underlying facts alleged in the proceedings, refused applications made by the plaintiffs/appellants, Mr Murray, Mr Leonard, Mr Allen, Mr Regan and Mr Heaphy, to set aside or permit each plaintiff to withdraw a notice of discontinuance which had been served. The appellants appealed to the Court of Appeal against that decision. The core submission on behalf of the appellants was that the High Court judge erred in holding that he was compelled by the decision of the Supreme Court in Smyth v Tunney [2009] 3 IR 322 to dismiss the applications. The appellants submit that the High Court, or the Court of Appeal on appeal, has an inherent jurisdiction to set aside a notice of discontinuance and that the circumstances of these cases warrant the exercise of that jurisdiction. The appellants submitted, as they did in the High Court, that the judgment of the European Court of Human Rights (ECtHR) in O'Keeffe v Ireland [GC] no.35810/09.ECHR 2014 created a change in the "legal landscape" which warrants the setting aside of the notices of discontinuance. However, at the hearing of the appeal, counsel on their behalf also relied upon the fact that the ECtHR judgment referred to and relied upon parts of reports produced by a number of commissions of inquiry in the State commencing with the Carrigan Report in 1931 and concluding with developments which followed the publication of the Ryan Report in May 2009. These references, she submitted, indicate the availability of evidence to the plaintiffs which had not been available to them when they discontinued the proceedings in 2009 and 2010.

Held by Finlay Geoghegan J that the High Court does have an inherent jurisdiction to set aside or permit a plaintiff to withdraw a notice of discontinuance filed pursuant to O. 26 of the Rules of the Superior Courts. Finlay Geoghegan J held that the trial judge was, however, correct in determining that in accordance with the law as set out by the Supreme Court in Smyth v Tunney the notices of discontinuance served by the plaintiffs in each of the proceedings should not be set aside.

Finlay Geoghegan J held that the appeals should be dismissed.

Appeal dismissed.

JUDGMENT delivered by Ms. Justice Finlay Geoghegan on the 21st day of July 2017
1

The questions raised by these appeals are whether the High Court has an inherent jurisdiction to set aside or permit a plaintiff to withdraw a notice of discontinuance filed pursuant to O. 26 of the Rules of the Superior Courts and, if it does, should it have exercised such jurisdiction in favour of each of the five plaintiffs in the proceedings.

2

Applications to set aside or permit each plaintiff to withdraw a notice of discontinuance which had been served were refused by the High Court (Barrett J.) for reasons set out in a judgment delivered on 26th May, 2016. By reason of the underlying facts alleged in these proceedings the trial judge concluded:

'The Court, with every respect and no little regret, is therefore coerced as a matter of law into declining to grant the relief now sought of it by the plaintiffs.'

3

The issue on appeal is whether the High Court judge was correct in so concluding.

Background facts and proceedings
4

Each of the plaintiffs is an adult male who was once a pupil in a national school run by the Christian Brothers. Each alleges that whilst a pupil he was sexually abused, sexually assaulted and, in some instances, also physically assaulted by a Christian Brother. Each plaintiff has instituted separate personal injury proceedings naming as defendants, in some instances, the alleged perpetrator of the abuse; in all instances a person nominated by the Christian Brothers Order and, again, in all instances, the Minister for Education & Science, Ireland and the Attorney General. I propose to describe these defendants as the 'State defendants'. Certain of the proceedings also name as defendants the board of management of the relevant school or an individual member of the board of management. The claims relate to matters alleged to have occurred in the 1950s, 1960s and 1970s. As appears from the record numbers of the proceedings they were instituted between 1999 and 2005. Statements of claim have been delivered in each of the proceedings in years between 1999 and 2008. Whilst there are certain differences in the manner in which the claims are pleaded, they include claims against the State defendants in negligence, for alleged breaches of constitutional rights and in vicarious liability for the actions of the alleged perpetrators.

5

Defences were filed, inter alia, on behalf of the State defendants.

6

A chronology has been submitted in relation to each of the proceedings. It is clear that there was an element of stop – start in certain of the proceedings. This was in part explained by decisions given in the High Court in other similar proceedings including:

Martin Delahunty v. South Eastern Health Board & Ors. [2003] 4 IR 361

Louise O'Keeffe v. Leo Hickey & Ors. [2006] IEHC 13, (Unreported, High Court, De Valera J., 20th January, 2006)

Thomas Murphy v. John Hannon & Ors. [2006] IEHC 261, (Unreported, High Court, Johnson J., 18th July, 2006)

D.O'C. v. A.M.McD. the Minister for Education & Science Ireland and the Attorney General and M.O.S. v Minister for Education & Science Ireland and the Attorney General & Ors. [2006] IEHC 299, (Unreported, High Court, O'Donovan J., 6th October, 2006)

7

Each of the above plaintiffs failed in the High Court against the State defendants, but in some instances succeeded against non-State defendants. Of these decisions, the most important is that of O'Keeffe v. Hickey, if for no other reason than Ms. O'Keeffe appealed her adverse decision to the Supreme Court. In certain of the current proceedings there was correspondence between the solicitors for the plaintiffs and the solicitors for the State defendants in relation to the potential impact of the decision in the O'Keeffe appeal for these proceedings. On 19th December, 2008 the Supreme Court delivered judgment in the O'Keeffe appeal: O'Keeffe v. Hickey [2008] IESC 72, [2009] 2 IR 302.

8

In the O'Keeffe case, it appears from the judgment of De Valera J. in the High Court that the plaintiff's claim against the State defendants was originally pursued in negligence, in vicarious liability and in respect of an action for damages for breaches of constitutional rights. The claim in negligence was stated by De Valera J. to be 'arising out of the State's purported failure to put in place appropriate measures and procedures to detect and prevent sexual abuse by the first defendant.' He granted a direction non-suiting the plaintiff in respect of this claim, as he concluded the Minister had no case to answer. It appears that no evidence was adduced by the plaintiff in support of the alleged negligence of the State. Ms. O'Keeffe's claim against the State upon the grounds that the State defendants were vicariously liable for the sexual assaults perpetrated on her by the first defendant and for breach of constitutional rights was dismissed in the High Court for the reasons set out in the written judgment: [2006] IEHC 13.

9

In the Supreme Court, Ms. O'Keeffe's appeal was only pursued against the dismissal of the vicarious liability claim. She did not appeal against the dismissal of her claims against the State defendants in negligence and for breaches of constitutional rights. A majority of the Supreme Court dismissed the appeal: O'Keeffe v. Hickey [2009] 2 IR 302.

10

In the wake of the delivery of the Supreme Court judgments, the Chief State Solicitor wrote to the solicitors for each of the plaintiffs on various dates between January and March, 2009 in substantially similar terms. The correspondence included the following paragraphs:

'We would draw your attention to the Supreme Court decision in the case of Louise O'Keeffe –v – Leo Hickey, the Minister for Education & Science, Ireland and the Attorney General, which was delivered on 19th December 2008. You will be aware that in dismissing the plaintiff's appeal, the Supreme Court held that the State defendants were not vicariously liable for the abusive actions of a teacher (or other party) as there was no employer/employee relationship between the abuser and the State defendants. The judgements of the Supreme Court may be found at www.courts.ie/Judgments.nsf/Webpages/HomePage.

It appears to us that your client's case has the same legal issues as the above case, and therefore, cannot now succeed as against our clients, having regard to the jurisprudence as established in the Supreme Court.

We wish to advise that, on our client's instructions, we are in a position to propose, at this time, that the State will not seek its costs on the conditions that, firstly, your client does not seek costs from the State and secondly, a Notice of Discontinuance is filed on behalf of your client by 31st March 2009.

We wish to specifically state, at this time, that this offer to go back-to-back on costs stands strictly subject to the...

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    ...aside a summary judgment. 24 The judgment in Smyth v. Tunney was more recently applied in Murray v. Minister for Education and Science [2017] IECA 216, by the Court of Appeal. In giving the court's judgment, Finlay Geoghegan J. referred to Smyth v. Tunney in extenso and concluded (at para.......

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