Paul Smyth v Commissioner of an Garda Síochána and Others

JudgeMr Justice Michael Peart
Judgment Date16 May 2013
Neutral Citation[2013] IEHC 209
CourtHigh Court
Date16 May 2013

[2013] IEHC 209


Record Number: No. 15244P/2002
Record Number: No. 15671P/2003
Smyth v Cmsr of An Garda Siochana & Ors


Paul Smyth


The Commissioner of An Garda Siochana, The Minister for Justice, Equality and Law Reform, Ireland and The Attorney General
Brenda Flood and Philip Smyth


Colm Church, Raymond Murray, The Commissioner of An Garda Siochana, The Minister for Justice, Equality and Law Reform, Ireland and The Attorney General

RSC O.25 r1

RSC O.34 r2

KILTY v HAYDEN 1969 IR 261

MURRAY v FITZGERALD UNREP MACMENAMIN 27.2.2009 2009/41/10266 2009 IEHC 101






Preliminary issue

Application for trial of preliminary issue - Point of law - Whether duty of care owed by An Garda Síochána in relation to investigation of complaint - Tort - Negligence - Facts in dispute - Concession of facts for purpose of issue - Saving of court time and costs - Whether necessary that determination of preliminary point would bring proceedings to end - Exceptional case - Whether statute barred - Whether res judicata - Kilty v Hayden [1969] IR 261; Murray v Fitzgerald [2009] IEHC 101, (Unrep, MacMenamin J, 27/2/2009); Tritton Development Fund Ltd v Markin AG [2007] IEHC 21, (Unrep, Dunne J, 12/2/2007); Nyembo v Refugee Appeals Tribunal [2007] IESC 25, [2008] 1 ILRM 289; Emma Silver Mining Company v Grant [1879] 11 Ch D 918; Tara Mines v Minister for Industry and Commerce [1975] IR 242 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 25, r 1, O 34, r 2, O 36, r 7 and 9 - Application granted (2002/15244P & 2003/15671P - Peart J - 16/5/2013) [2013] IEHC 209

Smyth v Commissioner of An Garda Síochána

Facts The proceedings concerned the manner in which an investigation was carried out by members of An Garda Síochána. The defendants brought the present application seeking a direction that a preliminary point be tried; namely, whether as a matter of Irish law, a duty of care could arise by members of An Garda Síochána to the public in relation to how investigations are carried out. On behalf of the defendants it was submitted that it was desirable to determine this point in order to save costs and that the plaintiffs” cases were purely speculative. Other issues were raised as to whether the cases were statute barred and whether other matters were res judicata.

Held by Peart J in making the following order: The court would await a full hearing to determine matters relating to res judicata and whether the proceedings were statute barred. Orders 25 and 34 of the Rules of the Superior Courts enabled the court to direct the disposal of a point of law. It would appear that there was an identifiable question of law relating to the duty of care aspect which could be tried before any evidence was given. There would be a significant saving in terms of costs and court time to have those questions determined prior to a full hearing on the facts. The court would make an appropriate order for the trial of the issues identified in relation to the absence of a duty of care.


Mr Justice Michael Peart delivered on the 16th day of May 2013:


The events giving rise to these two sets of proceedings occurred about 20 years ago even though the proceedings themselves were commenced in 2002. For present purposes it is unnecessary to set out the extensive background to the proceedings and the present application.


I have already decided that in the very unusual circumstances of these cases that delay was not sufficient to lead to the dismissal of the proceedings on the grounds of delay.


What is before the Court now for decision is an application by the defendants that a preliminary issue be directed on a point of law, namely that regardless of what facts may be established in relation to the allegations contained in the Statements of Claim regarding how an investigation of the plaintiffs' complaints the subject of the proceedings was carried out, or not carried out, by members of An Garda Siochana, as a matter of Irish law no duty of care under the law of tort and in particular the law of negligence is owed to the plaintiffs, or members of the public generally, by members of An Garda Siochana in relation to how those investigations are carried out.


The defendants submit therefore that it is desirable in terms of a saving in costs and in the proper use of court time, that this issue be determined now, and that it should not have to await the full hearing of the case. They submit that the plaintiffs' cases are purely speculative, and for success would require an impermissible extension of the law of negligence against a substantial body of existing authority to the effect that no such duty of care to the plaintiffs is owed under Irish law regardless of what facts may be established at trial.


Two other preliminary issues are sought, one being that the proceedings are statute barred, and the other that certain matters are already res judicata having been decided in other proceedings in which Mr Paul Smyth was a plaintiff. I can dispose of those applications quickly. The Statute point is closely linked to the delay issue which I have already decided and I do not think this is a case where that issue can be decided discretely and it would have to await oral evidence in the rather exceptional facts of this case. As for the res judicata issue, it is accepted by the defendants that those proceedings did not involve Mr Philip Smyth. In those circumstances there is nothing to be gained for these proceedings in now having that matter determined either. So I refuse the defendants' application in that regard.


But, to return to the issue under consideration, in so far as some of the case-law relevant to whether or not such an issue on a point of law should be directed states that it is undesirable for such an issue to be directed where facts are in dispute between the parties, the defendants have stated that for the purpose of having this preliminary issue determined they will accept the truth of the allegations of fact pleaded in the each plaintiff's Statement of Claim, and that submit therefore, for that purpose alone, that there are no facts in dispute.


The plaintiffs on the other hand urge that the Court should direct a preliminary issue only where that determination, whichever way it is decided, will bring an end to the proceedings. In that regard they point to the rather obvious fact that only if the issue is determined in favour of the defendants will the proceedings be at an end.


The trial of a preliminary issue is dealt with under three different rules in the Rules of the Superior Courts.

Order 25, rule 1 RSC provides:

"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."

Order 34, rule 2 RSC provides:

"If it appears to the Court that there is in any cause or matter a question of law, which it would be convenient to have decided before any evidence is given or any question or...

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1 cases
  • Lannegrand v National University of Ireland Galway
    • Ireland
    • High Court
    • 26 July 2016
    ...out and heard at the preliminary trial of the action. The defendant also relies on Smyth v. Commissioner of An Garda Síochána and Others [2013] IEHC 209. 27 It is also submitted on behalf of the defendant that while the authorities make clear that the trial of a preliminary issue will not ......

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