Peter Secansky v The Commissioner of an Garda Síochána, DPP, Ireland, The Attorney General, The Governor of Cloverhill Prison, The Governor of Midlands Prison
| Jurisdiction | Ireland |
| Judge | Ms. Justice Niamh Hyland |
| Judgment Date | 18 November 2021 |
| Neutral Citation | [2021] IEHC 731 |
| Court | High Court |
| Docket Number | RECORD NO. 2012/5237P |
[2021] IEHC 731
RECORD NO. 2012/5237P
THE HIGH COURT
Interrogatories – Relevance – Necessity – Plaintiff seeking leave to deliver interrogatories – Whether the interrogatories would save costs
Facts: The plaintiff, Mr Secansky, was a Slovakian national, who lived in Slovakia. The plaintiff sought damages from, inter alia, the first defendant, the Commissioner of An Garda Síochána (An Garda Síochána), and the second defendant, the Director of Public Prosecutions (the DPP), for charging him with one count of rape that allegedly took place on 8 February 2009. He alleged, inter alia, breach of constitutional rights, malicious prosecution, false imprisonment, negligence and breach of duty and deliberate and conscious abuse of statutory powers. An application for leave to deliver interrogatories was brought by way of notice of motion of 3 June 2020. The motion for interrogatories was grounded on a short affidavit by Mr Shanley, solicitor for the plaintiff, sworn 3 June 2020 where he referred to the correspondence seeking interrogatories and averred that the interrogatories sought were relevant to the issues in the pleadings and were necessary for the purpose of disposing fairly of the proceedings and for the purpose of saving costs. He went on to say that each of the said interrogatories had a litigious purpose in that they would enable the plaintiff to sustain his case or damage that of the first and second defendants and would narrow the issues and would reduce the area of proof required of the plaintiff which would be beneficial to the administration of justice. He went on to say that the interrogatories were necessary to enable the plaintiff to obtain information as to facts material to issues in dispute between him and the first and second defendants and were also necessary for the plaintiff to obtain admissions of facts which he would otherwise have to prove and which were raised in the pleadings.
Held by the High Court that it could not assess whether the interrogatories would in fact save costs. Accordingly, the Court adjourned the motion to allow the plaintiff to take whatever steps he considered appropriate to see whether the defendants would permit the discovery material (and if relevant the disclosure material) to be introduced without the necessity for interrogatories. The Court held that if it became clear that the defendants would not do so, then the plaintiff might be in a position to persuade the Court that the interrogatories were “necessary” within the meaning of Order 31 of the Rules of the Superior Courts.
The Court adjourned the motion and gave the parties liberty to mention it for the purpose of re-entry at an appropriate time. The Court held that if the matter was to be re-entered, and the plaintiff wished to proceed with his application, he would be obliged to file a supplemental affidavit identifying the persons to whom each interrogatory was directed as required by Order 31, rule 1 and the Court gave liberty for a supplemental affidavit to be filed identifying same.
Motion adjourned.
JUDGMENT of Ms. Justice Niamh Hyland delivered on 18 November 2021
This is an application for leave to deliver interrogatories brought by way of notice of motion of 3 June 2020. The plaintiff is a Slovakian national, who lives in Slovakia. The application is brought in the context of somewhat unusual proceedings, whereby the plaintiff is seeking damages from, inter alia, the Commissioner of An Garda Síochána (“An Garda Síochána”) and the Director of Public Prosecutions (“the DPP”) for charging him with one count of rape that allegedly took place on 8 February 2009. He alleges, inter alia, breach of constitutional rights, malicious prosecution, false imprisonment, negligence and breach of duty and deliberate and conscious abuse of statutory powers.
In short, the relevant facts are as follows. The plaintiff was accused of rape by a complainant who had previously made a similar complaint in August 2007 against an individual entirely unrelated to the plaintiff, which she later withdrew, accepting that her complaint of rape was a fabrication, stemming from personal difficulties she was having due to a history of sexual abuse, family problems and an alcohol issue. Consideration was given to prosecuting her for wasting garda time, but it was recommended that no prosecution take place due to her personal circumstances.
Early on the morning of 8 February 2009, after spending the night with the plaintiff and some other people, where it appears significant amounts of alcohol were consumed, the complainant alleged the plaintiff had raped her and the gardaí were called by the father of her boyfriend. The plaintiff was questioned and released without charge. He emphasises that the complainant made only one statement against him on 8 February 2009, was never re-interviewed and that the garda who took the statement formed the opinion that she was under the influence of alcohol at the time of the making of the statement.
When the plaintiff returned to Ireland for the purpose of meeting his employer for an unrelated matter on 1 June 2010 (following his permanent return to Slovakia on 29 April 2009), he was arrested, detained, and later that day charged with the offence of rape pursuant to s.2 of the Criminal Law (Rape) (Amendment) Act 1990. He was remanded in custody by the District Court and on 1 July 2010 a book of evidence was served upon him and he was sent forward for trial to the Central Criminal Court. On the same date he made a bail application to the District Court which was opposed by the first defendant on the basis that he was a flight risk and bail was refused. On 27 July 2010 the matter was set down for trial for 22 June 2011.
On 30 August 2010 the plaintiff made an application for bail to the High Court and the first defendant opposed same on the basis again that he was a flight risk. He was granted bail on condition that he make a €10,000 cash lodgement, surrender his travel documents, reside at an address within the jurisdiction and sign on daily at a garda station. The plaintiff was unable to meet those terms and was remanded in custody until 21 June 2011.
In early June, some weeks before the trial date of 22 June 2011, he was provided with disclosure which included an extract from a file in respect of the investigation into the previous fabricated allegation of rape made by the complainant. On 20 June 2011, the plaintiff's solicitor was informed that the second defendant intended to enter a nolle prosequi in the matter.
The plaintiff identifies in his statement of claim the harm that was caused to him by his detention in custody in Ireland for 385 days when he returned to Slovakia, including the breakdown of his relationship, the ensuing lack of access to his daughter and the loss of his job.
The procedural history of the case is of some importance. The plaintiff received disclosure and therefore was able to formulate the pleas in his statement of claim of 30 April 2013 with some particularity.
A defence was filed on 22 January 2015, where it was pleaded that the defendants were carrying out their public function in pursuance of a public duty, being the investigation and prosecution of criminal offences and that as such the plaintiff had no permissible cause of action as against the defendants. It was further pleaded that without a plea of mala fides, no cause of action subsists against the defendants.
The plaintiff subsequently brought an application for discovery. Wide-ranging discovery was ordered by Twomey J. on 11 July 2016 whereby it was directed that discovery be made, inter alia, of the garda investigation file into the complaint of rape made by the complainant in August 2007, as well as the file into the complaint made against the plaintiff on 8 February 2009. Discovery was also ordered of all correspondence between the gardaí and the office of the DPP in relation to the 2007 allegation and the 2009 allegation. Discovery was also ordered of the DPP file in respect of the 2007 complaint.
Ultimately, four affidavits of discovery were sworn. Privilege was claimed over a significant number of the categories but not over the garda files in respect of either of the investigations. As part of the papers in this case I have been provided with the discovery made, which includes custody records, interviews with the plaintiff, statements of various witnesses, a preliminary report on the alleged assault, reports from the forensic science laboratory, the statement of the complainant, records of phone calls and other associated documents.
It is fair to say that the plaintiff has received a very significant amount of relevant documentation both through discovery and also due to the disclosure in the criminal case against him.
The plaintiff has not exhibited the material that he received by way of that disclosure but it is clear from the level of detail in the statement of claim in these proceedings that he must have received a significant amount of information in that way also.
The motion was grounded on a short affidavit by Adrian Shanley, solicitor for the plaintiff, sworn 3 June 2020 where he refers to the correspondence seeking interrogatories and avers that the interrogatories sought are relevant to the issues in the pleadings and are necessary for the purpose of disposing fairly of the proceedings and for the purpose of saving costs. He goes on to say that each of the said interrogatories have a litigious purpose in that they will enable the plaintiff to sustain his case or damage that of the first and...
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