Savickis v Governor of Castlerea Prison

JudgeMs. Justice Irvine,Mr. Justice Gerard Hogan
Judgment Date07 December 2016
Neutral Citation[2016] IECA 372
CourtCourt of Appeal (Ireland)
Docket Number[C.A. No. 868 of 2014],Neutral Citation Number: [2016] IECA 372 [Article 64 transfer]
Date07 December 2016
- AND -



[2016] IECA 372

Hogan J.

Irvine J.

Irvine J.

Hogan J.

Hedigan J.

Neutral Citation Number: [2016] IECA 372

Appeal Nos. 2014/868

[Article 64 transfer]


Costs – Assault – Negligence – Appellant seeking costs – Whether the costs of the High Court hearing fell to be determined pursuant to the provisions of s. 94 of the Courts of Justice Act 1924

Facts: The plaintiff/appellant, Mr Savickis, in proceedings heard before a jury in the High Court, was awarded a sum of €225 for damages for negligence and assault arising out of events which had occurred on 29th September 2009 when he was a prisoner in Castlerea Prison. On appeal before the Court of Appeal ([2016] IECA 310) the aforementioned damages were set aside in favour of the following: (a) an award of €10,000 damages in respect of assault; (b) an award of €5,000 by way of exemplary damages in respect of the claim for assault (and consequential breaches of his constitutional rights); and (c) €2,225 damages for injuries sustained by Mr Savickis as a result of the negligent use by the respondents of certain restraint techniques. It was conceded by the respondents, the Governor of Castlerea Prison, the Minister for Justice and Equality, the Irish Prison Service, Ireland and the Attorney General, that Mr Savickis, having succeeded in his appeal, was entitled to the costs of the hearing before the Court of Appeal. That being so, the only issue that remained to be decided concerned the costs that ought properly and lawfully be awarded to Mr Savickis in respect of the High Court hearing in light of the outcome of the appeal. Mr Savickis submitted that the costs of the High Court hearing fell to be determined pursuant to the provisions of s. 94 of the Courts of Justice Act 1924. He submitted that s. 17(3) of the Courts Act 1981 did not apply to the present case. The respondents submitted that the costs of the High Court hearing must be determined by reference to s. 17 of the 1981 Act.

Held by Irvine J that those costs were governed by the provisions of s. 17(3) of the 1981 Act with the effect that his costs will be the lesser of the two following amounts, namely the amount of the damages awarded to him by the Court of Appeal or the amount of costs which he would have been entitled to recover if he had brought his claim in the Circuit Court. Irvine J held that s. 94 of the 1924 Act has been implicitly amended by s. 17 of the 1981 Act; it was accordingly s. 17(3) which governed the costs order to be made in respect of the High Court proceedings. Irvine J held that s. 17 was not capable of the interpretation proposed on Mr Savickis's behalf, as this would be contrary to the clear and unambiguous language of the section. Irvine J held that it could not be legitimately claimed that to apply s. 17(3) in the circumstances of the case would amount to an interference with Mr Savickis's ability to vindicate his personal rights as guaranteed under Art. 40.3 of the Constitution; those rights could equally have been vindicated without recourse to his statutory right to bring his claim for assault before a jury in the High Court.

Irvine J held that Mr Savickis was therefore entitled to an award of costs in respect of the High Court proceedings in the lesser of the following two sums namely, €17,225 (that being his award of damages) or the costs he might recover on taxation on the Circuit Court scale.

Judgment on costs only.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 7th day of December 2016

On the 27th October 2016 this Court allowed an appeal which had been brought by the plaintiff, Mr. Savickis, against the findings of the High Court (Dunne J. and a jury) delivered in May 2013: see Savickis v. Governor of Castlerea Prison [2016] IECA 310. The plaintiff had sued the defendants for assault, negligence and breach of constitutional rights arising from an altercation in Castlerea Prison where he had been a prisoner. The jury rejected the majority of the plaintiff's claims, but they did find that he had been assaulted by a prison officer and awarded him €4,500 in damages. The jury also found, however, that the plaintiff was 95% contributorily negligent and his award was thus reduced to €225.


This Court allowed the plaintiff's appeal and awarded him a total sum of €17,225 for assault and negligence. This figure also included an award of €5,000 exemplary damages in respect of the assault on the ground that it also amounted to an intentional violation of his constitutional rights.


Following the costs hearing which took place after the delivery of the judgment, counsel for the State, Mr. Healy S.C., submitted that as the plaintiff had been awarded only €17,225 in damages, the provisions of s. 17(3) of the Courts Act 1981 ('the 1981 Act') (as substituted by s. 14 of the Courts Act 1991) took effect. This provision applies where the High Court award of damages is between IR£5,000 (now €6,349) and IR£15,000 (now €19,047).


It is important to state that the plaintiff had a legal entitlement to proceed with his action in the High Court. Indeed, he was obliged to proceed in the High Court if he wished to have a jury trial in respect of the assault, as was his legal entitlement. It is also important to state that the plaintiff's action was an important one, designed as it was ultimately to vindicate his constitutional right to the protection of the person as provided for by Article 40.3.2 of the Constitution (and cognate constitutional rights, as such as the right to bodily integrity) through the mechanism of the existing law of torts.


The proceedings lasted 6 days in the High Court. There is no doubt at all but that the actions of the State defendants contributed to the length of time which the action took, principally by denying the fact that the plaintiff had been assaulted by prison officers in the face of overwhelming evidence (including CCTV footage) to the contrary. But for the provisions of s. 17(3) of the 1981 Act, it is clear on the facts of this case that the plaintiff would, in all probability, have been entitled to the entirety of those High Court costs.


This is how I would have approached the matter had it not been for the provisions of s. 17(3) of the 1981 Act. Given, however, that these provisions govern the present proceedings, I agree with Irvine J. in the judgment she has just delivered that the all encompassing language of this sub-section simply allows for no exceptions whatever, the special and unusual nature of the present proceedings notwithstanding. While it is difficult to disagree with the submission made by counsel for the plaintiff, Ms. Phelan S.C., that in enacting this sub-section the Oireachtas may not have had this type of complex litigation in mind, I nonetheless find myself obliged to admit that as the language of the sub-section provides for no exceptions whatever – no matter what the individual merits of the any given case might be – this Court finds itself with no residual discretion in the matter. Some may think that this state of affairs is unsatisfactory, but if so, this is a matter of policy for the Oireachtas to consider.

Did the Circuit Court have jurisdiction to consider and determine the plaintiff's action for breach of constitutional rights?

It remains to consider one further point. It is necessarily implicit in the language of s. 17(3) of the 1981 Act that, for the sub-section to apply, the plaintiff must also have been entitled to pursue his claim and to recover the damages which he did in the Circuit Court. One feature of the present claim is that the plaintiff obtained exemplary damages for breaches of his constitutional rights to the protection of the person and bodily integrity. The question then arises as to whether the Circuit Court would have had jurisdiction to consider this particular aspect of the plaintiff's claim.


Every judge (including, of course, judges of the Circuit Court) appointed under the Constitution must make and subscribe in open court to 'the solemn and sincere promise' provided for in Article 34.6.1 of the Constitution that he or she will uphold the Constitution and the laws: see The People v. Lynch [1982] I.R. 64, 84, per Walsh J. It is, accordingly, clear that judges of both the District Court and the Circuit Court are obliged at all times to uphold the Constitution, even if by virtue of Article 34.3.2 of the Constitution the actual power of judicial review of legislation is confined to the High Court, this Court and the Supreme Court.


This point is illustrated by Coughlan v. Judge Patwell [1993] 1 I.R. 31, 37, where Denham J. quashed a District Court conviction when the judge had refused to allow the accused 'to make any submission in relation to the alleged breach of constitutional rights and in refusing to listen to such a submission.'


As the very language of Article 34.3.4 of the Constitution makes clear, the jurisdiction of the Circuit Court is, of course, not a free standing one and depends on statutory vesture: see, e.g., the judgment of this Court in Permanent TSB plc v. Langan [2016] IECA 229. So far as actions for damages for breaches of constitutional rights are concerned, I consider, however, that such an action comes within the scope of the Third Schedule of the Courts (Supplemental Provisions) Act 1961 ('the 1961 Act'), Reference No. 6 of which provides that the Circuit Court has a jurisdiction (subject to appropriate geographical and monetary limits) in respect of 'an action (other than an action for wrongful detention or matrimonial proceedings) founded on tort...'


It is clear from the decision of the Supreme Court in McDonnell v. Ireland ...

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