Schmidt v Secretary of State for the Home Department

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 22 November 1994
• Neutral Citation: 1995 WJSC-HC 1584
• Docket Number: No 3643P/1993
• Court: High Court
• Date: 22 November 1994

1995 WJSC-HC 1584

THE HIGH COURT

No 3643P/1993

SCHMIDT v. HOME SECRETARY OF THE UK

BETWEEN

NORBURT SCHMIDT

PLAINTIFF

AND

THE HOME SECRETARY OF THE GOVERNMENT OF THE UNITED KINGDOM,THE COMMISSIONER OF THE METROPOLITAN POLICE AND DAVID JONES

DEFENDANTS

Citations:

RSC O.12 r26

GOVT OF CANADA V BURKE 1992 ILRM 325

R V COMMISSIONER OF THE POLICE OF THE METROPOLIS, EX PARTE BLACKBURN 1968 1 AER 763

LEWIS V CATTLE 1938 2 AER 368

FISHER V OLDHAM CORPORATION 1930 AER 96

AG FOR NEW SOUTH WALES V PERPETUAL TRUSTEE CO LTD 1955 1 AER 846

SAORSTAT & CONTINENTAL STEAMSHIP CO V DE LAS MORENAS 1945 IR 291

RSC O.11

BRUSSELS CONVENTION 1968 ART 5

BRUSSELS CONVENTION 1968 ART 5(3)

RSC (NO 1) 1989 SI 14/1989 RULE 3

RSC O.11 r1

RSC O.11 A

RSC (NO 1) 1989 SI 14/1989 RULE 4

Synopsis:

Foreign State

Officer - Defendant - Liability - Immunity - Plea - Plenary summons - Service of summons set aside - (1993/3643 P - Geoghegan J. - 22/11/94)- [1995] 1 ILRM 301

|Schmidt v. Home Secretary of the Government of the United Kingdom|

PRACTICE

Service

Summons - Service abroad - Leave - Order - Validity - United Kingdom - Officers of the Crown - Defendant officers claimed immunity from suit - Order allowing service set aside - Rules of the Superior Courts, 1986, order 11A; order 12, r. 26 - (1993/3643 P - Geoghegan J. - 22/11/94)

|Schmidt v. Home Secretary of the Government of the United Kingdom|

1 JUDGMENT of Mr. Justice Geoghegandelivered the 22nd day of November 1994

2 This is a Motion brought by the second and third named Defendants seeking an Order pursuant to Order 12, Rule 26 of the Rules of the Superior Courts setting aside the service of the Plenary Summons upon those Defendants and discharging an Order made by Mr. Justice Carney on the 28th May, 1993 giving liberty to serve out of the jurisdiction. A somewhat similar Motion was brought some months ago by the first named Defendant and came on for hearing before Mr. Justice Murphy. Mr. Justice Murphy delivered a written judgment on the 19th January last in which he held that on grounds of sovereign immunity, the proceedings against the first named Defendantwere not maintainable. This decision was based on the judgments of the Supreme Court in Government of Canada -v- Burke 1992 2 I.R.484.The second and third named Defendants seek their relief in this Motion on similar grounds but also on certain other grounds. I think it best, however, to deal with the sovereign immunity point first.

3 I have come to the firm conclusion that in relation to the sovereign immunity question, no relevant distinction can be made between the position of the first named Defendant, now no longer a party to the action, and the second and third named Defendants. That being so, I should follow the judgment of Mr. Justice Murphy already made in this case and set aside the Order of Mr. Justice Carney on the same grounds and for the same reasons as he did. An affidavit has been sworn in this matter by Christopher Selwyn Porteous, the English solicitor to the Commissioner of Police of the Metropolis, New Scotland Yard, London, in which he explains that the Commissioner is appointed and paid by the Crown and is appointed by the British Queen personally on the advice of her Home Secretary under certain English statutory provisions. The Deponent goes on to explain that the Commissioner is not attested as Constable and is not a member of the Metropolitan Police Force. Apparently he was originally a Justice of the Peace but the only power he still retains as a Justice of the Peace since 1973 is to swear in Constables. Police officers who are subject to the authority of the Commissioner are not employed by him. They hold office in their own right and are attested on appointment by making a declaration before the Commissioner or an AssistantCommissioner of Police of the Metropolis. Under an Act of 1964 a member of a Police Force has all the powers and privileges of a Constable through England and Wales. It is then stated in paragraph 6 of the affidavit that the Commissioner is liable for the torts committed by his Constables only by virtue of a special statutory provision and not by reason of any relationship of master and servant. Mr. Porteous explains that police officers in investigating allegations of criminal conduct act in their own right subject to the supervision of their senior officers and that a police officer of whatever rank, when carrying out his duties as a Constable, acts as an officer of the Crown and a public servant. Mr. Porteous in his affidavit refers to four relevant decided cases ie. R. -v- the Commissioner of the...