Smyth and Others v The Commissioner of an Garda Síochána and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 10 July 2014
• Neutral Citation: [2014] IEHC 453
• Court: High Court
• Docket Number: Record Number: 2002 No. 15244P,[2002 No. 15244P & 2003 No. 15671P]
• Date: 10 July 2014

[2014] IEHC 453

THE HIGH COURT

THE HIGH COURT

Record Number: 2002 No. 15244P

Record Number: 2003 No. 15671P

Between:

Paul Smyth

Plaintiff

And

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

Defendants

Between:

Brenda Flood and Philip Smyth

Plaintiffs

And

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

Negligence - Preliminary issue - Whether duty of care owed - Whether case doomed to fail as a matter of law - Principle in Hill v. Chief Constable of West Yorkshire [1989] AC 53 - Whether ‘special relationship’ established - Exception to general rule - Public policy - ‘Just and reasonable’ test- Caparo Industries v. Dickman [1990] 2 AC 605- No allegation of mala fides

Facts The plaintiff brothers, Paul and Philip Smyth, claimed the defendants were negligent and in breach of their duty of care in the manner in which they carried out an investigation into complaints of criminal conduct dating back to 1988. Philip Smyth alleged the defendants failed to carry out a full and proper investigation into (1) the anonymous information which gave rise to the search of his premises then known as Sachs Hotel on 12 ^th September 1988; (2) the falsity of and the persons responsible for the making of anonymous telephone calls to the South East Regional Crime Squad of the Metropolitan Police in London between 1992 and 1995 alleging serious crimes of a subversive nature against him and his brother, then a serving officer of the Garda of Chief Superintendent rank. The calls alleged complicity in drugs trafficking and a money laundering operation on behalf of the IRA through his companies. This amounted to a ‘continuing cloud of taint and suspicion over his reputation…he suffered upset, strain and distress and in consequence suffered significant loss and damage’. The An Garda Siochana does not owe a duty of care to the public for the manner in which they carry out their duties in relation to the investigation and prosecution of crime. The An Garda Siochana does not owe a duty of care to investigate a complaint fully, properly or even at all. This is the general rule. However, an exception to this rule may apply if a ‘special relationship’ is established. Philip Smyth stated he had a long-standing relationship with the An Garda Siochana. He is the brother of a member of the force. His multiple business ventures necessitated frequent dealings with the Garda on licensing/planning applications and the operation of his hotel and sports centres. In addition, he aided and assisted in the arrests of certain criminal gang members, at great personal risk to the extent that his life was threatened on several occasions. Paul Smyth joined An Garda Siochana in 1963. He was promoted to Sgt in 1970 and Inspector in 1984. He was appointed as Inspector in Charge of in-Service Training in 1984. In 1989 he was appointed as senior Garda representative to the Moriarty Ministerial Advisory Group. He was promoted to Superintendent in 1990 and to Chief Superintendent in 1992. Despite his wide experience, Paul was passed over for promotion in favour of more junior and less qualified candidates on numerous occasions. The plaintiffs accepted that in seeking to recover damages for negligence against the defendants they were seeking to have the principles of negligence applied to a novel category of claim and that in order to achieve that they had to satisfy the well-known three tier test established in Caparo Industries v. Dickman [1990] 2 AC 605.The defendants argued that even on the facts pleaded by the plaintiffs their case was doomed to fail and they could not succeed as a matter of law since there was no duty of care owed to a person making a complaint to the An Garda Siochana.

Held The judge said it might be tempting to consider the harm alleged to have been suffered by the plaintiff brothers as that of a lesser order being, inter alia, damage to reputation as well as a financial loss due to a lack of promotion. However, he stressed one should not undervalue the value of a person’s reputation. The judge considered the facts of the present case and distinguished it from those cited earlier in the judgement. The judge rejected the argument put forth by the defendants that the cases must necessarily fail and should be brought to an end at preliminary stage without any hearing as to the merits. The judge said only at trial should a decision be made to dismiss these plaintiffs’ claims, when their full substance or the lack of it, could be properly assessed.

-The judge refused the reliefs sought in the defendants’ Notices of Motion

Mr Justice Michael Peart

Judgment of Mr Justice Michael Peart delivered on the 10th day of July 2014:

1 In each case the plaintiffs (i.e. Paul Smyth and Philip Smyth) plead that the defendants were negligent and in breach of duty in the manner in which they carried out an investigation into complaints of criminal conduct made to them as far back as 1988. The intervening years have seen much litigation in relation to the events which form the background to these proceedings, and it is unnecessary to dwell on those details for present purposes. But for completeness I should add that Brenda Flood no longer pursues her claim for reasons which do not concern us at this stage.

2 The defendants assert that even on the facts pleaded by the plaintiffs they cannot succeed as a matter of law, since the law is settled that under no circumstances is there any duty of care or other duty owed to the plaintiffs or any other person who makes a complaint to An Garda Siochana to investigate the complaint fully and properly or at all, or to recommend to the Director of Public Prosecutions that charges be brought against those against whom the complaints are made.

3 A preliminary issue has been directed on a point of law, namely whether as a matter of law the plaintiffs can succeed, even where the defendants for the purpose of the preliminary issue accept every fact pleaded by the plaintiffs against them as true and established. I have already determined two issues – the first being whether or not these proceedings are statute-barred. I decided that they are not. The second issue was whether the plaintiffs should be entitled to an order for discovery against the defendants for the purpose of the preliminary issue now before the Court. I decided that discovery was not necessary for the purpose of the issue given the acceptance by the defendants of the facts as pleaded by the plaintiffs for the purpose of the determination of this preliminary issue.

4 The issue to be determined now is common to each plaintiff’s claims. However, in the case of Paul Smyth there is an additional matter to be determined in the event that the Court determines the main issue against the plaintiffs, and that is whether the fact that Paul Smyth at all relevant times was himself a member of An Garda Siochana constitutes a special relationship between the parties such that a duty of care is owed to him by An Garda Siochana to carry out a full and proper investigation of his complaint, even if it is the law that without such a special relationship no such duty exists. I will come to that distinct issue if necessary, in due course. In the case of Philip Smyth there is said also to have existed a special relationship by virtue of certain engagements between him and An Garda Siochana in relation to certain matters unrelated to the facts of these proceedings, and, again, I will return to that. These special relationships are said to give rise to a duty of care owed to the plaintiffs, and to create an exception to the otherwise general rule that a duty of care is not owed by An Garda Siochana to members of the public who make complaints to them in relation to alleged criminal behaviour of others.

5 An important fact relied upon by the defendants on this preliminary issue is that neither of the plaintiffs has pleaded that there was mala fides on the part of An Garda Siochana in the manner in which they investigated or failed to investigate the complaints.

6 In summary, the case made by Philip Smyth is that the defendants failed to cause a full and proper investigation to be carried out into (a) the anonymous falls information which gave rise to the search by the first and second named defendants of his premises then known as Sachs Hotel on 12 September 1988, and (b) the falsity of and the persons responsible for the making of the anonymous telephone calls to the South East Regional Crime Squad of the Metropolitan Police Force in London between 1992 and 1995 alleging serious crimes of a subversive nature against him and his brother Paul Smyth, then a serving officer in An Garda Siochana of Chief Superintendent rank. The anonymous calls alleged complicity in drugs trafficking and a money-laundering operation on behalf of o the IRA through his companies. The effect of these matters is described in his Statement of Claim (paragraph 38) as follows:

“38. By reason of the matters aforesaid, the plaintiff has not been able to establish the source of the information which led to the unjustified search of his premises in 1988, has not been able to invoke the proper protection and vindication of his constitutional rights to which he is entitled either by way of redress against the person in question or by way of acknowledgement and confirmation that the search was carried out on foot of an anonymous source, has had to endure a continuing cloud of taint and suspicion over his reputation, has only been able to establish the untruth and malicious nature of the damaging telephone calls concerning him, made between 1992 and 1996, by his own efforts and at enormous...