Sullivan v Boylan and Others (No 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 12 March 2013
• Neutral Citation: [2013] IEHC 104
• Court: High Court
• Docket Number: [2012 No. 8738 P]
• Date: 12 March 2013

Sullivan v Boylan & Ors (No 2)

BETWEEN/

DEIRDRE SULLIVAN

PLAINTIFF

AND

GERARD BOYLAN, GERARD BOYLAN BUILDING CONTRACTORS LTD. AND PATRICK MCCARTAN (No.2)

DEFENDANTS

[2013] IEHC 104

[No. 8738P/2012]

THE HIGH COURT

CONSTITUTIONAL LAW

Damages

Protection of dwelling - Right to privacy - Breach - Remedies - Damages - Appropriate remedies to uphold constitutional rights - Whether law of tort effective to protect constitutional rights - Whether damages awardable in tort for breach of constitutional rights - Whether damages otherwise awardable - Exemplary damages - Whether appropriate to award exemplary damages - Kinsella v Governor of Mountjoy Prison [2011] IEHC 235, [2012] 1 IR 467; Sullivan v Boylan [2012] IEHC 389, (Unrep, Hogan J, 4/10/2012); Wainwright v Home Office [2003] UKHL 53, [2004] 2 AC 406; Hunter v Canary Wharf Ltd [1997] AC 655 and Wilkinson v Downton [1897] 2 QB 57 approved - Meskell v Coras Iompair Éireann [1973] IR 121; Hanrahan v Merck Sharpe & Dohme [1988] ILRM 629 and Grant v Roche Products (Ireland) Ltd [2008] IESC 35, [2008] 4 IR 679 and Conway v Irish National Teachers Organisation [1991] 2 IR 305 applied - Khorasandjian v Bush [1993] QB 727 distinguished - Foster v Warblington Urban Council [1906] 1 KB 648; Herrity v Associated Newspapers (Ireland) Ltd [2008] IEHC 249, [2009] 1 IR 316; Hicks v Chief Constable of South Yorkshire [1992] 2 All ER 65; Janvier v Sweeney [1919] 2 KB 316; Motherwell v Motherwell (1976) 73 DLR (3d) 62; The People (Director of Public Prosecutions) v O'Brien [2012] IECCA 68, (Unrep, CCA, 2/7/2012); The People (Director of Public Prosecutions) v Barnes [2006] IECCA 165, [2007] 3 IR 130 and Raducan v Minister for Justice [2011] IEHC 224, [2012] 1 ILRM 419 considered - Non-Fatal Offences against the Person Act 1997 (No 26), ss 10 and 11- Constitution of Ireland 1937, Articles 40.3.2 and 40.5 - Damages awarded (2012/8738P - Hogan J - 12/3/2013) [2013] IEHC 104

Sullivan v Boylan

Facts: The plaintiff was a woman who engaged the first and second named defendants in December 2011 to build an extension to her dwelling house as well as carrying out some refurbishment works. The work was carried out from February 2012 to May 2012. By April 2012, €84,000 of the initial contract sum of €91,250 had been paid. There then followed a dispute as to whether certain works had been carried out or whether additional works outside the contract had been carried out by necessity. The issue was therefore whether the plaintiff owed the figures of €7,250 or approximately €20,000 if anything. The first and second defendants asked the third named defendant, a debt collector, to act on their behalf.

There were two judgments in this case, this one being the latter. In the first judgement, Hogan J found that the third defendant had turned up unannounced at the plaintiff"s dwelling without informing her he was a debt collector to enquire about the completed works. He then began making a series of phone calls and emails to the plaintiff, threatening to make details of the debt public to her neighbours if she did not pay the first and second defendants the sum of €23,783 plus their fee. This behaviour continued despite the plaintiff and her solicitor asking the third defendant to desist. The third defendant then proceeded to park a vehicle outside her property which read 'LICENSED DEBT COLLECTOR' on the side in an attempt to embarrass the plaintiff. She eventually contacted Gardai who attended and convinced the third defendant to leave for the time being.

The plaintiff eventually gained an interlocutory injunction which later became permanent and which restrained the third defendant from watching and besetting the dwelling house. The third defendant did not appear at any stage during court proceedings. Following a finding in the first judgment that the third defendant"s behaviour towards the plaintiff had amounted to a prima facie breach of ss. 10 and 11 of the Non-Fatal Offences against the Person Act 1997 ('the 1997 Act') and a breach of her constitutional rights namely Article 40.3.2 and Article 40.5, the protection of the person and the inviolability of the dwelling respectively, this judgement concerned the appropriate remedy to be made.

Held by Hogan J that the court had the power to make an award for breach of constitutional rights, but that this should only be done where the law of torts or the common law was unable to protect them effectively. The law of nuisance was determined to be inappropriate in the present case as a protection against a breach of Article 40.5 as the tort of nuisance was aimed at protecting land ownership as opposed to the residents (whether the owner or not) of a dwelling house to security. Likewise, the rule established in Wilkinson v. Downton [1897] 2 Q.B. 57 was held to only cover some of the rights protected by Article 40.3.2 as the cited case concerned physical injury caused by another"s words, as opposed to mental distress. It was further held that despite the fact protection against harassment did have a statutory basis in the 1997 Act, the legislation did not cover possible remedies in tort. As such, traditional tort law was held to be ineffective to fully vindicate the constitutional rights for the protection of the person and the inviolability of the dwelling and so the award had to be made for breach of the specific constitutional rights.

It was held that €15,000 should be awarded to the plaintiff by the third defendant in general damages. An additional €7,500 in exemplary damages was also awarded pursuant to the guidance given in Conway v. Irish National Teachers" Organisation [1991] 2 I.R. 305 'to mark the court"s particular disapproval of the defendant"s conduct in all the circumstances of the case'.

€22,500 awarded to the plaintiff by the third defendant for breach of her constitutional rights.

CONSTITUTION ART 40.5

DPP v BARNES 2007 3 IR 130 2006/17/3410 2006 IECCA 165

SULLIVAN v BOYLAN UNREP HOGAN 4.10.2012 2012/43/12942 2012 IEHC 389

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S10

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S11

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S10(1)

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S11(1)

CONSTITUTION ART 40.3.2

MESKELL v CORAS IOMPAIR EIREANN 1973 IR 121

HANRAHAN v MERCK SHARPE & DOHME (IRL) LTD 1988 ILRM 629 1988/5/1234

GRANT v ROCHE PRODUCTS (IRL) LTD 2008 4 IR 679 2008/27/5893 2008 IESC 35

WILKINSON v DOWNTON 1895-9 AER 267 1897 2 QB 57

NEWARK THE BOUNDARIES OF NUISANCE 1949 65 LQR 480

KHORASANDJIAN v BUSH 1993 3 AER 669 1993 QB 727 1993 3 WLR 476 1993 2 FCR 257 1993 2 FLR 66

HUNTER v CANARY WHARF LTD 1997 2 AER 426 1997 AC 655 1997 2 WLR 684

MCMAHON & BINCHY LAW OF TORTS 3ED PARA 22.28

KINSELLA v GOVERNOR OF MOUNTJOY PRISON 2012 1 IR 467 2011 2 ILRM 509 2011/31/8437 2011 IEHC 235

BIRKS HARASSMENT & HUBRIS IRISH JURIST 1997 VOL 32 6

ZWEIGERT & KOTZ INTRODUCTION TO COMPARATIVE LAW 2ED 1992 729-730

GLAZEBROOK WILKINSON v DOWNTON A CENTENARY POSTSCRIPT 1997 VOL 32 46

WAINRIGHT v HOME OFFICE 2003 4 AER 969 2004 2 AC 406 2003 UKHL 53

RADUCAN v MIN FOR JUSTICE 2012 1 ILRM 419 2011/44/12507 2011 IEHC 224

HERRITY v ASSOCIATED NEWSPAPERS (IRL) LTD 2009 1 IR 316 2008/28/6242 2008 IEHC 249

CONWAY v IRISH NATIONAL TEACHERS ORGANISATION 1991 2 IR 305 1991 ILRM 497

1 JUDGMENT of Mr. Justice Hogan delivered on 12th March, 2013

2 1. Few things are more important in life than the security of one's own dwelling and the right to come and go from that abode without interference. It is a right which perhaps most of us take for granted. It is only when that security has been threatened by intruders - such as in the aftermath of a burglary - that we realise that how important that sense of safety, security and a general sense of repose from the cares of the world actually is. It is precisely for those reasons that Article 40.5 of the Constitution safeguards the inviolability of the dwelling: see generally The People (Director of Public Prosecutions) v. Barnes [2006] IECCA 165, [2007] 3 I.R. 130, per Hardiman J.

3 2. In this judgment I am now called upon to make an award of damages following a finding by me that the third defendant had gravely infringed the constitutional rights of this plaintiff in my first judgment in this matter: Sullivan v. Boylan [2012] IEHC 389. While the details of the ordeal to which the plaintiff was subjected by the third defendant are recorded in that judgment, it may be helpful if the background facts are briefly recapitulated.

4 3. The plaintiff, Ms. Sullivan, lives alone in Clontarf, Dublin 3. She engaged the first and second defendants (whom I shall collectively describe as "Boylan contractors") in December, 2011 to build an extension to her property and to carry out certain refurbishments works. The works commenced in February, 2012 and ceased in May, 2012. By April, Ms. Sullivan had paid €84,000 of the initial contract sum of €91,250. There was subsequently a dispute as to whether certain contracted works had been carried out or whether instead certain additional work had to be performed over and above that which had originally been contracted for. In sum, therefore, the issue is whether Ms. Sullivan owes the Boylan contractors €7,000.00 (approximately) or €20,000.00 (approximately) or perhaps nothing at all.

5 4. It is clear nevertheless that there is a legitimate argument regarding the existence of any such debt or, if there is a debt, the amount of same. The Boylan contractors decided, however, to put the matter into the hands of a debt collector, Patrick McCartan. It is the latter's conduct which gave rise to these proceedings and which required to be restrained by injunction.

The Conduct of Mr. McCartan

6 5. The first contact which Ms. Sullivan had with Mr....