Tracey v McDowell

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 26 July 2016
• Neutral Citation: [2016] IESC 44
• Docket Number: [Appeal No: 154/2011]
• Court: Supreme Court
• Date: 26 July 2016

[2016] IESC 44

THE SUPREME COURT

Clarke J.

[Appeal No: 154/2011]

Clarke J.

MacMenamin J.

Charleton J.

Between/

Kevin Tracey

and

Karen Tracey

Plaintiffs/Appellants

and

Michael McDowell, The Minister for Justice Equality & Law Reform, Ireland, The Attorney General, The Commissioner of An Garda Síochána, the Director of Public Prosecutions, the Chief Executive of The Courts Service, Bernard Neary, Edward Finucane, John Keenan, Patrick Flynn, John Costello, Dermot O'Connell

and

David O'Brien

Defendants/Respondents

Delay – Proportionality – Conspiracy – Respondents seeking dismissal of proceedings – Whether dismissal of the proceedings was a proportionate sanction to impose for procedural failure

Facts: The appellants, Mr and Ms Tracey, alleged that in the period between the 14th?August 1999 and the 14th?March 2002 they were subjected to a particular conspiracy and collusion of malicious prosecution and abuse of the legal process including false summonses, false prosecutions, false fines, false endorsement of licence, false prison sentence and assaults by members of the Gardaí in executing false warrant of arrest for false imprisonment at the appellants? constitutional inviolable home and incarceration at Mountjoy Prison. The Traceys issued a plenary summons on the 20th?December 2006 but the proceedings were not served until April 2007. There were two sets of respondents to the proceedings; the Courts Service (the seventh and eighth respondents) and the State Respondents. The proceedings progressed in an orderly fashion with the delivery of a statement of claim on the 31st?May 2007, the raising of particulars and replies thereto and the filing of defences such that a notice of trial was filed by the Traceys on the 27th August 2008.?By the early part of 2010 there were a total of seven sets of proceedings in being in which Mr Tracey, whether alone or in one guise or another, was the principal moving party and elements of the State were the sole or, in some cases the main, defendants. In that context, the State Respondents brought a motion seeking case management of all of those proceedings together.?The application for case management was initially returnable for the 15th?March 2010 before Kearns P. It was subsequently adjourned from time to time to, respectively, the 26th?July, the 5th?October and the 14th?December of that year and finally to the 4th?March 2011. In between the last two of those dates the State Respondents and other relevant State parties brought applications seeking to have each of the relevant proceedings struck out for want of prosecution. Those applications were initially returnable on the 18th?February 2011 but, on the basis that the case management then stood adjourned to the 4th?March 2011, were adjourned to that date so that they could be heard in conjunction with the case management. In parallel a separate motion to strike out these principal proceedings for want of prosecution was brought on behalf of the Courts Service in February 2011 with that motion also being adjourned from its original return date until the 4th?March so that it could be heard in conjunction with the case management and the similar motion which had been brought by the State Respondents. The proceedings as against all or most of the respondents were dismissed by the High Court (Kearns P) for delay on the basis of a finding of significant procedural failure on the part of the Traceys. The appellants appealed to the Supreme Court against that decision.

Held by Clarke J that the trial judge was entitled to conclude that there had been inordinate and inexcusable delay by virtue of the persistent failure of the Traceys to present adequate medical reports to the Court so as to enable the Court to make an appropriate decision as to whether, and if so for how long, to put the proceedings on hold. Nonetheless, in Clarke J?s view, in the light of the fact that the Traceys had progressed the relevant proceedings in a timely fashion up to that point and had at least provided some additional medical information, a dismissal of the proceedings was a disproportionate sanction to impose for the undoubted procedural failure present.

Clarke J held that the trial judge was in error in dismissing the relevant proceedings and that the appeal must, therefore, be allowed.

Appeal allowed.

Judgment of Mr. Justice Clarke delivered the 26 ^th July, 2016.

1. Introduction

1.1 This appeal relates to six High Court cases of which the proceedings set out in the title to this judgment is one. I will refer to that case as the principal proceedings. Each of the relevant proceedings involved the first above named plaintiff/appellant (?Mr. Tracey?) as plaintiff. In certain proceedings the second above named plaintiff/appellant (?Ms. Tracey?) was also a plaintiff. I will refer to Mr. Tracey and Ms. Tracey collectively as the Traceys. Unless the context otherwise requires I will refer to the plaintiffs in the relevant proceedings as the Traceys even though Ms. Tracey was not a plaintiff in some of the proceedings concerned.

1.2 In circumstances which it will be necessary to address the relevant proceedings as against all or most of the defendants thereto were dismissed by the High Court (Kearns P.) for delay on the basis of what might be described as a finding of significant procedural failure on the part of the Traceys. A single notice of appeal was filed bearing the title of the principal proceedings but which, from its terms, was clearly intended to apply equally to each of the other High Court proceedings to the extent that they were dismissed. Likewise, the order of Kearns P., while using the same title, clearly makes reference to the dismissal of the various other proceedings either against all of the defendants involved in those proceedings or, in some cases, against specified defendants. With the exception of the seventh and eighth named defendants/respondents in the principal proceedings (who can conveniently be referred to as ?the Courts Service?) each of the defendants/respondents in whose favour orders dismissing the relevant proceedings were made can conveniently be referred to as ?the State Respondents?.

1.3 While, for those reasons, the principal focus of this appeal is on the principal proceedings as the proceedings named in the title to the notice of appeal, it was not argued by counsel on behalf of the State Respondents that any materially different considerations applied in relation to the issues which arose in respect of the appeal insofar as it related to the various other proceedings. While I will, therefore, describe the principal proceedings in a little more detail, this judgment applies equally to each of the cases concerned and it follows that the order which I would propose likewise applies equally to the High Court order insofar as it relates to each of the relevant cases.

1.4 In simple terms the core issue which this Court has to decide is whether the dismissal of each of the relevant proceedings was within the range of proportionate responses to the circumstances which had arisen although it should be noted that, in addition, an issue concerning an allegation of bias against the trial judge is also raised.

1.5 In order to understand the precise issues which arise it is necessary to set out a brief procedural history.

2. Procedural History

2.1 The Traceys commenced the principal proceedings by issuing a plenary summons on the 20 ^th December 2006 but it would appear that the proceedings were not served until April of the following year. In substance there are now two sets of defendants/respondents to the principal proceedings. The Courts Service who are represented by A. & L. Goodbody, Solicitors and the relevant State Respondents who are represented by the Chief State Solicitor's Office (?CSSO?).

2.2 The principal proceedings progressed in an orderly fashion with the delivery of a statement of claim on the 31 ^st May 2007, the raising of particulars and replies thereto and the filing of defences such that a notice of trial was filed by the Traceys on the 27 ^th August 2008. The fact that the principal proceedings had, apparently, reached that stage some 20 months after their commencement suggests that the Traceys had progressed the case with reasonable expedition up to that point. In fairness it should be recorded that no suggestion has ever been made to the effect that any of the relevant proceedings were not initially progressed in an appropriate way.

2.3 Thereafter there were further procedural issues deriving not least from discovery which resulted in voluntary discovery being in part agreed on behalf of the State Respondents by letter of the 21 ^st September 2009. In that regard it should be noted that the response on behalf of the State Respondents of that date related to a request seeking voluntary discovery which had been made by the Traceys on the 6 ^th January of that year. In fairness the CSSO apologised for that delay while replying. It does, therefore, bear recording that responsibility for some of the time which passed around that period cannot be laid at the door of the Traceys. Thereafter there were further discovery issues resulting in a motion before the Master of the High Court seeking discovery against the Courts Service which was returnable on the 14 ^th January 2010 and a separate motion seeking further and better discovery as against the State Respondents which was returnable for the 5 ^th October of that same year.

2.4 However, by the early part of 2010 there were a total of seven sets of proceedings in being in which Mr. Tracey, whether alone or in one guise or another, was the principal moving party and elements of the State were the sole or, in some cases the main, defendants. In that context, in early 2010, the State Respondents brought a motion seeking case management of all of those proceedings...