V.K. v M.W.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Finlay Geoghegan,the President |
| Judgment Date | 09 February 2018 |
| Neutral Citation | [2018] IECA 290 |
| Date | 09 February 2018 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2018] IECA 290 [2016 No. 311] Record Nos. 2016/311 2016/365 Record No. 2016 No. 365 |
[2018] IECA 290
THE COURT OF APPEAL
Ryan P.
Finlay Geoghegan J.
Hogan J.
The President
Ryan P.
Finlay Geoghegan J.
Hogan J.
Neutral Citation Number: [2018] IECA 290
[2016 No. 311]
Record Nos. 2016/311
2016/365
Record No. 2016 No. 365
AND
AND
Striking out proceedings – O.19, r.28 of the Rules of the Superior Courts – Inherent jurisdiction of the court – Defendants seeking orders pursuant to O.19, r.28 of the Rules of the Superior Courts and the inherent jurisdiction of the court dismissing or striking out the proceedings instituted by the plaintiff – Whether the plaintiff's pleadings disclosed no reasonable cause of action
Facts: Two appeals were brought against two separate orders of the High Court made by different judges on two distinct motions of the second and third named defendants respectively. The first appeal was from an order made by Binchy J on the 13th June, 2016 on a motion issued on the 2nd March, 2016 on behalf of the second defendant. The second was against an order of O’Regan J made on the 27th June, 2016 on a motion issued on the 15th January, 2016 on behalf of the third defendant, the Health Service Executive (HSE). The principal reliefs sought in the motion issued on behalf of the second defendant on the 2nd March, 2016 were: 1) an order pursuant to O.19, r.28 of the Rules of the Superior Courts dismissing or striking out the proceedings instituted by the plaintiff as against the second defendant by reason that the plaintiff's pleadings disclosed no reasonable cause of action as against the second defendant; 2) an order pursuant to the inherent jurisdiction of the court, dismissing or striking out the proceedings instituted by the plaintiff as against the second defendant by reason that the plaintiff’s action as against the second defendant was clearly unsustainable and bound to fail. Binchy J was satisfied to dismiss the action as against the second defendant pursuant to O.19, r.28. The motion issued on behalf of the HSE similarly sought orders dismissing and/or striking out the plaintiff’s claim against the HSE both pursuant to O.19, r.28 and in the alternative pursuant to the inherent jurisdiction of the court. The order made by O’Regan J on that application was simply an order dismissing the plaintiff’s claim against the HSE.
Held by the Court of Appeal (Finlay Geoghegan J) that it would allow the appeal against the decision to strike out the proceedings against the second defendant pursuant to O.19, r.28. Finlay Geoghegan J proposed that the High Court order of 13th June, 2016 be vacated and that there be an order permitting the plaintiff to amend the statement of claim so as to plead a claim that the second defendant had no reasonable cause to suspect that the plaintiff had committed an offence of sexual assault of his daughter when he arrested him on the 15th September, 2009 and hence the arrest was unlawful and to add to the existing reliefs sought a claim for damages for wrongful arrest and false imprisonment.
Finlay Geoghegan J held that the High Court was correct in striking out the claim against the HSE pursuant to O.19 r.28 as it did not disclose a reasonable cause of action. Finlay Geoghegan J held that the appeal against the order of 27th June, 2016 dismissing the plaintiff’s claim against the HSE must be dismissed. Ryan P and Hogan J also gave judgments in the matter.
Allowed 2016 311; dismissed 2016 365.
In this action, brought by the plaintiff as a personal litigant, he claims that his wife made false allegations that he had sexually abused their 4-year old daughter and that the investigating Garda and the HSE wrongfully pursued enquiries into the matter, which resulted in drastic consequences for him. He sues his wife, the Garda, the HSE and even his daughter individually who is still a minor. On separate preliminary applications made by the Garda and the HSE, contending that the statement of claim disclosed no cause of action, or alternatively, that the action was bound to fail, the High Court, by orders of Binchy J. and O'Regan J., respectively, dismissed the claims against those defendants. This is Mr. K's appeal against each of those orders.
The circumstances giving rise to the claim began when the plaintiff's wife made a formal complaint to Garda BW that her husband had sexually abused the couple's four-year old daughter. The Garda referred the matter to the HSE in accordance with established procedure in such cases and childcare professionals investigated the allegation. That included interviewing the child and Mr. K, who protested his innocence at all times, and who maintained that his wife had put the child up to making these false and very serious allegations against him. The outcome of the assessment of the case conducted by the HSE Family Centre is quoted in documents relied on by the plaintiff as ‘inconclusive however, concerns remain that sexual abuse may have occurred’. They were handed over to the Garda� and specialist officers conducted an interview with the child which was video recorded. They, in turn, put the case back in the hands of Garda BW. He had been kept informed of the progress of the enquiries as they happened. He was in communication with Mr. K's solicitor and he then arranged with Mr. K himself to come to the Garda station for interview. On his arrival, Garda BW arrested Mr. K under s. 4 of the Criminal Justice Act 1984 and interviewed him after the member-in-charge authorised his detention for the further investigation of the complaint. When the interview was completed, Mr. K was released. Garda BW sent a report to the Director of Public Prosecutions who decided that there should not be a prosecution and Garda BW and a colleague duly informed Mr. K. The time from when he was first notified of the complaint to communication of the Director's decision was some 28 months in total.
The summons was issued on 7th September 2015, naming four defendants as follows.
First, is the plaintiff's wife
Second, is Garda BW
Third is “Health Service Executive South”
Fourth is the plaintiff's minor daughter. Her Date of Birth is 5th September 2002, so she was aged 13 at the date of the summons.
The first paragraph pleads that Mr. K was called for interview by Garda BW at a Garda station on 15th September 2009. He went with his nephew and on arrival he was arrested and interviewed by Garda BW and a female Garda. The interview was recorded. Mr. K strenuously denied allegations of sexual abuse of his four-year old daughter. He was photographed with the Case Number and his fingerprints were taken:
‘This was totally humiliating situation for the Plaintiff. Plaintiff's life and reputation has been destroyed.’
He pleads that Garda BW and another officer informed him at his home on 27th March 2010 that the Director of Public Prosecutions had decided that there should not be a prosecution and the case was not under investigation any more.
The plaintiff then sets out a number of matters involving him and his wife including legal issues between her and her parental family that came to litigation which matters are not relevant to these appeals.
He pleads that his wife filed papers in the relevant District Court for a barring order against him on 9th January 2007. His wife had restricted his access to the family home from July 2006, but excluded him completely on 24th December 2006 and he has not lived there since then.
Although he visited the former family home on occasions between 4th and 15th January 2007 to see his daughter, his wife ‘never indicated that Plaintiff should not come in and has given him dinner while the Plaintiff was there’. I think that this is an error and Mr. K intended to say that his daughter was present at the time.
On 3rd April 2007, the plaintiff and his wife settled the District Court proceedings and agreed to live separately and apart and not to attend at each other's residences except for access arrangements for their daughter, as agreed or as ordered by the court.
After eight months of separation, the plaintiff's wife ‘filed alleged child abuse case’ with Garda BW and it was investigated by him and the HSE.
The plaintiff was interviewed by the HSE on 28th November 2007 when he gave detailed answers and ‘vehemently denied the allegation’.
On 24th July 2008, when a HSE Family Centre report was being read before the plaintiff, Mr. K became very distressed, unwell and had unbearable chest pain and an ambulance had to be called to take him to hospital ‘it was unbearable pain for Plaintiff; Plaintiff's life and reputation was destroyed’.
Mr. K complains that Garda BW and the HSE ‘have relied upon the statement of a five-year old Child (Defendant number 4)’. The plaintiff then sets out in subparagraphs a) to k) a series of excerpts from the child's interview with the HSE personnel to suggest, apparently, that the statement, insofar as it implicated him, was not reliable. What is clear, however, from these excerpts, which it would be wholly inappropriate to quote, is that the child displayed some knowledge of sexual vocabulary and anatomy and she also gave information that would be a cause of real concern to any investigator of sexual abuse. It would actually cause considerable alarm to any normal person whether he or she had any particular qualification or expertise or not. This material should not have been included in the plenary summons or elsewhere in the pleadings or affidavits and is not furnished in the materials of the defendants. Since it has been provided, it is indicative of the serious nature of the allegations and does not...
To continue reading
Request your trial
-
North Westmeath Turbine Action Group v an Bord Pleanála
...general nature of the amendment suggested, in response to the motion to dismiss. However, the earlier decision of this Court in VK v MW [2018] IECA 290 suggests that there may be circumstances where the possibility of a saving amendment ought to be raised by the court itself (per Finlay Geo......