Walsh v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice MacGrath |
| Judgment Date | 30 November 2018 |
| Neutral Citation | [2018] IEHC 739 |
| Court | High Court |
| Docket Number | [2016 No. 7993 P] |
| Date | 30 November 2018 |
AND
[2018] IEHC 739
[2016 No. 7993 P]
THE HIGH COURT
Notice for particulars - False imprisonment - Damages - Plaintiff seeking an order directing the defendants to reply to his notice for particulars - Whether the defendants should provide particulars
Facts: The plaintiff, Mr Walsh, alleged that on 12th February, 2015 while in a carpark at Galway Retail Park he was falsely imprisoned and arrested by members of An Garda Síochána, in consequence of which he alleged that he sustained injuries and damage. He claimed damages for assault, battery, breach of his constitutional rights and false imprisonment. On 10th February, 2017, a defence was delivered by the defendants, the Minister for Justice and Equality, the Commissioner of An Garda Síochána, Ireland and the Attorney General, in which all matters were placed in issue and liability denied. By notice of motion dated 9th October, 2017, the plaintiff sought an order directing the defendants to reply to his notice for particulars dated 26th May, 2017 arising from matters pleaded in the defence. The following particulars were sought: "1. With regard to paragraph 1 of your defence, in which it is asserted that any actions of An Garda Siochana were carried out under lawful authority, pursuant to Section 23 of the Misuse of Drugs Act, 1977, as amended we require you to make available the following information: a. Please set out the premise upon which it is asserted that An Garda Síochána had reasonable cause to suspect that our client was in possession of a controlled drug at the time the search was effected. b. Insofar as the defendant is purporting to rely on anything said or done by our client leading up to his being manhandled on the ground as a basis for entertaining, or having a suspicion that he was so in possession, please set out, with precision, what these actions or things said were. 2. With regard to the assertions at paragraph 6 please specify the precise facts upon which each plea is premised."
Held by the High Court (MacGrath J) that the defendants should provide particulars as sought at para. 1(a) of the plaintiff's notice for particulars. It seemed to MacGrath J that in the interests of justice and fairness and to avoid unnecessary and unfair surprise at the hearing, the defendants be required to reply to the question raised and to provide in broad outline the facts to be relied upon and upon which the pleaded statutory defence was based. MacGrath J held that the particulars sought at para. 1(b) and para. 2 fell into a different category. MacGrath J found that the former looked suspiciously like an inquiry by the plaintiff into the nature of the evidence which the defendants intended to rely upon at the hearing and MacGrath J so concluded. MacGrath J found that the particulars of contributory negligence, the subject of para. 2, had been sufficiently detailed, in broad outline, as is required.
MacGrath J held that he would direct the defendants to reply to particulars raised at para. 1(a) of the plaintiff's notice for particulars. MacGrath J held that he would dismiss the application in respect of the particulars raised at para. 1(b) and 2.
Application granted in part.
The plaintiff claims damages for assault, battery, breach of his constitutional rights and false imprisonment. A full defence has been delivered. By notice of motion dated 9th October, 2017, the plaintiff seeks an order directing the defendants to reply his notice for particulars dated 26th May, 2017 arising from matters pleaded in the defence.
The plaintiff alleges that on 12th February, 2015 while in a carpark at Galway Retail Park he was falsely imprisoned and arrested by members of An Garda Síochána, in consequence of which he alleges that he sustained injuries and damage. The case as pleaded by the plaintiff has been set out at para. 4 of the statement of claim. He alleges that he was pounced upon and physically restrained by a group consisting of five people, four men and one woman, four of whom participated in the alleged assault and all of whom were members of An Garda Síochána. It is pleaded that while the plaintiff offered no resistance, undue and unnecessary force was used and that he was accused of not opening his mouth when requested to do so. According to the pleadings none of the persons involved was dressed in uniform or looked or acted like a member of An Garda Síochána. It is alleged that a lady who was present produced what the plaintiff understood to be a garda identification badge, something which he pleads he did not understand at the time. He alleges that he was ultimately allowed to produce his identification from his pocket and that he offered to go the garda station to permit himself to be searched. He further contends that this incident was witnessed by a number of people in the carpark.
At para. 8 of the statement of claim it is alleged that the conduct of the defendants was without justification and in this context the plaintiff seeks aggravated, exemplary and punitive damages.
On 10th February, 2017, a defence was delivered by the defendants, in which all matters were placed in issue and liability denied. There are two paragraphs of the defence in respect of which the plaintiff seeks further information. It is pleaded at para. 1 that:-
'At all material times hereto the Plaintiff was searched under lawful authority by members of An Garda Síochána, pursuant to Section 23 of the Misuse of Drugs Act, 1977 as amended. At all material times the actions of the members of An Garda Siochana were proportionate, necessary and reasonable and they acted bona fides and otherwise in accordance with law. In the circumstances no cause of action arises.'
Paragraph 6 of the defence contains allegations of contributory negligence on the part of the plaintiff in failing or refusing to heed or obey lawful requests of An Garda Síochána in the performance of their duty, resisting attempts by the gardaí to carry out their lawful duty, failing or refusing to cooperate with the gardaí, obstructing the gardaí in the performance of their duties and acting in a loud, argumentative and uncooperative manner such that his conduct was unreasonable and irrational.
A notice for particulars was raised by the plaintiff's advisers on 26th May, 2017. In an introductory section of the letter, it is stated that para. 1 of the defence implicitly asserts that at the time of the incident, members of An Garda Síochána had reasonable cause to suspect that the plaintiff was in possession of a controlled drug. It is noted that nowhere in the defence ' is the premise for such reasonable cause set out'. A complaint is made that the plaintiff will have to proceed to trial, give his account of what happened and then be cross-examined on the basis of alleged actions on his part which gave rise to and/or justified suspicions in the minds of An Garda Síochána. The notice for particulars continues as follows:-
'By this point the plaintiff will have been litigating this matter for a number of years and been put to considerable outlay and expense without even knowing what the case against him may be.'
Thereafter, the following particulars are sought:-
'1. With regard to paragraph 1 of your defence, in which it is asserted that any actions of An Garda Siochana were carried out under lawful authority, pursuant to Section 23 of the Misuse of Drugs Act, 1977, as amended we require you to make available the following information:
a. Please set out the premise upon which it is asserted that An Garda Síochána had reasonable cause to suspect that our client was in possession of a controlled drug at the time the search was effected.
b. Insofar as the defendant is purporting to rely on anything said or done by our client leading up to his being manhandled on the ground as a basis for entertaining, or having a suspicion that he was so in possession, please set out, with precision, what these actions or things said were.
2. With regard to the assertions at paragraph 6 please specify the precise facts upon which each plea is premised.'
Section 23 of the Misuse of Drugs Act 1977, in so far as it is relevant, provides:-
'(1) A member of the Garda...
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