About this case:

• Citation:
  [2023] IECA 224
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Seamus Noonan

Delivering judgment for the Court of Appeal, Mr Justice Seamus Noonan commented that reputational damage “has rarely, if ever, sufficed on its own to warrant dismissal” and that he was “somewhat surprised that if this was a genuine concern on the part of the defendants, that they would have allowed matters to drift as long as they did”.

Background

The plaintiff alleged that on 1 November 2008, he suffered personal injuries when was assaulted by members of An Garda Síochána as he attempted to ascertain the extent of a fire burning at the rear of his girlfriend’s property. Evidence given by a Garda inspector described a scene of rioting around a Halloween bonfire, where gardaí had been repeatedly attacked. The inspector recounted that a youth (not identified as the plaintiff), with his face covered, emerged from the rioting crowd on his bicycle. Despite a warning not to pass the public order shields, the cyclist collided with them and fell to the ground.

Proceedings issued on 28 October 2010, and two notable periods of inactivity ensued. The first period followed the disposal of the plaintiff’s motion to strike out the defence for failure to comply with an order for discovery on 23 November 2013, after which a period of some three years and four months passed before the plaintiff issued a notice of intention to proceed on 29 March 2017.

The second period arose when no response was received to a letter sent by the plaintiff on 10 July 2017 concerning CCTV discovery made by the CSSO. The plaintiff’s solicitors sought clarification as to the footage discovered, believing that it did not comply with the order for discovery. In the absence of a reply, a period of three-and-a-half years elapsed before the plaintiff furnished updated particulars on 18 January 2021, and delivered a second notice of intention to proceed on 25 January 2021.

On 2 March 2021, the plaintiff served a notice to produce and a notice of trial. Further delays arose caused by inaction on part of the defendants, and so the matter appeared before the High Court from time to time without much progress. On 7 October 2021, the defendants applied to adjourn the proceedings to issue a motion to dismiss the plaintiff’s case for want of prosecution. This request was refused by Ms Justice Leonie Reynolds as the defendants were too late and case was ready to be heard. A hearing date of 16 November 2021 was assigned.

On 20 October 2021, the defendants issued their motion with a return date of 14 February 2022, and a week before the trial date, they renewed their application for an adjournment, which was refused again for the same reasons. Ultimately, the case was not reached on its assigned date due to the Covid pandemic and was adjourned to 24 March 2022. The defendants’ motion was heard by the High Court on 21 March 2022, and an ex tempore judgment was delivered on the eve of the trial.

High Court

The trial judge referred to the effective seven-year period in which there was no progression of the case, as between 23 November 2013 when the plaintiff’s motion to strike out the defence was struck out, and 25 January 2021 when the second notice of intention to proceed was served. The judge noted the notice of intention to proceed in 2017 and CCTV correspondence, stating that nothing came of it.

Counsel for the plaintiff identified that the case turned on the balance of justice principles in Primor plc v. Stokes Kennedy Crowley [1996] 2I.R. 459. The trial judge noted that the conduct of defendants is relevant insofar as that conduct consists of acquiescence or culpable delay, and that a plaintiff found guilty of inordinate delay has an obligation to establish countervailing circumstances.

The trial judge concluded that no culpable acquiescence attached to the defendants for failing to move to dismiss the plaintiff’s claim after the notice of intention to proceed or the notice of trial was served. Noting that an imputation of professional misconduct should not hang over a party for years, the trial judge dismissed the plaintiff’s claim on grounds of delay. The plaintiff appealed.

Court of Appeal

Mr Justice Noonan considered the chronology of the case, finding that the defendants ignored clear indications on part of the plaintiff that he was anxious for the matter to proceed. Following an analysis of the authorities, the judge noted the Supreme Court in Comcast International Holdings Incorporated v Minister for Public Enterprise [2012] IESC 50, finding that that judgment had particular resonance in the case before him, also involving the reputation of State actors.

Finding that majority of the blame lay with the plaintiff for the seven-year delay, Mr Justice Noonan considered that the defendant’s conduct should nonetheless attract scrutiny. Noting that the plaintiff’s request for clarification in respect of the CCTV footage did not absolve him from his responsibility to progress the case, the judge recognised that the case may have taken a different course had the defendant replied, and so the defendant’s failure to move after July 2017 was to be accounted for.

The court also found that by early 2021, “any lingering doubt about the dog being asleep were [sic] dispelled”, and that it took a further seven-and-a-half months for the defendants to issue their motion to dismiss, with no mention of the intention to issue a motion until 7 October 2021.

The judge also emphasised that Ms Justice Reynold’s refusal to adjourn the motion was not appealed, and “in the teeth of the trial date of the 16th November 2021, the defendants made no application for short service of the motion or any attempt, even if it might have proved futile, to have it dealt with before the trial”.

Disagreeing with the conclusion of the trial judge, the court observed that the balance of justice requires a wider assessment of factors such as the nature of the case and the identity of the parties, as per Comcast. In that context, the defendant’s failure to move from 2017 was material and the latest point to seek dismissal was March 2021.

Conclusion

Observing that the onus remained on the defendants to establish that justice requires that the case ought not to proceed, Mr Justice Noonan opined that they had failed to do so, and had pointed to no concrete prejudice accruing from the delay.

For those reasons, the court allowed the plaintiff’s appeal, and expressed a provisional view that the plaintiff was entitled to costs, with a stay pending the determination of the proceedings.

McCarthy v. The Commissioner of An Garda Síochána & Ors [2023] IECA 224