Trial of Specific Issues

 

Cases

Murray & Anor -v- Fitzgerald & Ors

[2009] IEHC 101 (27 February 2009)

 

 

 

MacMenamin J

 

JUDGMENT of Mr. Justice John MacMenamin dated the 27th day of February, 2009.

 

1. In these proceedings the plaintiffs seek an order pursuant to O. 25 rr. 1 and 2 of the Rules of the Superior Courts for the preliminary determination of a number of points of law. These points of law are identified in the Notice of Motion in the following terms:-

 

 

“1.

(a) Does the Road Traffic Act 1994 or any regulations made thereunder enable An Garda Síochána to lawfully seize/confiscate a Mercedes Benz ambulance, registration mark 90D 24748;

 

(b) Did An Garda Síochána as servants of the first defendant or otherwise commit the Tort of Conversion at Coolevin Road, Ballybrack, on 23rd August, 2000, or elsewhere, when An Garda Síochána seized/confiscated the said ambulance; and

 

2. As a matter of law on what basis are damages to be assessed for the Tort of Conversion.”

 

 

 

2. Order 25 provides:-

 

“1. Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the judge who tries the cause at or after the trial, provided that by consent of the parties, or by order of the court on the application of either party the same may be set down for hearing and disposed of at any time before the trial.

2. If in the opinion of the court the decision of such point of law substantially disposes of the whole action or of any distinct cause of action, ground of defence, set off, counter claim, or reply therein, the court may thereupon dismiss the action or make such other order therein as may be just.

 

The plaintiffs rely on both rules in pursuit of the relief claimed.

 

 

 

3. As may readily be inferred from the title to these consolidated proceedings, this matter has a considerable history. In essence the plaintiffs claim damages (including aggravated or exemplary damages) inter alia for conspiracy, malicious prosecution, misfeasance in public office, breach of duty and conversion by members of An Garda Síochána. They also seek a mandatory injunction directing the return of a Mercedes Benz ambulance registration no. 90D 24748, seized in circumstances later generally outlined.
4. In the Statement of Claim the first plaintiff is described as being an emergency medical technician and helicopter pilot. Thereafter the reference is made mainly to the first plaintiff. The second plaintiff is Mr. Murray’s company. Mr. Murray formerly lived in Dalkey, Co. Dublin. It is said that through his company he provided emergency and non-emergency medical transportation to persons who were socially and financially disadvantaged. In this context, references to “the plaintiff” in this judgment unless indicated otherwise, may be taken as comprising both the plaintiff and his company.

 

5. The Statement of Claim is a lengthy one. It makes extensive allegations about the actions of various members of the gardaí and State agents against the plaintiff and his company. These include but are not confined to (i) malicious prosecutions for failing to have insurance on a number of vehicles including the ambulance; (ii) alleged disproportionate force by gardaí in stop and search procedures; (iii) false accusations of assault on members of the gardaí by Mr. Murray; (iv) unlawful failure on the part of the gardaí to take action against a named party, one Raymond Kinsella, who is accused of having assaulted, threatened and spread false rumours concerning the first plaintiff in his business which in turn lead to the seizure of another ambulance, and ejectment proceedings against the second plaintiff. Allegedly and as a result of this concerted campaign, Mr. Murray claims that his wife’s health suffered, their relationship deteriorated and ultimately their marriage broke down. He claims that he was forced to migrate to the midlands to avoid further acts of intimidation.

 

6. The defence in the consolidated proceedings runs to some 128 paragraphs. In it, the defendants deny any wrongdoing whatsoever, contend that the gardaí were acting in the course of their duty in their relationship with the plaintiffs and deny the existence of any campaign or conspiracy.

 

The issues which arise from the pleadings

 

7. A number of defence pleas are particularly relevant to this application. The first is the contention that the plaintiffs failed to mitigate their loss if in fact there was any actionable loss or damage. The court was informed by counsel for the plaintiffs that the claim being advanced by the plaintiffs’ ranges between a minimum value of €10 million and a maximum value of €15 million. I make no comment on this claim in this ruling, save insofar as it is hotly disputed by the defendants.

 

8. The second relevant defence issue is whether there exists in law a statutory defence to a claim in conversion. Third there arise issues of credit. The questions of who is to be believed and reasonableness will it is said loom large in any consideration of the case.

 

9. It is now necessary to focus on the particular reliefs sought in the motion. The first plaintiff claims that on 23rd August, 2000, he was driving an ambulance and conveying a patient to her home. He says he was stopped by one of a number of gardaí. Mr. Murray claims that without any introductory enquiry or explanation that one garda stated that he was seizing the vehicle under s. 41 of the Road Traffic Act. A question arises as to whether ownership transfer documents were completed at the time. Apparently the vehicle had formerly been owned and operated by Dublin Fire Brigade.

 

10. Mr. Murray says he was opening the rear ambulance doors to remove a patient from it. He contends that the gardaí were not interested in the patient. He alleges that the gardaí unjustifiably called for back up as a crowd of 20 or 30 onlookers had gathered round. He says another garda said that he had a false insurance disc. Mr. Murray states that he provided the name and address of the insurer of the ambulance and invited a member of the garda to contact the insurer. He says the garda stated that he was not obliged to do so. Mr. Murray says that he produced a letter from Dublin Fire Brigade to the effect that notification of change of ownership of the ambulance from Dublin Corporation to himself had not been effected.

 

11. The plaintiff pleads that further documents were proffered to the gardaí, but they refused to release the ambulance. By letter dated 28th August, 2000, the plaintiff demanded the return of the ambulance.

 

12. By way of defence, it is said the gardaí found this documentation relating to ownership and payment of charges for detention of the vehicle unsatisfactory. In the Statement of Claim in the consolidated proceedings dated 9th January, 2008, it is said that the ambulance even now continues to be detained at Dun Laoghaire Garda station compound, parked in a position where it can be viewed by the general public. It will be noted that this is now some eight years after the events complained of.

 

13. The defence deals with the germane issues to this motion in some 31 paragraphs. It states:

 

 

(i) that the garda member who stopped the plaintiff did so on foot of information that the vehicle had no insurance;

(ii) that the garda called on the Mr. Murray to produce his driver’s licence and evidence of insurance;

 

(iii) that the garda examined the policy number and insurance details displayed on the vehicle and from this he identified the insurer;

 

(iv) the garda made enquiries from the insurance company and was informed that the policy had been cancelled prior to 23rd August, 2000;

 

(v) as a result the gardaí were lawfully entitled to seize the vehicle pursuant to s. 41 of the Road Traffic Act 1994 and s. 41 of The Road Traffic Regulations 1995.

 

(vi) the seizing garda was expressly authorised so to do before seizing the vehicle;

 

(vii) that the gardaí failed to inform the first plaintiff of the reason for seizure.

 

 

 

14. A District Court prosecution for a number of road traffic offences followed. The first plaintiff was apparently convicted and sentenced to a period of imprisonment. (It is not clear what actually occurred in the District Court or whether the plaintiff was represented. The nature of the defence is not identified. This sentence was appealed successfully to the Circuit Court).
15. In fairness to the plaintiffs it appears uncontested that when the appeal came on for hearing on 19th April, 2002, in the Dublin Circuit Court, a witness from the insurance company gave evidence that while the original policy of insurance on the car had indeed been cancelled, that the insurance company would have been compelled to provide cover in respect of the vehicle in the event of any accident, as the first named plaintiff’s mother’s policy of insurance in respect of her motor vehicle had been transferred for a period of a few hours on 23rd August, 2000, (the date in question) to cover the ambulance. Thus the appeal of the first named plaintiff in respect of the offence under s. 56(3) of the Road Traffic Act 1961, (no insurance) was allowed, but all other convictions were upheld and taken into account.

 

16. The defendants say that Mr. Murray was advised that the vehicle would be released to him on the production of satisfactory evidence of ownership, road tax and insurance and the payment of charges in respect of removal and storage. They plead that Mr. Murray at no time has produced such material and that instead he sought the release of the vehicle without complying with these lawful requirements.

 

17. Counsel for the plaintiffs has made lengthy and detailed submissions as to the law in relation to conversion. He contends it is a tort of strict liability to which there can be no defence on the facts. It is said that a trial with a judge and jury of several weeks could be substantially reduced or avoided by acceding to the relief sought and that it is in the public interest that these issues should be tried in a preliminary way.

 

18. The plaintiff is aware of the provisions of the Road Traffic Act and the regulations. In one of a number of his written submissions, there is reference to the provisions of s. 41(5) of the Act of 1994. While it is not of course determinative of any issue it will be noted that s. 41(5) of the Act of 1994 provides specifically:

 

 

“(5) No action shall lie in respect of anything done in good faith and without negligence in the course of the detention, removal, storage, release or disposal of a vehicle under this section.”(emphasis added).

 

 

19. The court has also been referred to the Road Traffic Act, 1994 (Section 41) Regulations 1995 wherein it is provided at regulation 4:

 

“(4) Where a member of An Garda Síochána is of opinion that in events to which s. 41(1) of the Act refers is being or has been committed in respect of the driving or use of mechanically propelled vehicle, such member may take such steps, including the making of an arrangement with any other person as the member thinks fit, for the detention, removal and storage of the said vehicle. The regulations also make provision for the payment of charges by the owner of a vehicle for its detention and removal.”

 

 

20. For the purposes of this ruling I will do no more than to draw attention to these statutory provisions which may be engaged in this, just one of the issues involved.
21. The defendants say that an essential part of any statutory defence to a claim made in tort (howsoever formulated) would be good faith that is, provided members of An Garda Síochána acted bona fide in the seizure, they are immune from suit. Thus an essential feature of the case must be whether or not members of An Garda Síochána did in fact act in this way or not.

 

22. As a matter of logic it follows that there are issues in dispute. These relate to mitigation of loss, credit, and whether there is a factual basis for the statutory defence relied on by the defendants. While counsel for the plaintiffs has assured the court that there can be no dispute on the facts or the law I am not so persuaded. Disputed issues clearly arise in this aspect of the case. Indeed counsel for the defendant submitted forcibly that there were hardly any of the factual matters which were alleged in the Statement of Claim which were not contested. One cannot legitimately argue there is no issue on facts or law when plainly such issues arise in these aspects of the case. Mere assertion of a proposition by one party cannot bind both.

 

23. I am driven to the conclusion that there are here substantial contested facts which are relevant to the issues of law. I cannot accept that there is agreement in the facts. No material facts have been conceded for the purpose of the preliminary issue. All these findings are of importance in light of the legal principles involved.

 

The Legal Principles

 

24. The question of whether there should be a trial of a preliminary issue has recently been considered; (R.N. v. Refugee Appeals Tribunal & Anor.[2008] 1 ILRM 289). There the Supreme Court comprehensively reviewed previous authorities on the matter including Kilte v. Hayden[1969] 1 I.R. 261, Tara Mines v. Minister for Industry & Commerce [1975] I.R. 242 and BTF v. D.P.P.[2005] 2 I.L.R.M. The United Kingdom authority of Windsor Refrigerator Co. Ltd. v. Branch Nominees Ltd. [1961] CH 375 was approved. In the course of her R.N. judgment Denham J. observed:

 

 

“9. At the heart of this case is the circumstance that there are facts in dispute. There is no agreement on the facts – even for the determining of the preliminary issues.”

 

She relied on the authority of Kilte v. Hayden [1969] I.R. 261 at 265-6 where O’Dalaigh C.J. having considered well established authorities observed:

 

‘I am satisfied that the procedure laid down under O. 25, r.1 corresponds to the old hearing on demurrer and may not be availed of where the facts giving rise to the point of law are in dispute between the parties.’”

 

The judge also referred to the judgment of O’Higgins C.J. in Tara Mines v. The Minister for Industry & Commerce [1975] I.R. 242 where O’Higgins C.J. at p. 257 specifically held that where the trial of an issue under O. 35 r. 2 would necessitate the hearing of evidence on factual matters relating to the question of law, relief would be denied. (This order and rule allowed for the determination of a question of law in a special case.) O’Higgins C.J. stated:

 

“Once this is so r. 2 of O. 34 cannot apply, for such are matters of fact. In my view therefore the defendant’s application cannot succeed and this appeal should be dismissed.”

 

Thus a further dispute, or matters requiring evidence on matters of fact will bar relief.

25. A further authority relied on by Denham J. in R.N. was BTF v. D.P.P. [2005] 2 I.L.R.M. 367 where Hardiman J. observed:

 

 

“It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings clearly a strong case can be made for its trial as a preliminary issue. The classic example is where the statue of limitations is pleaded. In other cases, however, the position may be much less clear.” (emphasis added).

 

This case is by no means one where a clear issue of law arises.

26. In BTF the Supreme Court endorsed the principles laid down not only in Tara Mines but in Windsor Refrigerator Co. Ltd. (referred to earlier) where Evershed M.R. stated at p. 396:

 

 

“I repeat what I said at the beginning, that the course which this matter has taken emphasises, as clearly as any case in my experience has emphasised, the extreme unwisdom – save in very exceptional cases – of adopting this procedure of preliminary issues. My experience has taught me (and this case emphasises the teaching) that the shortest cut so attempted turns out to be the longest way round.”

 

 

27. In the instant case I find that there are facts in dispute, and further that there is no agreement on facts. Furthermore I consider the determination of the issues would be reliant upon establishing in evidence of a number of events. Just one of the contentious issues is the state of mind of members of the garda on the basis of information which they say was available to them. The existence of a statutory defence, mitigation and credibility are others.
28. If these observations apply in relation to the first issue in the motion paper, a fortiori they apply to the second, where what is sought is a determination as to the basis upon which damages might be assessed for the tort of Conversion. Even assuming, hypothetically, for one moment that the plaintiffs establish unlawful seizure these would not by any means eliminate the need to address disputed issues of fact and law on the question of damages.

 

29. My conclusions are fortified by the fact that in his affidavit Mr. Murray in effect, accepts that it would be necessary to establish facts in order to determine the issues in question. (para 11. of the applicant’s affidavit).

 

30. In circumstances where those facts are not agreed I find that it would be entirely inappropriate to make an order pursuant to O. 25 for the trial of a preliminary issue. Such an order would necessarily involve the hearing and the issue of oral evidence from the first plaintiff, and any other witnesses which he might choose to call, then the evidence of the gardaí involved, and the representative of the insurance company who gave evidence to the District and Circuit Court. A court would be called on to decide which evidence to accept. There would be witnesses as to damages.

 

31. A number of further points arise which reinforce this finding. The defendants submit that given the nature of the first named plaintiff’s claim, which is that there has been an established and long standing conspiracy by various members of An Garda Síochána to persecute himself and his family, it would be essential that his credibility be assessed in the context of the entirety of his claim as advanced against the various members of An Garda Síochána. Thus the defendants would be prejudiced were part of the evidence to be considered in isolation. I accept this as being a further factor in the balance, though of course I make no finding on any issue of substance in the case. That remains for other days.

 

32. Further, it is submitted that hearing oral evidence at the trial of a preliminary issue would involve traversing the same ground at the hearing of the action on the balance of the claims made by the plaintiff thereby giving rise to the risk of duplication and the risk of injustice. I accept this point. In the light of the very detailed written submissions from the plaintiffs’ side, I would add I have not been persuaded that acceding to the relief claimed by the plaintiffs would in any way have the effect of substantially disposing of the action as a whole or any distinct cause of action. On the contrary, I think that acceding to the application might actually prolong the overall hearing. Even were a court persuaded to accede to the plaintiff’s motion this would necessitate a trial of issues on oral evidence in circumstances where, as a matter of fact, only a small part of the overall claim would be disposed of. I do not think this would be an appropriate use of court time and resources.

 

33. Finally, the court must bear in mind that on 30th July, 2007, McKechnie J. made an order consolidating the ten separate actions commenced by way of plenary summons by the plaintiffs against the defendants. The points which the plaintiffs now seek to have tried as a preliminary issue are points which arise in the case bearing record no. 2000/13487P. But, to grant the plaintiffs the relief they seek would have the effect of setting aside the order of McKechnie J. insofar as it relates to this action. As a matter of principle, if the plaintiffs had been dissatisfied with the order they ought to have appealed it to the Supreme Court. It would be inappropriate to seek to avoid the effect of the order in this manner. I am therefore not prepared to accede to the plaintiffs’ claim in the notice of motion.

 

34. The plaintiffs brought a second notice of motion dated 29th October, 2008, alleging abuse of process by reason of the fact that the defendants replying affidavit was delivered on 21st November, 2008. No submissions were made to me on this point. In any case, even had there been, I cannot see how there could be any evidence of abuse of court process. I will refuse the reliefs sought.

 

 

O’Donnell v. Kilsaran Concrete Ltd.

[2001] IEHC 155; [2002] 1 ILRM 551 (2nd November, 2001) Herbert J

 

5. On the 4th June, 1999 a plenary summons was issued by Mullaneys, Solicitors for the Plaintiffs claiming damages for breach of contract, misrepresentation, negligence and breach of duty on the part of the Defendants their servants and/or agents. On the 18th November, 1999 a statement of claim was delivered claiming damages for breach of contract on the part of the second named Defendant, negligence and breach of duty on the part of both Defendants and breach of statutory duty on the part of the first named Defendant. A defence was delivered on the 3rd February, 2000 on behalf of all the Defendants. In addition to the other pleaded defences the Defendants specifically pleaded the provisions of Section 11(1)(a) and 2(a) of the Statute of Limitations, 1957, as amended and extended by the Statute of Limitations (Amendment) Act, 1991 and say that the claim of the Plaintiffs is time barred. By way of a special reply delivered on 1st March, 2000 the Plaintiffs plead that their cause of action accrued within six years prior to the commencement of the action and is therefore not time barred.

 

6. This is a Trial of a Point of Law prior to Trial which was set down for hearing under Order 25 of the Rules of the Superior Courts, 1986 as to whether the claims of the Plaintiffs, (if any), in Contract or in Tort are time barred.

 

7. Subsection 11(1)(a) of the Statute of Limitations 1957 provides as follows:-

 

“The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued –

(a) Actions founded on simple contract .”

 

8. Subsection 11(2)(a) of the Statute of Limitations 1957 as substituted by Section 3(2) of the Statute of Limitations (Amendment) Act, 1991 provides as follows:-

 

“Subject to the paragraph (c) of this subsection and to Section 3(1) of the Statute of Limitations (Amendment) Act, 1991 an action founded on Tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

9. Paragraph (c) relates to actions for damages for slander and Section 3(1) of the Statute of Limitations (Amendment) Act, 1991 relates only to actions for personal injuries. Accordingly the relevant period of limitation in tort applicable in this matter is six years from the date on which the cause of action accrued.

 

10. Counsel for the Defendants, who are the Applicants in this preliminary trial of a point of law, argued that any cause of action of the Plaintiffs in contract accrued when the breach of contract occurred, that is in 1988 when the defective blocks were used by the second named Defendant in the construction of the dwelling house. Misrepresentation on the part of the Defendants their servants and/or agents is pleaded in the plenary summons in this case but is not pursued in the Statement of Claim and no argument based upon fraud or fraudulent concealment was addressed to the Court on behalf of the Plaintiffs/Respondents at the hearing of this preliminary trial of a point of law. Accordingly, in my judgment any cause of action in contract accrued prior to March 1988 when the Architect issued his Certificate of Practical Completion and consequently became time barred prior to the 4th June, 1999 the date when the plenary summons was issued.

 

11. The Plaintiffs/Respondents plead a cause of action in negligence only against the first named Defendant and plead a cause of action in negligence as an alternative plea against the second named Defendant. Counsel for the Defendants/Applicants did not argue, and in my judgment correctly so having regard to the Statement of the Law in this Jurisdiction expounded by the Supreme Court in the case of Finlay v. Murtagh [1979] IR 249, that the existence of a contractual relationship between parties precludes the injured party from seeking a remedy in tort on the same facts.

 

In the case of Hegarty v. O’Loughran [1990] IR 148 at 158, Griffin, J., in the Supreme Court stated that:-

“….. When the wrong is not actionable without actual damage as in the case of negligence, the cause of action is not complete and the period of limitation cannot begin to run until the damage happens or occurs”

 

12. However, once the damage occurs, it is clear from the decisions of the Supreme Court in that case and in the case of Tuohy v. Courtney and Larkin and Ors [1994] 3 IR 1, that time begins to run and continues thereafter to run, except in those cases to which Part III of the Statute of Limitations 1957, the Statute of Limitations (Amendment) Act, 1991 and the Statute of Limitations (Amendment) Act, 2000 apply. These statutory provisions are not relevant to the matters at issue in this action.

 

13. Counsel for the Plaintiffs/Respondents argued that the damage in this case did not occur until 1997 or 1998 and that accordingly their cause of action did not accrue until then. Counsel for the Defendants/Applicants argued that the damage occurred in 1988 or alternatively in 1991 and that accordingly the Plaintiffs’ right to recover in tort is time barred.

 

14. Counsel for the Plaintiffs/Respondents relied upon the decision of the House of Lords in the case of Pirelli General Cable Works Limited v. Oscar Faber and Partners (a Firm), [1983] 2 AC 1. Counsel for the Defendants/Respondents relied upon the decision of O’Hanlon, J., in the case of Doyle v. C. and D. Providers (Wexford) Limited [1994] 3 IR 57, a decision of the High Court on appeal from the Circuit Court and the decision of Geoghegan, J., (then of the High Court) in the case of Irish Equine Foundation Limited v. Robinson and Ors [1999] 2 ILRM 289 at 290.

 

In the case of Pirelli v. Oscar Faber and Partners (a Firm) Lord Fraser of Tullybelton delivering the unanimous verdict of the House of Lords held as follows at page 16 of the Report:-

“….. There is an element of confusion between damage to the Plaintiff’s body and latent defect in the foundations of a building. Unless the defect is very gross it may never lead to any damage at all to the building. It would be analogous to a predisposition or natural weakness in the human body which may never develop into disease or injury. The Plaintiff’s cause of action will not accrue until damage occurs, which will commonly consist of cracks coming into existence as a result of the defect even though the cracks or the defect may be undiscovered and undiscoverable. There may perhaps be cases where the defect is so gross that the building is doomed from the start and where the owner’s cause of action will accrue as soon as it is built, but it seems unlikely that such a defect would not be discovered within the limitation period. Such cases, if they exist, would be exceptional.”

 

15. In that case the Defendants were a firm a consulting engineers who had been engaged by the Plaintiffs to advise them in relation to a building. The building included a chimney about one hundred and sixty feet high. The chimney was made of precast concrete. Unfortunately the concrete used for the refactory inner lining of the chimney was partly made of a relatively new material called Lytag which was unsuitable for the purpose. Cracks developed and eventually the chimney had to partly demolished and replaced. The chimney was built during June and July 1969. The Trial Judge found on the evidence that damage in the form of cracks near the top of the chimney, must have occurred not later than April 1970 which was more than eight years before the writ was issued.

 

16. In the present case, Mr. McLoughlin, gave evidence that having seen the cracks in October 1998 and having discussed the matter with the first named Plaintiff, he, as an expert, was satisfied that the cracks which he identified as due to an excess of iron pyrites in the construction blocks were of recent origin. He described the cracks as ranging from 2mm down to hairline. No evidence was called by the Defendants/Applicants to refute this opinion despite the fact that a joint inspection was carried out by engineers for each party on the 16th April, 1999, as appears from a letter dated the 8th June, 1999 from Messrs Donal O’Hagan & Company Solicitors for the Defendants/Applicants to Mullaneys, Solicitors for the Plaintiffs/Respondents. The Defendants/Applicants did not offer any evidence to link the cracking which had occurred in the garage wing of the house in 1991 with that which Mr. McLoughlin categorised as of, “recent origin” in 1998. After the 1991 cracking in the relatively limited area of the garage wing of the house had been remedied there were no further complaints by the Plaintiffs until May 1998. In the circumstances I am satisfied that the cracking due to the excess of iron pyrites in the block work of the dwelling house did not develop until well within the limitation period of six years prior to the 4th June, 1999 the date when the plenary summons in this action was issued. To draw any other inference would be to attribute a wholly unnatural meaning to the phrase, “of recent origin” used by Mr. McLoughlin.

 

17. Counsel for the Defendants/Applicants submitted that if the law as stated by the House of Lords of the United Kingdom in the case of Pirelli v. Oscar Faber and Partners (a Firm) , was substantially in accordance with the law of this Country, this dwelling-house because of the defective block work was a building, “doomed from the start” so that the cause of action accrued and time began to run when the dwelling house was built in 1988.

 

18. Mr. McLoughlin agreed in cross-examination that the blocks were unsuitable from the start and should not have been used. He said that the blocks were unsuitable only because of the danger of the eventuality which in fact occurred in this case. He said that the blocks were otherwise capable of functioning but carried a risk which any competent builder would find unacceptable, and which could not be eliminated by the use of plastering or pebble dashing. This risk was that a sufficiently rapid chemical reaction could occur within the blocks if they became water saturated in the presence of oxygen, – a not unusual occurrence in the climatic conditions of the West of Ireland and this would result in cracking and rust staining of the blocks. While Lord Fraser was prepared to assume that defects could exist which were so gross as to doom a building from the start he considered that such cases would be exceptional. In the Pirelli case it was held that the cause of action accrued in Spring 1970 when, as found on the evidence by the Trial Judge, damaged in the form of cracks near the top of the chimney must have come into existence whether observed at the time or not. I find the essential facts of that case to be indistinguishable from the facts of the present case. The presence of the iron pyrites like the presence of “Lytag”, was a latent defect in the structure which though predisposing the building to damage might never lead to any actual damage to the building at all. In the case of Ketteman v. Hansel Properties Limited & Ors [1987] AC 189, it was pointed out by Lord Keith of Kinkel at p.205 of the report that a building should not be considered “doomed from the start”, for purposes of statutes limitation merely because it had a latent defect which must inevitably result in some damage at some later stage.

 

19. In my judgment the decision of O’Hanlon, J., in the case of Doyle v. C. and D. Providers (Wexford) Limited , [1994] 3 IR 57, does not assist the Defendants/Applicants. Though damages for negligence and breach of duty was pleaded, there is no other indication from the judgment that any case in tort was argued before the learned Judge. There is, for example, no reference in the report of the judgment of questions of liability for the sale of non dangerous defective products or of the recovery of damages for pure economic loss being raised and considered by the Court. The learned Judge identified the date when the cause of action accrued as being the date when:-

 

“….. The Defendant made delivery to him of materials which were at variance with those which he had ordered and which were the subject of the contract between the parties”

 

20. The learned Judge then went on to remark:-

 

“….. The fact that the Plaintiff through no fault of his own may have remained in ignorance of the Defendants alleged breach of contract for a period of several years……. Did not prevent the claim becoming statute barred.”

 

21. Despite the headnote I am quite satisfied that this case was decided as a matter of Contract Law only. The unsuccessful attempt by the Plaintiff to amend the pleadings immediately prior to the hearing of the Appeal by pleading fraud lends further support to this view.

 

22. In the instant case Counsel for the Defendants/Applicants submitted that as the damage pleaded by the Plaintiffs/Respondents in the Statement of Claim was solely economic loss, with no element of injury to any person or damage to any property other than the alleged defective structure itself they could not be successful in claiming damages based upon negligence. Counsel for the Plaintiffs/Respondents argued that the Law in this Jurisdiction allows for the recovery of such damages and referred to the very well known decision of Costello, J., (as he then was) in Ward v. McMaster and Another, [1985] IR 29.

 

23. In my judgment the Court is not concerned with this issue at the Trial of this Preliminary Point of Law. The Court is not at this time considering whether the Plaintiffs/Respondents have a case in tort or in contract: the sole issue now before the Court is whether, if such claims exist they are time barred. The Court does not at this time express any view whatsoever as to whether the claims of the Plaintiffs/Respondents if they are not time barred, will or will not be successful in law or on the merits.

 

24. In my judgment the decision of Geoghegan, J., in the High Court in the case of Irish Equine Foundation Limited v. Robinson and Others, [1999] 2 ILRM 289 at 290 does not assist the Defendants/Applicants. In that case the learned Judge accepted that if experts with the same qualifications as the Defendants experts had been retained by the Plaintiffs to inspect the roof in question just after it had been constructed they would, if the Plaintiffs allegations were correct, have reported that the roof was defectively designed. The learned Judge says at page 294 of the report:-

 

“It would seem to me that if the roof, the subject matter of this action was defectively designed for the reasons suggested by the Plaintiff this would have been manifest at any time to any expert who examined it”.

 

25. Earlier in his judgment the learned Judge said:-

 

“ I think therefore that the Heagarty v. O’Loughlan decision must be taken as authority for the view that prior to the Statute of Limitations (Amendment), Act, 1991, the cause of action for personal injury did not arise until the injury was manifest…….”

 

26. He then concluded that these principles now applied only to cases of damage to property though he appears to express some hesitation in this regard.

 

27. In that case the learned Judge found on the evidence and the pleadings that it was manifest that the roof was incorrectly designed immediately after construction was completed or even before it was completed and that pure economic loss would inevitably be involved in making it good.

 

28. In the present case I am satisfied on the evidence that the damage only came into existence not long prior to October 1989 or in the terminology used by Geoghegan, J., was not manifest until then. It is not necessary for the Court to express an opinion on the vexed question of “discoverability”, because in this case the damage having come into existence not long prior to October 1998 it was drawn to the attention of Mr. Lawlor in May 1998 and by Mr. McLoughlin in October 1998 and the plenary summons was issued on the 4th June 1999 well within the limitation period.

 

29. The Court therefore finds that the cause of action pleaded by the Plaintiffs/Respondents in contract is time barred, but that the cause of action against the Defendants or either of them pleaded in tort is not time barred.

 

Weavering Macro Fixed Income Fund Ltd v P.N.C Global Inv. Servicing (Europe) Ltd

[2012] IESC 60 Clake J

 

6.6 It seems to me that the principles which can be derived from that case law are as follows:-

(i) There is a jurisdiction in the court, as part of its inherent jurisdiction to regulate the manner in which trials are conducted, to direct a modular trial as a result of which some issues are determined ahead of others.

(ii) There is distinction between the trial of a preliminary issue, as identified in the Rules of the Superior Courts, Orders 25 and 34, on the one hand, and the modular trial of all issues on the other hand. As the author’s of Delaney and McGrath (3rd Edition) point out at paras.14-03 and 14-04:-

 

 

“Issues of law may arise in pleadings which lend themselves to being determined by means of the trial of a point of law as a preliminary issue. Provision for the determination of a point of law as a preliminary issue is made in two separate orders. Order 25, rule 1 provides that, by the consent of the parties, or by the order of the court, on application of either party, any point of law may be set down for hearing and disposed of at any time before the trail. Order 25, rule 2 goes on to provide that if in the opinion of the court, the decision on this point substantially disposes of the action, or any distinct cause of cause, ground of defence, counterclaim or reply, the court may dismiss the claim or may make such other as may be just. Accordingly, if a party contends that the determination of a point of law in his or her favour will dispose of the proceedings, the correct approach is to apply for the trial of that point of law as a preliminary issue rather than to bring an application to strike out the proceedings on the basis that they are bound to fail on this basis.

Order 34, Rule 2 further provides that if it appears to the court that any question of law arises which it would be convenient to have decided before any evidence is given of any question or issue of fact is tried, it may direct such question of law to be raised for the opinion of the court, either by special case or in such other manner as the court may deem expedient and such further proceedings as the decision of law may render unnecessary can be stayed. In McDonald v Bord nag Con Lavery J stated these two rules “cover the same ground”. In his view, the only relevant difference between them is the Order 34, rule 2 expressly provides that it should appear to the judge to be convenient to have the particular issue decided before any evidence is given or any question of fact tried, whereas Order 25, rule 2 is more general in its terms. However, in R.N. v Refugee Appeals Tribunal, Denham J suggested that the procedure under Order 25, rule 2 might be more appropriate for the trial of preliminary issues than that under Order 34, rule 2.”

 

Order 25 was analysed by Ó Dálaigh C.J. in Kilty v. Hayden [1969] I.R. 261 at p.265, where he stated:

“When Order 25 is contrasted with Order 36 it becomes clear that Order 25 is not providing for the separate trial of issues which are partly of fact and partly of law, but for the separate trial of a net point of law dissociated from issues of fact, that is to say, the point of law must arise on the basis of the facts being as the opposing party of the pleadings alleges them to be.”

This interpretation, highlighting the necessity for there to be an agreed or accepted set of facts, was reaffirmed by Lynch J. in McCabe v. Ireland [1999] 4 IR 151. Lynch J. was of the view that the facts “may be agreed for the purposes of the preliminary issue of law only without prejudice to the right to contest the facts if the actual determination of the preliminary issue should not dispose of the matter”. In Ryan v. Minister for Justice[2008] I.L.R.M. 289, the Supreme Court per Murphy J, again accepted the proposition that a defendant can accept the facts as alleged by the plaintiff in his pleadings and replies to particulars for the purposes of a trial of preliminary issue of law only.

As is clear from those authorities the trial of a preliminary issue under the rules is concerned with circumstances where it is possible to separate out a legal issue which can be determined on the basis of facts agreed either generally or for the purposes of the preliminary issue. It is also possible, under O.35, to have an issue of fact tried where the case will almost completely depend on a resolution of that factual question. What is, however, clear from all of the authorities is that the trial of an issue, formally separated out as a preliminary issue in the sense in which that term is used in the rules, is a practice which is to be adopted with great care by virtue of the experience of the courts that “the longest round is often the shortest way home”. Where issues, such as the question of liability and/or causation, are tried first in a modular trial then the court is simply hearing all matters relevant to those issues, be it fact or law, and coming first to a conclusion on those issues. It is, of course, the case that if, while hearing such a module, the court comes to the view that it cannot safely reach a final conclusion on some or all of the issues to be determined in that module without also entering into evidence and legal argument relevant to some issue originally intended to be tried at a later stage, then the court can act in an appropriate way to ensure that no injustice is caused.

 

(iii) Where an application for a modular trial is brought there are a range of practical circumstances to which the court should have regard in determining whether, in reality, there is likely to be a net benefit in directing a modular trial. The factors to be taken into account have been variously described in cases such a Cork Plastics, McCann v. Desmond and Atlantic Shellfish. I do not see any material difference between the approaches described in those cases. The factors that may be important in determining where the balance lies may vary from case to case depending on all the relevant circumstances of the case in question.

 

6.7 Against the background of that analysis it is necessary to consider the specific issues which arise in this case.

7. Is a Modular Trial appropriate in this Case?

7.1 The starting point has to be to acknowledge the limited circumstances in which it is appropriate for this court to interfere with case management directions given in the High Court. As pointed out earlier many such directions are, in the words of Geoghegan J. in P.J. Carroll, virtually unappealable and even those directions which are towards the substantive rather than the purely procedural end of the spectrum (and which are, thus, at least in principle, appealable) should only be interfered with by this court in very clear cases. Otherwise, as has been pointed out, the benefits which attach to case management would be largely negatived.

 

7.2 It is, therefore, necessary to approach the issues which arise in respect of the modular trial direction in this case on the basis that this court’s role in reviewing High Court decisions on such matters is limited and that this court should only interfere in very clear cases.

 

7.3 It is appropriate that the first question to be addressed is as to the significance for these proceedings of the modular trial direction under appeal. In most normal modular trial directions the court will decide to deal with liability (and perhaps causation) issues first. Except in unusual cases, where it may be said that there could be prejudice by such a direction (caused, for example, by connected credibility questions some of which might arise on liability and some on quantum) it is unlikely that the questions which a High Court judge may have to address in deciding whether to direct a modular trial will go beyond the purely practical or logistical sort of issues identified in the case law to which reference has been made. On balance is it more likely that a modular trial will be a more efficient and cost effective way of dealing with the case in question? On such issues, having regard to the much more detailed knowledge which a case managing judge is likely to have of the case, this court should be particularly slow to intervene.

 

7.3 However, the type of modular trial directed in this case is somewhat different from the usual. Specific issues have been identified which form only part of the questions which would be likely to arise as to any potential liability of PNC to Weavering. At least on one view the decision to strip out those issues for early determination may place the modular trial direction in this case at the more substantive end of the spectrum. In that context it is, perhaps, appropriate to turn to what seemed to me to be the principal complaint made on behalf of Weavering at the appeal hearing. It is said that Weavering does not really know what went wrong on the facts of this case.

 

7.4 That something went wrong seems almost certain. Weavering was in receipt of NAVs which suggested that its investments had been successful and that its shareholders had very significant asset value. When that proposition came to be tested, when those investors sought their money back, the picture painted by the NAVs proved to be wholly false. It seems clear, therefore, that something must have gone wrong. But Weavering argues that it is very difficult for it to tell precisely what went wrong. It does not, it says, have any of the working papers which might demonstrate how the NAV was calculated or the extent, if any, to which any checks were made to ascertain whether the real value of the interest swaps (dependent, as it appears to have been, on the ability of the counter party to pay) were as stated. Against that background Weavering argues that it would be placed in a very difficult position if the modular trial as directed were to go ahead.

 

7.5 In that context it should be noted that there was also before the court an appeal against a discovery order made in these proceedings in favour of Weavering by Kelly J. Further consideration of that discovery application has been postponed pending this judgment. The reason for that postponement is fairly obvious. Kelly J. confined discovery to those documents which appeared to him to be relevant to the issues to be tried in the first module. Indeed, that point in itself raises a further issue of contention to which it will be necessary to return being the suggestion that Kelly J. encountered some difficulty in interpreting the order of Charleton J. directing a modular trial. It is said that there was difficulty in attempting to identify precisely what issues of fact might arise which in turn would, of course, have informed any decision on the documents likely to be relevant to those facts.

 

7.6 However, at the core of Weavering’s complaint about the modular trial order is the suggestion that proceeding in that way will deprive Weavering of an opportunity to obtain discovery of sufficient documentation to enable it to get a much clearer picture as to what actually did go wrong.

 

7.7 It is, of course, the case that such an argument is not necessarily decisive. There may well be circumstances where, for a variety of reasons, (the statute of limitations may be one) a party does not have an opportunity to run a case on the merits and where, consequently, such a party may not become entitled to discovery of documents relevant to issues which might have arisen had the barrier to being able to run the case on the merits not arisen.

 

7.8 However, it seems to me that a court must exercise significant care when directing a modular trial which takes, as its first module, some but not all of the issues which may be relevant to liability, to ensure that there are unlikely to be significant links between the issues which might arise in respect of other aspects of the liability question such as would render it unfair and/or inefficient to separate out the liability issues in the manner under consideration. That is not to say that there may not be cases where liability issues fall into clearly discreet and separate categories such that some can be tried without any reference to others and without any fear of injustice or inefficiency.

 

7.9 That leads to a consideration of the precise issues which have been directed to be tried as a first module in this case. Leaving aside issues 3 and 4 (the Cayman Islands proceedings issues) for the moment, the other contractual questions involve, as already pointed out, two different types of queries in each pair of issues.

 

7.10 Issue 1 is concerned with whether, as a matter of construction of the Administration Agreement, Weavering is limited to claiming in respect of causes of action which arose within 12 months of either (a) the date of issue of these proceedings, or (b) the date of service of same. However, issue 2 seems to raise the question of when any alleged cause of action might have arisen for the purposes of the relevant clause so as to determine whether any such alleged causes of action are barred by the provisions of the Administration Agreement which are at the heart of issue 1. Likewise issue 9 raises the question of whether the relevant clause in the Administration Agreement limits claims to those for “wilful misfeasance, bad faith, gross negligence or reckless disregard”. However, issue 10 raises the question of whether any of Weavering’s claims are, in effect, precluded from being maintained because of the clause in question. Finally, issue 12 is concerned with whether Weavering is confined to any claim which cannot be said to be for consequential, special or indirect loss or damage. However, issue 11 is concerned with identifying which of Weavering’s claims might involve “in whole or in part” such arguably excludable heads of damage.

 

7.11 It thus follows that in each pair of issues there is a question which simply seeks to identify the consequences of a relevant clause in the Administration Agreement, at the level of principle. There is a second issue in each pair which seeks to apply such a clause to the facts of the case. It was in that context that Weavering suggested that Kelly J. encountered some difficulty in interpreting the precise form of modular trial intended by the order of Charleton J. Did it, as Kelly J. ultimately found, involve questions on the interpretation of the Administration Agreement alone or did it involve significant factual questions as to the application of the relevant provisions of the Administration Agreement (in whatever way they might be interpreted) to the facts of this case. It does not seem to me to be either necessary or appropriate for this court to attempt to interpret whether Kelly J. encountered any such difficulties. Nothing in any of the rulings delivered by Kelly J. could be interpreted as amounting to a finding that the order of Charleton J. was insufficiently precise. However, it does seem to me that it is appropriate for this court to give some consideration to the form of modular trial directed.

 

7.12 In that context it is appropriate to record that, in the course of the hearing, there was some significant debate with counsel for PNC as to the precise parameters of the modular trial which would be conducted in the event that this appeal is unsuccessful. To take but one example, it is clear that clause 14(a) of the Administration Agreement (already cited) does purport to confine liability to cases of “”wilful misfeasance, bad faith, gross negligence or reckless disregard”. There may, or may not, be some basis put forward by Weavering in order to argue that the clause does not apply at all. However, assuming that the clause does apply, then the real question will be as to its application to the facts of this case. It is very difficult to see what guidance a judgment on a first module could give on that question without a detailed exploration of the precise factual circumstances which are asserted by Weavering as giving rise to its cause of action. In that context it is difficult to see what advantage there would be to an entirely theoretical question of interpretation being tried first. The real question is as to the extent, if any, to which the provisions of the clause in question may have a practical effect of limiting the types of claims which can successfully be maintained in these proceedings.

 

7.13 Similar considerations seem to me to apply in respect of the other two pairs of cases. There might be some point in deciding, in advance, whether the applicable date for the time limitation clause is that of the service of proceedings (as suggested in issue 1(b)) rather than the issue of the proceedings as suggested in issue 1(a). It was for that reason that counsel for Weavering accepted that issue 1(b) could properly be determined as a first module for it was accepted that, if Weavering could only claim in respect of causes of action arising within a year of the relevant date of the proceedings, the case would be at an end. It appears to be accepted that nothing happened in the year immediately preceding the service of the proceedings so that, if there is a valid limitation which precludes any claim being brought save for those which arose within that one year period, there could be no valid claim. On the other hand it is said on behalf of Weavering that, if the date of issue of the proceedings is the correct date then, even if the clause has the effect of limiting any claims outside a period referable to that date, the practical consequences of such a finding would not significantly reduce the issues which would be likely to arise at any subsequent hearing for it would be necessary to analyse in some detail the full sequence of events which passed between the parties to ascertain when any relevant cause of action might have arisen. There would, for example, be many complex issues that might arise under that heading. Would a failure on the part of PNC in respect of one NAV give rise to a completed cause of action such that the same failure being repeated in the context of a subsequent NAV would not give rise to a fresh and new cause of action? Such questions would, in my view, be impossible to answer without going into the facts in detail.

 

7.14 Likewise, while it might be possible to express a theoretical view on the limitation clause contained within the Administration Agreement which purports to restrict damages so as to exclude “consequential, special or indirect loss”, it would be difficult to see the practical benefit of such a determination at a theoretical level unless a detailed analysis of the facts is to be engaged in.

 

7.15 It seems to me to follow that, under each of the three pairs of issues currently under consideration, the gain from a purely theoretical consideration of the terms of the contract would be of doubtful, and in any event of very limited, advantage, without a detailed consideration and analysis of the facts. However, it does not appear, certainly from the views expressed by Kelly J. in his interpretation of the order of Charleton J. and in the light of the submissions made by counsel for PNC at this appeal, that such an analysis of the facts is what is contemplated for the first module. However, it does, in my view, have to be said that reading the second of each of the pairs of issues to which reference has been made on its face, same do appear to require a drilling into the detailed facts.

 

7.16 On that basis alone, it seems to me that there is an error of principle. The first module is insufficiently precise and its parameters are open to legitimate debate. In addition if the first module is intended simply to answer abstract questions as to the meaning of the relevant clauses then it is difficult to see that there would be any great gain in such an exercise unless some guidance was to be given as to how those clauses might apply in practise in the context of the facts which arise in this case. It is difficult to see how that latter guidance could be given without a much more detailed consideration of the facts than that which seems to be currently contemplated. On the other hand, if a much more detailed consideration of the facts is what is truly contemplated then it is difficult to see the point in dividing up those liability issues directed to be tried in the first module from any other liability questions which might arise.

 

7.17 That leaves the two issues which are concerned with the effect of the Cayman Islands judgment. I will assume, for the purposes of this judgment, that the determination of Jones J. either stands, as a result of the appeal currently under consideration in the Cayman Islands, or that some equally clear set of factual findings emerge from the appellate process. To what extent is, therefore, Weavering bound by whatever final judgment may emerge from the Cayman Islands’ courts. The answer given on behalf of Weavering by its counsel was that it was accepted that Weavering could not, without very good reason, seek to depart from the case which it made successfully to the courts in the Cayman Islands. However, it was suggested that there might be circumstances in which it would be legitimate so to depart. If, it was suggested, evidence were to emerge as a result of discovery or at trial in this case which suggested that the picture of the facts which Weavering (on its case to the best of its ability) presented to the Cayman Islands’ courts was incomplete or even inaccurate, then, it was argued, the courts in Ireland might be persuaded to allow Weavering, perhaps on terms, to deviate from the case successfully made in the Cayman Islands.

 

7.18 It is not, of course, for this court in this judgment to express any view on that question. However, it seems to me that such analysis demonstrates that the question of whether there might be a legitimate basis for Weavering departing from the factual case made in the Cayman Islands might well, itself, be dependent on the evidence which could be presented to the Irish courts in these proceedings. It seems to me to follow that the Cayman Islands issues are subject to the same analysis as the three contractual terms issues. The matter can either be approached at a theoretical level which might well have little practical use or else it would require a much more detailed factual analysis which would take away much of the advantage of there being a modular hearing in the form proposed in the first place.

 

7.19 It seems to me to follow that this is one of those rare cases where it is appropriate for this court to intervene on an appeal against a case management direction. There is at least a significant risk that the case management direction in this case could have a very significant practical effect on the run of the case to the real (rather than tactical) detriment of one of the parties. It follows that this is a case where this court, while nonetheless affording significant weight to the views of the case management judge, must nonetheless consider whether, in all the circumstances, it is appropriate to let the case management direction under appeal stand. For the reasons set out I do not believe that a modular trial in the form proposed is sufficiently clear and precise. In addition it seems to me that if what is truly intended is a purely theoretical exercise it would run the risk of either achieving very little or creating the potential for injustice. If what is intended requires delving into the facts to any great extent then it is hard to see its advantage. In those circumstances I would allow the appeal and set aside the direction for a modular trial.

8. Consequences

8.1 In addition to making that order I feel it should be made clear that this judgment does not amount to a finding that, in all circumstances, a modular trial of any form is inappropriate in this case. I simply would hold that the particular form of modular trial directed is not appropriate in all the circumstances and at this stage. Whether, at a different time in the progress of these proceedings, it is appropriate to direct a modular trial on some basis which overcomes the difficulties identified in this judgment, is a matter to be decided at that time.

 

8.1 Finally, it seems to me that, if the High Court so directs, a trial of the question which arises in issue 1(b) can be determined at this stage as a stand-alone issue, for it seems clear, on the basis of the position adopted by counsel for Weavering, that if issue 1(b) is found against Weavering the entire case will come to an end. I would remit back to the High Court the question of whether that issue should be tried as a stand-alone issue on the date which, the court understands, currently stands fixed for a hearing of the first module which was the subject of the directions order now reversed by this judgment.

9. Conclusions

9.1 I would, therefore, make the following orders:-

 

1. Allowing the appeal and discharging the order for a modular trial which is the subject of this appeal; and
2. Remitting back to the High Court the question of whether there should be a modular trial which deals with issue 1(b).

 

9.2 In addition I would wish to make clear that this judgment should not be taken to be a barrier to an appropriate application for a modular trial at some stage in the future progress of these proceedings provided that any module then directed addresses the difficulties identified in this judgment.

 

 

Smyth -v- The Commissioner of An Garda Siochana & Ors

[2013] IEHC 209 (16 May 2013)

 

Cite as: [2013] IEHC 209 Peart J

 

 

 

 

Neutral Citation [2013] IEHC 209

 

THE HIGH COURT

Record Number: 2002 No. 15244P

 

Judgment of Mr Justice Michael Peart delivered on the 16th day of May 2013:

The events giving rise to these two sets of proceedings occurred about 20 years ago even though the proceedings themselves were commenced in 2002. For present purposes it is unnecessary to set out the extensive background to the proceedings and the present application.

 

I have already decided that in the very unusual circumstances of these cases that delay was not sufficient to lead to the dismissal of the proceedings on the grounds of delay.

 

What is before the Court now for decision is an application by the defendants that a preliminary issue be directed on a point of law, namely that regardless of what facts may be established in relation to the allegations contained in the Statements of Claim regarding how an investigation of the plaintiffs’ complaints the subject of the proceedings was carried out, or not carried out, by members of An Garda Siochana, as a matter of Irish law no duty of care under the law of tort and in particular the law of negligence is owed to the plaintiffs, or members of the public generally, by members of An Garda Siochana in relation to how those investigations are carried out.

 

The defendants submit therefore that it is desirable in terms of a saving in costs and in the proper use of court time, that this issue be determined now, and that it should not have to await the full hearing of the case. They submit that the plaintiffs’ cases are purely speculative, and for success would require an impermissible extension of the law of negligence against a substantial body of existing authority to the effect that no such duty of care to the plaintiffs is owed under Irish law regardless of what facts may be established at trial.

 

Two other preliminary issues are sought, one being that the proceedings are statute barred, and the other that certain matters are already res judicata having been decided in other proceedings in which Mr Paul Smyth was a plaintiff. I can dispose of those applications quickly. The Statute point is closely linked to the delay issue which I have already decided and I do not think this is a case where that issue can be decided discretely and it would have to await oral evidence in the rather exceptional facts of this case. As for the res judicata issue, it is accepted by the defendants that those proceedings did not involve Mr Philip Smyth. In those circumstances there is nothing to be gained for these proceedings in now having that matter determined either. So I refuse the defendants’ application in that regard.

 

But, to return to the issue under consideration, in so far as some of the case-law relevant to whether or not such an issue on a point of law should be directed states that it is undesirable for such an issue to be directed where facts are in dispute between the parties, the defendants have stated that for the purpose of having this preliminary issue determined they will accept the truth of the allegations of fact pleaded in the each plaintiffs Statement of Claim, and that submit therefore, for that purpose alone, that there are no facts in dispute.

 

The plaintiffs on the other hand urge that the Court should direct a preliminary issue only where that determination, whichever way it is decided, will bring an end to the proceedings. In that regard they point to the rather obvious fact that only if the issue is determined in favour of the defendants will the proceedings be at an end.

 

The trial of a preliminary issue is dealt with under three different rules in the Rules of the Superior Courts.

Order 25, rule 1 RSC provides:

 

“Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the judge who tries the cause at or after the trial, provided that by consent of the parties, or by order of the Court on the application of either party, the same may be set down for hearing and disposed of at any time before the trial. ”

 

Order 34, rule 2 RSC provides:

“If it appears to the Court that there is in any cause or matter a question of law, which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, or before any reference is made to an arbitrator, the Court may make an order accordingly, and may direct such question of law to be raised for the opinion of the Court, either by special case or in such other manner as the Court may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed’. [emphasis added]

 

Order 36, rules 7 and 9 provide respectively:

“(7) The Court may, if it shall appear desirable, direct a trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter which, without the consent of parties, can be tried without a jury, and such trial may, if so ordered by the Court, take place at the same time as the trial by a jury of any issues of fact in the same cause or matter.

(9) Subject to provisions of the preceding rules, the Court may in any cause or matter, at any time or from time to time, order that different questions of fact arising therein be tried by different modes of trial, or that one or more questions of fact be tried before the others and in all cases may order that one or more issues of fact be tried before any other or others.”

 

In relation to Order 36, Michael Collins SC for the plaintiffs has submitted that it does not apply to the present case, but rather refers to what he termed ‘a modular trial’ rather than the determination of what is essentially a point of law in the present case. But he stresses in any event that the point of law in question on this application will in any event be dependent upon many factual issues all of which are put in issue in the defendants’ Defences, and that there would be no savings in terns of court time and costs. He points also to the fact that in the case of Paul Smyth, there is a claim based on contract in addition to the claims in negligence, as Paul Smyth at the time of the events in question was a serving member of An Garda Siochana. He urges that the determination of the duty of care issue in favour of the defendants will not put an end to Paul Smyth’s proceedings in their entirety. But Paul Anthony McDermott BL for the defendants submits that any claim put forward on the basis of any such contract is itself dependent upon a breach of a duty of care, and submits that no distinction therefore arises.

 

Even in relation to Mr Collins’s arguments on Order 25 and Order 34, heavy emphasis is put on the existence of disputed facts in the case, and on certain cases which have decided that in such circumstances no preliminary issue ought to be directed.

 

As far as Order 25 and Order 34 RSC are concerned, there is not much relevant distinction in my view. Each rule enables a Court to direct the disposal of a point of law. Order 25 would appear to enable a party to make an application for the hearing of a preliminary issue on a point of law, while Order 34 appears to empower the Court, perhaps of its own motion, to so direct. The case law to which I have been referred would appear to have equal application to either rule.

 

The question of there being disputed facts is a central question in the cases referred to. For instance, in Kilty v. Hayden [1969] IR 261, O’Dalaigh CJ stated at p. 266:

 

“I am satisfied that the procedure laid down under Order 25, r. I corresponds to the old hearing on a demurrer, and may not be availed of where the facts giving rise to the point of law are in dispute between the parties. For the reasons stated I would allow the appeal”.

A similar view has been expressed subsequently by McMenamin J. in Murray v. Fitzgerald [2009] IEHC 101 where at paragraph 27 of his judgment where he refused to direct a preliminary issue to be tried, he stated:

“27. In the instant case I find that there are facts in dispute, and further that there is no agreement on facts.” [emphasis added]

In similar vein, Dunne J reviewed the case law on this point in her judgment in Tritton Development Fund Limited v. Markin A.G. [2007] IEHC 21, and set forth a number of key principles. Firstly, the purpose of directing such an issue to be tried is to achieve a saving in court time and costs. Secondly, that this should be done only in exceptional cases, particularly where there are mixed issues of law and fact involved in the preliminary issue. Thirdly, she expressed the view that the authorities seemed to indicate that a preliminary issue should be directed only when whichever way it is decided it is conclusive of the whole matter. In that case, she went on to state that while the issue was a very important aspect of the cases between the parties and at the heart of the case> she went on to state:

“It may be fair to say that it would be conclusive of the case if determined in favour of the defendant, but given that it forms such a central part of the case between them it does not appear to me to be a suitable issue to be dealt with in the manner suggested. ”

In Nyembo v. Refugee Appeals Tribunal [2007] IESC 25, Denham J. (as she then was) stated:

“In this case there are contested facts which are relevant to the issues of law. There is no agreement on the facts. Nor are the facts conceded for the purpose of the preliminary issues. In such circumstances it is not appropriate, practical or convenient to have preliminary issues of law determined. It is well settled in law that where there are disputed facts an application for the hearing of a preliminary issue cannot succeed. In all the circumstances, also, I would merely reflect that, as Lord Evershed MR. pointed out, the attempted short cut turns out to be the longest way. I would allow the appeal. ” [emphasis added]

Mr Collins in his written submissions has referred to much older authority also, namely the judgment of Jessel MR in the Court of Appeal in Emma Silver Mining Company Limited v. Grant [1879] 11 Ch D 918 where he stated as follows:

“In a cause of this kind my opinion is that the judge must have some evidence which will make it at least probable that the issue will put an end to the action. The plaintiff is not to be harassed at the instance of the defendant by a series of trials, each trial taking issue on every link of the plaintiff’s case. That is not the meaning of the rule as I understand it, but it may properly be applied in such a case as that I have stated, where the Judge has serious reason to believe that the trial of the issue will put an end to the action. ”

Finally, I would refer to a passage from the judgment of O’Higgins CJ in Tara Exploration and Development Limited v. Minister for Industry and Commerce [1975] IR 242 where dealing with an application under Order 34, r. 2 RSC he stated:

“The infrequent use of this procedure may be explained by the restricted field in which it can operate. First of all, there must be a question of law which can be identified amongst the issues in the action. Further this question of law must be such that it can be decided before any evidence is given. If special facts have to be proved or if facts are in dispute the rules do not apply. In addition, it must appear to the court to be convenient to try such question of law before any evidence is given. This will involve consideration of the effect on the other issues in the case and whether its resolution will reduce these significantly or shorten the hearing. Convenience in this respect must also be considered in the light of what appears fair, proper and just in the circumstances. ”

It seems to me in the present case that there is certainly an identifiable question of law, namely whether there is any duty of care owed to a member of the public such as the plaintiffs in relation to the investigating of a complaint, and if not, whether, the fact that Paul Smyth was himself a member of An Garda Siochana, makes any difference. It seems also that it is purely a question of law which can be tried before any evidence is given, especially in the light of the concession by the defendant for the purpose of the issue of the facts pleaded by the plaintiffs in support of their claims. I have no doubt given the nature of the claims, that there will be a significant saving in terms of costs and court time to have those questions determined in advance of any full hearing on the facts. Were it not for that concession by the defendants this would not be a suitable case, as facts are in dispute.

I am particularly persuaded by the extract from the judgement of Denham J. (as she then was) in Nyembo where it is clear a concession of facts for the purpose of the issue will get over the difficulty presented by disputed facts. The rules themselves are silent as to the effect of disputed facts on the success of an application. Nevertheless it makes perfect sense that as a matter of practicality it is not appropriate that an issue be directed where facts are in dispute, as often the legal issue will be dependent on a resolution of at least some of those facts and evidence would have to be heard. In such circumstances it is hard to see how any great savings in terns of time and costs would be achieved.

 

As to whether it is necessary before an issue is directed that the issue should be one which, whatever way it is decided, will bring an end to the proceedings, it is worth noting again that in Order 34, rule 2 RSC the Court may order an issue to be tried and also that “all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed” [emphasis added]. That suggests that the aim of it bringing of the proceedings to an end is not an absolute one. Clearly, from the authorities above, it is highly desirable that there be a reasonable possibility that the entire proceedings would be brought to an end. But it would be a rare case indeed in my view that a point of law, whichever way it is decided, would end the proceedings. The most usual point of law which is tried as a preliminary issue is where a defendant pleads the Statute of Limitations in a personal injury action. Unless it is a state of knowledge type case, the issue is relatively simple, but it could not be said that whatever way it is decided the proceedings will be at an end. Clearly it will be at an end only if the defendant is successful.

 

In the present case, the proceedings will be at end in the event that the defendant succeeds on the point of law, as in that case there will be no cause of action known to the law arising on the pleadings. Mr McDermott has opened a considerable body of case-law which would be in favour of the defendant’s case on the issue in question. In fact, Mr Collins has referred to no case where such a duty of care in negligence has been found to exist on the part of An Garda Siochana, or in any other jurisdiction. That is not to say that the plaintiffs may not seek to break new ground, and that will be their task. I think even they would accept that the mountain they must ascend is a steep one. In such circumstances I feel it is reasonable to conclude that the issue in question has at least a possibility of ending these proceedings, and I would go so far as to say a probability. I apply these comments as much to the case of Paul Smyth as to that of Philip Smyth. Nevertheless, the Court remains open to persuasion in due course. But it is an exceptional case, made easier by the fact that the defendants have made the essential concession for the purpose of the trial of the issue that they will accept the facts as pleaded by the plaintiffs in their Statement of Claim, thereby allowing the Court to take the plaintiffs case at its highest when determining whether there is any legitimate cause of action at all on those facts.

 

I will therefore make an appropriate order for the trial of those issues identified in relation to the absence of a duty of care, and if necessary hear Counsel in order to agree the precise terms of the order.

 

 

 

 

 

McCabe v. Ireland

[1999] IESC 52; [1999] 4 IR 151; [2000] 1 ILRM 410 Lynch J

 

6. Counsel for the Plaintiff submitted:

 

 

1. One cannot try a preliminary issue of law in vacuo. One must first establish the facts to see what if any relationship of proximity existed between the plaintiff and the defendants.

 

2 In order to establish such facts, discovery of documents is necessary and the learned High Court Judge was wrong to postpone the question of discovery until the trial of the preliminary issue or thereafter.

 

3 If discovery at this stage is necessary then there will be no benefit in the way of a saving of costs by ordering a preliminary issue: in those circumstances the more practical approach is to let the case go on as a full trial.

 

7. Counsel for the Respondents submitted:

 

 

1. The Respondents stand or fall on Order 25 Rule 1 and do not rely on Order 34 Rule 2 which was also referred to in the Notice of Motion.

 

2 There are no facts in dispute to hinder the determination of the preliminary point of law which is raised by the defence.

 

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3 Many leading cases have been decided on preliminary issues of law such as: M’Allister (or Donaghue) v. Stevenson [1932] AC 562 aparo Industries Plc v. Dickman & Ors [1990] 1 All ER 568 Wv. Ireland (No 2) [1997] 2 IR 141

 

8. In his submissions, Counsel relied in particular on the last mentioned case.

 

 

4 It is appropriate to postpone any question of discovery until the preliminary issue of law has been determined and in this regard Order 31 Rule 19 supports the course taken by the learned High Court Judge.

 

Conclusions

 

9. Order 25 of the Rules of the Superior Courts reads as follows:

 

 

“1 Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial, provided that by consent of the parties, or by Order of the Court on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.

 

2 If in the opinion of the Court, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set off counterclaim, or reply therein, the Court may thereupon dismiss the action or

 

make such other order therein as may be just.”

 

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A preliminary issue of law obviously cannot be tried in vacuo: it must be tried in the context of established or agreed facts. The facts relevant to the preliminary issue must not be in dispute, but they may be agreed for the purposes of the preliminary issue of law only without prejudice to the right to contest the facts if the actual determination of the preliminary issue should not dispose of the matter at issue. The facts must be agreed or the moving party must accept, for the purposes of the trial of the preliminary issue which he raises, the facts as alleged by the opposing party. In Kilty v. Hayden [1969] IR 261 at page 265 O’Dalaigh CJ said:

 

“When Order 25 is contrasted with Order 36 it becomes clear that Order 25 is not providing for the separate trial of issues which are partly of fact and partly of law, but for the separate trial of a net point of law dissociated from issues of fact, that is to say, the point of law must arise on the basis of the facts being as the opposing party in his pleadings alleges them to be.”

 

10. I would uphold the decision of the learned High Court Judge in directing the trial of preliminary issues of law as already quoted at the outset of this judgment. The preliminary issues will be tried on the basis that for the purposes thereof but no further the averments in the Plaintiffs statement of claim are true including the allegations of want of care on the part of the Respondents. I would also uphold the learned High Court Judge’s postponement of an order for discovery of documents to be dealt with by the High Court Judge trying the preliminary issues.

 

 

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