LM v Garda Commissioner; Lockwood v Ireland: full hearing ordered in duty of care cases

GardaStock2_250_250_s_c1As a general rule, trial on a preliminary issue should either terminate the claim altogether or result in an obvious saving of cost and time; it should also raise a clear issue to which it is possible to give a clear answer. However, a court is entitled, on the hearing of the preliminary issue, to consider if it is an appropriate case for determination by this procedure; and it is still be open to the court to revert to a full trial, where the hearing of the preliminary issue does not provide a clear and unequivocal answer to the issue which would dispose of the case.

Background

In 1990, at twelve years of age, LM made a formal complaint of rape against her father to the gardai. An examination at Crumlin Children’s Hospital validated her claim. However, gardai took no further action for six years. The accused was tried and convicted thereafter. But the Court of Criminal Appeal overturned that conviction and ordered a retrial. The accused then brought  successful judicial review proceedings to have his prosecution prohibited on grounds of blameworthy prosecutorial delay. In 2004, LM issued High Court proceedings against the Garda Commissioner (and others) seeking damages for negligence, breach of her constitutional rights and breach of her ECHR rights.

Lockwood issued High Court proceedings in May 2006 seeking damages for alleged negligence and breach of duty by gardai in the investigation of a rape case in which she was the complainant. The rape was perpetrated in July 1999. Gardai arrested the suspect, JW, under the common law power of arrest for rape, and JW made admissions while in custody.  The case came to trial in the Central Criminal Court in May 2003. However, the trial judge held that, as the Gardai’s common law power to make an arrest for a felony was abolished by s 3 of the Criminal Law Act 1997, JW’s arrest was illegal and a breach of his constitutional right to liberty. And even though an arrest would have been legal under s 4 of the Criminal Justice Act 1984, the gardai did not exercise that power at the time. Therefore the statements made in custody were inadmissible (DPP v Kenny). The DPP’s case collapsed.

High Court

Both cases proceeded at what O’Donnell J stated was “a pace which could charitably be described as leisurely”. Eventually, though, both cases came to trial: Lockwood in December 2010 and LM in January 2011. And both were dealt with by way of trial on a preliminary issue of whether the Gardai owed a private law duty of care in the investigation and prosecution of crime. In Lockwood, Kearns P held, on public policy grounds, that Gardai owed no such duty and dismissed Lockwood’s proceedings. In LM, Hedigan J dismissed proceedings and held that, on the facts of the case, on the authority of W v Ireland (no 2) [1997] 2 IR 141 and on the persuasive authority of Hill v The Chief Constable for West Yorkshire [1989] AC 53, that Gardai owed no public law duty of care to LM and that the decision was consistent with Lockwood. Both lodged appeals to the Supreme Court.

Supreme Court

As they raised similar issues of law, the Court heard both cases together. And it had to consider a number of points of appeal:

  1. that the High Court was incorrect to find that the defendants did not owe a private law duty of care in the investigation and prosecution of crime;
  2. appeals against the High Court decisions to dispose of the trials on a preliminary point of law; and,
  3. an appeal against the dismissal of proceedings without hearing argument on whether the appellants had a claim for a constitutional tort or for breach of their Convention rights.

Writing for the Court (here) O’Donnell J held on the first issue that, although the facts of these cases could be distinguished from W v Ireland, from Hill and from each other, although there has been considerable development on the law regarding the duty of care owed by public bodies in other common law jurisdictions, and even though the courts may be required to amend the law in this area due to the “controversial” ECtHR decision in O’Keefe v Ireland (2014) 59 EHRR 15, these cases were so inadequately argued and prepared that a decision on such a significant point of law could not be supported by these cases [42].

On the second issue, O’Donnell J held that, given the circumstances, the Court could not permit an extension of time to appeal the decision to hear a preliminary issue [33].

However, on the third issue, O’Donnell J stated:

34. However, I also consider that a court is entitled, on the hearing of the preliminary issue, to consider if it is an appropriate case for determination by this procedure. If, for example, the court proceeded to hear and seek to determine the preliminary issue after a full and elaborate argument, it would, as I conceive it, still be open to the court to conclude that in the light of the arguments and the matters advanced, that it was not possible to give the sort of clear and unequivocal answer to the issue which would dispose of the case or any issues in the case. Therefore, the case should proceed to trial to have issues of law determined in the concrete and precise circumstances of an individual case.

As the High Court had dismissed these cases without fully considering either the Convention or constitutional issues [39-40], and finding that “the determination of the preliminary issue in these cases is an inadequate and inappropriate vehicle for the determination of the important issues raised”, the Court set aside the High Court orders and returned both cases for full hearing.

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  1. 3 New Appeals: should High Court have dismissed actions, as settled in Courts of Northern Ireland, as a preliminary issue? | scoirl

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