Supporting Documents:
 82-18 Rspntdts Notice.pdf  82-18 AFL.pdf
THE SUPREME COURT
DETERMINATION IAN BAILEY PLAINTIFF AND
THE COMMISSSIONER OF AN GARDA SÍOCHÁNA
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
IRELAND AND THE ATTORNEY GENERAL DEFENDANTS
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court does not grant leave to the Applicant / Plaintiff to appeal to this Court from the Court of Appeal
REASONS GIVEN:
ORDER SOUGHT TO BE APPEALED
| COURT: Court of Appeal |
DATE OF JUDGMENT OR RULING: 26th July, 2017 and 14th March, 2018 and 18th April, 2018 |
DATE OF ORDER: 18th April, 2018 |
DATE OF PERFECTION OF ORDER: 9th May, 2018 |
THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 5th June, 2018 AND WAS IN TIME. |
Reasons given
Background
1. The applicant/plaintiff (hereinafter referred to as the Applicant) commenced proceedings on the 1st May, 2007 by plenary summons claiming damages and aggravated damages in respect of a number of alleged torts central to which was an allegation that members of An Garda Síochána engaged in a conspiracy to injure his reputation and to violate his constitutional rights in the investigation of the murder of Madame Sophie Toscan du Plantier on the 22nd/23rd December, 1996. The allegations included that An Garda Síochána engaged in a conspiracy to procure statements, which would incriminate the plaintiff from a number of persons including a Ms. Marie Farrell. The proceeding ultimately came on for trial in the High Court before Hedigan J. and a jury on the 4th November, 2014. Many witnesses were called by the respective parties. On Day 60 of the trial the respondents/defendants (hereinafter referred to as the Respondents) made an application that the claim be withdrawn from the jury primarily on the grounds that all or almost all of the Applicant's claim was statute-barred. Submissions were heard and on Day 62 the trial judge ruled that certain of the claims were statute barred or for other reasons were not capable of being pursued and accordingly were not permitted to go to the jury. The trial judge further ruled that whether the alleged conspiracy by named Gardaí to implicate the Applicant in the murder of Ms. Toscan du Plantier by obtaining from Ms. Farrell statements they knew to be false happened or not was a matter for the decision of the jury; further, it was a continuing cause of action and not statute-barred and that two identified questions remained for determination by the jury. The jury answered each of the relevant questions in the negative and the plaintiff's claim was dismissed. Ultimately, three judgments were delivered by the Court of Appeal and the Applicant seeks leave to appeal those three judgments to this Court.
The first of the judgments was delivered by the Court of Appeal on the 26th July, 2017 and rejected the Applicant's appeal against the ruling of the High Court to the effect that the bulk of his case, aside from two distinct issues was statute-barred. The issues concerned are relating to allowing the Respondents to bring a non-suit application at the close of their own case and to raise the issue of the statute of limitations at that stage "for the first time" and secondly to withdraw all aspects of his claim based on an overarching conspiracy, from the jury, save the two specific issues.
The Applicant also seeks to appeal from the decision of the Court of Appeal of the 14th March, 2018 to the effect that the Court of Appeal was entitled to revisit and reverse that part of its previous final judgment, which had been decided in his favour.
Finally the Applicant seeks to appeal from the decision of the Court of Appeal of the 18th April, 2018 to award to the Respondents the entire costs of the trial in the High Court and its consequent refusal to award him his costs of the action. The Applicant contends that a tactical decision was made by the Respondents which resulted in the jury trial running for some sixty four days.
Insofar as it is said that a number of points of law of general public importance arise, the first point raised on behalf of the Applicant concerns the question as to whether deferring an application for a non-suit by the State defendants, which included invoking the statute of limitations, until the close of the defence evidence can constitute an abuse of process, particularly in the context of a trial by judge and jury. It is clear from the judgment of the Court of Appeal that the statute of limitations defence had been pleaded from the outset of the case and there was nothing to suggest that the statute was not relied on by the defendants at any time during the course of the proceedings. As was noted by the Court of Appeal in its judgment, given the complexity of the case, "The question of whether and if so, to what extent, the claim was statute-barred did not lend itself to easy adjudication in advance of the Court hearing all the relevant evidence". Accordingly the Court of Appeal concluded that it was not unfair to permit the State defendants to raise the application of the statute at that time. It is clear that this issue was decided in accordance with well established law and principles and the only unusual feature was the fact that the trial was such a lengthy one. It is to be noted that although much of the Applicant's claim was struck out on the grounds that it was statute-barred, some aspects of the Applicant's claim did go to the jury. In the circumstances this issue does not give rise to any issue of law of general public importance such as would justify an appeal to this Court.
2. The second issue raised concerns the nature of the tort of conspiracy and a submission that the general public interest would be served by a definitive ruling on the precise parameters of the tort of conspiracy. The issues in this regard are very much tied up with the facts of the case and a contention that the “overarching conspiracy” should have been left to the jury. No requisition was raised at the trial by the applicant as to any deficiency in relation to the definition of conspiracy. In the circumstances, the issues raised in this regard do not meet the constitutional threshold required for the purpose of permitting a further appeal to this Court.
3. The third issue raised on behalf of the Applicant concerns the circumstances in which a Court of Appeal judgment may be reconsidered and set aside. This issue arose in circumstances where the Court of Appeal accepted its judgment of the 14th March, 2018, acknowledged an error in paragraph 50 of the judgment of the Court of Appeal in these proceedings on the 26th day of July, 2017. The Applicant has submitted that the general public interest would be served by this Court providing definitive guidance on the extent to which the Court of Appeal may consider one of its own previously decided judgments prior to final orders being drawn up. It is somewhat surprising that this is raised as an issue said to give rise to the necessity of an appeal on the grounds of the general public interest in circumstances where the parties agreed that the Court of Appeal did have jurisdiction to revisit an issue decided in a written judgment before the order envisaged by the judgment was drawn up and perfected. It is the case that there was some dispute as to the criteria to be applied and the threshold to be reached before the Court of Appeal would exercise the jurisdiction to revisit the decision made. However, it is clear that the decision of the Court of Appeal in this respect applied well established law and principles and accordingly, this issue does not give rise to any issue of law of general public importance such as would justify an appeal to this Court.
4. The final issue in relation to which the Applicant seeks leave to appeal relates to the order made on the 18th April, 2018 to award to the Respondents the entire costs of the trial in the High Court and its refusal to award him costs of the action. It is clear that the question of costs is a matter within the discretion of the trial judge and in the Court of Appeal. There is no suggestion to the effect that the Court of Appeal in its order departed from the well established principles and law in relation to an award of costs. In essence the complaint made is that in circumstances where the decision to apply for a non-suit on the grounds of the statute of limitations was made at the close of evidence in the trial after some sixty days or so require that there should be further consideration of the extent to which it is just and equitable to require the Applicant to pay for the consequences of the Respondents' tactical decision in this regard. Given that this Court has already concluded that it is not necessary to permit an appeal to this Court in relation to the timing of that application it is difficult to see any basis for permitting an appeal to this Court solely on the costs. This is particularly so in circumstances where there is nothing to indicate that the Court of Appeal in making its order for costs departed from long established principles in relation to the making of an order of costs.
The Court is further satisfied that it cannot be said to be in the interests of justice to permit a further appeal in this case on the grounds raised. Accordingly, this application for leave to appeal will be dismissed.
AND IT IS HEREBY SO ORDERED ACCORDINGLY
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