Court allows appeal against strike-out against Garda but dismisses appeal against HSE for lack of reasonable cause.

THE COURT OF APPEAL

Record Nos. 2016/311

2016/365

Ryan P.

Finlay Geoghegan J.

Hogan J.

Between

VK

Plaintiff

and

MW, BW, Health Service Executive and JWG

Defendants

Judgment delivered by Ms. Justice Finlay Geoghegan on the 9th day of February 2018

1. This judgment is given in two appeals brought against two separate orders of the High Court made by different judges on two

distinct motions of the second and third named defendants respectively. The first appeal is from an order made by Binchy J. on the

13th June, 2016 on a motion issued on the 2nd March, 2016 on behalf of the second named defendant. The second is against an

order of O’Regan J. made on the 27th June, 2016 on a motion issued on the 15th January, 2016 on behalf of the third named

defendant.

2. The plaintiff is the estranged husband of the first named defendant (“the mother”) and the father of the fourth named defendant

(“the daughter”). The second defendant (“Garda White”) is a garda who was involved in the investigation of a written complaint made

by the mother on the 11th September, 2007 in relation to allegations of sexual assaults allegedly perpetrated by the plaintiff on the

daughter, then five years old, during the Christmas period of 2006. Garda W. was also the garda who arrested the plaintiff on the

15th September, 2009 which forms part of the plaintiff’s complaints in these civil proceedings.

3. The principal reliefs sought in the motion issued on behalf of Garda W. on the 2nd March, 2016 were:

1. An order pursuant to O.19, r.28 of the Rules of the Superior Courts dismissing or striking out the within

proceedings instituted by the plaintiff as against the second named defendant by reason that the plaintiff's

pleadings disclose no reasonable cause of action as against the second named defendant.

2. An order pursuant to the inherent jurisdiction of this honourable court, dismissing or striking out the within

proceedings instituted by the plaintiff as against the second named defendant by reason that the plaintiff’s action

as against the second named defendant is clearly unsustainable and bound to fail.

4. The application was grounded upon an affidavit of Garda White. The order of the High Court does not identify how many affidavits

were filed by the plaintiff in response to the motion of Garda W. but it appears from the book of appeal and the filings recorded in the

High Court that there were one or more affidavits filed by the plaintiff in this motion including one of the 11th April 2016.

5. The order made on Garda White’s application was an order both pursuant to O.19, r.28 and pursuant to the inherent jurisdiction of

the Court that the plaintiff’s claim against Garda W. be dismissed “by reason that the plaintiff’s pleadings disclosed no reasonable

cause of action as against the second named defendant and that the plaintiff’s action as against the second named defendant is

clearly unsustainable and bound to fail”.

6. Binchy J. having read the papers and heard oral submissions gave a short ruling in which he stated:

“I have read the papers and I will deal with this motion. I have read the affidavits in this case and the very detailed

particulars of the complaints made by [the plaintiff]

I am of the opinion that as far as the complaints relate to the gardaí they are no more than that the garda investigation

may have been one-sided or may have taken too long. Neither would give rise to a cause of action. For that reason

Garda W. is entitled to the order sought. In my view this claim has no prospect of success against the gardaí. They do

not amount to allegations that Garda W. had acted maliciously.

I am satisfied that no cause of action was made out as against Garda W.

I am quite satisfied to dismiss the action as against Garda W. pursuant to Order 19, Rule 28 on the basis that the

pleadings do not disclose any reasonable cause of action against Garda W. Moreover, if my view was incorrect on that

basis, I have conducted an analysis of the pleadings and it is an appropriate case also to dismiss the action as against

Garda W. pursuant to the inherent jurisdiction of the High Court, on the basis that I am satisfied that the plaintiff’s

action as against Garda W. is bound to fail.”

7. The motion issued on behalf of the third named defendant (“the HSE”) similarly sought orders dismissing and/or striking out the

plaintiff’s claim against the HSE both pursuant to O.19, r.28 of the Rules of the Superior Courts and in the alternative pursuant to the

inherent jurisdiction of the Court.

8. The application of the HSE was grounded upon an affidavit of its solicitor Mr. Cunningham and again the plaintiff filed one or more

affidavits in reply unsworn copies of which are included in the book of appeal. Neither defendant made any objection to the unsworn

affidavits included in the book of appeal.

9. The order made by the High Court (O’Regan J.) on that application was simply an order dismissing the plaintiff’s claim against the

HSE. The ruling given by O’Regan J. on the application was in the following terms:

“I have read the papers and particularly the pleadings of this action. I have read the affidavits and listened to both

sides.

Having considered the matter it seems to me that the plaintiff’s claim must be dismissed.

If there was any concern with regard to the investigation of complaints that may have been a matter in respect of a

judicial review application. No such application was made and it is long since statute barred.

In relation to the plaintiff’s complaints in the within plenary proceedings they do not disclose a cause of action that can

succeed. Such bodies carry out their normal functions and there is no claim of malice. In the circumstances the

plaintiff’s claim against the HSE is bound to fail.

…”

10. Prior to considering the pleadings relevant to each of Garda W. and the HSE and where permissible the relevant the facts deposed

to on affidavit it appears necessary, having regard to the rulings given by each of the High Court judges, to briefly refer to the

alternative jurisdictions they were being asked to exercise on these motions and the law relating thereto. Whilst is it common for

defendants to bring an application to strike out an action pursuant to O.19, r.28 or in the alternative pursuant to the inherent

jurisdiction of the court there are important differences which must be considered by any judge considering such an application.

11. In McGreal v. Whyte [2016] IECA 365 Irvine J. (with whom Peart J. and Stewart concurred) summarised the distinction between

the two jurisdictions succinctly at para. 28 where she stated:

“28. The court’s inherent jurisdiction to dismiss a claim as bound to fail is somewhat different for the jurisdiction of the

court to dismiss proceedings under Ord.19 r.28 of the Rules of the Superior Courts. While an application under Ord. 19 r.

28 has as its foundation stone a contention that the claim as pleaded does not disclose a cause of action, the court’s

inherent jurisdiction may be invoked where it can be demonstrated that there is no arguable basis in law and in fact for

the claim made.”

Striking Out Proceedings Pursuant to Order 18, Rule 28

12. Order 19, rule 28 provides:

“The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or

answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or

vexatious, the Court may order the action to be stayed or dismissed, or judgement to be entered accordingly, as may

be just.”

13. It is well established that the jurisdiction pursuant to O.19, r.28 to strike out pleadings or an action is one which a court should

be slow to exercise and exercise with great caution. Further the application must be considered by reference to the pleadings alone.

As put by Costello J. in Barry v. Buckley [1981] I.R. 306 at 308 “the Court can only make an order under this rule when a pleading

discloses no reasonable cause of action on its face”. The position appears to be similar even if the application is grounded upon a

contention that the pleading is “frivolous or vexatious”. In McCabe v. Harding [1984] ILRM 105 O’Higgins C.J. at 108 stated that in

order for r.28 to apply “vexation or frivolity must appear from the pleadings alone”.

14. The application is decided on an assumption that the statements of fact in the statement of claim are true and will be proved at

the trial, Aer Rianta cpt v. Ryanair Limited [2004] 1 I.R. 506 per Denham J. at 509.

15. The caution or restraint which should be exercised by a court in such an application is emphasised by long accepted principle that

an action should not be struck out on an application made pursuant to O.19, r.28 if the pleading can be rectified by an amendment.

This derives from an observation by McCarthy J. in the Supreme Court in Sun Fat Chan v. Osseous [1992] 425. That was an

application pursuant to the inherent jurisdiction of the Court and not O.19, r.28. In considering the earlier judgment of Costello J. in

Barry v. Buckley in the High Court McCarthy J. at p. 425 stated:

“By way of qualification of the jurisdiction to dismiss an action at the statement of claim stage, I am inclined to the view

that if the statement of claim admits of an amendment which might, so to speak, save it and the action founded on it,

then the action should not be dismissed.”

16. Whilst that observation was probably obiter on the facts of that appeal it is a principle which has been consistently subsequently

applied both in applications pursuant to O.19, r.28 and pursuant to the inherent jurisdiction of the Court. It forms part of the general

approach that these are jurisdictions which a court should be slow to exercise and exercise caution when doing so. This approach is

consistent with the constitutionally protected right of access to the courts whilst protecting the position of defendants against whom

it is sought to make a claim which in truth is not justiciable.

Striking Out Pursuant to the Inherent Jurisdiction of the Court

17. Since the judgment of Costello J. in 1981 in Barry v. Buckley it has never been in doubt that apart from O.19, r.28 the Court has

an inherent jurisdiction to strike out or as sometimes stated to stay an action “if it is clear that the plaintiff’s claim must fail”. It is

also well established that unlike on an application pursuant to O.19 r. 28 that in exercising its inherent jurisdiction the court is

permitted to consider affidavit evidence and exhibited documents and is not confined to a consideration of the pleadings.

18. As was stated in Barry v. Buckley this jurisdiction exists “to ensure that an abuse of the process of the courts does not take

place. So, if the proceedings are frivolous or vexatious they will be stayed. They will also be stayed if it is clear that the plaintiff’s

claim must fail”.

19. However as Barry v. Buckley makes clear and has been constantly repeated in subsequent judgments this jurisdiction “should be

exercised sparingly and only in clear cases”.

20. Clear cases include those where there is no dispute as to the relevant facts. Several judges have referred to the jurisdiction being

peculiarly appropriate to actions for the enforcement or construction of contracts: Sun Fat Chan v. Osseous Limited [1992] I.R. 425,

425 and Jodifern Limited v. Fitzgerald [2000] 3 I.R. 321 per Keane J. at 326.

21. A claim will be struck out where on admitted facts or undisputed evidence it is clearly unsustainable or bound to fail. However, it

is also well established that insofar as there is a conflict of fact this must be resolved in favour of the party against whom the

application to strike out has been brought. As put by Clarke J. in the High Court in McCourt v. Tiernan in considering whether to strike

out a claim in the exercise of its inherent jurisdiction the Court “must treat the plaintiff’s claim at its high watermark”. Any disputed

averments or facts must be assumed in favour of the plaintiff.

22. In Jodifern Limited v. Fitzgerald Murray J., (as he then was) delivering a concurring judgment with that of Keane J. (as he then

was ) having referred to the principle that the jurisdiction should only be exercised sparingly and in clear cases added the following at

p.334 which I consider to be of assistance to the resolution of this appeal.

“The reason for such caution is self-evident. The making of an order staying or dismissing the proceedings on the basis

of such inherent jurisdiction deprives the plaintiff of access to the courts for a trial of his or her action.

The object of such an order is not to protect a defendant from hardship in proceedings to which he or she may have a

good defence but to prevent the injustice to a defendant which would result from an abuse of the process of the court

by a plaintiff. Clearly, therefore, the hearing of an application by a defendant to the High Court to exercise its inherent

jurisdiction to stay or dismiss an action cannot be a form of summary disposal of the case either on issues of fact or

substantial questions of law in substitute for the normal plenary proceedings.

For this reason, a primary precondition to the exercise of this jurisdiction is that all the essential facts upon which the

plaintiff's claim is based must be unequivocally identified. It is only on the basis of such undisputed facts that the court

may proceed.

Moreover, and this is the aspect I wish to emphasise, where all the essential facts have been so identified, it must also

be manifest that on the basis of those facts the plaintiff's case has no foundation in law…”

23. Where, as here a single motion includes applications for an order striking out a plaintiff’s claim pursuant to O.19, r.28 and in the

alternative pursuant to the inherent jurisdiction of the court, and affidavits are filed as occurred here the differences set out above

may in practice become blurred. Affidavit evidence and indeed often submissions in such affidavits will inevitably be before the court.

However a court should nevertheless consider the O.19, r.28 application by reference to the pleadings alone and not evidence.

Normally an O.19, r.28 application is first considered. Hence it is unlikely that a court will be required to consider the inherent

jurisdiction application unless it forms the view that the cause of action as currently pleaded (or with an identified amendment)

discloses or would disclose a reasonable cause of action in the sense of one know to the law.

24. Particular difficulties arise in hearing such combined applications to strike out where the plaintiff is a litigant in person, the claim is

not properly pleaded and the affidavits filed are not confined to factual averments. That was the position in these proceedings.

Nevertheless in exercising these jurisdictions in accordance with the caution emphasised in the case law it is incumbent on a court to

seek to identify the claim sought to be made by a plaintiff against the applicant defendant and then determine by reference to the

above principles whether the plaintiff’s action should be struck pursuant either to O.19, r.28 or the inherent jurisdiction of the court.

25. A plaintiff whose claim is struck out either pursuant to O.19, r.28 or pursuant to the inherent jurisdiction of the court as being one

which is bound to fail is entitled to be given reasons, perhaps shortly stated as to why the Court has determined that it is an

appropriate case in which the relevant jurisdiction to strike out the action at the stage of statement of claim should be exercised.

26. In the Court of Appeal, Kelly J. (as he then was) in Bank of Ireland Mortgage Bank v. Heron & anor [2015] IECA 66 said this of the

obligation of a High Court judge hearing a motion, in that instance an application for summary judgment, to give reasons:

“21. In English’s case Lord Phillips M.R. put it succinctly when he said:-

“The essential requirement is that the terms of the judgment should enable the parties and any appellate tribunal

readily to analyse the reasoning that was essential to the Judge’s decision.”

22. The majority of judgments in the High Court are delivered ex tempore. Such judgments cannot be expected to

include anything like the same degree of detail as might be expected in a reserved judgment. They do not have to be

discursive. But even an ex tempore judgment must comply with the essential requirement identified by Lord Phillips

namely, that it should enable the parties and any appellate tribunal readily to analyse the reasoning that was essential to

the judge’s decision.

23. The court is sympathetic to the predicament of a High Court judge faced with a lengthy motion list on every Monday

of the legal term. The present case was just such a motion listed on Monday the 1st December, 2014. But a judge

cannot be relieved of the obligation to set out briefly the principal reasons underlying a decision on that account. If a

judge is unable to deliver a judgment ex tempore because of the complexity of the facts or legal issues, then judgment

should be reserved. But it is never sufficient to do as was done in the present case and merely announce a decision

without giving any reasons for it.”

27. It does no appear that either short ex tempore judgment herein met the essential requirement” that it should enable the parties

and any appellate tribunal readily to analyse the reasoning that was essential to the judge’s decision”. Where a decision is to strike

out a plaintiff’s claim it is essential that reasons are given.

28. I now turn to consider each of the appeals individually and seek to apply the principles set out above to the applications and

orders made by the High Court.

Order to strike out claim against Garda W. pursuant to O.19 r.28

29. The plaintiff is a litigant in person. The claims in the statement of claim referable to the second named defendant are set out in

paras. 1, 2 and 27:

“1. That Plaintiff was called for interview by Defendant No. 2 Garda Brian W, Investigating Officer, for 15

September 2009 at Togher Garda Station, Cork. Plaintiff went to the Garda Station with his nephew and on arrival

Plaintiff was arrested and released after the interview. Plaintiff has strenuously denied the alleged allegations of

sexual abuse of his 4 year old daughter (Defendant No. 4). Plaintiff was photographed with the police case number

and finger prints were also taken. This was totally humiliating situation for the Plaintiff. Plaintiff’s life and reputation

has been destroyed. It is believed that Defendant No. 2 failed to inform Plaintiff that he was to be arrested on the

site of the Garda Station and under what section of Law.

2. That on 27 March 2010 Defendant No. 2 with another police officer visited Plaintiff’s home and informed that

Director of Public Prosecutions has decided that there should be “No Prosecution” and case is no more under

investigation.

…

27. That due to long investigation of 28 months (November 2007 to March, 2010) by Defendants No. 2 and 3

Plaintiff lost the parental connection to the child Defendant No. 4 having made several applications for visitation

rights.”

30. In addition at paragraph 36 of the statement of claim the plaintiff claims on the face of it against all four defendants a number of

reliefs. Insofar as is relevant to the potential claims against Garda W. at para. (i) he claims “damages, including exemplary and

punitive damages for the breach of the plaintiff right (sic) under the Constitution and under Common Law.

31. Finally in para. 37, the plaintiff pleads that he is a layman, not in a position to engage solicitor/barrister and requests inter alia

that “if there is any error technically and pedantically may it please be ignored”. He refers to requests for documents and asks

following inspection of documents that he may be allowed amend his statement of claim.

32. The motion to the High Court on behalf of Garda W. was grounded on his affidavit and as already indicated the plaintiff appears to

have filed at least one affidavit and possible more in reply to that motion. A defence had been filed on behalf of Garda W. prior to the

issue of the motion. In the defence Garda W. had pleaded as a preliminary objection that the “plaintiff’s pleadings herein do not

disclose a cause of action known to the law” against him and indicate an intention to request a dismiss of the action and strike out of

the pleadings.

33. In the affidavit filed by the plaintiff he expressly deals with the preliminary objection and states at para. 1 inter alia:

“Preliminary Objections

1. That plaintiff is a lay man; any mistakes technically or pedantically may please be ignored. Plaintiff has disclosed

cause of action in the plenary summons and the statement of claim to the best of his knowledge and belief, and

requests the Honourable Court to grant reliefs as claimed by him in the statement of claim or as deem fit by the

honourable Court;

(a) That Plaintiff was called for interview on 15 September 2009 and on arrival was wrongfully arrested

by the Second Named Defendant, the complaint of his estranged wife Manwant, the First Named

Defendant, on behalf of his daughter Jaz, the Fourth Named Defendant aged less than 4 years and 4

months old at the time of alleged incident, and the investigation by the Third Named Defendant HSE;

(b) That it is believed that Garda failed to inform the Plaintiff, he was to be arrested on the site of

Garda Station and under what section of Law;

(c) . . .

(d) . . .

(e) That it is believed; there was absolutely no reasonable cause to suspect that the Plaintiff was

guilty of an offence”

34. The plaintiff continues in his affidavit at para. 1 sub paras. (f). to (hh) to aver to a number of factual matters in addition to

making what are essentially submissions and indeed complaints intended to support his contention at para. 1. (e). that there was

“absolutely no reasonable cause to suspect” that he was guilty of an offence when arrested by Garda W. on the 15th September,

2009.

35. It is correct to observe that a High Court judge hearing an application such as that brought on behalf of Garda W. where the

plaintiff is a litigant in person and has not in the statement of claim pleaded a reasonable cause of action is faced with a particularly

difficult situation. There are obviously limits to the circumstances in which the court should consider or suggest an amendment which

would result in a cause of action being pleaded. However, depending on the facts and submissions it may be incumbent on a judge to

consider whether an amendment ought to be permitted even in the absence of an express application to amend. It does not appear

from the ruling of Binchy J. that he considered whether the plaintiff in these proceedings ought to be permitted to amend the

statement of claim in accordance with the principles which follow from the judgment of McCarthy J. in Sun Fat Chan v. Osseous and

which have been subsequently repeated and applied in many judgments.

36. On the facts before the High Court in this application it appears to me in accordance with the applicable principles that Binchy J.

ought to have considered whether or not an amendment should have been permitted to the statement of claim. The plaintiff had in

the statement of claim expressly pleaded that technical errors might be ignored, he had referred to a potential amendment albeit in

the context of disclosure of documents. In addition his affidavit filed in response to the motion expressly dealing with the preliminary

objection pleaded in the defence of Garda W. clearly evidences an intention to pursue as part of his claim against Garda While a claim

for wrongful arrest and detention and expressly asserts that there was no reasonable cause to suspect that the plaintiff was guilty of

an offence at the time of arrest.

37. I am aware in reaching this conclusion I have had regard to an affidavit filed on the motion and not only the statement of claim.

However the relevant portion of the affidavit is a response to a pleading, namely the defence of Garda W. If the plaintiff was legally

represented this might well have been an application to amend the Statement of Claim. In such circumstances it does not offend

against the requirement that the application under O.19.r. 28.

38. In accordance with Sun Fat Chan v. Osseous and having regard to the existing pleading of the plaintiff, the fact that he is a

litigant in person and having regard to the averments at para. 1 of the affidavit filed the High Court judge ought to have considered

whether if the statement of claim was amended to add a claim to the effect that the second named defendant had no reasonable

cause to suspect that the plaintiff had committed the offence of sexual assault of his daughter when he arrested him on the 15th

September, 2009 and hence the arrest was unlawful and the existing claim for damages for breach of the plaintiff’s rights under the

Constitution and Common Law were amended so as to specifically claim damages for wrongful arrest and false imprisonment it would

then disclose a reasonable cause of action. That was not done and it ought to have been done.

39. If such amendments or amendments to similar effect were made to the statement of claim and the relevant facts pleaded then in

my view it should be considered as disclosing a reasonable cause of action against Garda W. for damages for wrongful arrest and false

imprisonment. When I say a reasonable cause of action it is a cause of action known to the law but of course that does not mean

that it is a cause of action which as a matter of probability may succeed. That is not the test. In expressing this view I am not in any

way expressing a view that on the relevant facts the plaintiff would succeed against Garda White. However, in my view if such

amendments were made the statement of claim would disclose a reasonable cause of action in the sense used in the relevant

authorities.

40. I have taken into account that following the plaintiff’s arrest by Garda W. his detention pursuant to s.4(2) of the Criminal Justice

Act, 1984 (as substituted by s.9(b) of the Criminal Justice Act, 2006) was pursuant to a decision of the Member in Charge of the

Garda Síochána. However, it is not in dispute that Garda W. arrested the plaintiff and as pleaded at para.8 of the defence that he

“processed and interviewed the plaintiff”. It is arguable that the arrest by Garda W. is causative of the subsequent detention, that he

was under the control of Garda W. when arrested and presented for detention and was in custody of Garda W. while interviewed.

Hence I consider that a claim that the arrest leading to the detention was unlawful may be considered as disclosing a reasonable

cause of action for damages for wrongful arrest and false imprisonment against the person making the arrest. Accordingly in my view

the High Court judge ought not to have dismissed the plaintiff’s claim against Garda W. pursuant to O.19 r. 28. Rather he ought to

have permitted the plaintiff amend his statement of claim so as to plead unlawful arrest of the plaintiff by Garda W. on the 15th

September, 2009 on the grounds that at that date Garda W. had no reasonable suspicion that the plaintiff was guilty of an offence

and a consequent claim for damages for false imprisonment.

41. I have also considered whether the High Court judge ought to have permitted an amendment to the statement of claim so as to

plead that Garda W. was in breach of a duty of care owed to the plaintiff at common law either in relation to the arrest made on the

15th September, 2009 by failing to inform him in advance of the fact that he was to be arrested or by reason of the length of time

the investigation subsisted. On the facts pleaded I do not consider that even with a reasonable amendment the statement of claim

would disclose a reasonable cause of action against Garda W. for damages either for breach of a common law duty of care or

misfeasance in public office in circumstances where he is sued as a garda investigating a complaint of alleged sexual assault by the

plaintiff and either no malice is pleaded (expressly or by implication from the facts alleged) and similarly there is no pleading either

expressly or by implication from the facts that he knowingly or recklessly exercised a statutory power which he knew he did not

possess.

42. My conclusion on the appeal against the decision to strike out the proceedings against Garda W. pursuant to O.19, r.28 is that

the appeal should be allowed and that there should be an order permitting the plaintiff to amend the statement of claim so as to plead

a claim that the second named defendant had no reasonable cause to suspect that the plaintiff had committed an offence of sexual

assault of his daughter when he arrested him on the 15th September, 2009 and hence the arrest was unlawful and to add to the

existing reliefs sought a claim for damages for wrongful arrest and false imprisonment. In indicating the nature of the amendment

which I consider should be permitted it is not intended to preclude the inclusion in such amendment of the pleading of any facts which

may be necessary and relevant to that cause of action.

Order to Strike Out claim against Garda W. pursuant to the Inherent Jurisdiction

43. As appears from the ruling of Binchy J. having concluded there was no reasonable cause of action pleaded continued to consider,

in the alternative, if he was wrong in that conclusion, whether any such reasonable cause of action pleaded was one which on the

facts in the affidavits before him was bound to fail. The ruling of Binchy J. does not specifically identify the potential reasonable

cause of action against Garda W. which he considered was bound to fail. It appears from the ruling that it may have been a claim for

damages for misfeasance in public office as he referred to the absence of any allegation that Garda W. had acted maliciously. He does

not refer in his ruling to the arrest and detention in September 2009.

44. It therefore appears to me that the High Court judge did not consider and determine whether on the facts before him a claim by

the plaintiff against Garda W. for damages for wrongful arrest and false imprisonment on the 15th September, 2009 was one which

was bound to fail.

45. I do not consider that this Court should now in accordance with the authorities cited determine on the affidavit evidence before

the High Court on the motion brought on behalf of Garda W. that a claim for damages for false imprisonment based upon an alleged

unlawful arrest on the 15th September, 2009 is one which is bound to fail. I refer in particular to what was stated by Murray J. (as he

then was) in Jodifern set out above to the effect that “the essential facts upon which the plaintiff’s claim is based must be

unequivocally identified”. I do not consider that such essential facts are unequivocally identified in the evidence before the High

Court. This requirement forms part of the caution to be exercised by the Court on any such application

46. Garda White’s evidence at paragraph 9 of his affidavit in relation to the arrest is that he told the plaintiff that “on the basis of

reasonable suspicion that he had committed the offence of sexual assault” and that he was arresting him in relation to “the alleged

sexual assaults on his daughter”. Earlier in his affidavit he refers to:

i. A written and signed complaint made by the first named defendant in relation to allegations of sexual assault

allegedly perpetrated by the plaintiff on the fourth named defendant, received by him on 11th September, 2007.

ii. A referral on the same day to the third named defendant.

iii. The fact that the fourth named defendant was interviewed by Garda Specialist Child Interviewers on 25th June,

2009 and that he received a report of the interview of 16th July, 2009 and reviewed the recording of the

interviews.

47. He does not, however, exhibit in his affidavit any of the material received or of which he became aware.

48. Nowhere in his affidavit does Garda W. set out the facts available to him on 15th September, 2009 on the basis of which he

formed the stated reasonable suspicion. As appears from Walsh on Criminal Procedure (2nd Ed.) para. 5-40:

“… it would appear that the reasonable cause must be present at the time the arrest was effected. It will not be

sufficient that it arose subsequent to the arrest or had existed sometime before the arrest and had been dissipated by

the time the arrest was actually effected.”

49. Accordingly it does not appear to me that it can be said that the facts upon which the plaintiff’s claim is based are fully identified

and before the Court on the evidence adduced in the motion. The relevant information available to Garda W. on the 15th September,

2009 in relation to the complaint originally made in 2007 by the first named defendant and subsequently investigated by the HSE was

not before the High Court.

50. If I am wrong in that conclusion, and it is permissible in accordance with the principles set out above for this Court to now

consider whether the amended cause of action it proposes to allow be pleaded is one which is bound to fail then I regret that I am

unable to agree with the conclusion of the President in the judgment he has just delivered that a claim against Garda W. for damages

for false imprisonment based upon alleged unlawful arrest in September is one which on the evidence before the Court should now be

struck out bound to fail in exercise of the inherent jurisdiction in accordance with the principles set out above.

51. In the absence of the Court having before it the relevant information available to the second named defendant on 15th

September, 2009 in relation to the complaint originally made in 2007 by the first named defendant, and subsequently investigated by

the HSE it does not appear to me that it can be decided that it is a claim which is bound to fail. The affidavit of the plaintiff identifies

a large number of matters which he contends the second named defendant failed to take into account and which he contends

undermine the credibility of the complaint being made. The Court could not, in my view, accordance with the applicable principles

decide that the plaintiff’s claim that he was unlawfully arrested by Garda W. by reason of the absence of a reasonable cause to

suspect that he had committed the alleged offences of sexual assault on his daughter is one which is bound to fail. It would require

assessment at a trial of the evidence as to the information available to Garda W. in September, 2009 and decisions by a judge or jury

on questions of fact.

52. This appears to follow from the judgment of the Supreme Court in D.F. v. Garda Commissioner [2015] IESC 44. The first issue in

that appeal was whether the plaintiff was entitled to a trial by jury of his claim for false imprisonment following an arrest pursuant to

s. 12 of the Mental Health Act 2001. In the course of deciding that issue in the plaintiff’s favour Charleton J stated at para 14:

“The reality of this case is that the gardaí arrested him either in accordance with the legal power or not. These are

matters of fact. If the answer to those questions were in the affirmative, damages would not be assessed because the

arrest would be lawful. It would appear that were the answer to the jury questions in the negative as to the foundation

for the arrest, the jury would go on to assess damages”

53. Similarly in this case the question as to whether the arrest pursuant to s. 4(2) of the Criminal Justice Act 1984 was or was not

lawful is dependent on whether, in September 2009, the material available to Garda W. supports a reasonable cause to suspect that

the plaintiff was guilty of the alleged offences which is a question of fact to be determined either by a judge, or if a trial before a jury

is sought, by the jury. In either case it would require to be decided on evidence of all the information then available to Garda White.

Order to Strike out Claim against HSE

54. Regretfully neither the order made on 27th June 2016 nor the ruling of O’Regan J identifies whether the claim was struck out

pursuant to O. 19 r. 28 or the inherent jurisdiction of the court. The relevant paragraph of the ruling states:

“In relation to the plaintiff’s complaints in the within plenary proceedings they do not disclose a cause of action that can

succeed. Such bodies carry out their normal functions and there is no claim of malice. In the circumstances the

plaintiff’s claim against the HSE is bound to fail.”

55. It follows from the principles set out above that a High Court judge hearing an application to strike out proceedings on alternative

bases must make clear pursuant to which jurisdiction the decision is made and give, at minimum short reasons therefore. Insofar as

the judge decided the pleadings do not disclose a cause of action this appears to have been a decision pursuant to O. 19 r. 28. I

propose firstly considering the appeal against such decision to strike out.

56. Apart from complaints in relation to non production of documents which do not for the basis of a reasonable cause of action in the

plenary proceedings against the HSE the only identifiable complaint against the HSE which may be considered as forming the basis of

a cause of action is that pleaded at paragraph 27:

“That due to long investigation of 28 months (November 2007 to March, 2010) by Defendants No. 2 and 3 Plaintiff lost

the parental connection to the child Defendant No. 4 having made several applications for visitation rights.”

57. The plaintiff pleads that the investigation by the HSE followed on the complaint made by the mother to the Gardaí. The HSE in

conducting the investigation were doing so as a public authority in exercise of its statutory powers. Insofar as it is alleged that it was

doing so wrongfully (by reason of the length of time taken) then the currently recognised cause of action is that of misfeasance in

public office. However no such reasonable cause of action can be considered as pleaded on the facts in the statement of claim in the

absence of a plea of malice or of facts from which that might be inferred. Further there is no claim or facts pleaded to the effect that

the HSE in so delaying was acting in excess of jurisdiction.

58. Unlike the claim against Garda W. there are no averments in the affidavits of the plaintiff which required the High Court to

consider permitting an amendment to the statement of the claim to plead any other cause of action against the HSE which might be

considered as a reasonable cause of action including those next referred to.

59. I have had the opportunity of reading in draft the judgment about to be delivered by Hogan J. I agree that a “reasonable cause of

action” for the purposes O.19 r.28 is not necessarily confined to one already known to the law but may include one which arguably

may be established at the hearing. However, in such a case the statement of claim would, in my view, have to plead the facts and

matters intended to be relied upon in support of the new cause of action contended for such that the essence of the claim intended

to be made is identifiable and may be assessed by the court to determine if it is arguably a cause of action capable of being

recognised.

60. As identified by Hogan J. the question as to whether a body such as the HSE exercising a statutory jurisdiction should, in any

given factual context, be considered as owing a duty of care to a person who is the subject of an alleged child abuse investigation

such as to form the basis of an arguable claim for damages for negligence or breach of statutory duty is complex. It may remain to be

decided in this jurisdiction if such a claim were properly pursued. However I cannot, agree in this appeal that the plaintiff in the

statement of claim herein has pleaded facts or matters which arguably would support a claim that the HSE owed him a duty of care to

complete their part of the investigation within a reasonable time such that an alleged breach thereof could give rise to a claim in

negligence or for breach of statutory duty.

61. Accordingly I have concluded that the High Court was correct in striking out the claim against the HSE pursuant to O. 19 r. 28 as

it does not disclose a reasonable cause of action. This conclusion renders it unnecessary to consider the application of the HSE

pursuant to the inherent jurisdiction of the court.

62. Whilst for the reasons already stated, the ruling of the High Court was unsatisfactory and unfair to the plaintiff in the paucity of

reasoning. However that of itself does not warrant allowing the appeal. Accordingly the appeal against the order dismissing the

plaintiff’s claim against the HSE must be dismissed.

Relief

63. I would allow the appeal against the decision to strike out the proceedings against Garda W. pursuant to O.19, r.28. I propose

that the High Court order of 13th June, 2016 be vacated and that there be an order permitting the plaintiff to amend the statement

of claim so as to plead a claim that the second named defendant had no reasonable cause to suspect that the plaintiff had committed

an offence of sexual assault of his daughter when he arrested him on the 15th September, 2009 and hence the arrest was unlawful

and to add to the existing reliefs sought a claim for damages for wrongful arrest and false imprisonment. I would hear the parties on

the time to be allowed to the plaintiff to deliver an amended statement of claim.

64. The appeal against the order of 27th June, 2016 dismissing the plaintiff’s claim against the HSE must be dismissed

65. Finally, I would urge the plaintiff to seek professional legal advice and assistance prior to making the amendments permitted and

pursuing these proceedings.