Court of Appeal allows appeal against strike-out for one defendant but refuses it for HSE due to complex duty of care issues.

THE COURT OF APPEAL

Neutral Citation Number: [2018] IECA 290

Record No. 2016 No. 365

Ryan P.

Finlay Geoghegan J.

Hogan J.

BETWEEN/

V. K.

APPELLANT

- AND -

M.W., BRIAN WHITE, HEALTH SERVICE EXECUTIVE AND J.G.

RESPONDENTS

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 9th day of February 2018

1. The present appeals have been brought by the plaintiff, Mr. K., against two separate orders of the High Court made by two

different judges on two separate days in respect of two separate motions brought respectively by the second and third defendants in

these proceedings. In both instances the High Court agreed to strike out the proceedings pursuant to both Ord. 19, r. 28 and the

inherent jurisdiction of the Court. The plaintiff has appealed against both decisions.

2. I have had the opportunity of reading in draft the judgments which Ryan P. and Finlay Geoghegan J. have just delivered. I

gratefully adopt the summary of the facts contained in those judgments and this judgment assumes a familiarity with those facts.

3. I also entirely agree with comments of Finlay Geoghegan J. regarding the importance of differentiating between Ord. 19, r. 28 on

the one hand and the inherent jurisdiction of the Court on the other. While I do not wish to add unnecessarily to the heavy burdens

which already rest on the shoulders of High Court judges, I also agree with Finlay Geoghegan J. regarding the importance of giving

reasons in strike-out cases of this kind presenting issues of no little complexity.

4. I further agree with her that the appeal brought by the plaintiff in respect of the second defendant should be allowed for all the

reasons which she has given in her judgment. Since, however, I cannot agree with her conclusion that the case against the third

defendant should also be struck out pursuant to Ord. 19, r. 28 or the inherent jurisdiction of the Court, I am writing separately to

express my views on this discrete issue.

The claim against the HSE

5. The claim against the third defendant HSE is, in essence, that contained at paragraph 27 of the statement of claim:

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

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

6. As both Ryan P. and Finlay Geoghegan J. have explained in their respective judgments, in these proceedings the plaintiff, Mr. V.K.,

has sued a variety of parties arising from his arrest and detention under s. 4 of the Criminal Justice Act 1984 (“the 1984 Act”) on 15th

September 2009. This arrest followed allegations first made by his wife, M.W. (the first defendant), in 2007 of child sexual abuse

against his daughter when she was five years of age. Mr. K. pleads that following his wife’s complaints the matter was referred by the

Gardaí to the Health Service Executive in the first instance who investigated this matter pursuant to their statutory powers contained

in s. 3 of the Child Care Act 1991 (as amended).

7. The essence of the plaintiff’s case is that the HSE delayed unduly in investigating these very serious complaints, thereby sundering

his relationship with his child. The fundamental question is whether, if these facts are indeed correct – a topic on which I express no

view – they would, or at least, might rise to a reasonable cause of action.

8. Since it emerged in the late 1980s and early 1990s, the widespread phenomenon of child sexual abuse is one with which both

society and, by extension, the legal system have struggled to cope. Partly by reason of the furtive nature of this conduct where it

occurs, the invariable control and domination of the child in such cases by the abuser and, as often as not, the absence of real

evidence (such as DNA samples), there is often difficulty in determining where the truth lies. All of this presents huge difficulties for

social services, Gardaí, prosecutors and courts alike. The investigation of these complaints involves specialist expertise and is often

complex, laborious and time consuming.

9. In the present case, however, Mr. K. maintains that he has been the victim of a false accusation of sexual abuse deliberately made

by his wife and, moreover, that the delays in investigating this complaint have been such as effectively to deprive him of any

meaningful contact with his child. If he is correct in his claims – and I once again stress that I express no view at all on this – then he

has suffered a grievous and life altering wrong. What then are the remedies which are open to him in law?

10. In the High Court O’Regan J. considered (correctly) that it would have been open to Mr. K. to sue for the tort of misfeasance in

public office, but that since no plea of malice had been advanced by him, the element of that tort had not been established. It is, I

think, necessarily implicit in her judgment that no other legal remedy was now available to him and that if wishes to complain of delay,

he ought to have proceeded by way of judicial review.

11. If this is indeed the law then it would have to be said that Mr. K. has no meaningful remedy vis-à-vis the HSE. The tort of

misfeasance in public office is notoriously difficult to establish and, for my part, I doubt whether there have been more than a handful

of reported cases where plaintiffs have succeeded in respect of this particular tort since the establishment of the State. Besides, in

many respects, it is immaterial to this plaintiff whether or not the delay was prompted by malice or otherwise. What matters to him is

that there were – he says – unwarranted and inexcusable delays on the part of the HSE in investigating serious complaints against

him and that this lapse of time has effectively precluded him from having any meaningful contact with his daughter.

12. One might have thought that it as least arguable that the law was otherwise. After all, the Preamble to the Constitution

guarantees the “freedom and dignity of the individual”; Article 40.3.2 protects the good name of each citizen and Articles 41 and 42

envisages that parents are entitled to rear and educate their own children. If Mr. K. is correct – and I stress again the provisional

nature of this assumption – then all of this and more has been lost to him and the guarantee in Article 40.3 that the State will by its

laws defend and vindicate these rights “as best it may” will probably seem to him like empty rhetoric. To my mind, it is at least

arguable in these circumstances that these constitutional values should shape and mould the law of negligence and actions for breach

of statutory duty in order to enable him to advance this claim.

13. I recognise, of course, that the question of whether a statutory body such as the HSE would owe the plaintiff a duty of care in

the investigation of such complaints is difficult and not at all straightforward. Public policy considerations might also play a decisive

role, as otherwise statutory bodies might be dissuaded from exercising their functions in a fashion which would best safeguard the

welfare of children. In X. v. Bedfordshire C.C. [1995] 2 A.C. 633 the House of Lords, drawing essentially on these public policy

considerations, held that it would not be fair, just or reasonable to impose a duty of care on local authorities in respect of decisions

to take children into care. A slightly different emphasis can, however, be seen in Barrett v. Enfield LBC [2001] 2 A.C. 550 where the

House of Lords refused to strike out a claim in negligence brought by a young man who contended that the local authority had failed

to safeguard his welfare while he had been placed in care. In that case the House stressed that claims of this nature were highly fact

dependent and that in itself was a consideration which rendered them generally unsuitable for summary disposal.

14. Yet, to my mind, the very difficulty and novelty of these claims means that they are inappropriate for summary determination. I

am not aware of any reported case from this jurisdiction which deals directly with this issue and the relevant English case-law – which

I have but very lightly explored – simply illustrates the general complexity of this area of the law. All of this means that, to adopt the

words of O’Donnell J. for the Supreme Court in L.M. v. Garda Commissioner [2015] IESC 81, [2015] 2 I.R. 45, 69, it would be

inappropriate “to address the important issues of law raised here in the context of limited information and material before the court”.

It follows that I think that it would also be inappropriate to determine this question in a summary fashion, whether by means of an

order under Ord. 19, r. 28 or pursuant to the inherent jurisdiction of the Court. I accept, of course, that O’Donnell J.’s words were

uttered in the context of an application for a preliminary hearing on a point of law, rather than (as here) an application for summary

judgment striking out the plaintiff’s case. I nonetheless consider that they are equally applicable to a case presenting difficult legal

issues such as the present one.

Conclusions

15. In summary, therefore, I agree with the judgment of Finlay Geoghegan J. insofar as it concerns the second defendant and with

the order which she proposes in relation to that appeal.

16. So far as the claim against the HSE is concerned, I recognise that I am in a minority of the Court. For my part, I would also have

allowed the plaintiff’s appeal against the decision of O’Regan J. to strike out the present proceedings on the ground that they

disclosed no reasonable cause of action pursuant to Ord. 19, r. 28 or otherwise pursuant to the inherent jurisdiction of the Court on

the ground that they were bound to fail. For all of the reasons set out in this judgment, I do not think that it would be appropriate to

strike out the present claim against the HSE in a summary fashion.