Court of Appeal dismisses appeal against jury awards for malicious prosecution by Garda members.

THE COURT OF APPEAL

CIVIL

Court of Appeal Record Number: 2024/125

High Court Record Number: 2010/7370P

Neutral Citation Number [2025] IECA 215

Whelan J. Meenan J. O’Moore J.

BETWEEN/

MARCO GAMBUCCI

PLAINTIFF/RESPONDENT

- AND –

DANIEL BARRY, JONATHAN PETRIE, THE COMMISSIONER OF AN GARDA

SÍOCHÁNA, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS/APPELLANTS

AND

Court of Appeal Record No. 2024/126

High Court Record Number: 2010/7369P

BETWEEN/

LUCA GAMBUCCI

PLAINTIFF/RESPONDENT

-AND-

DANIEL BARRY, JONATHAN PETRIE, THE COMMISSIONER OF AN GARDA

SÍOCHÁNA, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS/APPELLANTS

JUDGMENT of Mr. Justice Charles Meenan delivered on the 29th day of October 2025

Introduction: -

1. This is an appeal brought by the defendants in the above-entitled actions against orders of the High Court where, following a trial before a judge and jury, awarded each of the above-named plaintiffs the sum of €95,000 as damages for malicious prosecution. The first and second named defendants/appellants in each of the actions were, at the material time, members of An Garda Síochána.

2. The appeal is brought against a number of rulings and the conduct of the trial by the trial judge (Owens J.) and also against the quantum of damages awarded.

Background: -

3. The plaintiffs are brothers who were born in Italy. Marco Gambucci lived and worked for an insurance company in Ireland. His brother, Luca, was visiting Ireland to meet his brother at the relevant time and had been working in the administration office of the fire brigade in Perugia, Italy. The purpose of his visit was not only to meet his brother but also to study English with, possibly, the intention of remaining in Ireland for a period of time.

4. The statements of claim in both proceedings were drafted in almost identical terms save for the particulars of personal injury pleaded. It is alleged that on or about 18 May 2008 both plaintiffs boarded a LUAS tram at St. Stephen’s Green Dublin. It is alleged that two men, who subsequently turned out to be the first and second named defendants, violently grabbed both plaintiffs and dragged them from the tram. It is alleged that both plaintiffs were put into a garda van and brought to Pearse Street Garda Station. En route it is alleged that both plaintiffs were assaulted and, on arrival at the garda station, were further assaulted.

5. The statements of claim allege that at or about 19:30hrs on 18 May 2008 both plaintiffs were accused of theft. The plaintiffs were only released when two work colleagues of Marco Gambucci attended at the garda station and confirmed the plaintiffs’ identities. The statement of claim continues: - “9. On 19th May 2008 the first and second named defendants attended (Marco Gambucci’s workplace) and indicated that there had been a mistake and it was not their intention to cause them harm. The first named defendant indicated that the plaintiff should not make a complaint or he would have him charged with assault ---

11. Despite being aware from 18th May 2008 of the identity of the plaintiff and his brother, and that they had no involvement in the matters the gardaí were investigating, the first and second named defendant resolved to have them charged with a criminal offence. The plaintiff attended at the District Court with his solicitor 16th June 2008. Neither the first or second named defendants turned up in the District Court, however they had passed word to the prosecution solicitor that the plaintiff was now to be charged with assault. The first and second named defendant also failed to turn up on the adjourned date for the charge sheets and the matter was eventually struck out by the District Judge. However in the interim the plaintiff had to engage a solicitor and incurred expense in that regard. In addition to claiming damages for battery/intentional trespass to the person and false imprisonment, both plaintiffs claimed damages for malicious prosecution.”

6. A full defence was delivered to both claims which included a plea of contributory negligence on the part of the plaintiffs.

Evidence at the trial: -

7. In this section I will refer, in summary form, to evidence that was given in support of the plaintiffs’ claim for malicious prosecution.

8. The first named defendant/appellant, Sergeant Daniel Barry (he had been promoted to Sergeant in 2022) gave evidence that on 18 May 2008 he saw four Romanian men whom he was previously aware of. His evidence was that he saw two men, whom he believed to be Marco and Luca Gambucci (the “Gambuccis”), talking to these four Romanians. Sergeant Barry said that he followed the Gambuccis up Grafton Street a distance of some 50 metres. He stated that whilst following them he saw them walk up behind a woman and said he saw this woman grab her bag and turn around as the Gambuccis passed on either side – (Day 5, Page 20, Line 9). Sergeant Barry continued that he went to the woman, produced his Garda ID, told her to wait there and that he would be back. At this stage Sergeant Barry had made contact with Garda Petrie, the second named defendant/appellant and informed him of what he had observed.

9. Having purchased tickets the Gambuccis boarded a LUAS tram at St. Stephen’s Green. The first and second named defendant removed the Gambuccis from the tram and transported them to Pearse St. Garda Station where they were held accused of theft and subsequently released.

10. The following day, 19 May 2008, Sergeant Barry and Garda Petrie went to Marco Gambucci’s apartment apparently with a view to returning his bank card which had become separated from his wallet whilst in Pearse St. Garda Station. Luca Gambucci was in the apartment and Marco was at work. Following a phone call all three attended at Marco’s place of work where a conversation took place. The contents of this conversation were disputed. There was evidence that Sergeant Barry was carrying a folder and had stated that inside the folder were the charge sheets which the Gambuccis had signed the previous day. According to Marco Gambucci he was informed by Sergeant Barry that they had been investigating some Romanian thieves and thought that the Gambuccis were involved. However, they accepted that they had made a mistake. Marco Gambucci’s evidence was: - “… [Sergeant Barry] explained that basically those charge sheets are nil, it doesn’t value anything, unless they send to the Superintendent, or the DPP, or some kind of judge for this. So, basically, he offer a deal saying ‘if you -- I understand what happened, we made a mistake, but if you don’t seek legal advice and if you close what happened with the shake of the hands, I don’t send this and you walk free. You don’t have to go in June to the court to respond to this.’ I said, ‘But it’s not – we didn’t do anything. Why you did so, you know?’ and he says, ‘But, you know, you resisted arrest and you beat me’ – Looking at Luca – ‘You punched me’ --- If you don’t accept the deal we can change the charge from attempted theft to resisting to the arrest, to assault, you know…’” (Day 1, Question 324)

11. The conversation between the Gambuccis, Sergeant Barry and Garda Petrie took place in the presence of Ms. Georgia Papa, a work colleague of Marco Gambucci. Her recollection of the conversation, essentially, corroborated the evidence given by Marco Gambucci. She confirmed that Sergeant Barry had a file with him, and, in effect, was offering the Gambuccis a deal that if they did not seek legal advice the charges of theft would not be proceeded with and no further steps would be taken concerning the allegation that Luca Gambucci had punched Sergeant Barry in the face. The “deal” that had been offered by Sergeant Barry was not accepted by the Gambuccis.

12. On 16 June 2008 the charge of attempted theft against the Gambuccis was listed in the District Court. There was no appearance by Sergeant Barry or Garda Petrie but the court was informed that it was intended to substitute a charge of resisting arrest for the charge of attempted theft so the matter was put back to 14 July 2008. On the adjourned date there, again, was no appearance by either Sergeant Barry or Garda Petrie and so the District Judge struck out the charges for no appearance.

13. The plaintiffs/respondents’ claim was heard before a judge and jury over some seven days. The following questions were put to the jury and answered as follows. (There were separate questions in respect of each of the Gambuccis and I have, for the sake of brevity, combined the questions): - “1. Did Garda Barry/Petrie forcibly remove Marco/Luca Gambucci from the LUAS Tram?

A. No.

2. Did Garda Barry/Petrie honestly believe in the case (they) were making in prosecuting Marco/Luca Gambucci for attempting to steal from the bag of a lady on Grafton Street?

A. No.

3. Was the prosecution by either Barry/Petrie of Marco/Luca Gambucci instituted or maintained to use the criminal legal process for an improper purpose of dissuade Marco/Luca Gambucci from seeking legal redress relating to their treatment by Garda Barry and Garda Petrie on 18 May 2008?

A. Yes.

4. Did Garda Barry assault Marco/Luca Gambucci in the Garda van?

A. No.” The jury awarded Marco and Luca Gambucci the sum of €95,000 each as damages for malicious prosecution.

Notice of appeal: -

14. Notices of appeal were served in respect of both actions. There were some 11 grounds of appeal common to both appeals. These grounds were: -

(1) The learned trial judge misdirected the jury in respect of the law and the relevant facts to be considered in respect of malicious prosecution.

(2) The learned trial judge made findings of fact in respect of malicious prosecution without submission from counsel in respect of same.

(3) The learned trial judge failed to apply the correct legal test in respect of the findings of fact made by him.

(4) The learned trial judge failed to inform the parties of the legal test to be applied by him.

(5) The learned trial judge charged the jury to make findings which findings were not open to the jury on the basis of the case made by either party or the evidence adduced in particular the learned trial judge stated, “If it was the case that this prosecution was brought or continued with a view to adding further charges in order to if you like, get the Gambuccis off the pot dissuade them from going to a solicitor .. that would clearly be improper.”.

(6) The learned trial judge charged the jury incorrectly in respect of the evidence regarding the failure of the plaintiff to disclose prior medical history to the doctors who he attended for the purpose of providing the medical reports and in particular whether the said failure was peripheral or otherwise.

(7) The learned trial judge erred in law and in fact in directing the jury that on the evidence before them they could find that the charges could be “dropped by the arresting officer” when it came back before the District Court or that the arresting officers could “take a decision not to proceed with it at that particular stage.”

(8) The learned trial judge engaged in excessive and interventionist examination of the witnesses for the defence.

(9) The learned trial judge erred in directing the jury as to the correct mechanism to decide on damages.

(10) The award of damages was excessive in all circumstances.

(11) The jury applied the incorrect test in respect of the findings of fact made by them in which are the subject of this appeal. Though ground 6 appears in both notices of appeal in fact it is only referable to Marco Gambucci.

Consideration of appeal: -

15. In considering the issues raised in the appeal it is necessary to consider the various elements in the tort of malicious prosecution. In Salmond and Heuston on the Law of Torts (21st ed., Sweet & Maxwell 1996) the author identifies four elements of the tort:

(i) The proceedings must have been instituted or continued by the defendant.

(ii) He must have acted without reasonable and probable cause.

(iii) He must have acted maliciously.

(iv) The proceedings must have been unsuccessful – that is to say, must have been terminated in favour of the plaintiff now suing. The foregoing was referred to by the trial judge in his discussion with counsel on the issue paper to go to the jury. (i) and (iv) were not in issue.

16. On (ii) “reasonable and probable cause” the trial judge stated that grounds for such are a matter for the trial judge depending what the evidence is. The transcript reads: - “Mr. Justice Owens: A very famous decision in 1870, Lister v Perryman. Grounds for belief are in fact a matter for the trial judge depending on what the evidence is if you follow me. Counsel for the appellants: No, I understand that. Mr. Justice Owens: And that is the position in relation to that and I will hear submissions in relation to what view I should take in relation to grounds for belief and whether there is really a contest in the evidence relating to that or any question really which should go to the jury which would require clarification in relation to the evidence on grounds for belief.” (emphasis added) (Day 6, Pages 146 – 7).

17. Counsel for the appellants did make submissions: -

“Counsel for the appellants: Though I think matters are frozen at Clare Street and I think the way the court has formulated that question, while I have some concerns about it, I do think that the question, I can’t say that it doesn’t go to the heart of the issue. Mr. Justice Owens: Yeah, yeah. Counsel for the appellants: The Clare Street. So that is one thing. I mean I don’t believe a question should be put in respect of malicious prosecution as such because I don’t think the evidence was there. I don’t think it was put to the guards that they maintained these charges. Rather it was never put to them that this was all part of a scheme on their part, and I need to be clear on that, but my understanding is that it wasn’t put to them directly.” (Day 6, Page 148).

In response the trial judge stated: -

“… But the question number 3 seems to me to go -- it definitely was put to the guards essentially that certainly that they were maintaining this thing for the improper purpose of dissuading Mr. Gambucci from seeking legal redress. There is no doubt that there is evidence of that.” (Day 6, Page 149).

Counsel for the appellants later stated: -

“-- As I say, the court knows my view in respect of the malicious prosecution element. I do however think that the questions, if the court feels the malicious prosecution should go before the jury, they are correctly formulated in relation to it.” (Day 6, Page 153).

18. There does not appear to have been any dispute on the facts concerning the existence of “reasonable or probable cause”. No dispute was identified by the appellants nor was any request made that any dispute on the facts on this issue should go to the jury. As the trial judge stated: - “Mr. Justice Owens: Depending on one’s view and all that one has is that two people who, depending on whatever it is, on the prosecution’s best case even supposing the thing, that they were correctly arrested, that the lady is gone and all we have is somebody clutching a bag and somebody running off a tram and that I have to say quite frankly is extraordinarily weak material on which to launch any prosecution.” (Day 6, Page 154).

19. It is clear from the foregoing extracts from the transcript that the trial judge correctly set out the elements of the tort of malicious prosecution and the role of the trial judge and jury concerning the existence or otherwise of “reasonable and probable cause”. The trial judge expressly invited submissions from both the appellants and the respondents. No disputed facts were identified nor any request made that such should go to the jury. If the judge had not invited submissions on this issue counsel could and should, at the least, have requested an opportunity to make submissions. Thus it follows that there is no basis to grounds (1), (2), (3), (4), and (11) in the notice of appeal.

20. Ground 5 criticises a statement made by the trial judge: “if it was the case that the prosecution was brought or continued with a view to adding further charges in order to if you like, get the Gambuccis off the pot dissuade them from going to a solicitor .. that would clearly be improper.” It seems to me that this is a statement of the obvious. It clearly would be improper to bring or maintain a prosecution to dissuade a person from seeking legal advice from a solicitor. All the more so when, in this case, a prosecution was brought of attempted robbery from a woman who was never identified, never interviewed nor made any statement. It should be recalled that the woman in question was requested by Sergeant Barry to remain where she was but, that he, in fact, never returned to speak to her.

21. Ground 6 concerns an alleged failure on the part of Marco Gambucci to inform a doctor who was reviewing him concerning the alleged assault of a previous injury. The appellant criticises the trial judge for describing this matter as being “peripheral”. It was submitted that it was not peripheral as it was a matter that went to the credibility of Marco Gambucci. There is no substance to this ground as is clear when one looks at the context in which the trial judge used the term “peripheral” in charging the jury: - “… It is said that Mr. Marco Gambucci failed to tell his doctors about the condition of his shoulder popping out predated this incident on the LUAS. He disputes that he didn’t tell the doctor in relation to this and you’ve heard the cross-examination in relation to that. Now that is of course a peripheral issue and you don’t have to come to any decisions in relation to it. But obviously you can consider cross-examination and the answers of witnesses on peripheral issues in assessing their credibility on the main issues…” (emphasis added). (Day 7, Page 121) The jury were clearly informed that they could take into account what Marco Gambucci did or did not inform the doctor of when considering his credibility. Thus I reject this ground of appeal.

22. Ground 7 concerns the answer given by the trial judge to a question raised by the jury in the course of its deliberations. The question was: - “In relation to question 3, was it possible for an arresting officer to drop or dismiss charges after a charge sheet is filed but before it makes it to court?” Counsel for the appellant submitted that this was a “precise” question requiring a “precise” answer, namely “no”. The trial judge having heard submissions and noting that it was a matter of legal procedure for which no evidence was required, answered the question as follows: - “… Once the charge sheet is filed obviously, it’s going to be listed before the District Court and at that stage the charge can be dropped by the arresting officer. In other words, the arresting officers can make a decision not to proceed further with the charge. But they can do that, they can make that decision in advance of the District Court obviously.” In giving this answer, in my view, the trial judge acted correctly. Firstly, it was a matter of legal procedure as he stated. Secondly, the answer given is factually correct and no one suggested otherwise. Thus I reject ground 7.

23. Ground 8 complains that the trial judge “engaged in excessive and interventionist examination of the witnesses for the defence”. Interventions by a trial judge were considered in People (DPP) v A.H. [2022] IECA 156 where Kennedy J. stated: - “A judge may question or intervene in a wider range of circumstances than mere clarification; take for example, where the question asked is unfair where it is asked on a false or inaccurate premise, or where the question seeks to elicit inadmissible evidence. It is the experience of this court that on occasion, counsel may ask a question which incorporates sub-questions and so becomes almost impossible for a witness to answer the question, and indeed for a jury to know which question is in fact being answered. In those circumstances, or where the question is posed in such a manner that it may not be properly understood, the judge may well have to intervene, always with circumspection and with regard to the fairness of the trial. Care must also be taken to ensure that any intervention does not give the impression of partiality…” It is clear from the foregoing passage that it is necessary for a party who is criticising a judge for “excessive and interventionist examination” to carry out a detailed analysis of the transcript to identify what questions were asked and when they were asked by the trial judge. Counsel for the appellants admitted that he was not relying on any particular question or questions but rather the extent of the questioning by the trial judge. At an earlier directions hearing in this appeal the appellant was directed to produce a booklet highlighting portions of the transcript where it was considered that the trial judge’s questioning of witnesses was “excessive and interventionist”. It would appear that such a booklet was produced by the solicitors for the appellants but without the imprimatur of counsel. The court, however, was furnished with the booklet.

24. It seems to me that, contrary to the views of counsel, that this ground of appeal does not get out of the starting blocks without identifying the questioning of the judge that is being criticised. It may well be that the trial judge did ask a considerable number of questions but it does not follow that any such questions undermined or interfered with the case that was being made or the defence that was being offered by the appellants in the court below. In any event, the booklet containing the highlighted transcripts does not support the appellants’ submission. It would appear that the questions asked by the trial judge were asked following the examination and cross-examination of the witness in question. Following such examination it would be open to counsel to further examine a witness in relation to any matters that were raised in the questioning by the judge. In any event, it should be noted that no objection was taken to the questioning by the trial judge in the course of the trial. Thus I reject this ground of appeal.

25. Grounds 9 and 10 in the notices of appeal relate to the award of damages. It is claimed that the trial judge “erred in directing the jury as to the correct mechanism to decide on damages” and that the award of damages was excessive.

26. As has been referred to, Marco Gambucci was employed by an insurance company in Dublin. His brother, Luca lived in the town of Foligno and had worked in the administration office of the fire brigade in Perugia. He gave evidence that the purpose of his visit to Dublin was to study English with the intention of remaining in Ireland for a long time. Each were awarded the sum of €95,000 damages for malicious prosecution.

27. The appellants made a number of submissions on the level of damages awarded. It was submitted that the Gambuccis had suffered no serious damage to their reputation, particularly in the case of Luca who was not employed at the time. Counsel submitted that damages ought to have been in the region of €7,500 being the amount that was awarded in “slopping out” actions. The appellants’ written submissions state: - “-- The jury awarded €95,000 general damages in respect of the requirement to attend court on two occasions where no evidence was offered. It is submitted that in all the circumstances the award of damages is grossly excessive.”

28. In considering these submissions a starting point is the well-established principle, often referred to as the “Foley” principle, that before interfering, an appellate court would have to be satisfied that the award, in this case made by a jury, was of “a wholly unreasonable sum.” As it was stated by Lavery J. in giving the judgment of the Supreme Court in Foley v. Thermal Cement Products Limited [1956] 90 ILTR 92: “The jurisdiction of this Court to set aside a verdict on the grounds that the damages are either excessive or inadequate and the principle upon which it should be exercised is well-established and is not in controversy. The Jury is the constitutional tribunal to determine the amount of damages and their decision is not to be interfered with merely because the Court reviewing it would itself be disposed to give a greater or lesser sum

– even a substantially greater or lesser sum. There is, however, a degree of disproportion between the damages awarded and the damages which in the opinion of the court of review should be awarded which will require that the verdict should be set aside and the action remitted for a new assessment… It seems that what the Judge in the Court of Appeal has to do is to make his own estimate of the damages he would award, and then compare this estimate with the verdict and say whether there is reasonable portion between the sums or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable. In making this estimate the Judge must adopt the view of all points most favourable to the plaintiff and must keep in mind that the Jury had the advantage he has not, of hearing the evidence and of seeing the witness and in the particular hearing and seeing the plaintiff.” Foley was, more recently, referred to by Collins J. in his judgment in Delaney v PIAB and Ors [2024] IESC 10 at page 35.

29. More particularly where, as in this case, an award of damages by a jury is under appeal the following was stated by O’Donnell J. (as he then was) in McDonagh v Sunday Newspapers [2018] 2 IR 79 at p. 112/3: - “A jury’s decision is necessarily opaque. The decision is delivered and not the reasons for it. It cannot be interrogated for justification and may indeed be arrived at by a process of compromise. It has however two particular strengths: First, it represents the considered decision of members of the public randomly selected and assembled solely for the purpose of determining a single case. Second, the fact that a single

decision is rendered by a jury consisting of 12 persons means that it has the benefit of the phenomenon identified as collective wisdom: The fact that if an individual decision or assessment is made by a large number of disinterested people, and whether the average or the mean is taken, the process limits the possibility for extreme and idiosyncratic decisions leads to a broad consensus which carries greater weight, and indeed, the likelihood of being correct, than the decision of a single person.”

30. I have to say that I have considerable difficulty in seeing any comparison between an award of damages made to persons in lawful custody who have to suffer the indignity of “slopping out” and the situation of the Gambuccis who found themselves at the receiving end of a malicious prosecution initiated by members of An Garda Síochána. This also applies to the submission that the height of the injury and damage suffered by the Gambuccis was “the requirement to attend court on two occasions where no evidence was offered”, which suggests the damage suffered by the Gambuccis was mere inconvenience.

31. The criticism that the trial judge erred “in directing the jury as to the correct mechanism to decide on damages” is difficult to understand. It was counsel for the appellants who referred the court to Higgins v The Irish Aviation Authority [2023] 1 IR 65 following which the trial judge directed the jury as follows: - “I am told in relation to the Higgins case that sums of €300,000 are only for very serious libels where there are aggravating features and that the top awards are, according to the Supreme Court, should usually be between one and two hundred thousand. I think they start it off with minor ones up to €75,000 and then they went on, if you like. I think there was another jump maybe then and another jump. So it’s important to remember that.” (Day 8, Page 160). The award of damages would appear to have been at a midway point between €1.00 and €200,000.

32. Marco Gambucci was employed by an insurance company who, no doubt, required a high level of honesty and probity on the part of its employees. It seems to me that it is well within the bounds of possibility that facing a prosecution for attempted theft would have been career ending for Marco Gambucci. Indeed, a credible case could have been made that, in his case, damages were on the low side. Luca Gambucci does not appear to have been employed at the time, but nonetheless, he is entitled to his reputation. Further, the taking of a prosecution is a matter of record and would, no doubt, turn up were any future employer to carry out background checks on him. Taking these factors into account and having regard to the general principle of non-interference with jury awards I see no grounds to disturb the award made by the jury in the case of either Marco or Luca Gambucci. Thus, these grounds of appeal also fail.

33. In conclusion I would dismiss the appeals. As for costs, the provisional view of the court is that as the respondents have been “entirely successful” in opposing the appeal that they are entitled to their costs, to be adjudicated in default of agreement. Should the appellants wish to take issue with this they may do so by filing written submissions (not in excess of 1,500 words) within 14 days from the date of the delivery of this judgment. Should the respondents wish to reply they may do so by written submissions (also not in excess of 1,500 words) within 14 days thereafter.

34. As this judgment is being delivered electronically, I am authorised to record the agreement of Whelan and O’Moore JJ. with it.