High Court dismisses claim due to inordinate and inexcusable delay in prosecution under Kirwan v Connors principles.

THE HIGH COURT

[2025] IEHC 591

Record No. 2003/182P

Between

JOHN DOYLE

Plaintiff

and

THE COMMISSIONER OF AN GARDA SÍOCHÁNA, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

Defendants

Judgment of Mr. Justice Conor Dignam delivered on the 6th day of November 2025

INTRODUCTION

1. The defendants seek Orders dismissing the plaintiff’s claim on the basis of delay in the commencement and/or prosecution of the proceedings.

2. The application had a somewhat complicated path. After I heard the application and reserved my judgment, the plaintiff indicated that he wished to bring an application to adduce further evidence. That in itself was complicated because of the nature of the proposed new evidence and there were a number of short hearings as to how this matter could be handled. Ultimately, I gave judgment permitting the plaintiff to adduce that new evidence. There then followed an application for leave to deliver that evidence in a redacted form. As I prepared my judgment on the substantive application having dealt with these matters, the

Supreme Court gave judgment in IBRC v Fingleton [2024] IESC 59 and I invited the parties to make submissions in light of this judgment, if they so wished. They availed of that opportunity. Then the Supreme Court delivered judgment in Kirwan v Connors trading as MJ O’Connor Solicitors & Ors [2025] IESC 21 and the parties availed of an opportunity to make submissions in light of the judgments in that case.

3. There are, of course, two separate, but sometimes overlapping strands of jurisprudence in relation to delay. One strand arises from O’Domhnaill v Merrick [1984] IR 151 and applies when a significant period of time has elapsed between the events giving rise to the proceedings and the likely trial date even where there is no culpability for the delay. Traditionally, the other strand is that discussed by the Supreme Court in Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 and is applicable where there has been inordinate and inexcusable delay on the part of a plaintiff in the prosecution of its claim. The defendants rely on both strands though they primarily rely on the Primor strand. Primor has been significantly affected by the Supreme Court judgments in Kirwan v Connors. The parties were agreed that the traditional Primor aspect of the application must be determined by reference to the judgments in Kirwan v. Connors. I return to the applicable principles.

4. The background to the application is as follows. I return to the nature of the claim in greater detail later in this judgment. For the moment, I propose to deal with the general background and chronology to place the application in context.

5. The plaintiff’s employment as a member of An Garda Síochána was terminated on the 23rd December 1998 and took effect on the 6th January 1999. There was some dispute about the precise date, but nothing really turns on that. He was retired on grounds of infirmity of mind/body due to alcohol abuse. He challenges that termination and seeks declaratory relief and damages in these proceedings. The plaintiff acknowledges that he has suffered from alcoholism. The essence of his complaint is that this was not the real reason for the termination of his employment and that the real reasons were that he was involved in covert

Garda drugs operations in the early/mid 1990’s and that he started raising concerns about those operations.

6. The proceedings were commenced by Plenary Summons of the 8th January 2003.

7. An appearance was entered on the 6th February 2003.

8. A Notice of Change of Solicitor and a Notice of Intention to Proceed were filed on behalf of the plaintiff on the 31st March 2015.

9. Two further Notices of Intention to Proceed were filed, on the 20th May 2016 and the 4th October 2017 respectively.

10. A Statement of Claim was delivered on the 31st July 2018. This is a very lengthy document running to twenty-one pages.

11. The defendants raised a lengthy Notice for Particulars (eighteen pages) on the 10th December 2018.

12. The plaintiff served a further Notice of Intention to Proceed on the 2nd June 2020.

13. He delivered replies to the defendants’ Notice for Particulars on the 4th January 2021.

14. Following delivery of the Replies to Particulars, the plaintiff sent a warning letter on the 29th March 2021 calling for the delivery of a Defence. The defendants sought time to ascertain the availability of witnesses and documents and whether there were any other impediments to their defence of the proceedings given the passage of time. They stated that, if appropriate, they would bring a motion to dismiss the proceedings on the grounds of delay. The plaintiff’s solicitor agreed not to issue a motion for judgment in default of Defence at that stage. They ultimately issued that motion on the 3rd December 2021. The defendants then issued this motion on the 1st February 2022 immediately before the plaintiff’s motion for judgment was due to be heard.

15. It is also important to note the following matters that are either pleaded in the Statement of Claim, or stated in the Replies to Particulars or in the plaintiff’s replying affidavit.

16. In the years after the commencement of the proceedings, the plaintiff engaged with a number of processes outside of the litigation. In May 2007, he made a complaint to the Garda Síochána Ombudsman Commission. This process was concluded on the 3rd November 2008. In June 2014, the plaintiff wrote to the Minister for Justice and Equality and the Minister referred his complaint to an independent review mechanism which had been established by the Minister to review allegations of misconduct. By letter of the 16th December 2014 (under cover of which a Notice of Change of Solicitor was served), the plaintiff’s solicitor informed the Office of the Chief State Solicitor, on behalf of the defendants, that he did not propose to deliver a Statement of Claim at that time unless the defendants required him to do so because the complaint to the Minister encompassed the issues in the proceedings and the Minister had referred it for independent review. There appears to have been no reply to that letter. That process was concluded on the 8th February 2016. The plaintiff also requested to be included in the Disclosures Tribunal but that application was refused. I return to these matters later in this judgment.

APPLICABLE PRINCIPLES

O’Domhnaill v Merrick

17. The strand of jurisdiction arising from O’Domhnaill v Merrick is a jurisdiction to dismiss proceedings in the interests of justice where, due to lapse of time, and irrespective of whether or not the plaintiff is to blame for the delay, there is a real and serious risk of an unfair trial or of serious unfairness to the defendant. McKechnie J in Comcast International Holdings Incorporated v Minister for Public Enterprise [2012] IESC 50 noted at paragraph 40 that this is a jurisdiction based on the interests of justice. He also noted that the “test to be applied has been described variously such as, by reason of lapse of time or delay:

“(i) is there a real and serious risk of an unfair trial, and/or of an unjust result;

(ii) is there a clear and patent injustice in asking the defendant to defend; or

(iii) does it place an inexcusable and unfair burden on such defendant to so defend?”

18. The jurisdiction has been considered in very many cases. It is not necessary to carry out a review of those authorities as Woulfe J did so very recently in IBRC v Fingleton [2024] IESC 59 (paragraphs 63 – 74). He highlighted (at paragraphs

75 - 80) the following matters which appeared to him to be of key importance, distilled from the authorities considered by him in the earlier paragraphs of his judgment.

19. Firstly, there is a strong presumption in favour of a trial on the merits. This is rooted in the significant constitutional value or weight to be placed on prima facie credible cases going to trial (Clarke J’s judgment in Nash v Director of Public Prosecutions [2015] IESC 32).

20. Secondly, that presumption may be displaced but in order to displace it there must be sufficiently weighty countervailing factor(s), such as that it will not be possible to have a fair trial because of the lapse of time. It is an exceptional jurisdiction which must be used rarely.

21. Thirdly, it is necessary to distinguish between an unfair trial and an imperfect trial/litigation disadvantage. Litigation disadvantage or a lack of perfection does not necessarily mean that the trial will be unfair or so unfair as to require that it not proceed. It will depend on the facts and the extent and nature of the imperfection or disadvantage. Clarke J considered what is meant by an unfair trial in Nash (paragraphs 2.12 - 2.15). He said, inter alia:

“2.12 The starting point has to be to acknowledge that there will very rarely be a perfect trial where all evidence which either side might theoretically wish to have available is before the Court... So the starting point has to be to acknowledge that very few trials will be close to perfect in the sense of the judge having available all materials which either side might, in an ideal world, have wished to have been in a position to present. But such lack of perfection does not mean that the trial will be unfair for to require such perfection as a necessary ingredient of a fair trial would automatically lead to the vast majority of cases being incapable of being tried and, thus, to the whole scale denial of the rights and obligations of those parties who had an interest in a proper trial and a proper determination of whatever rights, obligations or liabilities the evidence on the law required. In that context it is apposite to note the telling comment of Henchy J., in O’Domhnaill v Merrick … to the effect that justice delayed does not always mean justice denied but can often mean justice diminished. Henchy J. went on to say that, in some cases, delay can ‘put justice to the hazard to such an extent that it would be an abrogation of basic fairness to allow the case to proceed to trial’.

2.13 What then leads to a trial, whether criminal or civil, being regarded as constitutionally unfair given that trials will almost inevitably fall somewhat short of perfection? When does justice become so diminished or “put to the hazard” to lead to a degree of unfairness sufficient to hold that justice is denied and thus to warrant departing from the imperative of a trial on the merits? In my view, a proper analysis of the jurisprudence in both the criminal and civil contexts leads to the conclusion that there are two ways in which such unfairness may be established. First, the lapse of time may be so great and the divergence from any semblance of a real trial on the merits so substantial, that it can be appropriate to come to the view that the conduct of a trial would be nothing more than that in name. Obviously the extent to which such a situation can properly be said to exist may be very dependent on the type of case under consideration… At a certain point the absence of evidence which might otherwise have been available coupled with the effect of lapse of time on the ability of the Court to assess other evidence, may lead to a stage being reached where, in the words used in some of the civil jurisprudence … the case has gone beyond the reach of fair litigation.

2.14 In such cases, whether criminal or civil, the finding of the Court is simply that, not necessarily through anyone’s fault, time and events have passed to such an extent that the establishment of facts, determined by an analysis of evidence which can properly be tested, which process is at the heart of a court system, is just no longer possible. In such circumstances it will not be possible to have a fair trial.”

22. The fourth matter identified by Woulfe J as being of key importance is that the court should consider the factors identified by Finlay Geoghegan J in Manning v Benson & Hedges Limited [2004] 3 IR 556. These are not exhaustive factors. They include whether the defendant has contributed to the lapse of time, the nature of the claims and defences, the nature of the evidence to be adduced, the role of documents and whether such documents exist, the extent to which oral evidence from a particular witness is required, the prejudice which the defendant asserts, and the evidence which he or she adduces to support that assertion.

23. Fifthly, it will normally be preferable, except in very clear cases, that any exercise of this exceptional jurisdiction be left to the trial judge because an assessment of the true extent of any such prejudice will more easily be made by a trial judge. Woulfe J noted the point made by Clarke J at paragraphs 2.21 – 2.22 of Nash about the primacy of the role of the trial judge in the exercise of the jurisdiction. A trial judge will be better able to assess whether “the extent of departure from the ideal of a perfect trial is sufficiently significant to warrant interfering with the constitutional imperative that proceedings should be tried on their merits.”

24. At paragraph 82 of his judgment Woulfe J described the test as being “that a fair trial of the action, or the avoidance of serious unfairness to the defendant, is not possible having regard to all of the circumstances…”

Primor plc v Stokes Kennedy Crowley/Kirwan v Connors trading as MJ

O’Connor Solicitors & Ors

25. As noted above, the parties were agreed that the “Primor” aspect of the case must be determined by reference to the judgments in Kirwan v Connors. The jurisdiction arising from the Primor and Kirwan v Connors cases applies where there has been inordinate and inexcusable delay on the part of the plaintiff in the prosecution of his claim. It differs from O’Domhnaill v Merrick in requiring culpable delay on the part of the plaintiff. As a result of the requirement for culpable delay the level of unfairness or prejudice to the defendant which traditionally might justify the dismissal of the proceedings was lower than under O’Domhnaill v Merrick. Primor and Kirwan v. Connors also focus on post-commencement delay (though some regard can be had to pre-commencement delay).

26. The Primor test has been fundamentally altered by the majority decision in Kirwan v Connors (O’Donnell CJ and Hogan J). It is unclear whether the effect of the majority judgments is correctly seen as simply modifying the old Primor test or as the formulation of an entirely new approach/test. Hogan J expressly refers to “adjusting Primor” and to “the modified Primor test”. O’Donnell CJ states at paragraph 13 that “Primor has been a cornerstone of the jurisdiction since established in 1996, and has become an established part of the landscape and I do not think it can or should be extirpated now, especially since that could not lead to any different result on the question of the specific test to be applied” and subsequently made clear that “When I said at paragraph 13 of this judgment that I did not think Primor can or should be extirpated now, I hope it is clear that what I meant by this reference is to refer to the inherent jurisdiction recognised in Primor rather than the particular Primor rules themselves...” Murray J says at paragraph 40 of his judgment that “Collins J. is entirely correct when he observes that the judgment of Hogan J. (with which a majority of the Court are in agreement) effects much more than an ‘adjustment’ of Primor. However, while the Chief Justice is of the view that Primor cannot now be ‘extirpated’, I do not understand the judgment of Hogan J as shirking from the fact that Primor is being over-ruled...” Whether the test is seen as an entirely new test or a modified version of the old Primor test, it is clear that the test is now fundamentally different. I therefore do not propose to spend any time setting out the traditional Primor principles. For present purposes I will refer to the approach as the Primor- Kirwan test.

27. The majority judgment in Kirwan v Connors was given by O’Donnell CJ, with whom Hogan J (and Charleton and O’Malley JJ) agreed. There was a difference of opinion between the Chief Justice, Hogan and Collins JJ on the one hand and Murray J on the other as to the source of the jurisdiction to strike out proceedings for delay. There was also a difference of opinion about the operation of the Primor test between O’Donnell CJ and Hogan J on the one hand and Collins J on the other. However, as noted by the Chief Justice, there was also a degree of convergence from the different starting points adopted by the members of the Court. O’Donnell CJ summarised the different positions of the members of the Court and set out, at paragraph 26(i)-(iv) of his judgment, the correct approach to be taken.

28. He said at paragraph 26:

“In my view, the law should recognise the fact that passage of time is important in and of itself, and can justify dismissal of a claim, without more. Greater weight should be given to the factor of the passage of time. This will also have the merit of simplifying the test to be applied. I agree with Hogan J. that two years of inactivity is a critical milestone. I would apply the tests set out in the judgment of Murray J.

at paragraphs 53 and 54 and with which I understand Hogan J. agrees...”

29. The reference to two years of inactivity being a critical milestone derives from the terms of Order 122 Rule 11 of the Rules of the Superior Courts and the emphasis that both Hogan J and Murray J placed on this rule. Order 122 Rule 11 provides:

“In any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month’s notice to the other party of his intention to proceed. In any cause or matter in which there has been no proceedings for two years from the last proceeding had, the defendant may apply to the Court to dismiss the same for want of prosecution, and on the hearing of such application the Court may order the cause or matter to be dismissed accordingly or may make such order and on such terms as to the Court may seem just. A motion or summons on which no order has been made shall not, but notice of trial although countermanded shall, be deemed a proceeding within this rule. ”

30. Hogan J said at paragraph 19 of his judgment that this Rule “...gives no further guidance to the court as to what should happen in such circumstances. It nonetheless is of value in that it provides an objective yardstick in the form of a positive legal rule as to what constitutes inordinate delay.” At paragraph 166 he said:

“To my mind, the measure of inordinate delay is principally to be found in the language of Ord. 122, r.11 itself. This provides, as we have seen, that whereas there has been no proceeding for two years the other party may apply to court to dismiss the proceedings for want of prosecution. As I have already indicated at the start of this judgment, one cannot avoid thinking that this rule has received insufficient attention in the case-law to date. Certainly, it is this two-year period which should be the principal yardstick of delay. This time period is not ungenerous and, critically, is the one stipulated by the Rules of the Superior Courts. One can fairly say that, adopting the felicitous language of Cooke J. in Framus, a delay of more than two years in taking a step in an action is well outside normal limits and is immoderate and excessive.”

31. At paragraph 175, when dealing with how the Primor-Kirwan test would operate, Hogan J said:

“How, then, would the modified Primor test operate? It would mean in effect that any period of inactivity by a litigant beyond two years would be deemed to be inordinate and would be regarded as prima facie inexcusable, thus collapsing the three-prong test into a two-part test. It would mean that the Court would henceforth treat a two-year delay with no further step in the proceedings (or, I would add, inactivity in the litigation) as in itself warranting the dismissal of the proceedings unless there were good reasons which justified the court staying its hand.”

32. Murray J, while disagreeing about the source of the jurisdiction, said at paragraphs 53 and 54 of his judgment (which were indorsed by O’Donnell CJ):

“53. It is not to put too much weight on O. 122 r. 11 to take a lead from the period of time which the legislator has identified as triggering the power to dismiss a claim for want of prosecution. To do so while moderating the requisite level of prejudice by reference to the period of inexcusable delay in the prosecution of an action gives effect to the trajectory of the case law over the past twenty years. First, a plaintiff who has engaged in less than two years of total unexplained delay (as would arise if, on the defendant bringing an application under O. 122 r. 11, it emerges that the plaintiff had in fact been engaged in activity to advance their case other than by the taking of procedural steps) should only find that their claim is dismissed if there is defendant prejudice to the level required to ground an application under the O’Domhnaill jurisdiction. Second, a plaintiff who has engaged in two years total delay should only have their case dismissed if there is a serious or significant prejudice in the form of an unavailability of witnesses or other real evidence that would not have occurred had the action been properly prosecuted. Third, a plaintiff who is responsible for unexplained total delay of twice that should expect less tolerance, and it seems to me to be entirely appropriate that after four years or more of unexplained total delay in the prosecution of a case, the court should dismiss the action if it is dependent on oral evidence so that the defendant is exposed to the risk of failing recollections that inevitably accompanies a lengthy effluxion of time.

54. Beyond that, the courts should be firm in their treatment of the conduct of the dilatory plaintiff. We have now reached a point at which the jurisdiction of the courts to dismiss proceedings for want of prosecution has been so prominent in the case law over the past three decades and the concern of the courts as to the systemic impact of delays in the litigation process so regularly repeated and well-known, that the time has come to allow High Court judges a generous power to dismiss cases in which there has been five years or more of cumulative and unexplained inactivity in a case (including, necessarily, a solid block of two years of complete procedural inactivity). As matters stand, the case law is firmly moving to a point that acknowledges that there will be situations in which this is the appropriate course of action: where delay has been significant (see in particular Quinn v. Faulkner t/a Faulkners’ Garage & Anor [2011] IEHC 103). I am inclined to the view that if the period of total unexplained delay is greater than five years, the court should feel free to dismiss the proceedings unless satisfied that that there is a pressing exigency of justice that requires that the case be permitted to go to trial. This would include exceptional situations in which the plaintiff faced educational, social or economic disadvantage, or otherwise in progressing their action (as in Guerin v. Guerin [1992]

2 IR 287, [1993] ILRM 243), in very unusual cases in the realm of public law where the proceedings disclose an issue which the public interest demands should be litigated to conclusion (as in Comcast or McKenna v. Farrell [2007] IEHC 343), or where there has been serious misconduct by the defendant in the course of the proceedings. The cases in which extraordinary factors such as these will, effectively, require that the defendant grin and bear the plaintiff’s delay will be few and far between, and will arise only in cases where the prejudice to the defendant lies very much at the weaker end of the scale.”

33. Having indorsed the comments of Hogan J about the importance of two years of inactivity and the tests set out by Murray J in those paragraphs, O’Donnell CJ then continued at paragraph 26 of his judgment to set out that this means that:

“(i) until the point is reached where there has been inactivity for two years a claim should only be dismissed if the claim is an abuse of the process or there is prejudice to the defendant to the level required to ground an application under the O’Domhnaill v Merrick jurisdiction.

(ii) After two years of total inactivity, a claim may be dismissed for want of prosecution. It is likely that a claim will only be dismissed at this point if in addition to the period of inactivity a plaintiff can point to some additional prejudice or other factor pointing towards dismissal. If a court does not dismiss the claim, it would be

entitled to make strict case management directions on the basis that non-compliance with such directions would itself justify dismissal;

(iii) If there has been four years total inactivity then the claim should be dismissed if it is dependent on oral evidence so that the defendant is exposed to the risk of failing recollections and witness reluctance that inevitably accompanies a long effluxion of time, unless the plaintiff persuades the court that there are compelling reasons why the claim should not be dismissed and can be properly allowed to go to trial. Conversely, if there are factors such as specific prejudice to the defendant that will strengthen the case for dismissal, but it should be emphasised that it is not necessary to point to any such factor: passage of this amount of time is itself enough and the plaintiff should bear the onus of establishing that there are reasons that the case can properly proceed.

(iv) Finally, where there has been a cumulative period of complete inactivity for more than five years, I agree with Murray J. that the court should have a generous power to dismiss cases, and the court should feel free to dismiss the proceedings unless satisfied that there is a pressing exigency of justice that requires that the case be permitted to go to trial. This would include exceptional situations in which the plaintiff faced educational social or economic disadvantage, or otherwise in progressing their action, in very unusual cases in the realm of public law where the proceedings disclose an issue the public interest demands should be litigated to conclusion or where there has been serious misconduct by the defendant in the course of the proceedings. I agree with what Murray J. says about such cases at paragraph 54 of his judgment.”

34. It is long-established that a “proceeding” within the meaning of Order 122 Rule 11 refers to the taking of a formal step in the proceedings (a “step” does not include service of a Notice of Intention to Proceed or a Notice of Change of Solicitor). The test set out by O’Donnell CJ in paragraph 26(i) – (iv) does not refer to a failure to take a step in the proceedings but rather to “inactivity”, and “total inactivity” and “complete inactivity”. However, it seems to me that for the purpose of calculating the period of delay, “inactivity” means inactivity within the proceedings or the absence of a formal step in the proceedings. Given that Order

122 Rule 11 is placed at the centre of the approach, it seems to me that in the absence of a clear statement by the Supreme Court that it was departing from the earlier jurisprudence that ‘proceeding’ means a formal step in the proceedings, the “inactivity” referred to must be inactivity in the proceedings in the sense of there being no formal step in the proceedings. Furthermore, Murray J said that the term “proceeding” in Order 122 Rule 11 is “an act that has some degree of formality and significance and which is done in furtherance of an action...something in the nature of a formal step being either an application to the court or at least a step...which is required by the rules’ (Allen v Redland Tile Co (Northern Ireland) Ltd. [1973] NI 75”. Murray also said at paragraph 45 that “...whether it is just to dismiss a case which a plaintiff has failed to prosecute in the manner envisaged by the Rules will always ultimately depend on the relationship between three core variables. These are the total length of time the plaintiff has been inactive (in other words the two years of complete procedural inactivity plus any periods of delay that preceded this), the reason (if any) they have not been proceeding with the case, and the impact on the defendant and the proceedings themselves of the passage of time...” (emphasis added). The majority did not demur from this. Thus, I understand the Supreme Court, when referring to inactivity for a particular period, to mean the absence of procedural steps in the proceedings.

35. Activity outside of formal steps in the proceedings can and, in many cases, must, be taken into account but this is not for the purpose of calculating the actual delay. Rather it is for the purpose of assessing whether the delay or inactivity in the proceedings is explained and for the purpose of determining whether, in all the circumstances, the case should be dismissed. It seems to me that this is what is referred to by Murray J at paragraph 53 of his judgment where he states “...a plaintiff who has engaged in less than two years of total unexplained delay (as would arise if, on the defendant bringing an application under O. 122 r. 11, it emerges that the plaintiff had in fact been engaged in activity to advance their case other than by the taking of procedural steps) should only find that their claim is dismissed if there is defendant prejudice to the level required to ground an application under the O’Domhnaill jurisdiction...”

36. One of the issues which the courts have had to deal with in the operation of the Primor test is, of course, the relevance or significance of inactivity on the part of the defendant. I was referred to McKechnie J’s judgment in Comcast where he considered this issue at paragraphs 34 to 39. He accepted that the plaintiff bears the greater obligation to progress the proceedings but held that the defendant’s “interaction or lack of it, as the case may be, with the delay of which he later complains, whether active or purely inactive, to use such phrase, may rightfully attract condemnation by virtue of many other circumstances...” He said, inter alia:

“34. ...In a number of cases, a distinction has been made between what has been described variously as “active delay” or “culpable delay” as distinct from “inactive delay” or “mere delay”. The former in general refers to an undischarged obligation on the defendant’s part whereas the latter is intended to reflect the passage of time simpliciter or the “do nothing” approach. Again, I remain unconvinced that such a formal departmentalising of the defendant’s conduct is justified...

35. ...

36. Whilst there can be no doubt but that the moving party has the greater obligation of expedition overall, nonetheless the defendant’s interaction or lack of it, as the case may be, with the delay of which he later complains, whether active or purely inactive, to use such phrase, may rightfully attract condemnation by virtue of many other circumstances such as: the identity and character of the particular defendant;

the position which he holds; whether that be public or private; the standing and accountability of that position, whether it be representative of the public, of an institution which it serves or otherwise; and the nature of the issues which he is called upon to answer...”

37. It seems to me that this has been overtaken by Kirwan v Connors. O’Donnell CJ dealt with the question of the defendant’s delay and/or acquiescence at paragraphs 14 and 15 of his judgment where he said:

“14. On the separate question of the relevance of defendant inactivity, I agree with Hogan and Murray JJ. and respectfully disagree with Collins J. The courts must hold the scales equally between the plaintiff and the defendant, but that does not mean that they are to be treated as the same when they are not. In particular, they are not co-adventurers in litigation with the same interest in bringing it to conclusion.

The essential structure of proceedings involves a plaintiff invoking the jurisdiction of the court to summon the defendant requiring them to answer a claim. In my view, the plaintiff has an interest in, and responsibility for, bringing that claim to trial. The same cannot be said of a defendant who will obtain nothing from success in the proceedings other than being restored to the position they were in prior to the commencement of those proceedings. Furthermore, it is a well-known feature of litigation, that many more actions are commenced than proceeded with. Litigation is an expensive activity, and not just in financial terms. There are many reasons why a plaintiff may commence proceedings but not proceed with them. I think a defendant is not required to spend time, energy and resources on a claim which may never be heard and defendants should not be criticised for doing no more than is required to respond to a claim, and to be ready to meet it if and when it is prosecuted.

In this regard I agree with the passage from the judgment of Butler J. in Campbell v Geraghty [2022] IEHC 241 set out at paragraph 51 of the judgment of Murray J.

15. There may be cases in which there may be something which goes beyond silence and/or inactivity and reaches the level of acquiescence on the part of a defendant in the plaintiff’s delay, or indeed positive encouragement to the plaintiff to refrain from prosecuting a claim. If so, that would certainly be a relevant factor. However, unless the defendant’s conduct reaches that level, I do not think it is a valid answer to a complaint that a plaintiff has done nothing to prosecute a claim for a period of two years or more, to say that the defendant did not do so either. The clue here is in the name: the defendant’s function is to defend a claim which is brought to court.”

38. At paragraphs 190 and 191 of his judgment, Hogan J noted that “[I]n general it may be said that defendants are not obliged to take proactive action when faced with litigation delays which are not of their making” but also noted that different considerations apply where the defendant has acquiesced in the delay or has actively lulled the plaintiff into a false sense of security. He also noted that where the defendant has taken steps to have the plaintiff progress the proceedings then it is more likely that they will succeed in “having the action struck out once the two year inflection point has passed.”

39. At paragraph 194, he stated that reliance on damage to professional reputation brought about by delay “ring a little hollow where [the defendant] could have done more to help themselves. For the future I suggest that the courts should give little weight to these considerations where (as here) the professional defendant who complains that proceedings impugning their professional reputation are hanging over their heads have not themselves taken the appropriate steps in a timely fashion to bring the action on for trial.”

EVIDENCE

40. The application is grounded on an affidavit sworn by Detective Superintendent John G. Healy. The plaintiff filed a replying affidavit and Detective Superintendent Healy in turn filed a reply to that. As mentioned above, after the hearing had concluded but before judgment was delivered, an application was made to admit new evidence, i.e. an affidavit of a third party. This party’s affidavit was to the effect that he had been involved in similar operations to those described by the plaintiff and that one of the key individuals named in the plaintiff’s Statement of Claim was centrally involved with that third party’s operations also. It was submitted on behalf of the plaintiff that this was directly relevant to the defendants’ claims of prejudice and that there could not be a fair trial because it went to the question of whether this potential witness could recall the events complained of by the plaintiff. I acceded to that application in a written judgment (Doyle v The Commissioner of An Garda Síochána [2023] IEHC 313) and the affidavit was admitted. There was a subsequent application by the plaintiff for that affidavit to be filed in redacted form to protect the identity of the deponent. I acceded to that application. For the reasons set out at paragraph 35 of my earlier judgment, having allowed the plaintiff to adduce new evidence, I gave the defendants liberty to adduce evidence of any relevant change of circumstances which had occurred since the hearing of the motion. They filed a further affidavit of Detective Superintendent Healy. I have considered all of the contents of these various affidavits.

NATURE OF THE CLAIM

41. As noted above, the plaintiff challenges the termination of his employment as a member of An Garda Síochána. The reliefs sought in the Plenary Summons are exclusively focused on that termination. They are:

“1. A declaration that the purported termination of the Plaintiff’s employment as a Member of An Garda Síochána by Order of the first named Defendant dated the 23rd day of December 1998 is a nullity;

2. A declaration that the purported termination of the Plaintiff’s employment as a Garda in or about the 6th day of January 1999, embarked upon in purported compliance with paragraph 6 of the Garda (Retirement) Regulations 1934 is without efficacy and ultra vires the provisions of Section 14 subsection 1(b) of the Police Forces Amalgamation Act 1925;

3. A declaration that the purported termination of the Plaintiff’s said employment as a Garda was effected in breach of the provisions of natural and constitutional justice and is therefore invalid;

4. A declaration that the procedures adopted by the Defendants in purporting to have the Plaintiff medically examined, and acting upon the contents of the medical report therefrom and which medical report the plaintiff had no opportunity of examining, considering or rebutting, were in breach of the tenets of natural and constitutional justice;

5. A declaration that the purported termination of Plaintiff’s employment derived from the unilateral acts of the first named Defendant and was not a retirement within the meaning of the term;

6. An order requiring the Defendants to restore the Plaintiff to his position forthwith;

7. An order requiring, the payment of all arrears of salary, and the maintenance of the Plaintiff’s pension entitlements.

8. Damages for breach of the Plaintiff’s constitutional rights.”

42. The termination of the plaintiff’s employment was by way of retirement on the grounds of ill health by Order made pursuant to Regulation 6 of the Garda Síochána (Retirement) Regulations, 1934 (SI No 146 of 1934). The medical certification by the Chief Medical Officer stated:

“I, Dr. Gerard McCarthy, Surgeon to the Garda Síochána, hereby certify that I have examined the above-named John Doyle of the Garda Síochána on the 15th December 1998 at Garda Medical Department and found him/her* to be suffering from Chronic Alcohol Abuse and Dependency Syndrome and in consequence thereof, I certify that this member is so incapacitated by infirmity of mind/body that he/she* is unable to

perform his/her* duties as a member of the Garda Síochána and that such incapacity is likely to be permanent.

Further examination will not be necessary from this date 15th December.”

43. The plaintiff essentially claims that his retirement on health grounds was simply a device. It is his claim that he was forced out of An Garda Síochána due to his involvement in certain undercover Garda drugs and firearms operations and due to him raising concerns about the lawfulness or propriety of those operations. A caveat must be placed on this description of his claim as this case is not clearly and expressly pleaded in the Statement of Claim, despite its considerable length. That this is the substance of his claim only becomes apparent when inferences are drawn from the express contents of the Statement of Claim and when it is read alongside the plaintiff’s replying affidavit to this motion. It is also stated in the written submissions on behalf of the plaintiff that “...It was the Plaintiff’s role in attempting to expose these issues which led to his dismissal.” I return to this in the next section.

44. The plaintiff claims that in 1993 he came into contact with a person who became an informant, and passed on information in relation to the importation of drugs into the country. The plaintiff claims that he and this informant worked together along with a number of more senior Gardaí. In the Statement of Claim (paragraphs 11 to 24 in particular), the plaintiff pleads details of various Garda operations involving the informant relating to drugs shipments. Further particulars are given in the Replies to Particulars dated the 4th January 2021. The plaintiff claims that after a certain amount of time working with the informant, he took a step back and did not meet the informant for some time. He claims he met him again in the middle of 1996, on which occasion the informant told him that a consignment of drugs had been brought into the State in May 1995 with the knowledge of the Drug Squad and the entire consignment was allowed to get through to the drug gang. The plaintiff also claims that at the end of 1996 the informant gave the plaintiff further information about drugs being allowed through to criminal gangs to the knowledge of the Gardaí and that, even though there had been opportunities to arrest some leading criminal figures, they had not been arrested. The core of the plaintiff’s claim in relation to this is that the Gardaí were deliberately permitting, or even facilitating, drugs to enter the State and to reach the criminal gangs. The plaintiff claims that he became very concerned about this conduct and that he then advised a friend who worked for a relevant State agency of what he claimed had been going on (this seems to have been in Spring 1997).

45. The plaintiff claims that he thereafter started having difficulties, including (though not limited to) restless nights and a sense of abandonment and deep concern for his own safety and that of his wife.

46. It is not entirely clear from the Statement of Claim what he alleges was the cause of these difficulties. It is unclear from the Statement of Claim whether he claims that they came about simply because of his knowledge of these events, or of his involvement in some of them, or as a consequence of having started to raise these concerns about them and the response of certain Gardaí to him doing so, or a combination of all of those things. In his Replies to Particulars he seems to claim that his difficulties arose from a combination of all of these. He says “The facts speak for themselves. The Plaintiff had concerns for his safety and that of his wife because the people involved were dangerous and ruthless criminals with real and apparent support from An Garda Síochána. The criminals were linked to a dangerous Dublin criminal gang. The Plaintiff was having serious doubts about the Gardaí dealing with the informant and he was actually deeply concerned with the manner in which operations were being conducted, with the failure to arrest, with the fact that drugs were getting through to the intended recipients and with the manner in which he was being treated. It is a matter for the Trial, for the Plaintiff to elaborate on the evidence.” At paragraph 13 of the written submissions delivered on his behalf, it is submitted that as a result of the “forced retirement” he suffered mentally and physically.

47. He says that as a result of these difficulties he went to his native county and made contact with his wife to tell her that he would not be returning home. He stayed away for six weeks. He was persuaded to return and, following his return, a Chief Superintendent Adrian Culligan told him that arrangements had been made for him to be admitted to St Annes Hospital, a psychiatric hospital. He did not wish to be admitted but reluctantly, in order to “play ball”, he admitted himself for a few days. He claims that following his discharge from hospital he was pressured by Chief Superintendent Culligan to transfer to Togher Garda Station. He claims that this was in effect a demotion. He also claims that he was pressurised into handing over recordings that he had made of conversations with the informant.

48. In September 1998, he made contact with a journalist and provided information to the journalist.

49. He makes detailed pleas in respect of his interactions with the Chief Medical Officer, Dr. Gerry McCarthy, between the beginning of November 1998 and the middle of December 1998, culminating in Dr. McCarthy telling him on the 15th December 1998 that he was retiring him on medical grounds.

APPLICATION OF THE TESTS

50. Before turning to the application of the two tests to the evidence, the following must be noted as they are of direct relevance to that exercise.

51. The Statement of Claim, while very lengthy and detailed, presents difficulties in a number of respects. For example, as noted above, it is not clear what is alleged to have been the cause of the plaintiff’s difficulties. As also noted above, it is not even expressly pleaded that the termination of the plaintiff’s employment was by reason of him raising his concerns about the covert drugs operations. This is only identified as the plaintiff’s claim by inference and deduction and with the assistance of the plaintiff’s replying affidavit to this motion. Perhaps most importantly, while the plaintiff gives very considerable detail about particular individuals and their involvement in certain events, the Statement of Claim does not contain any express claim about any particular individual’s involvement in the termination of his employment (except, of course, Dr. McCarthy, and perhaps an Assistant Commissioner Hickey). The height of his claim, even in his affidavit, in relation to being forced out is very general in nature. For example, at paragraph

33 of his affidavit he says “…when I sought help and appropriate intervention I did not receive any, but rather was thrown to the wolves and drummed out of the job and career that I loved”, and at paragraph 49 he states that Dr. McCarthy was

“clearly being empowered or required to make an unjustifiable medical finding against me..”. At paragraph 72, he says that Assistant Commissioner Hickey “knew that I was being railroaded out of the Force…”

52. These are not just pleading points. Those deficiencies present a real difficulty in (a) identifying the precise nature of the case that is being made, and, therefore, (b) evaluating the importance of individual witnesses (and therefore the unfairness or prejudice caused by their non-availability or impaired memories). These, of course, are interlinked. The nature of the case is a fundamental consideration under both the O’Domhnaill v Merrick and Primor-Kirwan jurisdictions and, therefore, the precise case that is brought must be identified. From the way the Statement of Claim is pleaded the plaintiff appears to seek to bring a case about the propriety or lawfulness of the Garda operations. But, as acknowledged in the plaintiff’s written submissions (paragraph 13), that is not the claim that has been brought. It is stated in paragraph 13 that “...The Plaintiff is not suing the Defendants for having engaged in mismanagement, corruption and criminality. The Plaintiff is alleging that such occurred and it was his efforts to bring such to light that resulted in the Plaintiff’s wrongful forced retirement. That is the central issue in this case.” The claim is, according to the reliefs sought, a challenge to the lawfulness of the termination of the plaintiff’s employment – that is clear from the exclusive focus of the reliefs. On one view, the propriety or lawfulness of the operations is irrelevant to that claim and to those reliefs and, therefore, some of the witnesses named in the Statement of Claim and Replies to Particulars in relation to the operations are not essential witnesses.

53. However, that is not the way either the plaintiff or, even more importantly, the defendants, approached the nature of the claim in this application. For the most part, the defendants brought this application on the basis of the nonavailability of witnesses and documents or the impaired memories of witnesses which are relevant to the Garda operations. Dr. McCarthy, the Chief Medical Officer, is a significant exception to this. By bringing the application on that basis, the defendants accept that these individuals are important to the plaintiff’s claim. Indeed, Chief Superintendent Healy describes the allegation of wrongdoing in respect of the operations as the “core allegation”. The plaintiff, notwithstanding what is stated in paragraph 13 of his written submissions, also accepts the importance of the operations and these witnesses. Indeed, his application to adduce further evidence after I had reserved judgment was to deal with the alleged impaired memory of one of the witnesses in respect of the operations. The parties therefore both approached the application on the basis that what was pleaded or suggested by the plaintiff in respect of the covert operations was directly relevant to (and an important part of) the plaintiff’s claim of unlawful termination. There is, of course, sense to this approach because it is part of the plaintiff’s claim that the termination was not for the stated reasons but rather was to get rid of him from the force and that the termination happened in a context.

54. I have therefore approached the issues on the basis of the parties’ own approach. However, focus nonetheless has to be kept on the fact that the claim, as pleaded, is not a trial of the propriety or lawfulness of those operations. This has obvious significance for the assessment of the alleged prejudice and unfairness brought about by the non-availability of documents or witnesses or their impaired memories.

55. The second general point to note is that a Defence has not been delivered yet. This is significant because it is not yet known what will actually be at issue and will have to be tried at the hearing. Therefore, it is difficult to assess the significance of the inability of a particular witness to give evidence at trial and, therefore, to assess what prejudice or unfairness may be caused to the defendant in the conduct of the hearing. In the circumstances of this case, this is more difficult because the defendants do not give any indication in their affidavits of what approach they will be taking in respect of the matters pleaded. This is notwithstanding the fact that the plaintiff repeatedly made the point in his affidavits that the defendants do not expressly challenge the truth of his allegations. For example, at paragraph 6 of his replying affidavit, he states “…nothing in this application to the Court indicates that any allegation made by me is to be challenged for veracity, is inaccurate or does not reflect what actually happened in relation to the massive importation of drugs….” (see also paragraphs 8, 57, 60, 72 and 146). Despite these statements, the defendants did not give any indication on affidavit of what approach would be taken to the defence. The furthest Detective Superintendent Healy goes is to say that “[T]he core allegation as to whether the alleged wrongdoing occurred and/or the circumstances in which it occurred can never be properly tested” and that there “…are significant issues of law and fact to be potentially addressed in the main action if it were allowed to proceed to trial and that it would be prejudicial to the Defendants to allow the matter to proceed to trial.”

56. However, the non-delivery of a Defence is not automatically fatal to an application to dismiss for delay. In Manning v Benson & Hedges Ltd [2004] 3 IR 556, Finlay Geoghegan J determined an application to dismiss proceedings for delay notwithstanding that a Defence had not been filed. Murray J said at paragraph 13 of his judgment in Kirwan v Connors that the precursor to Order 122 rule 11 “...allowed the defendant to apply to dismiss proceedings ‘for want of prosecution’ after two years irrespective of whether a defence had been filed.”

57. The non-delivery of a Defence may be fatal where there is no good reason for its non-delivery: for example, where a properly pleaded Statement of Claim is delivered without delay and there is then subsequent delay on the part of the plaintiff, the defendant could probably not rely on the plaintiff’s delay to justify the non-delivery of a Defence (because any difficulties in doing so would not have been caused by the plaintiff).

58. However, where there is a reasonable basis for the non-delivery of the Defence, such as a long delay before the delivery of the Statement of Claim, which causes difficulties in obtaining instructions in respect of the contents of the Statement of Claim, then the non-delivery of a Defence can not act as a bar to the Court granting an Order dismissing the proceedings. It would be entirely inconsistent with the rationale and constitutional imperative behind the jurisprudence to dismiss for delay if a defendant could not obtain an Order for dismissal on the grounds of delay without first delivering a Defence where he has been rendered unable to do so by the very delay of which he complains.

59. Thus, it seems to me that an inability to even get instructions on which to prepare a Defence due to delay may be sufficient prejudice to ground an application under either the O’Domhnaill v Merrick or Primor-Kirwan strands. It goes without saying that if a defendant can not even get instructions due to the passage of time then this gives rise to prejudice and a risk of unfairness. On the other hand, even if it is possible to prepare a Defence, the non-availability of witnesses, or their impaired memory, may still be a prejudice or a reason why a fair trial is not possible. It seems to me, therefore, that there are two limbs to a consideration of prejudice and unfairness: (i) whether the defendants are prejudiced in the sense of not even being able to prepare a Defence or to ascertain what their position is in respect of the defence of the proceedings (part of this will also be a consideration of whether it was reasonable for a Defence not to have been delivered); and (ii) whether they are prejudiced by the impaired memory or non-availability of witnesses or of documents. It seems to me that the Court must be particularly careful in the application of the relevant tests to the first of these because a defendant always has the option of delivering a Defence putting the plaintiff on full proof. However, I do not believe that the interests of justice are served by compelling defendants to deliver a Defence in which the plaintiff is put on proof of everything, including matters on which there may in reality be no dispute, just for the purpose of bringing a motion to dismiss.

60. As noted above, in Manning v Benson & Hedges Ltd [2004] 3 IR 556, Finlay Geoghegan J determined an application to dismiss proceedings for delay notwithstanding that a Defence had not been filed. She said “[I]t is appropriate that the court should consider each application in the most favourable way to the plaintiff…” However, she was there specifically dealing with the possibility of a plea that the claims were statute barred and went on to say “[A]ccordingly, it is assumed for the purposes of this application that each of the claims made is not statute barred.” It is difficult to see how the same approach can be adopted in this type of case, i.e. where there are multiple and detailed allegations of fact. To consider the application in the most favourable way to the plaintiff would mean assuming all of the facts relating to the potential witnesses whose memory is impaired or who are unavailable are either not in dispute or are true. That, however, would have the effect that such an application could never be determined in favour of a defendant without a Defence being delivered, even if he can not do so due to the delay. For the reasons set out above, that would not be consistent with the rationale behind the jurisdiction.

61. In the circumstances of this case, for the purpose of assessing prejudice, I must proceed on the basis that even if all of the allegations are not disputed, the allegations of wrongdoing will be disputed. It seems to me that this is the logic of the defendants’ position.

62. The defendants primarily rely on the Primor-Kirwan strand of jurisdiction. However, they did not withdraw their application on the basis of O’Domhnaill v Merrick. I therefore have to determine whether the application on that basis should succeed. I deal with this first. Much of the discussion of the facts, evidence and of the witnesses will therefore be in the context of O’Domhnaill v Merrick but will also then serve to inform the Primor-Kirwan discussion, which is the main focus of the defendants’ application.

O’Domhnaill v Merrick

63. The plaintiff names thirty-six individuals across the Statement of Claim and Replies to Particulars, all of whom are potential witnesses. The defendants submit that oral testimony will be crucial. This is undoubtedly correct. It is submitted on behalf of the defendants that a fair trial will not be possible because: (i) witnesses’ recollections inevitably become less accurate and reliable with time. In this case some of the witnesses may be required to deal with events from as long ago as 1993; (ii) three potential key witnesses have died and are therefore not available;

(iii) one potential key witness is not available due to illness; (iv) there is specific evidence of impaired memory on the part of five other potential witnesses either through passage of time or illness or both; (v) two witnesses are not available because their whereabouts are unknown; and (vi) documents are not available. The defendants’ emphasis was on the risk of specific prejudice.

64. I deal with these claims of specific prejudice in turn.

Deceased witnesses

Dr. Gerry McCarthy, Chief Medical Officer

65. Dr. McCarthy died on the 6th July 1999. As discussed earlier, the focus of the reliefs sought in these proceedings is the plaintiff’s forced retirement on medical grounds on the recommendation of Dr. McCarthy. One of the central aspects of the plaintiff’s case is that this was a device to purportedly lawfully remove the plaintiff from An Garda Síochána. The plaintiff makes specific allegations against Dr. McCarthy at paragraphs 41 to 48 of the Statement of Claim. Given the focus in the reliefs on the lawfulness of the termination of the plaintiff’s employment, it is necessary to consider precisely what is alleged in respect of Dr. McCarthy.

66. The first substantive reference to Dr. McCarthy in the Statement of Claim is at paragraph 41. The plaintiff claims that he attended with Dr. McCarthy on the 5th November 1998, on which occasion the doctor asked him what was going on between him and the authorities in Cork. At that stage, the plaintiff had been on certified sick leave for stress for three weeks. Dr. McCarthy is alleged to have told the plaintiff to return to work, put everything behind him and get on with his life. However, the plaintiff claims that when he tried to return to work a few days later he was not permitted to do so because his station had not received a notification that he was fit for work.

67. At paragraph 43 of the Statement of Claim, the plaintiff claims that he was instructed by an Assistant Commissioner to attend for medical examination again on the 17th November 1998. He attended before Dr. McCarthy on that date and explained to him that he had been refused permission to work when he returned because they had not received notification that he was fit for work. He claims that Dr. McCarthy stated that he was of the view that he had allowed the plaintiff back to work too soon on the 5th November. He claims that Dr. McCarthy asked the plaintiff to furnish a letter from his own GP outlining his state of health. Subsequently, the plaintiff attended his GP and he obtained a letter stating that he was both physically and mentally capable of returning to work.

68. He claims at paragraph 44 that he reattended with Dr. McCarthy, on orders, on the 8th December 1998 and gave him the letter from his GP. He claims that Dr. McCarthy read the letter “and became extremely angry stating that he did not want to see the letter and threw it back across the table at him. The Chief Medical

Officer then asked the Plaintiff whether he realised that he could leave him out “with nothing if he did not bring him what he wanted”.” The plaintiff claims that he asked Dr. McCarthy what it was he wanted and that he answered “You know what I want, I am going to retire you on medical grounds.”

69. At paragraph 45 of the Statement of Claim (and paragraph 52 of the Replies to Particulars), the plaintiff claims that his own GP was away at that time and his wife attended with another doctor who knew the plaintiff and explained to him what had occurred. This doctor wrote a letter for the Chief Medical Officer and gave it to the plaintiff’s wife. The letter was sealed. The plaintiff says that because it was sealed the plaintiff and his wife did not and could not have read it.

70. The plaintiff then returned to Dr. McCarthy (presumably on the 15th December) and gave this letter to him. The plaintiff had not read the letter because it was in a sealed envelope. It is then pleaded that Dr. McCarthy read the letter and observed that the doctor appeared to know the plaintiff well and then confirmed that he was retiring the plaintiff on medical grounds and the retirement would come into effect in January 1999.

71. The terms of the medical certification are set out above and were to the effect that the plaintiff was incapacitated due to chronic alcohol abuse and dependency syndrome.

72. It is unclear from these pleas alone precisely what case is being made against Dr. McCarthy in respect of the plaintiff’s retirement (other than the alleged breach of fair procedures in basing his decision on the report which the plaintiff had not seen or addressed). However, the case becomes clearer when the Replies to Particulars and the plaintiff’s replying affidavit to this application are considered.

73. At paragraph 13 of his replying affidavit, the plaintiff states “In blunt terms, that Certificate is a lie…”. At paragraph 10 of the affidavit, he states “…I was forced out of An Garda Síochána because of my involvement in the matters, the subject matter of these proceedings, and not because of any impairment caused by drink or fallouts from dependency on alcohol.” At paragraph 18, he states the purpose of the previous paragraphs of his affidavit was to “…set out what my circumstances were and to give lie to the assertion made in the medical discharge papers, which are an affront to the reality…” At paragraph 72, the plaintiff claims that he was “being railroaded out of the Force…” At paragraphs 88 and 89 of the affidavit, the plaintiff says, inter alia “I do not attack the good doctor but his finding was clearly a tool of convenience and I, to my great regret, played along to some extent out of fear for my welfare, safety and threats being made to me and my wife…” and “…when I became superfluous to requirements and when I decided that I needed to behave like a policeman and report the matter to my supervisors I was deemed dispensable.

To cast me out from An Garda Síochána was bad but to do so on the basis that I was mentally impaired is despicable. The records of official Ireland deem me to be such and I am entitled to at least have that stain taken from me.” Furthermore, at paragraph 47 of his affidavit, the plaintiff avers that on his second last visit to Dr. McCarthy (which I think was on the 8th December 1998), Dr. McCarthy told him that there were two men upstairs who were anxious to speak with him. The plaintiff claims that one of these men was Assistant Commissioner Tony Hickey and that he said to the plaintiff “Jack, we don’t want our dirty linen washed in public.” The plaintiff believes that the purpose of this meeting was to intimidate him.

He concludes paragraph 49 of his replying affidavit by saying that “Assistant Commissioner Hickey was telling me to keep my mouth shut and his arrival at my medical examination where a doctor was clearly being empowered or required to make an unjustifiable medical finding against me was corrupt and rotten.” It is worth noting that this meeting or, indeed, the allegation that the doctor told the plaintiff that the men were upstairs, had never previously been referred to at all, notwithstanding the length of and level of detail in the Statement of Claim and the Replies to Particulars.

It was only referred to after it had been stated in the defendants’ grounding affidavit that Dr. McCarthy had died.

74. Thus, the central claim made by the plaintiff in respect of Dr. McCarthy is that the reason stated by Dr. McCarthy for his retirement was false and was simply a device to get rid of him or to “railroad” him from the force. Notwithstanding the statement by the plaintiff that “I do not attack the good doctor”, that is in fact a direct attack on Dr. McCarthy. It suggests, if not explicitly claims, that Dr. McCarthy was engaged in a device, or, as the plaintiff puts it, “a tool of convenience”, to remove the plaintiff because he was raising uncomfortable issues for members of An Garda Síochána. The second broad claim against Dr. McCarthy in respect of the termination is that he acted in breach of the plaintiff’s constitutional procedural rights. I understand this claim to be that the doctor did not give the plaintiff an opportunity to see and address the sealed medical report which had been obtained by the plaintiff’s wife before relying on it.

75. The evidence of Dr. McCarthy is of crucial importance to these claims. The defendants are undoubtedly severely prejudiced by the absence of Dr. McCarthy. This prejudice or the risk of an unfair trial could possibly be abated somewhat by the relevant documentation. The difficulty is that if the plaintiff wishes to go behind or to interrogate the documents, which appears very likely, there is a serious risk of an unfair trial as the doctor would not be available.

76. However, such prejudice, even if amounting to a serious risk of an unfair trial, is not sufficient to satisfy the O’Domhnaill v Merrick test because the unfairness or risk of unfairness arising from the non-availability of Dr. McCarthy does not arise from delay. He died just seven months after his recommendation and just six months after the termination took effect. Thus, even if the plaintiff had moved rapidly, the difficulty caused by Dr. McCarthy’s death would have arisen. I do not believe that the proceedings could have been dismissed then. The defendants are in precisely the same position in respect of Dr. McCarthy’s evidence now as they would have been just seven months after the termination and it can therefore not be said that the prejudice or risk to a fair trial arising from Dr. McCarthy’s death has been caused by delay.

77. The defendants submit that the proceedings should have been brought by way of judicial review. This is, of course, relevant to this point. If the proceedings were required to have been brought by judicial review, the leave application should have been brought promptly and no more than six months from the 15th December 1998 or the 6th January 1999. If that had been done, it is possible that Dr. McCarthy would have given instructions and possibly sworn an affidavit before his death. That would have undoubtedly put the defendants in a better position to defend the proceedings but it does not seem to me to be a full answer because it is extremely difficult to see how these claims, even if brought by judicial review, could be defended without oral evidence, at the very least by way of crossexamination on the affidavits.

78. Thus, while Dr. McCarthy is a central witness, I am not satisfied that the defendants have established that a fair trial has been rendered impossible by the passage of time on the basis of Dr. McCarthy’s death.

Garda Gerry McCarthy

79. A further potential witness, retired Garda Gerry McCarthy, is also deceased. He died in August 2006. The potential relevance of Garda McCarthy seems to be as follows.

80. The plaintiff claims that he was contacted by the informant’s wife because the informant had been detained after an incident the previous night. This incident allegedly involved the discharge of a firearm. The plaintiff says that he spoke to the informant in his cell and the informant told him that he had a gun (and that senior officers knew this and that he had been warned to not say anything as “if you do we are all in trouble”). The plaintiff claims that following this conversation he went to the informant’s house and his wife handed him a rucksack containing handguns and live ammunition. The informant told him that some of the guns had been involved in shootings. The plaintiff says that he was in fear and did not know who to trust and was afraid that the guns would come into the wrong hands. (It is unclear to me what the plaintiff means by this in circumstances where he had at this stage taken possession of the guns). The plaintiff claims, when the Statement of Claim and the Replies to Particulars are read together, that retired Garda McCarthy was a friend of his and that he assisted the plaintiff by handing the guns over to an Inspector Shanahan of Anglesea Street Garda Station. (It is also unclear to me why the plaintiff needed the assistance of Garda McCarthy instead of handing them directly to Inspector Shanahan himself). The plaintiff also claims that he met Inspector Shanahan after this and explained what had happened and how concerned he was about what had gone on. He sought and received a guarantee that the guns would be handed over to a Chief Superintendent Culligan.

81. A further feature of the plaintiff’s case to which Garda McCarthy is relevant is that when he, the plaintiff, became concerned that large consignments of drugs were being permitted to reach drug gangs, the plaintiff secretly recorded the informant “for the purpose of obtaining evidence in relation to what had transpired.” He maintains that Inspector Shanahan, after the conversation in relation to the guns, told him that Chief Superintendent Culligan had asked him to recover the plaintiff’s tapes of the conversations with the informant. The plaintiff claims he refused to hand them over and then gave them to his solicitor. He claims that he was contacted by Inspector Shanahan several times over the following days and that he was put under pressure by the inspector, including by him driving up and down past the plaintiff’s house and making a call to the plaintiff’s wife. He says that he eventually handed copies of the recording to Inspector Shanahan on the express condition that the contents of the tapes would be investigated. This relates to Garda McCarthy because, according to the Replies to Particulars, when the plaintiff and his wife were visiting Garda McCarthy before he handed over the tapes, Garda McCarthy told him that he had to hand over the tapes.

82. The plaintiff also says that an Assistant Commissioner and a Chief Superintendent visited Garda McCarthy’s house and that he gave them a glowing reference of the plaintiff and they allegedly confirmed that that was what they were hearing from everyone.

83. In my view, retired Garda McCarthy’s evidence is likely to be of minor relevance. The fact that it was he who handed over the guns to Inspector Shanahan does not seem to me to be of core relevance to the case that is being made by the plaintiff. Of course, if Inspector Shanahan denies that Garda McCarthy handed over the guns, this may have to be revisited by the trial judge. Furthermore, if the plaintiff was alleging that Inspector Shanahan had instructed or asked Garda McCarthy to receive the guns from the plaintiff or to demand that he hand them over, the relevance of Garda McCarthy’s evidence may be of a different order as it could possibly be suggested that Garda McCarthy was part of the alleged misconduct, but it is clear from what is pleaded that Garda McCarthy was in fact assisting the plaintiff rather than Inspector Shanahan.

84. Further, I do not believe that the mere fact that it is alleged by the plaintiff that Garda McCarthy told him that he had to hand over the recordings when he and his wife were visiting Garda McCarthy in his home could make him an important witness. This appears to have been said by way of advice from Garda McCarthy.

85. The defendants’ reliance on Garda McCarthy’s non-availability appears to be based on their understanding that the plaintiff alleges that Garda McCarthy was involved in applying pressure on the plaintiff. That this is the defendants’ understanding is clear from paragraph 34 of Detective Superintendent Healy’s grounding affidavit: “In addition, Garda Gerry McCarthy died in August 2006. The Plaintiff alleges…at paragraph 44 [of the Replies to Particulars] that when the Plaintiff and his wife were visiting Garda McCarthy he was told that he had to hand over the tapes. He alleges that he was told that Chief Superintendent Culligan wanted them. He alleges that he put the plaintiff under extreme pressure. He even arrived at the Plaintiff’s place of work one day in Togher.” However, the defendants’ understanding that the plaintiff alleges that Garda McCarthy pressurised the plaintiff seems to me to be a misreading of paragraph 44 of the Replies to Particulars. The correct reading of that paragraph is that it was Inspector Shanahan who was putting the plaintiff under pressure. The paragraph states: “…For a number of weeks Martin Shanahan called many times to the Plaintiff’s house and on another occasion when the Plaintiff’s wife and he were visiting Gerry McCarthy he was told that he had to hand over the tapes. He was told that Chief Superintendent Culligan wanted them. He put the Plaintiff under extreme pressure. He even arrived at the Plaintiff’s place of work one day in Togher.” The final two sentences refer back to Inspector Shanahan. This understanding is reinforced by reading it with paragraph 37 of the Statement of Claim: “…the Plaintiff met Inspector Shanahan when he reported for work. Inspector Shanahan told the Plaintiff that Chief Superintendent Culligan had asked him to recover the tapes of the informant but the Plaintiff refused to hand them over. The Plaintiff then brought the tapes to his solicitor for safe keeping. He was contacted again by Inspector Shanahan on several occasions over the next ten days. As a result of ongoing pressure, which included Inspector Shanahan driving up and down past his house and a call to the Plaintiff’s wife, the Plaintiff handed over copies of the tapes to Inspector Shanahan.”

86. For those reasons, at this stage, I do not believe that retired Garda McCarthy’s evidence could be in any way essential to the defence of the proceedings or that his non-availability risks the trial being unfair.

Detective Sergeant Michael Fitzpatrick

87. The plaintiff names a Detective Sergeant Michael Fitzpatrick in several paragraphs of the Statement of Claim (paragraphs 21, 22, 23 and 34) and of the Replies to Particulars (paragraphs 22, 23, 24, 30, 35 and 41). It was deposed by Detective Superintendent Healy in the grounding affidavit for this application that Detective Sergeant Fitzpatrick was suffering from leukaemia and was not in a position to reply to the Statement of Claim, and in any event had no memory of the events alleged. Unfortunately, Detective Sergeant Fitzpatrick died on the 1st February 2023. This was deposed to in the supplemental affidavit that the defendants were permitted to file after I had acceded to the plaintiff’s application to admit the third party’s affidavit.

88. The plaintiff alleges that Detective Sergeant Fitzpatrick was centrally involved in one of the operations in which drugs were allowed through to the relevant gang. He alleges that the informant was due to bring a consignment of drugs into the country and the plan was to allow the drugs to reach their target but the day before he was due to arrive the plaintiff was informed at a meeting in Anglesea Street Garda Station that the plan had changed and the drugs would not be allowed through to the gang. The plaintiff was instructed to tell the informant. The plaintiff claims Detective Sergeant Fitzpatrick was in attendance at that meeting in Anglesea Street Garda Station.

89. He also claims that Detective Sergeant Fitzpatrick, a Detective Sergeant Quilter, and he, the plaintiff, met the informant at the port as he entered the country with the drugs. The two Detective Sergeants removed the drugs from the informant’s car. The following day, the plaintiff and the informant met with the two Detective Sergeants and a Chief Superintendent O’Dwyer on the way back to Cork.

Later on, at a meeting in Anglesea Street Station, the plaintiff was informed that the plan had been changed again and that they were going to let half the consignment through to the gang. The plaintiff further claims that a plan was devised whereby the informant would be stopped at a check-point and he would escape and run across a field where he would be picked up by Detective Sergeant Fitzpatrick.

90. Finally, it is claimed that it was Detective Sergeant Fitzpatrick who told the informant when he was in custody not to say anything about the gun that was in his possession or they would all get in trouble.

91. Thus, Detective Sergeant Fitzpatrick is important to the plaintiff’s allegations about operations being run whereby drugs were permitted to reach criminal gangs.

92. I am not satisfied that the defendants have established that the delay rendered it impossible to prepare a Defence dealing with the allegations in respect of Detective Sergeant Fitzpatrick. The Statement of Claim was delivered on the 31st July 2018 and there is no evidence that Detective Sergeant Fitzpatrick was asked to review it or to provide instructions at that stage. There is also no evidence as to when he first developed leukaemia. His death five years after delivery of the Statement of Claim could not be taken as a reason why his instructions on the Statement of Claim could not have been obtained.

93. However, there is no doubt that if these matters are disputed (and, as explained above, for the purpose of this discussion I am proceeding on that basis), his non-availability for the trial of the action puts the defendants at a litigation disadvantage in dealing with those matters – which the parties accept are an important part of the proceedings. However, I do not believe that this establishes at this stage that a fair trial will not be possible. As discussed above, the central issue in the case is the lawfulness of the termination of the plaintiff’s employment. The plaintiff does not plead any case against Detective Sergeant Fitzpatrick in respect of his termination and, therefore, his non-availability to give evidence can not go directly to the question of whether there can be a fair trial of the central issue which the Court will have to determine. Furthermore, while the absence of

Detective Sergeant Fitzpatrick undoubtedly gives rise to a litigation disadvantage in dealing with the claims about the Garda operations, that does not amount to an inability to have a fair trial. Chief Superintendent O’Dwyer was also involved in some of the interactions in which it is alleged Detective Sergeant Fitzpatrick was involved. For example, Chief Sergeant O’Dwyer is alleged to have met the informant and to have been present at the meeting in Anglesea Street Station. There is no evidence that Chief Superintendent O’Dwyer is not available or that his memory is impaired and he will, therefore, be available to give evidence in respect of at least some of the matters that Detective Sergeant Fitzpatrick is alleged to been involved in.

Impaired memories

94. The plaintiff also relies on instructions from five potential witnesses that they do not recall the time in question. The details in relation to these are as follows:

(a) Chief Superintendent Joe Long. Chief Superintendent Long was 81 years of age at the time of giving instructions (26th August 2021) and he instructed that he was suffering memory loss in recent times. He instructed that he could not make any comment on the matters pleaded.

The relevance of Chief Superintendent Long is that he is referred to at paragraphs 12, 13, 15 and 25 of the Statement of Claim (when read together with paragraphs 11, 13 and 31 of the Replies to Particulars).

In summary, the plaintiff claims that Chief Superintendent Long was his Chief Superintendent when he first became involved with the informant.

The plaintiff claims that he tried to contact a Detective Sergeant Quilter (who I return to below) in respect of information provided to the plaintiff by the informant and, when he could not get him, he contacted the Drug Squad in Harcourt Street. A surveillance unit was to be sent from Dublin to Cork. The plaintiff says that he spoke to Chief Superintendent Long and apprised him of the position. Detective Sergeant Quilter was present for this conversation. The plaintiff claims that Chief Superintendent Long cancelled the surveillance unit. The significance of this to the plaintiff’s case is unclear.

The plaintiff says that he subsequently learned that a member of the drugs gang “had a senior police officer in his pocket”. He informed Chief Superintendent Long of this and the Chief Superintendent instructed him to find the Garda Officer involved.

He also says that he was authorised by another Chief Superintendent to pay a weekly sum of £100 to the informant and that he collected this from Chief Superintendent Long each week and had to sign a form in Chief Superintendent Long’s clerk’s office in Anglesea Street Garda Station.

Finally, the plaintiff says that he did not meet the informant for a period of time in 1995/1996. He explains in the Replies to Particulars (paragraph 31) that the reason that he did not meet the informant was because he “…had been acting on the instruction of Chief Superintendent Joe Long who had personally thanked the Plaintiff for all he had done. The Chief Superintendent explained to the Plaintiff that these operations were fraught with danger and he suggested that the plaintiff should take “a backward step”. The Plaintiff agreed and told the informant of his intentions.”

There is no doubt that the defendants will in a very general sense be prejudiced by Chief Superintendent Long’s inability to remember this period as they will not be able to take instructions or call evidence to address these pleas. However, that is not sufficient. It is not at all clear to me that Chief Superintendent Long’s evidence will be in any way significant to the claims against the defendants. Indeed, it is not at all clear whether the plaintiff is even critical of Chief Superintendent Long, or is alleging that he was involved in allowing drugs to reach the gangs, or that he was involved in pressuring the plaintiff or in forcing his retirement. To the extent that he is alleging that Chief Superintendent Long was involved in the operations because the plaintiff used to collect the money for the informant from the Chief Superintendent or his office each week, there is no evidence that the Chief Superintendent’s clerk is not available or that relevant documents are not available. The plaintiff claims that he had to sign a form each week at Anglesea Street Station. The plaintiff identifies a different senior officer as the person who he believes was allegedly in the criminal’s pocket.

(b) Sergeant Matthew McGrath. The grounding affidavit deposes to Sergeant Matthew McGrath’s instructions that he would “find it hard to recollect now.” Sergeant Matthew McGrath is referred to in paragraph 31 of the Statement of Claim and paragraph 19 of the Replies to Particulars. At paragraph 31 of the Statement of Claim it is pleaded that the plaintiff had been in Kilkenny for a number of weeks. Sergeant McGrath and a Sergeant O’Donovan came and persuaded the plaintiff to return to Cork. On his arrival back in Cork the plaintiff was told that Chief Superintendent Culligan wished to speak with him and he was told that arrangements had been made for his admission to hospital. He told the two sergeants that he did not want to go to any hospital and they suggested that he “should play ball with the Chief Superintendent”.

At paragraph 19 of the Replies to Particulars the plaintiff claims that on the evening before the first consignment of drugs he filled his own sergeant, Sergeant O’Donovan, in with everything he knew up to that time and what the arrangements were for the shipment. He claims this meeting was also attended by Sergeant McGrath, and Gardaí Michael Collins and Jim Herlihy.

I do not believe that the general assertion that Sergeant McGrath would “find it hard to recollect now” is sufficient to establish a real risk to a fair trial. More importantly, in circumstances where there was another person or other people present on each of the occasions referred to and there is no evidence that those people (Sergeant O’Donovan, Garda Collins or Garda Herlihy) are unable to recall these events, Sergeant McGrath’s general difficulty in remembering is not sufficient to establish that a fair trial would not be possible.

(c) At paragraph 5 of the Statement of Claim, it is pleaded that the plaintiff made contact with Interpol after he had come into contact with the informant. This is further particularised at paragraph 5 of the Replies to Particulars in which the plaintiff states that he made contact with a collator in Harcourt Square and that the information which the plaintiff gave about the drugs gang “raised a red flag” for the collator and that he “became excited” and said “we haven’t heard anything in a long time from them”.

Detective Superintendent Healy identifies this collator as Garda Patrick Miles. Detective Superintendent Healy deposes that Garda Miles’ instructions are that the events were twenty-seven years ago and that he has no recollection of speaking to Mr. Doyle.

It is impossible to see how whether or not the plaintiff made contact in the manner alleged, or whether or not Garda Miles reacted or said what is alleged, could be in any way important to the plaintiff’s case, either in respect of his termination or the Garda operations, and therefore to the defendant’s defence. I am, therefore, not satisfied that this establishes any risk to a fair trial or any other serious unfairness for the defendants.

(d) Inspector Martin Shanahan. I refer to Inspector Shanahan at length earlier when dealing with Garda Gerry McCarthy. Detective Superintendent Healy states that Inspector Shanahan instructs that he has a “reasonable recollection concerning some of the matters alleged by the plaintiff but has a hazy recollection concerning others, given the lapse of time.” Inspector Shanahan is potentially an important witness in relation to how the plaintiff alleges he was treated and therefore possibly in relation to whether or not his retirement/termination was lawful. However, I do not believe that the description of his recollection, i.e. a reasonable recollection in some respects and a hazy recollection in others, establishes at this stage that a fair trial would not be possible either on the basis that a Defence can not be prepared in respect of the allegations involving Inspector Shanahan or that he will not be able to give evidence at the trial. Of course, the trial judge will be obliged to continue to assess whether it is “appropriate to reach a determination other than on the merits in all the circumstances of the case” (Nash, paragraph 2.22).

(e) Detective Sergeant Quilter is identified in the plaintiff’s pleadings and Replies to Particulars as being centrally involved in the covert operations.

Detective Sergeant Quilter was subsequently promoted through the ranks and became an Assistant Commissioner. However, for ease of reference I will refer to him as Detective Sergeant Quilter.

In the grounding affidavit, Detective Superintendent Healy says that Detective Sergeant Quilter instructed “that given the passage of time his memory is not what it was and he is not in a position to consult any contemporaneous notes or other reference material. He says he would be seriously disadvantaged if he were called to give evidence.” The plaintiff does not accept that Detective Superintendent Quilter would not remember his involvement with the events, the subject of the proceedings.

It was to address this point that the plaintiff sought to adduce the evidence from the third party. As discussed in my earlier judgment ([2023] IEHC 313), this evidence was to the effect that the third party had been involved with Detective Sergeant Quilter on very similar operations to those described by the plaintiff for a number of years after 1998. It was therefore submitted on behalf of the plaintiff that it is likely that Detective Sergeant Quilter would have a better recollection than is suggested in Detective Superintendent Healy’s grounding affidavit.

However, events subsequently overtook this as Detective Sergeant Quilter suffered a stroke. In the supplemental affidavit filed after my decision to admit the third party’s affidavit, Detective Superintendent Healy referred to and exhibited a letter dated the 22nd June 2023 from Detective Sergeant Quilter’s doctor. The doctor dealt with the likelihood, as he put it, of Detective Sergeant Quilter being able to give evidence in the near future.

He said, inter alia, “Unfortunately due to a significant neurological deficit he has quite marked communication issues. I do not think he will ever be in a position to give evidence in a court setting due to likely severe language deficits. There is a very small chance this may change in time but the suspected timescale for this improvement is probably measured over 1-2 years…”

Before delivering judgment, I invited submissions on the Supreme Court’s judgment in IBRC v Fingleton, and on that occasion it was confirmed that Detective Sergeant Quilter remained unable to give evidence.

As with the other witnesses, in order to assess the degree of unfairness or risk of unfairness that Detective Sergeant Quilter’s inability to give evidence might cause for the defendants, it is necessary to address what is said about him in the proceedings. There are very many references to Detective Sergeant Quilter throughout the Statement of Claim, the Replies to Particulars and the replying affidavit. I do not propose to set them all out in detail but rather to attempt to summarise them.

The plaintiff claims that after the informant first gave him information he, the plaintiff, attempted to contact Detective Sergeant Quilter who was head of the Drug Squad in Anglesea Street. When he could not reach him, the plaintiff contacted a Detective Inspector in the Drug Squad in Harcourt Street and a surveillance unit was to be sent to Cork to meet the plaintiff. The following day the plaintiff told Chief Superintendent Long of the position. Detective Sergeant Quilter was present for that conversation. Chief Superintendent Long then cancelled the surveillance unit.

At paragraph 14 of the Statement of Claim, the plaintiff pleads that the informant asked him for a mobile phone or a bleeper so he could keep in contact with the criminal gang. The plaintiff says he asked Detective Sergeant Quilter whether a phone could be provided and he refused to provide one.

The plaintiff claims that he introduced the informant to Detective Sergeant Quilter. This was immediately before the informant’s first shipment of drugs was due. The plaintiff claims that Detective Sergeant Quilter confirmed that the informant had his permission to import the drugs. Plans were made for the arrival of the informant with the drugs.

It is claimed that the informant arrived on the ferry, and that he passed through customs and went to a place directed by Detective Sergeant Quilter where the Detective Sergeant, in the presence of the plaintiff, checked the load. The plaintiff was then instructed to proceed to Anglesea Street Garda Station. Some days later the drugs were returned to the informant and when he passed the drugs on to his contact, three people were arrested.

The plaintiff pleads that he told his Sergeant-in-Charge what was happening and was subsequently instructed by Detective Sergeant Quilter not to tell his sergeant anything. The plaintiff expands on this considerably in the Replies to Particulars. He claims that he told his Sergeant everything the night before the first shipment. Three other Gardaí were present. He was told by his Sergeant that he should report to his Superintendent. He met his Superintendent, Superintendent Sheehan, the following morning. The plaintiff claims that while in Superintendent Sheehan’s office the plaintiff received a phone call from Detective Sergeant Quilter who then passed the phone to Detective Superintendent O’Dwyer who spoke to the plaintiff. Detective Superintendent O’Dwyer ordered the plaintiff not to tell Superintendent Sheehan anything. Despite this, the plaintiff told his Superintendent everything as he felt he was obliged to do so. The plaintiff claims that Superintendent Sheehan overheard Detective Superintendent O’Dwyer because his statements and orders were delivered in a loud voice. He claims that he had previously been told by Detective Sergeant Quilter not to report back to anyone about the operation.

A number of weeks later the informant was due to import more drugs. The plaintiff claims that before doing so, Detective Sergeant Quilter told the informant that he would have a free run and there would be no Garda involvement and that this had been sanctioned at the highest level. However, according to the plaintiff, on the day before the shipment, the plaintiff was informed at a meeting that the plan had changed and the drugs were not to be allowed to reach their targets. The plaintiff claims he was instructed to explain the position to the informant. The plaintiff claims that this meeting was attended by Detective Superintendent O’Dwyer,

Detective Sergeant Quilter and Detective Sergeant Michael Fitzpatrick. The plaintiff claims that when the informant arrived back in the country with the drugs he told him of the change of plan. Detective Sergeants Quilter and Fitzpatrick removed the drugs from the informant’s car and put them into their own. The plaintiff was instructed to stay overnight with the informant and return to Cork the following day with him. Whilst they were travelling back to Cork, he received a call to say that Detective Superintendent O’Dwyer wanted to meet the informant and a meeting took place on the way back to Cork. The Detective Superintendent was accompanied by Detective Sergeants Quilter and Fitzpatrick. The Detective Superintendent spoke to the informant alone. Later that evening, at a further meeting in Anglesea Street Garda Station, Detective Superintendent O’Dwyer and Detective Sergeant Quilter told the plaintiff that the plan had changed again, and they were going to let half the consignment of drugs through to the gang and the other half would be intercepted. A plan was put in place to achieve this and it was executed the following day.

According to the plaintiff, he did not meet the informant for some time after this but when he met him in the middle of 1996 the informant told him that a consignment of drugs had been allowed to get through to the gang in May 1995. He also claims that the informant told him in late 1996 that most of the drugs imported were stored in his house and that he would make two or three drops some days and would always notify Detective Sergeant Quilter of his intentions. The plaintiff claims the informant told him that many of these notifications were not acted on and the drugs ended up on the streets. The informant told the plaintiff that Detective Sergeant Quilter arranged drivers for him to bring in the consignments.

Detective Sergeant Quilter is clearly allegedly a key individual in relation to the drugs operations which are the background to the plaintiff’s claims. Indeed, the plaintiff considers him to be of such importance that the application to adduce further evidence was made in order to address the averment in the grounding affidavit that Detective Sergeant Quilter had instructed that “given the passage of time his memory is not what it was and he is not in a position to consult any contemporaneous notes or reference to other reference material…”

The fact that Detective Sergeant Quilter suffered a stroke in 2023 can not be relevant to whether the defendants were unable to get instructions on which to draft a Defence because the stroke occurred some five years after the delivery of the Statement of Claim. The defendants have had the Statement of Claim since 2018. Thus, the only matter relevant to the preparation of a Defence could be Detective Sergeant Quilter’s alleged impaired memory. I am not satisfied at this stage that it has been established that a Defence dealing with the allegations in respect of Detective Sergeant Quilter could not have been prepared. I am of this view for the following reasons. It is not stated in the affidavits that it would have been impossible to prepare a Defence. Secondly, while it is deposed that Detective Sergeant Quilter said that he was not in a position to consult any contemporaneous notes or other reference materials, no explanation is offered as to why he could not do so. There is, for example, no evidence that such material was not available. On the contrary, Detective Superintendent Healy accepts that it is likely that some material is in fact available. He says in his supplemental affidavit that “there may well be contemporaneous records or other reference materials regarding many of these operations, such as file material going to the DRR, transcripts of trials, statements of evidence or intelligence reports. However, many of the records pertaining to the claims made by the Plaintiff herein are unavailable as averred by me in my affidavit sworn on 27 January 2022”. Furthermore, it is not stated that documents from Anglesea Street Garda Station are unavailable. This appears to have been the most relevant station in relation to Detective Sergeant Quilter. In addition to this, Senior Counsel for the plaintiff told the Court that discovery had been made in separate proceedings of Detective Sergeant Quilter’s notebooks. This was not disputed. Finally, it is claimed by the plaintiff that there were or must have been inquiries or investigations in light of earlier media articles and other litigation. If that is the case, (and this is not really denied), those materials would have been available to Detective Sergeant Quilter. There is no evidence that Detective Sergeant Quilter was asked to review these materials in order to see whether they refreshed his memory.

I can not be satisfied that it was impossible to prepare a Defence, though it is clear that it could only have been done with some difficulty due to the passage of time. This amounts to a litigation disadvantage but it does not give rise to a real risk of an unfair trial at this stage.

Turning then to the question of the non-availability of Detective Sergeant Quilter to give evidence, I am not satisfied that it has been established that it gives rise to a real risk of an unfair trial. The defendants are undoubtedly at a litigation disadvantage in dealing with the pleas in respect of Detective Sergeant Quilter’s involvement in the covert operations, and, in light of the way the application was approached by the parties, this is an important consideration. However, the focus must be on the fact that the relief claimed is concerned with the termination of the plaintiff’s employment. There is no express plea that Detective Sergeant Quilter was involved in the plaintiff’s termination. In relation to the specific incidents involving Detective Sergeant Quilter, while he is not available to give evidence, Detective Superintendent O’Dwyer is available. As outlined above, he was present on many of the occasions. In those circumstances, it has not been established at this stage that the non-availability of Detective Sergeant Quilter will cause an unfair trial.

Missing witnesses

95. Detective Superintendent Healy avers that two individuals who are referred to or named in the Statement of Claim or the Replies to Particulars are unavailable as their whereabouts are unknown. The first is the informant who is referred to throughout the pleadings. The second is the person who it is claimed introduced the plaintiff to the informant.

96. I do not see a basis for concluding that the person who introduced the plaintiff to the informant is a central or even an important witness from the defendants’ point of view.

97. The informant’s evidence can not go directly to the question of the lawfulness of the termination of the plaintiff’s employment but the plaintiff’s dealings with him are a central part of the plaintiff’s pleas in respect of the drugs operations. I therefore accept that the informant is an important witness and his unavailability may therefore cause litigation disadvantage to the defendants.

98. However, I do not believe that on the evidence I can be satisfied at this stage that this gives rise to a real risk to a fair trial arising from the passage of time. The burden of proof is on the defendants. Firstly, the defendants say that the informant is not available because his whereabouts are unknown. However, they give no evidence whatsoever as to what efforts were made to locate him. As is clear from the authorities above, an Order dismissing proceedings is an exceptional remedy. It is therefore not sufficient to say that his whereabouts are unknown without such evidence. Secondly, the evidence at this stage clearly suggests that his whereabouts were known to the first-named defendant at some point in time and, crucially, there is nothing said about when his whereabouts became unknown to them. This is essential for the defendants’ application because if his whereabouts became unknown to them in, for example, 2000, the prejudice or risk of unfairness would not have been caused by delay, whereas if his whereabouts became unknown in 2014, for example, it would have been caused by the delay. Thus, in the absence of this evidence, the defendants have not established that his non-availability, and the consequent litigation disadvantage, was caused by delay.

Documents

99. Detective Superintendent Healy avers that despite enquiries and searches at a number of locations, the records and documents referred to in the Statement of Claim and Replies to Particulars relating to those locations have not been recovered. Those locations are (i) Collators Office, Harcourt Square, Dublin, (ii) Garda Interpol Office, Garda Headquarters, (iii) Forensic Laboratory, Garda Headquarters, (iv) National Surveillance Unit, Garda Headquarters, (v) Innishannon Garda Station, Co. Cork, (vi) Bandon Garda Station, Co. Cork, and

(vii) Gurranabraher Garda Station, Cork.

100. Importantly, he does not state that documents could not be found in the office of the Chief Medical Officer or in Anglesea Street Garda Station. The importance of the former is clear. The importance of Anglesea Street Station is that many of the events referred to by the plaintiff are connected with that station.

101. Detective Superintendent Healy also deals with specific categories of documents/records. The first of these is call logs. The plaintiff claims that he tried to contact Detective Sergeant Quilter several times in or about late 1993/early 1994. He claims that he left numerous messages with a female civilian clerk and that there will be call logs. However, Detective Superintendent Healy states at paragraph 40 of his grounding affidavit that the electronic call records were stored on Garda Telephone Call Charge Computers but, pre-1995, all PCs ran on MS DOS Operating System. As these were not Y2K compliant, they were decommissioned prior to 2000 and destroyed, so access to those call logs is not available. The plaintiff accepts that the call records are no longer available and that messages left with a civilian clerk may no longer be available.

102. In circumstances where these documents were destroyed at some point prior to 2000, any risk to a fair trial arising from the non-availability of the logs does not arise from delay. In any event, I do not see how efforts made by the plaintiff to contact Detective Sergeant Quilter could be of sufficient importance to cause an unfair trial.

103. Detective Superintendent Healy also says that instructions were taken from a Ms. Mary Moran who, he says, worked in the Drugs Office from 1993. I take it that Ms. Moran may have been the civilian clerk with whom the plaintiff allegedly left messages or at least a clerk who can give information about the system for leaving messages that was in place at the time. She instructs that she can not remember how she would leave messages but in general she would leave handwritten notes in the members’ pigeon hole/tray or desk. She had an electronic type-writer rather than a computer and there was no correspondence register. In those circumstances, it seems that any note of a message would not have been retained at all and therefore any disadvantage is not caused by the delay.

104. Finally, in relation to documents, Detective Superintendent Healy says that there was an arson attack on Blarney Garda Station in 2008 and any files still held there at that time are unavailable. The plaintiff accepts that this is correct.

105. The plaintiff also submits that previous investigations must have been carried out by An Garda Síochána and this must mitigate any difficulties caused by the non-availability of witnesses or impaired memories. Specifically, the plaintiff says that the matters in relation to the Garda operations have been the subject of media articles and other legal proceedings and that it would be incomprehensible if An Garda Síochána had not carried out some sort of inquiries on foot of the issue being raised in these fora. The media articles referred to are an RTÉ Prime Time programme in July 2001 in which, the plaintiff claims, the issues which he raised about the conduct of certain Garda operations featured, and a subsequent Magill magazine article. He says that the Gardaí issued a statement in response to the RTÉ programme. He submits that the Gardaí must have conducted some sort of investigation in order to be able to consider these programmes and, in particular, to be able to issue a statement. He also deposes that the informant sued RTÉ for defamation in 2003 (arising from the Prime Time programme) and in the context of those proceedings the Commissioner of An Garda Síochána was ordered to make non-party discovery. The plaintiff submits that this naturally would have involved the Commissioner in having to collate documentation. He also refers to proceedings that the informant also issued against the Commissioner, the Minister for Justice, Ireland and the Attorney General in 2010 and again submits that this would have caused an investigation to be carried out. The plaintiff also claims in his replying affidavit that a report was made by an Assistant Commissioner in 1999 and by a Deputy Commissioner, also in 1999 in respect of “a fact finding mission concerning allegation of serious improprieties in the course of drugs and firearms cases in Cork.”

106. On the basis of these, the plaintiff says at paragraph 44 of his affidavit, “How a Detective Superintendent comes to Court claiming disadvantage in circumstances where he has not made any attempt to set out for this Honourable Court what efforts were made by the Defendants to establish the facts in this case long since is beyond comprehension and represents a strange set of circumstances.”

107. I accept that these matters must mean that An Garda Síochána could not be coming to the complaints about the Garda operations completely fresh after approximately fifteen years (2003 – 2018) or twenty-three years (1995-2018). Indeed, to these must be added the decision that the Commissioner made not to commence a new investigation following the Independent Review Mechanism process and the inquiries which he must have conducted in order to make that

decision. Thus, the level of prejudice caused by the delay, at least in ascertaining what the position is and what defences may be available is mitigated to a certain extent. That does not, of course, address the prejudice of not being able to call certain witnesses.

108. I am satisfied that there is clear litigation disadvantage to the defendants due to the non-availability Detective Sergeant Fitzpatrick and Detective Sergeant Quilter but I can not conclude at this stage that there is a real risk of an unfair trial either when all of the above matters are taken together or spearately. The unavailability of the Chief Medical Officer is very significant but that was not brought about by reason of any delay.

Primor-Kirwan Delay

109. As discussed above, the central effect of the majority decisions in Kirwan v Connors is to place the passage of time at the centre of the exercise of the court’s inherent jurisdiction. This is given effect to in the test set out in paragraph 26(i)

– (iv) of O’Donnell CJ’s judgment and in paragraphs 53 and 54 of Murray J’s

decision.

110. It is, therefore, useful to identify the relevant time period(s) and to restate the various procedural steps taken during the period(s).

111. Before doing so, this is a convenient time to address two points that were raised at the hearing: (i) whether it is sufficient that there has been a two year period of inactivity at some point during the proceedings or whether a two year period of inactivity must immediately precede the application to dismiss for want of prosecution (in the sense that there must not be any intervening step in the proceedings between the two year period of inactivity and the motion to dismiss, or at least any step in which the defendant acquiesced) (other than where the conditions for the exercise of the O’Domhnaill v Merrick jurisdiction are met); and

(ii) whether, in order to fall within paragraph 26(iii) or (iv), the period of four or five years must immediately precede the application to dismiss.

112. I will deal with these in reverse order.

113. It was submitted on behalf of the plaintiff that the four or five year period in its entirety must immediately precede the application to dismiss; in other words, that there must be a block of four or five years of inactivity immediately before the application to dismiss is brought.

114. I do not accept that this is correct. At paragraph 26(iv), O’Donnell CJ refers to where there has been “a cumulative period of complete inactivity for more than five years.” The reference to “a cumulative period” clearly means that the court may (and must) look to the overall progress (or lack of progress) in the proceedings and have regard to separate periods of inactivity during the course of the proceedings. It is noteworthy that O’Donnell CJ does not use the word “cumulative” in paragraph 26(iii) when referring to a period of inactivity of four years. This could suggest that where a period of four years is being relied upon, it must be a solid block of four years immediately preceding the application or at least a solid block during the course of the proceedings. However, I do not think this is the correct reading of the test. There is no good reason for drawing such a distinction between a four year period of inactivity and a five year period. Furthermore, O’Donnell CJ said at paragraph 17 that one of the factors of relevance to any jurisdiction to dismiss for want of prosecution is “the period or periods of inactivity” (emphasis added). His reference to “periods” clearly means that separate periods must be taken into account. Murray J was clearly of the view that in assessing the length of the delay, the court should have regard to separate periods of inactivity (provided there was a solid block of two years inactivity). He said at paragraph 47(ii) “...The focus is upon whether the case is, as a whole, being prosecuted. The court should be concerned only with a conspectus examination of relatively substantial periods in which nothing is being done – chunks of inactivity of less than six months should usually be ignored.” At paragraph 45 he referred to having regard to “...the total length of time the plaintiff has been inactive (in other words the two years of complete procedural inactivity plus any periods of delay that preceded this)...” Furthermore, at paragraph 54, he referred to five years of “cumulative” inactivity. Of course, Murray J’s judgment was not part of the majority. However, O’Donnell CJ approved of paragraph 54, and neither he nor Hogan J took issue with Murray J’s comments in paragraph 47(ii). The reference in paragraph 45 to “periods of delay” is consistent with what O’Donnell CJ said in paragraph 17.

115. Thus, it seems to me that there does not have to be a solid period of four or five years total inactivity for a case to fall within paragraph 26(iii) or (iv). It follows that it is not necessary for a four or five year period of inactivity to immediately precede the application to dismiss.

116. In relation to the first question, i.e., whether a two year period must immediately precede the application, it was submitted on behalf of the defendants that this is not required and that it is sufficient if there is a block of two years at some point during the proceedings. The plaintiff’s position is that the period must immediately precede the application. There are in fact two questions: whether a period of inactivity must immediately precede the application (in the sense that there was no intervening step in which the defendant acquiesced) and, if so, whether that must be at least two years (other than in O’Domhnaill v Merrick-type cases). In fact it is not necessary for me to resolve these questions because there was in fact a period of two years inactivity immediately before the application to dismiss in this case. (There was a period of almost twenty-five months inactivity between the delivery of the Notice for Particulars by the defendants and the Replies to Particulars. It is correct that the plaintiff issued and served a motion for judgment in default of Defence before the defendants issued their motion but the plaintiff’s motion was not in any way acquiesced in by the defendants.) Lest I am incorrect in this, I propose to consider the questions.

117. The Supreme Court did not have to specifically consider these questions in Kirwan v Connors because there was a lengthy period of inactivity.

118. Nonetheless, the effect of Murray J’s judgment in that case is that there must be a solid block of two years and that it must immediately precede the application to dismiss. In paragraph 54, when considering what should happen where there has been five years or more of cumulative and unexplained inactivity, he expressly referred to the necessity for a “solid block of two years of complete procedural inactivity”. That the period must immediately precede the application is clear from paragraphs 16(ii) and (iii) and 17 of his judgment where he said:

“16...

(i) The provision is concerned with (and only with) procedural inactivity by both parties. So, the taking of steps to advance a case other than through court proceedings does not stop time running under the Rule.

(ii) A defendant who takes a procedural step in the action will thereby lose the entitlement they might otherwise have had to apply to dismiss the case.

(iii) If the two-year period has elapsed, a defendant will always have advance notice before a plaintiff reactivates their case: the plaintiff must serve a notice of intention to proceed one month before they can invoke any court procedure. Such a notice is not itself a step in the proceedings, and thus does not stop time running for the purposes of the provision. Upon being served with such a notice, a defendant then has an option of whether to allow the plaintiff to proceed (in which case the defendant loses the opportunity to apply to dismiss the action for want of prosecution unless the step taken is followed by a further two year period of procedural inactivity), or to proceed to apply to dismiss the claim for want of prosecution.

17. It is significant that the provision operates on the basis not merely that it is the plaintiff that must take the initiative to move the action along, but that it is by neither party taking any procedural step for two years that the defendant obtains the right to bring the application to dismiss in the first place. The Rule thus envisages that a defendant can sit back comfortably in the knowledge that if the plaintiff allows two years to pass without taking a procedural step in the case, the defendant will have the benefit of one month’s warning before the action is reactivated. It should be said that while this appears to be a significant advantage for the defendant, the defendant has had imposed upon it an important restriction:

the opportunity to move for dismissal only arises if there has been a complete cessation of procedural inactivity in the case for at least two years. A plaintiff can easily deprive a defendant of the ability to seek dismissal of its action for want of prosecution, by prosecuting it.” [emphasis added]

119. Indeed, this follows from Murray J’s conclusion that the jurisdiction arises from Order 122 Rule 11.

120. The majority, on the other hand, concluded that the source of the jurisdiction is the court’s inherent jurisdiction. Nonetheless, in my view, there is nothing in the judgments of O’Donnell CJ or Hogan J to support the defendants’ case that an application can be made solely on the basis of periods of inactivity earlier in the proceedings. It would be illogical and unfair to a plaintiff for a defendant to be able to allow the plaintiff to take steps in the proceedings and, indeed, perhaps to take steps itself, and, in the absence of any fresh period of inactivity, to be entitled to an Order dismissing the proceedings solely on the basis of a period or periods of inactivity at some point earlier in the proceedings. It therefore seems to me that the application must be immediately preceded by a period of inactivity. The real question is whether that period must be two years or whether it can be shorter.

121. There is no doubt that the two year period is, as discussed above, of central importance. Hogan J describes it as an “objective yardstick”, “a starting point”, a “default period” and an “inflection point”. O’Donnell CJ describes it as a “critical milestone”. Furthermore, the language of paragraph 26(i) and (ii), particularly (ii), of O’Donnell CJ’s judgment appears to envisage the application being made on the basis of a two year period immediately preceding the application. Both O’Donnell CJ and Hogan J agree generally with the judgment of Murray J save for his

conclusion as to the source of the strike-out jurisdiction.

122. However, in the absence of the majority expressly stating that a two year period is a pre-condition in the way that it is under Order 122 rule 11, there is some basis for concluding that it is not such an absolute requirement. Firstly, such a rigid or absolute rule would be inconsistent with the exercise of an inherent jurisdiction and with the need to take into account the overall prosecution of the proceedings. For example, it would mean that a plaintiff who had been inactive for four years, then took a step in the proceedings, was inactive for a further period of three years and then took another step, and was then inactive for twenty-three months, could defeat a motion to dismiss for want of prosecution because, while there had been total inactivity for almost nine years, the period of twenty-three months is just short of two years. Secondly, the way O’Donnell CJ and Hogan J treat of the two year period and the descriptors they apply to it indicate that while a period of two years is of very significant weight, such a period might not be required in all cases. The passage of two years without any activity is deemed to be inordinate, but that does not preclude a finding that a shorter period is inordinate in a particular case. Hogan J states at paragraphs 176 and 177 of his judgment that:

“176...I do not here mean to suggest that proceedings can never be struck out for delay unless two years without any proceeding have elapsed. There might well be, for example, instances of where a litigant had effectively manipulated the two-year rule by the strategic filing of a proceeding just as a particular two-year period was about to end. There also examples of where the courts have struck out proceedings pursuant to the inherent jurisdiction of the court where there has been a flurry of activity by a plaintiff after the two-year period expired but before the defendant could issue the requisite strike out motion: see, e.g. Collins v Bus Átha Cliath [1999] IESC

69. Other special and exceptional circumstances may well present themselves as well in future cases. In general, however, the question of inordinate delay should be measured against the time period stipulated by Ord. 122, r.11.

177. There are of course also categories of special cases – ranging from planning to child care – where urgency is clearly called for. In such circumstances even relatively short periods of delay designed to frustrate the effective operation of the administration of justice might amount to an abuse...”

123. Leaving aside cases where the plaintiff may have manipulated the “twoyear rule” (because they may in fact be examples of abuse of process), Hogan J recognises that there may be instances where a period of inactivity shorter than two years may be found to be inordinate.

124. On balance, the effect of the majority judgments seems to me to be to impose a general rule that there must be a two year period of inactivity immediately prior to the application (in the sense described above), but this is not absolute and there may be exceptional circumstances in which a shorter period may be sufficient to engage the jurisdiction and, when taken with the overall progress of the case, to warrant an Order dismissing the proceedings.

125. The proceedings were commenced on the 8th January 2003. I am taking that as the relevant start date. The relevant end date is the date the defendants’ motion to dismiss for delay was issued, i.e. the 1st February 2022. The plaintiff submitted that the relevant period was from the 3rd January 2003 to the 31st March 2015 when a Notice of Intention to Proceed was served. As a Notice of Intention to Proceed is not a “proceeding” or step in the proceedings, that is not the correct date. Another alternative that was contended for is the date of delivery of the Statement of Claim (31st July 2018). However, it seems to me that the date of issuance of the Notice of Motion is the correct date because the Court must take account of the overall progression of the proceedings including the progress after delivery of the Statement of Claim.

126. The Plenary Summons was issued on the 8th January 2003. The defendants entered an appearance on the 6th February 2003. Nothing further occurred within the proceedings until a Notice of Change of Solicitor and a Notice of Intention to Proceed were filed on behalf of the plaintiff on the 31st March 2015. Two further Notices of Intention to Proceed were filed, on the 20th May 2016 and the 4th October 2017 respectively. The Statement of Claim was delivered on the 31st July 2018. The defendants raised a Notice for Particulars on the 10th December 2018. Replies to Particulars were served on the 4th January 2021. In the meantime, the plaintiff served a further Notice of Intention to Proceed on the 2nd June 2020. Following delivery of the Replies to Particulars, the plaintiff sent a warning letter on the 29th March 2021 calling for the delivery of a Defence. The defendants sought time to ascertain the availability of witnesses and documents and whether there were any other impediments to their defence of the proceedings given the passage of time. They stated that, if appropriate, they would bring a motion to dismiss the proceedings on the grounds of delay. The plaintiff’s solicitor agreed not to issue a motion for judgment in default of Defence at that stage. They ultimately issued that motion on the 3rd December 2021. The defendants then issued this motion on the 1st February 2022.

127. According to this chronology, there was no “proceeding” between the date of entry of the appearance (6th February 2003) and the delivery of the Statement of Claim on the 31st July 2018, a period of over fifteen years. The defendants served a Notice for Particulars five months after the delivery of the Statement of Claim. There was no further proceeding until the delivery of Replies to Particulars almost twenty-five months later.

128. On this basis, there was inactivity by the plaintiff between January 2003 and July 2018, a period of over fifteen years. There was then inactivity by the plaintiff for a further period of twenty-five months from delivery of the Notice for Particulars. There was inactivity between the delivery of the Replies to Particulars and the issuing of the plaintiff’s motion for judgment but this can not be laid at the door of the plaintiff because that was at the request of the defendants.

129. The period of fifteen years is clearly inordinate and in itself brings the case well-within paragraphs 26(iii) and (iv) as set out by O’Donnell CJ. The later period of just over two years between the delivery of the Notice for Particulars and the Replies must also be factored in. Thus, there was a cumulative period of inactivity of seventeen years since the commencement of the proceedings.

130. It is clear from paragraph 53 and 54 of Murray J’s judgment (approved by O’Donnell CJ) that the relevant delay is “unexplained delay”. This is also reflected in Hogan J’s judgment where he refers to a delay of more than two years as being “prima facie inexcusable, thus collapsing the three-prong test into a two-part test”. Thus, the plaintiff’s explanation(s) for his inactivity must be considered.

131. In Comcast, McKechnie J set out a number of factors which he held were excusatory of the delay in the circumstances of that case. It was submitted on behalf of the plaintiff that Comcast still applies. I accept that Kirwan v Connors has not interfered with the approach of McKechnie J to factors which might be taken as excusing a delay (indeed, see paragraph 54 of Murray J’s judgment in

Kirwan v Connors). The question of whether a delay can be excused remains a central part of the Primor-Kirwan test (though where the period exceeds two years it is prima facie inexcusable). However, the factors which McKechnie J decided excused the delay in Comcast were very much grounded in the facts of that case. The plaintiff relies on those excusatory factors by way of analogy. The plaintiff also relies on some of these factors to argue that there are compelling reasons or a pressing exigency of justice which requires the proceedings to continue even if the delay is inordinate or inexcusable. I return to this point later in the judgment.

132. In Comcast the plaintiffs had postponed progressing their proceedings on the basis of the ongoing work of the Moriarty Tribunal. This led to a very significant delay in the proceedings and the defendants brought an application to dismiss for delay. The plaintiffs justified postponing the prosecution of the case on the basis that “the essence of the Tribunal’s remit reflected what wrongdoing they had always felt existed, but the extent, nature and depth of which they could not be expected to unearth, even if full use was made of court procedure.” McKechnie J noted that the entire Statement of Claim was premised by the assertion that the plaintiffs were unable to particularise the alleged wrongdoing until the Tribunal completed its investigations. McKechnie J held that “...Given the extraordinary nature of the background to these proceedings and the almost undoubted fact that the plaintiffs could never have progressed their actions without drawing on the Tribunal, I believe that they were entitled to have regard to the activity of this body, within the timeframe under discussion in this case.” (paragraph 62). McKechnie J went on at paragraph 63 of his judgment to set out additional reasons why he was satisfied that the delay complained of in that case was excusable. For the most part (though not exclusively) these also relate to the extraordinary nature of the background to the proceedings, the role of the Tribunal, the nature of the activities and issues, and the fact that the nature of the issues required investigation by a body such as tribunal of inquiry. Crucially, the Tribunal was directly relevant to the core claim by the plaintiffs and upon which they were seeking compensation, i.e., whether the process by which they were deprived of a licence was corrupt. As Hardiman J put it, “...If the plaintiffs have indeed been damnified by corruption at the highest levels of government and public administration, it is clearly a requirement of basic commutative justice that they be compensated – if they can make out their case...” Thus, the claim for compensation made in the proceedings was based on the very wrongdoing that the Tribunal was established to investigate.

133. The plaintiff explains the period between the date of termination of his employment and the commencement of the proceedings by saying that he was in fear and could not gain employment and that by going public it would expose him to possible revenge, retaliation, retribution or attack from criminal gangs and An Garda Síochána. He says that at some stage between early 1999 and the commencement of the proceedings he met a former Garda who was then a solicitor and he agreed to look into matters for the plaintiff. This led to the Plenary Summons. He explains that there was a “lot of agonising and discussion over and back and difficult meetings took place before those proceedings issued.”

134. He says that no further steps were taken by that solicitor and that various legal experts were consulted. He says that he had no capacity to pay fees. However, he did not ascribe the inaction in the proceedings to this. He met another solicitor who agreed to act for him and the solicitor took over the case in July 2005 but subsequently withdrew. Thus, he was without legal representation for a long time.

135. His principal explanation for the inactivity in the proceedings in the period from the commencement of the proceedings to the delivery of the Statement of Claim is that he was engaging in mechanisms outside of the litigation.

136. The plaintiff made a complaint to the Garda Síochána Ombudsman Commission on the 16th May 2007. I have not been provided with a copy of that complaint. It is therefore unclear whether this was a complaint about the Garda conduct in respect of the covert operations or a complaint about the plaintiff’s termination. This was declared inadmissible by letter of the 7th August 2007. The plaintiff was notified by GSOC on the 3rd July 2008 that his complaint had been referred to the Commissioner of An Garda Síochána on the 7th February 2008 in accordance with Article 6.2 of the Memorandum of Understanding, Protocols and Agreement on Operational Matters between GSOC and the Gardaí. Article 6.2 deals with where GSOC forms the view prima facie that a Garda may be guilty of a criminal offence. The plaintiff was then notified on the 3rd November 2008 that the

Garda Commissioner had decided not to initiate a new investigation. The plaintiff describes the decision to refer the matter to the Commissioner as a “body blow”.

137. The plaintiff also made a complaint to the Minister for Justice in June 2014. He explains that he did so in the context of issues relating to An Garda Síochána being debated in the Dáil and promises being made in relation to reform and protection of whistleblowers. By letter of the 8th August 2014, the plaintiff was informed that the Minister had established a mechanism for the independent review by Counsel of certain allegations of Garda misconduct or inadequacies in the investigation of certain allegations and that the plaintiff’s complaint was to be reviewed as part of that process (“the Independent Review Mechanism” or “the IRM”). This process was concluded when the plaintiff was informed by letter of the 8th February 2016 that Counsel did not recommend further action. I have not seen a copy of the complaint but it appears to have been about the Garda operations because, according to the letter of the 8th February 2016, Counsel summarised the issues in the plaintiff’s complaint “…as the management and handling of a confidential Garda source by members of An Garda Síochána, including the allegations of misconduct, collusion and criminality by Gardaí.” The letter also informed the plaintiff that Counsel did not recommend further action on the basis that “while the allegations are extremely serious, there has been some lapse of time since their occurrence and pointed out the difficulties that arise in establishing matters disclosed in uncorroborated narrative. Counsel noted that the matters complained of have been ventilated in public and examined by senior members of An Garda Síochána on foot of a request from the Garda Síochána Ombudsman Commission.” Thus, the complaint appears to have been about the Garda operations. This is reinforced by the plaintiff’s own description of the complaint. He says that it was essentially the account given in his Statement of Claim, in a number of media articles and in a non-party discovery application brought by the informant against the Commissioner in proceedings against RTÉ.

138. The plaintiff also applied to be admitted to the Disclosures Tribunal and this application was refused, though he does not place any significant weight on this.

139. The plaintiff claims that he engaged with each mechanism available to him in good faith and that he awaited the outcome in the public good.

140. Subject to one qualification (dealt with in the next paragraph), I am not satisfied that the making of the complaints to GSOC and the Minister, or the application to be admitted to the Disclosures Tribunal, excuse either the specific periods of those processes or the overall delay. I am of this view for the following reasons. Firstly, the complaints, and in particular the complaint to the Minister, appear to have been concerned with the alleged wrongful conduct by Gardaí in the undercover operations rather than with the termination of the plaintiff’s employment. Secondly, the relief that is sought by the plaintiff in these proceedings could not have been obtained through these processes. Thirdly, the inactivity on the basis of these processes is entirely different to the inactivity by the plaintiffs in Comcast on the basis of the Moriarty Tribunal. McKechnie J’s

decision that the plaintiffs in Comcast were entitled to delay the prosecution of their claims because they could never have progressed their actions without drawing on the Tribunal’s work is of little assistance in the present case as it has never been suggested by the plaintiff that he would be unable to prosecute his claim without the investigations or conclusions of these other processes. Fourthly, the GSOC process was at an end by the 3rd November 2008 at the latest, yet no steps were taken between then and June 2014 when the complaint was made to the Minister (which of course is not a step in the proceedings). No explanation is given for the lack of activity during that period. The delay of six years between 2008 and 2014 is itself inordinate and no excuse is offered for it. Finally, even if the plaintiff’s engagement in these processes was to be taken as excusing the inactivity in the litigation during those periods, the GSOC process only accounts for eighteen months of the total period and the Independent Review Mechanism process only accounts for twenty months.

141. While I am not satisfied that the making of the complaint to the Minister excuses the period during which that complaint was being considered, some of that period is excused in the following respect. On the 16th December 2014, following the Minister referring the complaint to the Independent Review Process, the plaintiff’s current solicitors wrote to the Chief State Solicitor to confirm that they were coming on record for the plaintiff in these proceedings and would be filing a Notice of Intention to Proceed. The letter went on to say “[W]e do not propose to deliver a Statement of Claim at this time unless you require us to do so as the Minister for Justice has referred a complaint made by our client encompassing, in effect, all of the issues to be determined in this action for an independent review by Counsel with a view to determining what further action may be required in the case…There are areas of cross over between these proceedings and the complaint and the Minister awaits a recommendation from Counsel as to “what action, if any, might be appropriate”.” There was no reply to this letter by the defendants. In particular, there was no insistence by the defendants that a Statement of Claim should be delivered. In those circumstances, I am satisfied that the period during the Independent Review Mechanism process from the date of this letter, the 16th December 2014, to the date on which the plaintiff was informed of the outcome of the process (the 8th February 2016) is excusable due to the acquiescence of the defendants. I return to the question of the defendants’ conduct shortly. This only excuses a period of fourteen and a half months, i.e. from the 16th December 2014 to the 8th February 2016.

142. Even after the conclusion of the IRM process, there were further periods of inactivity. The decision on foot of that process was communicated on the 8th February 2016 and the Statement of Claim was then not delivered until the 31 st July 2018. This was a period of inactivity of almost two and half years. No explanation has been given for this. The defendants then served a Notice for Particulars on the 10th December 2018. The plaintiff did not reply to the Notice for Particulars until the 4th January 2021 (almost twenty-five months). The Notice for Particulars was lengthy (indeed, the Statement of Claim was itself very lengthy) and therefore some allowance must be given for the amount of work that would have been required for the plaintiff to provide the Replies. However, against the background of the very long number of years since the commencement of the proceedings and the delay of two and a half years between the end of the IRM process and the delivery of the Statement of Claim, there was an obligation on the plaintiff to move with expedition and a period of over two years is not reasonable or excusable.

143. Thus, up to the date of delivery of the Statement of Claim, there was inactivity for a period of fifteen years. Fourteen months of this is excusable. There was, therefore, a solid block of almost twelve years of inactivity (8th January 2003 to 16th December 2014). Even if the earlier period accounted for by the GSOC process is treated as being excusable, there was a block of inactivity of six years (3rd November 2008 to 16th December 2014). There was then inactivity in the proceedings for two and half years between the conclusion of the IRM process and the delivery of the Statement of Claim and a further period of over two years between the date of service of the Notice for Particulars by the defendants and the plaintiff’s Replies. The defendants did not bring their motion for over twelve months and, indeed, the plaintiff had issued a motion for judgment in default of defence. However, in terms of steps in the proceedings, the only step that was taken, was the plaintiff’s motion for judgment and the defendant had not acquiesced in this; indeed, they had warned that an application to dismiss might be brought.

144. I am therefore satisfied that the case falls comfortably within paragraphs 26(iii) and (iv) of O’Donnell CJ’s judgment. It is not strictly necessary to consider paragraph 26(iii) where the inactivity falls within paragraph 26(iv) but I do so for the purpose of completeness. In summary, they provide that where there has been inactivity for four years the plaintiff must persuade the court that there are compelling reasons why the claim should not be dismissed and, where the period is five years, the plaintiff must establish that there is a pressing exigency of justice that requires that the case be permitted to go to trial. Where there is a delay of either four or five years, it is unnecessary that there be specific prejudice to the defendants but if there is this will strengthen the case for dismissal.

145. The defendants do claim prejudice. They rely on the general prejudice arising from the fact that the case will be dependent on oral evidence. The plaintiff names thirty-six individuals in the Statement of Claim and Replies to Particulars, all of whom are potential witnesses. As noted above, in this case some of the witnesses may be required to deal with events from as early as 1993.

146. The defendants also rely on two forms of specific prejudice. They rely on the fact that the allegations against individual members of An Garda Síochána are extremely serious and that they have suffered considerable prejudice in having such serious allegations hanging over them for so long. They also rely on specific prejudice in the form of the death of three potential witnesses, evidence of impaired memory or inability to give evidence on the part of five others either through passage of time or illness or both, the non-availability of two witnesses because their whereabouts are unknown, and the non-availability of documents.

147. In relation to the first of these, some of the allegations are undoubtedly extremely serious. However, some regard must be had to the fact that the individual members are not defendants in the proceedings. Furthermore, regard must be had to the fact that if the defendants were that concerned in relation to the individual members having those allegations hanging over them, they could have made an application to compel the plaintiff to progress the proceedings or to have them dismissed at an earlier stage. Hogan J suggested at paragraph 194 of his judgment in Kirwan v Connors that “the courts should give little weight to” claims of damage to professional reputation where the defendant has not taken the appropriate steps in a timely fashion to bring the action on for trial. This must be offset to an extent in the circumstances of this case because there was nothing in the Plenary Summons to suggest the types of allegations that were subsequently made in the Statement of Claim, and some potential witnesses were in fact only first named in the Replies to Particulars. Therefore, such an application, grounded on serious allegations hanging over members of An Garda Síochána, could not have been made until at least 2018 and, as I hold below, given the nature of the Statement of Claim, the defendants were entitled to serve a Notice for Particulars. Equally, however, it also means that the allegations were therefore only hanging over many of the members from 2018 or 2021.

148. In reality, however, the defendants’ emphasis was on the prejudice arising from the witness difficulties. I have discussed these at length above. I do not propose to repeat that detail. The test under Primor-Kirwan is, of course, different to the test under O’Domhnaill v Merrick. In Gibbons v N6 (Construction) Limited [2022] IECA 112, Barniville J said at paragraph 80 that under Primor “…the defendant does not have to establish the same level or degree of prejudice which must be established in order to have a claim dismissed under the second strand of jurisprudence described in O’Domhnaill”.

Deceased witnesses

Dr. Gerry McCarthy, Chief Medical Officer

149. Dr. McCarthy’s death is a very specific and significant form of prejudice to the defendants. I have considered whether this can be addressed by the use of the medical records. There is no evidence that these are unavailable. It may be possible to do so to some extent but as I have not seen these records I can not reach a definitive view on this. In any event, for the following reasons, it is not necessary to do so.

150. In order to be relevant to the Primor-Kirwan test, the prejudice must be caused by the plaintiff’s delay in the prosecution of the proceedings. As discussed above in relation to O’Domhnaill v Merrick, that is not the case in respect of Dr. McCarthy. Dr. McCarthy died only seven months after giving his impugned recommendation. Thus, the prejudice brought about by Dr. McCarthy’s death was not caused by any post-commencement delay by the plaintiff. The defendants have raised the point that the proceedings should have been brought by way of judicial review within at most six months of the 6th January 1999. However, even if that is correct, it is highly unlikely that those proceedings would have been determined by the time of Dr. McCarthy’s death. There might possibly have been sufficient time for Dr. McCarthy to have given instructions and to have sworn an affidavit, which may have abated the prejudice somewhat. That, of course, entirely depends on when during that six month period leave was sought. It also seems highly unlikely that it would have been possible to resolve such proceedings on affidavit alone as it appears that there would have been serious conflicts of fact.

151. In those circumstances, the prejudice brought about by Dr. McCarthy’s death was not caused by the plaintiff’s delay.

Garda Gerry McCarthy

152. For the reasons set out above, in my view, retired Garda McCarthy’s evidence is likely to be of minor relevance and I am not satisfied at this stage that it could be in any way essential to the defence of the proceedings or that his nonavailability amounts to even ‘moderate prejudice’.

Detective Sergeant Michael Fitzpatrick

153. I conclude above that Detective Sergeant Fitzpatrick is central to the plaintiff’s allegations about operations being run whereby drugs were permitted to reach criminal gangs and that his non-availability puts the defendants at a litigation disadvantage. As explained above, I am not satisfied that this means that the defendants have established that a fair trial of the issues will not be possible because, while the operations are part of the case, the central issue in the case is not the lawfulness or propriety of those operations but the reasons for and lawfulness of the termination of the plaintiff’s employment. However, in circumstances where, as I note above, both parties proceeded on the basis that these matters are an important part of the proceedings, the litigation disadvantage arising from Detective Sergeant Fitzpatrick not being available to give evidence, first by reason of his leukaemia and then by his death, undoubtedly amounts to at least moderate prejudice to the defendants.

Impaired memories

154. For the reasons discussed above, I do not believe that any disadvantage brought about by Chief Superintendent Long, Sergeant McGrath or Garda Miles’ impaired memories amounts to even moderate prejudice.

155. Detective Superintendent Healy states that Inspector Shanahan instructs that he has a “reasonable recollection concerning some of the matters alleged by the plaintiff but has a hazy recollection concerning others, given the lapse of time.” Inspector Shanahan is potentially an important witness in relation to how the plaintiff alleges he was treated and therefore possibly in relation to whether or not his retirement/termination was lawful. However, I do not believe that the description of Inspector Shanahan’s memory goes beyond the general principle

that witnesses’ recollections become less accurate and reliable with time. It therefore forms part of the general prejudice rather than specific prejudice.

156. In my view, in light of the importance placed by the plaintiff on Detective Sergeant Quilter, his impaired memory and his subsequent inability to give evidence does constitute a concrete prejudice. Initially the prejudice that was relied upon was Detective Sergeant Quilter’s impaired memory. This had to be approached with a degree of caution because, as discussed above, it is stated in Detective Superintendent Healy’s affidavit that Detective Sergeant Quilter could not refer to contemporaneous notes or other material. However, no explanation for this was given, and it is at odds with what Detective Superintendent Healy says elsewhere about the possible availability of documentation. I am nonetheless satisfied that there would have been some degree of prejudice arising from his impaired memory. However, the real issue is that Detective Sergeant Quilter is now unavailable to give evidence due to difficulties arising from a stroke. While Detective Sergeant Quilter only became unavailable to give evidence in 2023 (i.e. after the hearing of this motion), the prejudice arising therefrom undoubtedly came about due to the plaintiff’s delay. If the proceedings had been prosecuted with proper expedition they would have been determined long before Detective Sergeant Quilter suffered a stroke. I have dealt above with what the allegations are in respect of Detective Sergeant Quilter. Because they do not relate directly to the central issue, his non-availability does not render the proceedings unfair to the extent required by O’Domhnaill v Merrick. However, where the parties have proceeded on the basis that those allegations are important, his non-availability clearly gives rise to a litigation disadvantage. I am satisfied that it clearly amounts to at least moderate prejudice.

Missing witnesses

157. As discussed above, I am satisfied that the non-availability of the informant may cause prejudice to the defendants. However, two important factors must be weighed against this. As discussed above, the defendants say that he is not available because his whereabouts are unknown. However, they give no evidence whatsoever as to what efforts were made to locate him. It is not sufficient to say that his whereabouts are unknown without such evidence. Secondly, the evidence at this stage clearly suggests that his whereabouts were known to the first-named defendant at some point in time and, crucially, there is nothing said about when his whereabouts became unknown to them. If his whereabouts became unknown to them in, for example, 2000, the prejudice could not be said to have been caused by the plaintiff’s delay, whereas if his whereabouts became unknown in 2014, for example, it would have been caused by the delay.

Documents

158. As already discussed, Detective Superintendent Healy avers that despite enquiries and searches at a number of locations which are identified in paragraph

39 of his affidavit, the records and documents referred to in the Statement of Claim and Replies to Particulars have not been recovered. He does not state that documents could not be found in the office of the Chief Medical Officer or in Anglesea Street Garda Station. The mere fact that categories of documents which are referred to in the Statement of Claim and the Replies to Particulars are not available does not lead to a conclusion at this stage that there is even moderate prejudice. There is no explanation as to why the absence of these documents would cause specific prejudice.

159. For the same reasons as discussed above in the context of unfairness, I do not believe that the unavailability of call logs and message notes was caused by the plaintiff’s delay.

160. In summary, the absence of the Chief Medical Officer is obviously a significant prejudice to the defendants but this particular prejudice was not caused by the plaintiff’s delay. Secondly, the inability of Detective Sergeant Quilter to give evidence and the non-availability of Detective Sergeant Fitzpatrick amounts to at least moderate prejudice. Their absence was caused by the plaintiff’s delay. Thirdly, some prejudice is caused to the defendants by the impairment of certain potential witnesses’ memories but I am not satisfied that this, either when the witnesses are taken separately or cumulatively and with the other aspects of prejudice, amounts to moderate prejudice. Fourthly, I am not satisfied that the defendants have established that the non-availability of two witnesses and the prejudice arising therefrom is caused by the plaintiff’s delay. Fifthly, I am not satisfied that I can conclude that prejudice is caused by the absence of documentation. The real prejudice, from the point of view of Primor-Kirwan, is, therefore, the non-availability of Sergeant Fitzpatrick and Detective Sergeant Quilter. I am satisfied that this amounts to at the very least moderate prejudice. This prejudice would, it seems to me, be mitigated to some extent by the likelihood that some investigation has been carried out in response to the media articles and the earlier set of proceedings.

161. The fact of specific prejudice strengthens the defendants’ application.

162. It remains to be considered, therefore, whether there are any compelling reasons why the proceedings should not be dismissed (paragraph 26(iii)) or whether there is a pressing exigency of justice that requires that the case be permitted to go to trial (paragraph 26(iv)). These are different considerations but it seems to me that they can be treated together for the purpose of this judgment.

163. The plaintiff points to a number of factors, some of which are interlinked. He referred to McKechnie J’s decision in Comcast and relied on factors which he held were excusatory in that case. It seems to me that that these can also be considered in the context of whether there are compelling factors for permitting the continuation of the proceedings.

164. A central element of the plaintiff’s argument is that the defendants are public or State bodies. I accept that this is important.

165. In my view, neither the fact that the plaintiff engaged in other processes nor the fact that there were other previous investigations amount to compelling reasons or pressing exigencies of justice for the continuation of the proceedings. I have previously discussed the interaction between the engagement in other processes and the proceedings and, in circumstances where the relief being sought by the plaintiff in the proceedings could not be obtained through those processes, and where, unlike in Comcast, the plaintiff does not make the case that he could not prosecute his proceedings without the outcome of these processes, they can not be a compelling reason to permit the continuation of the proceedings. In relation to the previous inquiries by An Garda Síochána, these go to the question of whether the prejudice caused by the absence of witnesses can be mitigated and I have previously dealt with them.

166. It was submitted on behalf of the plaintiff that the Court must have regard to any delay or inactivity or failure by the defendants to take steps. I was referred to McKechnie J’s judgment in Comcast (paragraphs 34 to 39). The current approach is set out in Kirwan v Connors. The conduct relied upon by the plaintiff is as follows.

167. The defendants did not reply to the plaintiff’s solicitor’s letter of the 16th December 2014 in which they said that they did not propose to deliver a Statement of Claim pending the Independent Review Process. It was submitted that if the defendants had insisted on a Statement of Claim at that stage, there would have been a better chance of the proceedings being ready for trial a considerable time before Detective Sergeant Quilter suffered a stroke. It was also submitted on behalf of the plaintiff that the defendants had an opportunity to bring a motion at that stage and again when the Statement of Claim was actually delivered. It was also submitted that the Statement of Claim expanded or modified the claim being made by the plaintiff and this was not objected to by the defendants. The plaintiff submits that the defendants’ failure to bring an application at either of those stages has to be taken into account because the defendants had remedies under the Rules of the Superior Courts which they did not avail of. The plaintiff also relies on the fact that the defendants served a Notice for Particulars in response to the delivery of the Statement of Claim. He states at paragraph 108 of his replying affidavit that the raising of particulars “seduced” him further into litigation. This point is expanded upon in the plaintiff’s written submissions (paragraph 16).

168. Of course, the Court must have regard to the conduct of the litigation by the parties. However, I do not believe that any of these factors amount to compelling reasons why the proceeding should not be dismissed. I have already factored in the period of fourteen months following the defendants’ acquiescence in relation to the plaintiff not delivering a Statement of Claim during the Independent Review Mechanism process. In relation to the modification of the claim in the Statement of Claim, in my view, that supports a conclusion that the proceedings should be dismissed. This means that a “modified” claim was made some fifteen years after the commencement of the proceedings. In relation to the defendants not bringing motions at an earlier stage, it is clear from Kirwan v Connors that while that is a factor to be considered, unless it amounts to acquiescence or positive encouragement to the plaintiff, the obligation to prosecute the proceedings is that of the plaintiff. I do not think the delivery of the Notice for Particulars following the delivery of the Statement of Claim amounts to acquiescence or positive encouragement or in any way shifts the balance of justice in favour of the plaintiff in the circumstances of this case. The Statement of Claim in this case is very lengthy. It is a mix of an extreme level of detail and of vagueness in respect of what is actually being alleged. It seems to me that in those circumstances, the defendants were entitled to raise a Notice for Particulars before deciding whether or not they were specifically prejudiced in defending the proceedings. This is particularly so where a very long period of time had passed since the alleged wrongful acts. Furthermore, and importantly, the Notice for Particulars expressly stated that the particulars were “sought without prejudice to the Defendants’ position that they have been grossly prejudiced by the inordinate and inexcusable delay in the prosecution of these proceedings and to enable the Defendants make inquiries to the extent possible at this juncture about the claims made by the Plaintiff.” In those circumstances, I do not believe that the defendants acquiesced in or positively encouraged the plaintiff (save for part of the period of the Independent Review Mechanism process).

169. The plaintiff also submitted that some of these reasons established “a pressing exigency of justice that the case be permitted to go to trial”. O’Donnell CJ, adopting Murray J’s language, said that these would include exceptional situations and he gave a number of examples, including where the plaintiff faced educational, social or economic disadvantage or other disadvantage in progressing their action, in very unusual cases in the realm of public law where the proceedings disclose an issue the public interest demands should be litigated or where there

has been serious misconduct by the defendant in the conduct of the proceedings. These examples are not exhaustive.

170. The plaintiff submitted that this was such an exceptional situation. In particular, he relied on the fact that the defendants are public bodies, that the Gardaí are charged with upholding and enforcing the law, and that members and senior members allegedly acted unlawfully in respect of these covert drugs operations. It was submitted that the only way these matters could be investigated was by the continuation of these proceedings. It was submitted that the proceedings were analogous to or were in effect public law proceedings due to this confluence of factors. Reliance was placed on the list of matters set out in paragraph 63 of McKechnie J’s judgment in Comcast.

171. Alleged illegality or misconduct by members of An Garda Síochána must, of course, be of grave concern. However, I am not satisfied that the plaintiff has established that the proceedings as constituted give rise to “a pressing exigency of justice that requires that the case be permitted to go to trial.” I am of this view for the following reasons, notwithstanding the serious allegations contained in the proceedings. Firstly, as discussed at greater length earlier in this judgment, the reliefs sought in the proceedings concern the termination of the plaintiff’s own employment. While, as the defendants point out, the employment of a Garda is a matter of public law, this does not make it a “very unusual case in the realm of public law”, even if we give the phrase “the realm of public law” a broad meaning. Secondly, on the plaintiff’s own case, the relevance of the alleged illegality of the covert drugs operations is that it was what indirectly led to his dismissal and he “is not suing the Defendants for having engaged in mismanagement, corruption and criminality.” In Comcast, on the other hand, the proceedings concerned, and the relief sought was based on, the very allegations of corruption and wrongdoing which were being investigated by the Tribunal. Thirdly, there are statutory bodies with responsibility for considering and/or investigating allegations of Garda wrongdoing. It is not in the interests of justice for the Court to essentially circumvent the role of such bodies by permitting the continuation of stale proceedings for, according to the plaintiff, the express purpose of investigating such wrongdoing. That is not necessary or appropriate.

172. Thus, in all of those circumstances, I am not satisfied that the plaintiff’s delay is excusable, or that there are compelling reasons why the proceedings should not be dismissed or an urgent exigency of justice that require that they should be permitted to continue.

CONCLUSION

173. For the reasons set out in detail above, I am not satisfied that the proceedings should be dismissed on the basis of the O’Domhnaill v Merrick line of authority as I am not satisfied that it would be impossible for there to be a fair trial due to the delay in the proceedings. In some instances I am satisfied that the defendants may suffer litigation disadvantage but that does not reach the high level required by O’Domhnaill v Merrick or alternatively the litigation disadvantage was not caused by the delay.

174. This case was initially argued on the basis of the traditional Primor principles. However, before judgment was given the Supreme Court gave its decisions in Kirwan v Connors. I am satisfied that the principles set out in that case lead to the conclusion that the proceedings should be dismissed. The delay in the prosecution of the proceedings is inordinate and inexcusable and there are no compelling reasons why the proceedings should not be dismissed or any urgent exigency of justice that require that they should be permitted to continue.

175. I will therefore grant an Order dismissing the proceedings.