Supreme Court allows appeal to set aside default judgment due to inordinate delay and public interest in officer reputation.

THE SUPREME COURT

66/2009

Kearns P.

Murray J.

Fennelly J.

BETWEEN

JOSEPH McGUINN

PLAINTIFF/RESPONDENT

AND

THE COMMISSIONER OF AN GARDA SIOCHANA, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE

ATTORNEY GENERAL

DEFENDANTS/APPELLANTS

JUDGMENT of Murray J. delivered on the 28th day of July 2011

This appeal concerned an interlocutory matter in which the above named defendants appealed against an order of the High Court

refusing their application to set aside a judgment obtained by the plaintiff, the respondent, in default of defence. The Court, in the

exercise of its discretion, made an order allowing the appeal so as to set aside the judgment obtained in default and thereby enabling

the defendants to file a defence. The order was made on terms that the appellant/defendants pay the plaintiff’s costs to date of trial.

The following are the reasons for that ruling.

The appellants’ application was made pursuant to Order 27 Rule 14(2) of the Rules of the Superior Courts which provides as follows:

“Any judgment by default, whether under this Order or any other of these Rules, may be set aside by the Court

upon such terms as to costs or otherwise as the Court may think fit, if the Court is satisfied that at the time of the

default special circumstances (to be recited in the Order) existed which explain and justify the failure, and where an

action has been set down under Rule 8, such setting down may be dealt with by the Court in the same way as if a

judgment by default had been signed when the case was set down.”

Background Circumstances

By plenary summons dated 12th April 2005 the respondent issued proceedings against the defendants claiming, inter alia, damages for

unlawful arrest, false imprisonment, assault and breach of constitutional rights. .

As appears from the Statement of Claim issued and served in these proceedings the plaintiff’s claim centres on events alleged to have

taken place on the 8th April 2003 when a number of Gardaí attended at the respondent’s place of employment, arrested him, brought

him to a multi-storey car park, to his home which was entered and then brought him to a Garda Station before being released later

that day. It is claimed that in the course of those events a Garda member placed a gun to the plaintiff’s head and pinned him against

a wall informing him that he was being arrested under s. 30 of the Offences Against the State Act in relation to a firearms offence

and that he was a suspect in an incident which had occurred the previous day in Castlebar. It is alleged that notwithstanding his

protests and those of his employer that the Gardaí, without lawful or reasonable cause, wrongfully and forcefully arrested the plaintiff,

and placed him handcuffed in the rear of a Garda patrol car. It is then alleged that Garda members drove the plaintiff to a multi-storey

car park and that some business having been conducted there the respondent was driven to his residence where entry was gained by

way of keys claimed to have been unlawfully demanded of the respondent a short time beforehand. During this time it is claimed that

the plaintiff was repeatedly “terrorised by demands for information” which he did not have. After completing the alleged unlawful

search of the respondent’s dwelling the plaintiff was brought to the Garda Station in Castlebar and placed in an interview room. The

respondent claimed to have been unlawfully detained there for approximately 2½ hours during which time his custody was not

processed in accordance with law and he was denied certain rights and entitlements while in custody.

The respondent also claimed that by reason of these events he was severely injured and his reputation and credit had suffered loss

and damage.

Procedure

The plaintiff’s Statement of Claim, which was undated, was delivered on some date after an appearance had been entered to the

plenary summons by the appellants on 17th November 2005.

The respondent then brought a motion for judgment in default of defence issued on 26th January 2007 returnable for the 19th

February 2007.

It is common case that at that time it was agreed between the solicitors for the respondent and the solicitor for the appellants that

that motion would be struck out on consent with an order extending the time to the defendants to deliver the defence by a further

three weeks and costs of the motion to the respondents.

By letter dated 26th February 2007 the solicitor for the plaintiff/respondent wrote to the solicitor for the appellants stating:

“Dear Sirs,

We refer to the above matter which came before the High Court on Monday the 17th inst.

The motion was struck out on consent with costs to the plaintiff and the defence to be filed within three weeks.

We await hearing from you with your defence in this matter and oblige.”

In fact this letter was, as the solicitor for the plaintiff in his Affidavit frankly acknowledged, “unfortunately, a miscommunication”.

What had in fact happened was that the motion for judgment in default of defence, instead of being struck out with an extension of

time for the filing of a defence for three weeks, as agreed, was adjourned for three weeks to the 12th March 2007. Thus, that order

being contrary to what the parties had agreed, and indeed contrary to what was stated by the plaintiff’s solicitor in his subsequent

letter, the defendant’s solicitor was unaware that the motion had been adjourned.

When the motion was relisted for hearing three weeks later on the 12th March there was, for obvious reasons, no appearance by the

defendants. On that day the learned High Court judge dealing with the motion made an “unless” order, that is to say that he made an

order granting judgment by default to the plaintiff and that the matter would proceed by way of assessment of damages unless the

defence was delivered by the defendants by the afternoon of 21st March 2007.

On 13th March 2007 the solicitor for the plaintiff wrote to the Chief State Solicitor informing him of the making of that order.

The solicitor in the Chief State Solicitor’s Office dealing with the matter responded on the 14th March 2007 indicating that the

defence would be filed by 21st March. In the event no defence was filed by that date.

On the 28th March 2007 the plaintiff’s solicitor wrote to the defendants’ solicitor indicating that he was proceeding to have the order

of the High Court perfected and served since the defence had not been filed on Wednesday March 21st. What next occurred was

that the plaintiff’s solicitor received a full defence from the defendants’ solicitor on the 20th April 2007. However, this was returned to

the Chief State Solicitor on the 26th April 2007 with a letter indicating that the solicitor was not in a position to accept the defence

and at the same time reciting the list of opportunities that had been afforded to the defendants to file a defence since the service of

the statement of claim in February 2006.

Further correspondence ensued between the respective solicitors in May 2007 concerning the circumstances in which judgment had

been obtained in default and the failure of the defendants to file a defence, once informed of the true nature of the High Court order.

On July 11th the solicitor for the plaintiff wrote to the Chief State Solicitor enclosing a copy of the perfected order of the High Court

and stated his intent to have the proceedings listed for hearing on foot of that order.

Following that letter the subsequent communication between the parties or steps taken by them included the following: by letter

dated 27th May 2008 the plaintiff’s solicitor again wrote to the solicitor of the defendants seeking a letter of consent to the action

being set down for trial. This was replied to on the 12th June 2008 in which the defendants’ solicitor said he was taking his clients

instructions in the matter. By letter dated 20th June 2008 the plaintiff’s solicitor stated that he proposed to file a notice of intention

to proceed if he did not hear from the solicitor for the defendants within 14 days. Awaiting a reply to this letter he wrote again on the

15th July 2008 indicating that he was proceeding by way of notice of intention to proceed. The plaintiff’s solicitor subsequently

served a notice of intention to proceed dated the 30th July 2008. Notice of trial was then served on the 24th September 2008 and on

21st October the plaintiff’s solicitor sent to the defendants’ solicitors all up to date medical reports together with a schedule of

witnesses to be called at the trial. It was also stated that counsel for the plaintiff would apply for a trial date on 29th October 2008.

At that point the solicitors for the defendants contacted the plaintiff’s solicitors seeking a delay of approximately 6 weeks on such an

application to enable the defendants to review and deal with the medical reports. The plaintiff’s solicitor agreed but heard nothing

further and wrote again to the solicitor for the defendants on 9th December 2008 indicating that counsel would, on 10th December

2008 make an application for a date for the hearing of the action.

On the same date, 9th December 2008 the plaintiff’s solicitor received a letter from the defendant’s solicitor indicating that they

would also be making application by way of notice of motion seeking to set aside the order for judgment dated 12th March 2007. This

was returnable for 12th January 2009. The plaintiff’s solicitor pointed out that the defendants’ solicitors had first intimated, in a letter

dated 2nd May 20007 that it was the defendants intention to bring a notice of motion at the earliest opportunity in respect of the

said order of the High Court but that this was not done until the aforesaid date 22nd December 2008.

In parallel with this the solicitor for the defendants wrote another letter on 10th December 2008 stating that the plaintiff was to be

examined on their behalf by a psychiatrist on the 11th February 2009. In the meantime, counsel for the plaintiff attended before the

High Court on 10th December 2008 seeking a date for hearing in late February in the light of the proposed medical appointment. This

hearing was not granted at the time as the defendants indicated their intention to apply to have the order of 12th March 2007 set

aside.

It is also relevant to note that as of the date of the hearing of this appeal before this Court the hearing of the plaintiff’s claim, as an

assessment of damages, had been set down for hearing.

The High Court

The motion to set aside the judgment obtained by the plaintiff in this case was heard and decided in the High Court in an ex-tempore

ruling on 9th February 2009.

Decision

Order 27 Rule 14(2) of the Rules of the Superior Courts (cited in full above) provides that “Any judgment by default, whether under

this Order or any other of these Rules, may be set aside by the Court upon such terms as to costs or otherwise as the Court might

think fit …”. Until the Rule was amended in 2004 that was the basis on which a judgment might be set aside in the exercise of the

Court’s discretion and indeed the terms of the Rule had remained essentially the same as that in order 27 Rule 17 of the Rules of the

Supreme Court (Ireland) 1905. (See Wylie’s Judicature Acts (1906)).

The Rule was amended by Statutory Instrument No. 63 of 2004 by the insertion of the phrase, after the foregoing text, “if the Court

is satisfied that at the time of the default special circumstances … existed which explain and justify the failure, …”.

The amendment to the longstanding Order 27 Rule 4 is specific and narrowly focused. For an applicant to succeed under the terms of

the Rule he must first of all demonstrate that there were “special circumstances” explaining and justifying the failure at the time when

the judgment was obtained. [Emphasis added].

Strikingly, although the amendment introduced a new, and stricter, criterion which an applicant must satisfy before he or she can rely

on the Court exercising its discretion in his or her favour, it did not introduce any time limit within which an application to set aside a

judgment in default must be made. Any delay in bringing an application to set aside remains, as it always has been, a matter to be

taken into account by the Court when exercising its discretion under the Rule. Contrary to what counsel for the plaintiff submitted I

do not think that subsequent delay of an inordinate nature in bringing an application to set aside a judgment can affect the question

as to whether there were “special circumstances” at the time the judgment in default was obtained.

In my view the appellant has clearly established that there were “special circumstances” at the time when the plaintiff obtained

judgment within the meaning of the Rule. The defendants’ solicitor were not only completely unaware that the motion for judgment,

instead of being struck out, had been adjourned for three weeks but afterwards he had been mistakenly (and I do not attribute any

male fides at all in this regard) told by the plaintiff’s solicitor that it had been struck out. As a result the defendants’ solicitor was

totally unaware that an “unless order” had been made by Herbert J. until eventually notified to that effect by the plaintiff’s solicitor.

All of this clearly constitutes special circumstances within the meaning of the Rule. That of course did not of itself entitle the

appellant to an order setting aside the judgment in default.

The next question is whether in all the other circumstances of the case the Court should exercise its discretion to set aside the

judgment and permit the defendant to file his defence.

Discretion of the Court

The plaintiff’s claim has been based on allegations of serious misconduct on the part of members of An Garda Síochana who arrested

him on the occasion referred to in the Statement of Claim and for whose actions the State, the third named defendant, may be held

vicariously liable. (I would observe in passing that neither the first named or second named defendants can bear such vicarious

liability even though they are routinely named as defendants in cases of this nature. (See Byrne v. Ireland [1972] IR 241)). The

defendants made it clear that they wished to defend the action on the basis of a clear denial on the part of the Garda members of

any wrongdoing on their part. It is for this reason that they sought, not withstanding the admitted and inordinate delay in filing their

defence, that the judgment in default be set aside so that the case could be heard and determined on its merits.

On the other hand the plaintiff has in essence argued that the inordinate and inexcusable delay on the part of the defendants first of

all in filing a defence and subsequently in bringing a motion to set aside the judgment in default of defence, disentitles them to the

relief sought.

The plaintiff relied on the dictum of Hardiman J. in Gilroy v. Flynn [2005] 1 I.L.R.M. at 293 where he stated:

“It is important to make the point that there have been significant developments in this area since the decision of

the High Court in Rainsford [Rainsford v. Limerick Corporation [1995] 21 I.L.R.M. 561] or in Primor plc v. Stokes

Kennedy Crowley [1996] 2 I.R. 459. By S.I. No. 63 of 2004, Ord. 27 of the Rules of the Superior Courts has been

significantly amended …”

Hardiman J. then went on to refer to the Courts having become more conscious of the unfairness which could arise in allowing an

action based on witness testimony to proceed at a considerable time after the cause of action accrued and the jurisprudence of the

European Court of Human Rights relating to Article 6 of the European Convention on Human Rights according to which Courts,

independently of the parties, have an obligation to ensure that cases before the Courts are heard and determined within a reasonable

time. At p. 294 Hardiman J. stated:

“These changes, and others, mean that comfortable assumptions on the part of a minority of litigants of almost

endless indulgence must end. Cases such as those mentioned above will fall to be interpreted and applied in light of

the countervailing considerations also mentioned above and others and may not prove as easy an escape from the

consequences of dilatoriness as the dilatory may hope. The principle they enunciate may themselves be revisited in

an appropriate case. In particular, the assumption that even grave delay will not lead to the dismissal of an action if

it is not on the part of the plaintiff personally, but on the part of their professional advisor, may provide an

unreliable one.”

The dictum of Hardiman J. reflects the approach of the Courts in contemporary circumstances having regard to the need to, as far as

practicable, ensure the timely disposal of cases pending before the Courts and the rights of parties to a hearing within a reasonable

time as envisaged by Article 6 of the ECHR.

The Gilroy case involved an appeal by a plaintiff against an order for dismissal of the proceedings for want of prosecution pursuant to

Order 27 Rule 1. Hardiman J. avoided laying down any hard and fast rules since a court in exercising its discretion under Order 27,

must invariably have regard to the particular circumstances of each case and the need to do justice between the parties. Indeed in

that case the Court set aside the order of the High Court dismissing the plaintiff’s claim notwithstanding that he had been “guilty of

inordinate delay and” …”the delay was inexcusable.” At the time of the hearing of this appeal the trial of the plaintiff’s claim had been

set down for hearing before the High Court as an assessment of damages. The appellants had indicated that they were, and had been

since 20th April 2007, in a position to file their defence and meet the issue of liability on its merits at the hearing on such date for

which it may be fixed for the hearing on damages. There was no evidence, and indeed it had not been contended, that a fair hearing

of the issues on their merits at a trial would be prejudiced by reason of the delays which had occurred.

However delay which is inordinate and inexcusable, even if it would not prejudice a fair hearing of a case on its merits, must always

be a material factor in deciding whether or not to grant the party guilty of delay discretionary relief, particularly if that relief would

cause further undue delay to the other party.

While the European Convention on Human Rights is not directly applicable in national law it is applicable to the extent provided by s.

2(1) of the European Convention on Human Rights Act of 2002. Accordingly the Rules of the Superior Courts, as enacted and

amended by statutory instruments, fall within the ambit of s. 2(1) and, subject to any relevant constitutional considerations should be

interpreted in that light.

Of course the case-law of the ECHR on the issue of delayed proceedings does not, by reason of delay only, dictate or require that a

party be deprived of a hearing or of being granted discretionary relief under national law which would, in the interests of justice

between the parties, permit a hearing on their merits. How such issues arising from such delay on the part of a party are resolved

remains a matter for the Court’s discretion having regard to the interests of justice in all the circumstances of the case.

Absent a male fides or an abuse of process on the part of the party guilty of delay, which does not arise in this case, delay may be a

grounds for refusing a particular relief in the interests of doing justice between the parties in the circumstances of a particular case

but it is not a question of simply punishing a party guilty of such delay by depriving them of a relief which the interests of justice or

fairness would otherwise require.

In Croke v. Waterford Crystal Ltd [2005] 2 I.R. 383 Geoghegan J. endorsed as “pertinent and useful” a dictum of Bowen L.J. in

Cropper v. Smith [1884] 26 Ch. D. 700 stated:

“It is a well established principle that the object of the courts is to decide the rights of the parties and not to

punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with

their rights … I know of no kind of error or mistake, which, if not fraudulent or intended to overreach, the court

ought not to correct, if it can be done without injustice to the other party. The courts do not exist for the sake of

discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of

favour or grace …It seems to me that as soon as it appears that the way in which the party has framed his case

will not lead to a decision of the real matter in controversy, it is as much a matter or right on his part to have it

corrected, if it can be done without injustice, as anything else in the case is a matter of right.”

The Courts in the interests of justice, lean in favour of a determination of litigation on the merits of the issues between the parties

rather than preventing a party from having access to the Courts, when his or her rights or obligations are being determined, for

procedural reasons including culpable delay. That is not to say that the Courts would not be more stringent in requiring adherence to

time limits in particular when set by an order of a court in a particular case, for the reasons outlined by Hardiman J. and referred to

above.

However, each case falls to be determined on its own particular facts and circumstances in order to do justice to the parties.

In this case the inordinate delay was on the part of the State’s solicitor, frankly admitted, but embedded in the alleged liability of the

defendants were serious issues concerning the reputation of two Garda Officers and this is a factor which could not be ignored. There

is also the fact that the plaintiff could not be said to be prejudiced as to a fair hearing of the issues in this case by granting relief

which the defendants have sought.

Permitting a defence to be filed by the appellants allowed the Garda Officers to defend themselves. That was on one side of the

balance. On the other side is the undoubted inordinate and culpable delay on the part of the named parties.

However it was not in issue that the question of liability could be heard at the same time as the issue of damages which had already

been set down for trial and without necessitating any further delay arising from any liberty to file a defence denying liability.

It was having regard to all the circumstances of the case and in particular those circumstances that I concluded that the relief

sought by the defendants should be granted but only on terms as to costs. That is to say that the defendants were to be liable for

all the costs that the plaintiff incurred up to the date of trial.

It is for these reasons that I considered that the order for judgment in default of defence be set aside and the defendants be granted

liberty to file their defence.