Court of Appeal allows appeal on assault damages and applies mandatory cost capping under Courts Act 1981.

THE COURT OF APPEAL

Neutral Citation Number: [2016] IECA 372

Appeal Nos. 2014/868

[Article 64 transfer]

Irvine J.

Hogan J.

Hedigan J.

BETWEEN/

DARIUS SAVICKIS

PLAINTIFF/APPELLANT

- AND -

GOVERNOR OF CASTLEREA PRISON, MINISTER FOR JUSTICE AND EQUALITY, THE IRISH PRISON SERVICE, IRELAND AND THE

ATTORNEY GENERAL (NO.2)

DEFENDANTS/RESPONDENTS

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 7th day of December 2016

1. On the 27th October 2016 this Court allowed an appeal which had been brought by the plaintiff, Mr. Savickis, against the findings

of the High Court (Dunne J. and a jury) delivered in May 2013: see Savickis v. Governor of Castlerea Prison [2016] IECA 310. The

plaintiff had sued the defendants for assault, negligence and breach of constitutional rights arising from an altercation in Castlerea

Prison where he had been a prisoner. The jury rejected the majority of the plaintiff’s claims, but they did find that he had been

assaulted by a prison officer and awarded him €4,500 in damages. The jury also found, however, that the plaintiff was 95%

contributorily negligent and his award was thus reduced to €225.

2. This Court allowed the plaintiff’s appeal and awarded him a total sum of €17,225 for assault and negligence. This figure also

included an award of €5,000 exemplary damages in respect of the assault on the ground that it also amounted to an intentional

violation of his constitutional rights.

3. Following the costs hearing which took place after the delivery of the judgment, counsel for the State, Mr. Healy S.C., submitted

that as the plaintiff had been awarded only €17,225 in damages, the provisions of s. 17(3) of the Courts Act 1981 (“the 1981 Act”)

(as substituted by s. 14 of the Courts Act 1991) took effect. This provision applies where the High Court award of damages is

between IR£5,000 (now €6,349) and IR£15,000 (now €19,047).

4. It is important to state that the plaintiff had a legal entitlement to proceed with his action in the High Court. Indeed, he was

obliged to proceed in the High Court if he wished to have a jury trial in respect of the assault, as was his legal entitlement. It is also

important to state that the plaintiff’s action was an important one, designed as it was ultimately to vindicate his constitutional right

to the protection of the person as provided for by Article 40.3.2 of the Constitution (and cognate constitutional rights, as such as the

right to bodily integrity) through the mechanism of the existing law of torts.

5. The proceedings lasted 6 days in the High Court. There is no doubt at all but that the actions of the State defendants contributed

to the length of time which the action took, principally by denying the fact that the plaintiff had been assaulted by prison officers in

the face of overwhelming evidence (including CCTV footage) to the contrary. But for the provisions of s. 17(3) of the 1981 Act, it is

clear on the facts of this case that the plaintiff would, in all probability, have been entitled to the entirety of those High Court costs.

6. This is how I would have approached the matter had it not been for the provisions of s. 17(3) of the 1981 Act. Given, however,

that these provisions govern the present proceedings, I agree with Irvine J. in the judgment she has just delivered that the all

encompassing language of this sub-section simply allows for no exceptions whatever, the special and unusual nature of the present

proceedings notwithstanding. While it is difficult to disagree with the submission made by counsel for the plaintiff, Ms. Phelan S.C.,

that in enacting this sub-section the Oireachtas may not have had this type of complex litigation in mind, I nonetheless find myself

obliged to admit that as the language of the sub-section provides for no exceptions whatever – no matter what the individual merits

of the any given case might be – this Court finds itself with no residual discretion in the matter. Some may think that this state of

affairs is unsatisfactory, but if so, this is a matter of policy for the Oireachtas to consider.

Did the Circuit Court have jurisdiction to consider and determine the plaintiff’s action for breach of constitutional rights?

7. It remains to consider one further point. It is necessarily implicit in the language of s. 17(3) of the 1981 Act that, for the sub-

section to apply, the plaintiff must also have been entitled to pursue his claim and to recover the damages which he did in the Circuit

Court. One feature of the present claim is that the plaintiff obtained exemplary damages for breaches of his constitutional rights to

the protection of the person and bodily integrity. The question then arises as to whether the Circuit Court would have had jurisdiction

to consider this particular aspect of the plaintiff’s claim.

8. Every judge (including, of course, judges of the Circuit Court) appointed under the Constitution must make and subscribe in open

court to “the solemn and sincere promise” provided for in Article 34.6.1 of the Constitution that he or she will uphold the Constitution

and the laws: see The People v. Lynch [1982] I.R. 64, 84, per Walsh J. It is, accordingly, clear that judges of both the District Court

and the Circuit Court are obliged at all times to uphold the Constitution, even if by virtue of Article 34.3.2 of the Constitution the

actual power of judicial review of legislation is confined to the High Court, this Court and the Supreme Court.

9. This point is illustrated by Coughlan v. Judge Patwell [1993] 1 I.R. 31, 37, where Denham J. quashed a District Court conviction

when the judge had refused to allow the accused “to make any submission in relation to the alleged breach of constitutional rights

and in refusing to listen to such a submission.”

10. As the very language of Article 34.3.4 of the Constitution makes clear, the jurisdiction of the Circuit Court is, of course, not a free

standing one and depends on statutory vesture: see, e.g., the judgment of this Court in Permanent TSB plc v. Langan [2016] IECA

229. So far as actions for damages for breaches of constitutional rights are concerned, I consider, however, that such an action

comes within the scope of the Third Schedule of the Courts (Supplemental Provisions) Act 1961 (“the 1961 Act”), Reference No. 6 of

which provides that the Circuit Court has a jurisdiction (subject to appropriate geographical and monetary limits) in respect of “an

action (other than an action for wrongful detention or matrimonial proceedings) founded on tort…”

11. It is clear from the decision of the Supreme Court in McDonnell v. Ireland [1998] 1 I.R. 134 that an action for damages for breach

of constitutional rights is also a tort for the purposes of the relevant provisions of the Statute of Limitations 1957. As both Barrington

and Keane JJ. acknowledged in powerfully argued judgments, the fact that the traditional common law causes of action often overlap

with corresponding actions for breaches of constitutional rights does not mean that the latter are not also actions in tort, at least for

certain statutory purposes.

12. The same reasoning is applicable by analogy to the Third Schedule of the 1961 Act. Any other conclusion would mean that the

appropriate jurisdictional limits and the associated system of hierarchy of courts provided for by law in the case of tort actions could

be set at naught by the expedient of suing for damages for breach of constitutional rights instead of pursuing the standard common

law actions in tort. As Barrington J. observed in McDonnell, constitutional rights should be not be treated as “wild cards” which enable

prospective plaintiffs to by-pass the orthodox requirements of the standard common law tort action, such as jurisdiction, venue and

time limits.

13. It is true that as Barrington J. also observed in McDonnell ([1998] 1 I.R. 134, 148) there “may also be cases where the fact that a

tort is also a breach of a constitutional right may be a reason for awarding exemplary or punitive damages.” This, of course, is exactly

what happened in the present case, as this Court awarded exemplary damages in respect of the common law tort of assault, because

it also amounted to a breach of his constitutional rights and, further, because the conditions for the award of exemplary damages for

a breach of constitutional rights which had been outlined by the Supreme Court in Conway v. Irish National Teachers’ Organisation

[1991] 2 I.R. 305 were also satisfied. But even if the plaintiff had succeeded in recovering damages for what might be termed a “pure”

breach of constitutional rights (i.e., independently of any action for a common law tort) – such as occurred in recent cases such as

Herrity v. Associated Newspapers Ltd. [2008] IEHC 249, [2009] 1 I.R. 326 (constitutional right to privacy) and Sullivan v. Boylan

(No.2) [2013] IEHC 104, [2013] 1 I.R. 510 (violation of Article 40.5 and the protection of the dwelling) – this would still have been an

action in tort for the purposes of the Third Schedule of the 1961 Act in the sense that I have just described.

14. It follows, therefore, that in my view the Circuit Court has jurisdiction (subject to otherwise applicable limitations) to entertain an

action for damages for breach of constitutional rights, since such actions are also “torts” within the meaning of the Third Schedule of

the 1961 Act. For the sake of completeness, it might be added – although it does not arise in the present case - that this would not

apply in the case of a breach of the constitutional right to liberty, since actions for wrongful detention are expressly excluded by the

Third Schedule of the 1961 Act from the scope of the Circuit Court’s jurisdiction.

Conclusions

15. In summary, therefore, I am of the view that in the case of a damages award made by the High Court which falls between €6,349

and €19,047, the cost capping mechanisms provided for in s. 17(3) of the 1981 Act are mandatory and admit of no exceptions,

provided that the action itself could have been brought in the Circuit Court.

16. I consider that this latter condition is satisfied in the present case, since the Circuit Court would have had a jurisdiction to

entertain an action for damages for a breach of constitutional rights to the protection of the person and bodily integrity. Such an

action – whether in “pure” or, as here, “hybrid” form (i.e., where exemplary damages were awarded in respect of a common law tort in

part because it also amounted to a breach of constitutional rights) – is also an action in tort for the purposes of the Third Schedule

to the 1961 Act.

17. It follows, therefore, that I agree with Irvine J. in her conclusion that the maximum possible sum which may be recovered by the

plaintiff in respect of High Court costs is €17,225 (i.e., the amount of the award) or the taxed costs of the action had it been taken

in the Circuit Court, whichever is the lesser.