IESC 5 · Supreme Court

THE SUPREME COURT

MacMenamin J.

Laffoy J.

O’Malley J.

BETWEEN:

[Appeal No. 286/2010]

PETER McGARRY

PLAINTIFF/APPELLANT

AND

THE MINISTER FOR DEFENCE,

IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS/RESPONDENTS

[Appeal No. 289/2010]

PETER McGARRY

PLAINTIFF/APPELLANT

AND

THE MINISTER FOR DEFENCE,

IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS/RESPONDENTS

Judgment of Mr. Justice John MacMenamin dated the 17th day of February, 2016

1. On the 16th July, 2010, the High Court, (Hedigan J.) dismissed the appellant’s negligence claim against the respondent Minister for

want of prosecution. The judge concluded that the Minister, as a defendant in such an action, had a constitutional right to have the

decision heard within a reasonable time, and that the balance of justice required the dismissal of the case. The appellant, who pleads

he suffered nervous shock, and post-traumatic stress disorder, arising from events some 35 years ago, now appeals the dismissal

order to this Court.

2. The trial judge made no order as to costs. The Minister’s cross-appeal on the question of costs is briefly addressed at the

conclusion of this judgment.

Circumstances

3. The appellant is now aged 62 years. At a most relevant time to the case, the year 1981, he had been a member of the Defence

Forces for 6 years. His case is that while on emergency “stand-to” duty in Cathal Brugha Barracks in Dublin, he was detailed to assist

with the retrieval of bodies from the tragic Stardust Fire Disaster, which occurred on the 14th February, 1981. The appellant claims

he sustained post-traumatic stress disorder, having witnessed the disfigured remains of the young victims as he assisted in placing

them in a make-shift morgue. An army tent had been erected at the City Morgue for this purpose. The appellant states that, in the

immediate aftermath to this event, he had difficulty sleeping, suffered flashbacks, and presented to an Army Medical Corps doctor for

help. It is said that he was given valium tablets, excused duty for 1 week, and referred to an Army Psychiatrist, who diagnosed

“reactive depression”, as set out in a Defence Forces’ medical report prepared at that time. It is pleaded that the appellant was not

offered any counselling then, and that, subsequently, whilst medically fit for overseas service with the United Nations, he was not

called up for such service. The psychiatrist who examined Mr. McGarry at St. Bricin’s Hospital was a Dr. Nolan. He died in 1989.

4. The appellant joined the Army in 1976. On the basis of the Statement of Claim and particulars he had been a good and loyal soldier.

However, some illustration of the difficulties now arising in this case can be gleaned from the reports of Dr. Brian McCaffrey,

Consultant Psychiatrist, retained by the appellant. These psychiatric reports are exhibited by the appellant in affidavits sworn on his

side for the motion to dismiss for want of prosecution. They are particularly relevant in setting out the narrative.

5. As part of his medical history, he told Dr. McCaffrey that he had been at one point in his army career assigned for border duty in

County Cavan. The exhibited psychiatric reports describe the appellant as having become involved in a fracas while on that

assignment. The incident, as described, was quite a serious one. It involved a fight in Cootehill, County Cavan. This, apparently,

involved a number of army recruits, and also, perhaps, civilians. According to Dr. McCaffrey, the appellant thought that this had

occurred in March, 1981. But, from Army records made available to Dr. McCaffrey, the incident appears to have occurred on the 4th

September, 1979. This was not something that would normally be forgotten, especially as the appellant described the event as being

one where, by the time the military police had arrived, he was extremely agitated standing in the middle of the road, screaming and

shouting, and where there were bodies unconscious on the side and in the middle of the road. The appellant told Dr. McCaffrey about

having been found guilty at a preliminary disciplinary hearing by his superior officers, but that thereafter, having gone for formal

court-martial, the charges were apparently subsequently dropped.

6. Clearly, Dr. McCaffrey inferred from the appellant’s own narrative that the described incident occurred, not in 1979, but in 1981,

two years later, and, therefore, after the Stardust fire; yet the Army records showed otherwise.

7. The appellant told Dr. McCaffrey he applied for a discharge from the Army in 1980, and that, at that stage, he felt a sense of

persecution. Dr. McCaffrey describes the appellant as accepting that sometimes his memory was very fallible. One might observe here

that the precipitating factor of the plaintiff’s symptoms might be a highly relevant consideration in any trial. Contemporaneous medical

reports would, therefore, have a significant bearing on the case.

8. Having left the Defence Forces in July, 1981, the appellant described his mother setting him up in the taxi business, and buying him

a taxi plate. He continued thus for a few years. Subsequently, he sold the taxi plate and, unfortunately, spent the money on drink

and drugs. He was, by then, married, with two children, but the marriage broke up.

9. It is now necessary to deal in more detail with the period between 1981 and 1995, insofar as the events can be ascertained.

During that period, the appellant say that his life was in turmoil. He described an attempt to commit suicide in 1991. He was placed in

St. Patrick’s Ward in Beaumont Hospital, where he came under the care of Dr. Carroll. He was subsequently sent for counselling. He

again attempted suicide in 1995, and was sent for counselling with Fr. Godfrey O’Donnell. The appellant says that it was in 1995, by

then 14 years after the Stardust tragedy, that he was diagnosed with post-traumatic stress disorder, which, he was told, related

back to the disaster.

10. The appellant states that he received a 3 year prison sentence, which he served between 1996 and 1999. He received a number

of other criminal convictions. He describes one incident where he hijacked a taxi with a knife, and assaulted a member of An Garda

Siochana.

Instructions

11. The appellant states that while he was in prison in 1996, he instructed his solicitor and counsel to initiate proceedings against the

defendants. Subsequently, when he was released from prison in 1999, he had no job. He resumed working as a hackney driver. He

engaged in this work for a number of years.

Other Incidents

12. A report from Professor Lionel Fry, Consultant Dermatologist, addresses the appellant’s complaints that he had deafness caused

by exposure to gunfire, and also mentions that he was involved in accidents in January, 1997 and September, 2000. No other

information is available on these events.

The Years 2000 to 2010

13. There is an almost complete absence of information on what was going on in the appellant’s life between the years 2000 and

2010. What is clear is that his medical and psychiatric condition had stabilised by 2003. Thus, whatever about the earlier period, it is

difficult to see how his condition can account for the delays that occurred thereafter. From 2007 onwards, he is described as living in

Liverpool with his new partner. By then his situation had further stabilised. Little other information is available as to what occurred in

the appellant’s life between 2007 and 2010. Nor is there information available as to what occurred in the appellant’s life between the

year 2010 (when the High Court motion herein was heard), onwards up to today.

The Appellant’s Situation

14. The appellant is now unemployed, in receipt of a disability allowance, and quite reliant on his partner to ensure that he takes his

medication. He suffers from other medical conditions, which are not relevant to these proceedings. It must be said that there are a

number of factors surrounding the appellant’s life which would evoke sympathy, including his psychological condition, and the problems

which he encountered with drugs and alcohol. The question is, however, whether this action, against the respondents, can now

lawfully proceed? This can only be viewed from the standpoint of the elapses of time, and any explanations, which have undoubtedly

occurred.

The Principles Applicable

15. The primary tests in applications of this type are whether the delay was inordinate, inexcusable, and where the balance of justice

lies. There is, too, a further line of authority, discussed later, which posits an overarching test as to whether a claim is “beyond the

reach of fair litigation”. This latter question is by no means irrelevant in the present instance.

Chronology and the Pre and Post-Commencement Delay Periods

Plenary Summons

16. The Stardust tragedy remains in everyone’s memory, as having occurred on the 14th February, 1981. The plaintiff states he was

diagnosed with post-traumatic stress disorder in May, 1995. But, the proceedings were not initiated until seventeen months later,

when the plenary summons was issued only on the 9th October, 1996. By then, over 15 years and 7 months had elapsed after the

trigger-events said to give rise to the cause of action. The plenary summons was then not served until the 3rd October, 1997, just

within the period of 12 months permitted by the then Rules of the Superior Courts for such service. By then, 16 years and 7 months

had elapsed since the alleged negligent acts.

Statement of Claim

17. The Statement of Claim was not delivered until the 28th October, 1998. This was two years after the plenary summons was

issued. By then, 17 years had elapsed after the events complained of. One year and four months later, a notice of intention to

proceed was served by the appellant’s solicitors. This was on the 16th February, 1999.

Particulars

18. A notice of particulars was delivered by the respondents on the 7th April, 1999.

Defence

19. A full defence was filed to this on the 23rd April, 1999. It is noteworthy that the defence filed includes pleas that the claim is

statute barred, and that the plaintiff has been guilty of inordinate and inexcusable delay in commencing and prosecuting the

proceedings, such that the claim should be dismissed for want of prosecution. However, the respondents did not bring any motion to

dismiss the claim at the time, or for long afterwards.

Reply to Particulars

20. The notice for particulars, which was served on the 7th April, 1999, was replied to, over six years later, on the 19th December,

2005.

An Error

21. I mention here that the first grounding affidavit for this motion to dismiss was sworn by an executive officer in the Litigation

Branch of the defendants, on the 27th November, 2009. That affidavit incorrectly states that the notice for particulars remained

unanswered at the date of swearing. This was incorrect, as a reply to particulars, albeit succinct, was actually been furnished 4

years before.

Subsequent Steps

22. A further notice of intention to proceed was served dated the 13th December, 2005. This was 24 years and 10 months after the

events complained of. Thereafter, it appears that the appellant did not take any further concrete steps to bring the matter on for

trial, until a notice of a trial was served, after a further three and a half years, in May, 2009.

The Motion to Dismiss

23. The motion to dismiss this claim for want of prosecution was brought on the 21st December, 2009. By this time, a hearing date of

the 18th February, 2010 had been allocated to the case. Assuming, for a moment, that the action had come on for hearing on the

date assigned to it, almost 29 years would have elapsed between the alleged precipitating events, and any trial.

24. As to post-commencement delay, therefore, the situation is very problematic. No explanation is furnished for any of the delays

which then occurred.

Inordinate and Inexcusable

25. By any standard, it must be said that all the delay which had occurred pre-commencement was inordinate. The appellant has not

been in a position to set out in any detail, any reasonable excuse for the delays which occurred post commencement of these

proceedings either. This too was inordinate. This post-commencement delay is, of course, particularly acute in light of the fact that

the proceedings themselves had been issued so very long after the events said to have precipitated the appellant’s complaint. It is,

undoubtedly, true that the appellant had many difficulties in his life. However, it is difficult on the evidence available to associate

those difficulties with the serious delays which occurred in this case. The delays here are, therefore, both inordinate and inexcusable.

Balance of Justice/Prejudice

26. As to the context of balance of justice and prejudice, the State draws attention to the fact that there was no notification of the

plaintiff’s claim before a letter dated the 30th October, 1996. This was some 15 years and 8½ months after the events complained of.

There was, apparently, little documentation compiled in the Unit to which the appellant was attached. Enquiries which were carried

out promptly in the months following the service of the plenary summons. These did not identify any records relating to Defence

Forces personnel who had assisted in the aftermath of the Stardust fire. The search took place in a number of locations, each of

which were identified in the grounding affidavits.

27. The unavailability of Dr. Nolan as a witness has been referred to earlier. Counsel for the respondent correctly lays particular

weight on this issue, as indicative of real prejudice. In fact, there is no admissible contemporaneous medical evidence available, in

circumstances where such evidence would be of prime importance as to the cause of the appellant’s psychological complaints.

Search for Records

28. Additionally, one of the State deponents in the motion indicates that, notwithstanding the absence of records, enquiries did, in

fact, establish the identity of a soldier from the battalion who drove a truck on the night in question. He, in turn, identified a Corporal

Dermot Byrne, as a non-commissioned officer who supervised the tentage party, that is the tent which was erected as a temporary

morgue. The Defence Force detachment was, apparently, made up of personnel from various units around the Cathal Brugha barracks.

It has been possible to identify the barrack orderly sergeant who ordered the call-out. However, no one can identify the names of

other personnel involved.

Other Potential Witnesses

29. Corporal Dermot Byrne, who supervised the tentage party, is now deceased. This again must be categorised as prejudice.

Searches carried out on the personnel files of the barrack orderly sergeant, have not disclosed any other information or references to

the night of the Stardust tragedy. A search of the personnel file of one member of the Army Medical Corps, who was an ambulance

driver dispatched on the night in question, has not indicated any information or references either.

30. The respondents assert, therefore, that notwithstanding enquiries, they have not identified anyone with an actual recollection of

the nature or extent of the appellant’s involvement in the events of the aftermath of the Stardust fire. They state they are not now

in a position to state what did, or did not, in fact, happen at the times alleged by the appellant. Counsel for the respondent submits

that his clients are not in a position to clarify, still less dispute, the extent of the appellant’s involvement in the aftermath of the

tragedy.

The Consequence

31. It is said that, consequently, the defence of any trial would be deprived of the opportunity to adduce evidence, based on actual

recollection of witnesses, and further denied the right to cross-examine the appellant, or his witnesses, in any meaningful way in the

absence of reliable information. Counsel submits the consequence of this is that the proceedings would be inherently unfair and,

effectively, reliant upon assertion, without even the possibility of counter-assertion, clarification, or factual checking of any issue

regarding the event itself. As a consequence, it is said, to allow the trial to proceed at this stage would be inherently unfair and a

denial of the rights of the defendant.

The High Court Judgment

32. An agreed note of Hedigan J.’s ex tempore judgment is available. He held, correctly, that there had been considerable pre and

post-proceeding delay. He noted the appellant contended that this delay arose from a failure to identify the medical and psychological

problems from which he was suffering. The judge pointed out that, while it might be possible to attribute some of the pre-

commencement delay to difficulties in diagnosis, the same could not be said of the post-commencement delay, where, as he pointed

out, the authorities indicate that every effort must be made to bring proceedings on as fast as possible. As to the latter, the judge

commented, in his judgment delivered on the 16th July, 2010, that “13 years can, by no stretch of the imagination, be considered to

bring the proceedings on as quickly as possible.” The judge adverted to the fact that the plaintiff’s delay was said to derive from a

range of illnesses from which he suffered, as set out in the medical and psychiatric reports. However, the judge noted that, as and

from July, 2003, reports indicated the appellant was considered be “a new man” again. The judge held that there was a public

interest in proceedings coming on for trial within a reasonable time; that the defendants had a constitutional right to have the case

heard within such time, and that such right required vindication, in that courts must intervene in some circumstances, to prevent a

long delayed trial from proceeding, as a matter of justice. He held that the balance of justice required the dismissal of the case. The

judge made no order as to costs in the circumstances. This last issue is the subject matter of a cross-appeal.

Discussion

33. On behalf of the appellant, counsel laid considerable emphasis on the authorities which relate to post-traumatic stress disorder.

Undoubtedly, there is material upon which a trial court might conclude that the appellant suffered significant symptoms. However,

inter alia, issues would surely arise in relation to the question of causation, and sequence of events, bearing in mind that the

appellant, on his own account, has a fallible recollection of events that one might think should stick in the mind. The other

subsequent incidents in the appellant’s life cannot be set to one side either.

34. When there has been inordinate and inexcusable delay, the question arises as to where the balance of justice lies? If all these

threshold tests are crossed, then the law provides that the proceedings should be dismissed (see the judgment of this Court in Primor

Plc. v. Stokes Kennedy Crowley [1996] 2 I.R. 459).

35. There can be no doubt but that the pre and post-commencement delay has been inordinate. There is no question that the delay

is inexcusable. The considerable time elapses have already been outlined. So, too, has the lack of explanation for these. What is

particularly noteworthy is that the appellant has not been in a position to indicate any excuse, or reason, for the very significant

delays which occurred after 2003, when his position stabilised, according to available medical records. Even assuming that the

appellant might have been able to overcome the defence plea made under the statute of limitations, the fact remains that by the

time this case would have come on for hearing in 2010, some 29 years would have elapsed since the events said to have triggered

the plaintiff’s symptoms. Given that elapse of time, prior to the issuing of proceedings, the law provides that there was a particular

duty on the appellant to expedite the progress of the proceedings thereafter (see the observations of Geoghegan J. in McBrearty v

North Western Health Board [2010] IESC 27, and Henchy J. in Sheehan v. Amond [1982] I.R. 235).

36. This is, moreover, a case where, on undisputed evidence, the State has made genuine efforts to try and obtain testimony from

eye witnesses of the events, or documentary evidence, but to no avail. One cannot envisage any circumstance by which these

various deficiencies could be overcome by limiting the parameters of a trial. This could not be characterised as being a “documents

case”, by any stretch of the imagination. Unfortunately, a number of potential key eye-witnesses are either deceased or untraceable.

There is no documentation, other than that identified. This is, clearly, irretrievable prejudice. The balance of justice must rule against

a trial proceeding at this stage.

The Legal Authorities

37. It is clear from the case law which has been cited to the Court, that two overlapping strands can be found in the jurisprudence.

First, there are the authorities derived from the judgments of Henchy J. in O’Domhnaill v. Merrick [1984] I.R. 151. This lays emphasis

on the inherent duty of the courts, arising from the Constitution itself, to put an end to what are termed “stale claims” in order to

ensure the effective administration of justice, and basic fairness of procedures.

38. The second strand of authority derives from the judgment of this Court in Primor, to which reference has already been made.

Application

39. To my mind, the situation in this case satisfies the criteria in both strands of authority, no matter how analysed or characterised.

Applying the Primor principles, there is inordinate and inexcusable delay, and demonstrable and irretrievable prejudice to the

respondents in the balance of justice test. In itself, this would be sufficient to warrant the dismissal of the claim.

40. Moreover, it seems to me that the circumstances here are such where now, or at any relevant time, even 2010, simply too long a

period has elapsed between the claimed precipitating factor, and the date of the trial.

Delay in the Appeal

41. One cannot ignore, either, the fact that the High Court hearing of this motion occurred in 2010. A motion to strike out this appeal

was brought by the respondent before this Court in May, 2012. On foot of an “unless” order, the Books of Appeal were lodged. This

appeal came before this Court some 6 years, after the High Court motion. No application was made to this Court for priority, rather

the appeal came for hearing, having been listed in this Court’s backlog list, designed to eliminate old appeals remaining in the list. This

case is now one where any hypothetical future hearing would be “beyond the reach of fair litigation” (per Henchy J. in Sheehan v.

Amond). Indeed, the same considerations might have applied, even at the time that the plenary summons was issued. The situation is

irretrievable.

42. It is true, however, that no motion to dismiss the claim was brought until 2010. One might criticise the State for having raised the

delay pleas which it did in 1999, and then doing nothing further to dismiss the claim for eleven years. But, ultimately, the question is,

on whom did the primary duty lie of bringing on the claim? That primary duty lay on the appellant, particularly having regard to the

inordinate delay in issuing proceedings in the first place. The delays which occurred thereafter are insufficiently explained, or not

explained at all. Doubtless, had there been a full explanation available, these would have been put on affidavit by the appellant’s

solicitor. But, it cannot be said that the State’s inaction counter-balances the appellant’s position.

43. There is no doubt that this claim is one of considerable importance to the appellant. Against that, however, one must have regard

to the interests of justice, and the considerable time elapses which have occurred. Ultimately, the Court can ask itself one simple

question, would it be fair that this case should go on, now, some 35 years after what were said to be the precipitating events, where

there is inordinate and inexcusable delay, where the balance of justice tilts in favour of the respondent, where, despite efforts, the

respondents have been unable to obtain any relevant evidence or witnesses? The answer can only be no. This is also a case where

simply too long a time has elapsed between the relevant events, and any potential trial, thus, justice simply cannot be done were a

trial to proceed.

44. I would hold that this claim must be dismissed, and would uphold the decision of the learned High Court judge. I would propose the

Court hears counsel in relation to the cross-appeal, which is confined to the motion judge’s decision not to award costs.