The Court of Appeal has overturned the dismissal of a man’s personal injuries claim alleging he was assaulted by gardaí, directing that the case return to the High Court for a hearing at the earliest available date.
In a judgment delivered on 20 September 2023, Mr Justice Noonan, with whom Justices Haughton and Allen agreed, allowed Gerard Mc Carthy’s appeal. The court set aside the High Court order dismissing his claim for delay. It did not decide whether the alleged assault occurred or determine liability or damages.
Mr Mc Carthy alleges he was assaulted by gardaí in the early hours of 1 November 2008 while cycling through the O’Devaney Gardens estate to check on a fire at the rear of his girlfriend’s property on Findlater Street. He says he was struck several times and suffered a fractured collarbone and other injuries. Garda statements exhibited by the defendants describe rioting around a bonfire and a cyclist in a covered face who rode into a line of public order shields. Those statements do not identify the cyclist as Mr Mc Carthy, and the Court of Appeal said his account was likely to be strongly contested.
The claim began in 2010. After earlier procedural steps, the case was inactive for about seven years from late 2013 to early 2021, with a notice of intention to proceed and unanswered correspondence about CCTV in 2017. The High Court dismissed the claim in March 2022, accepting that the delay was inordinate and inexcusable and weighing the reputational impact of the allegations on the gardaí.
The appeal court agreed that most of the delay was attributable to the plaintiff, but held that the defendants’ conduct also mattered when balancing the interests of justice. It considered their failure to respond to the 2017 CCTV query relevant. More significantly, by early 2021 the plaintiff was taking steps to prepare the case for trial, yet the defendants waited until October to issue their dismissal motion, after a trial date had been fixed. They had earlier failed to secure adjournments to bring the motion and did not seek to have it heard before the scheduled trial.
The court found the defendants had identified no concrete prejudice caused by the delay. It held that reputational damage alone did not justify preventing the plaintiff from having his case heard. The appeal was allowed and the case remitted to the High Court for hearing. The court’s proposed costs order in the plaintiff’s favour, covering the appeal and High Court motion, was provisional and stayed pending final determination of the proceedings; either side could make written submissions on costs within 14 days.