The High Court has refused to dismiss a man’s claim over a Garda search of his premises, despite finding that he took no steps in the proceedings for almost five years and had no adequate excuse for that delay.
Mr Justice Dignam ruled on a defence application to dismiss the case for delay. He found the main period of inactivity ran from December 2017, after the Court of Appeal rejected the plaintiff’s application for information supporting the search warrant, until the defendants issued their dismissal motion in November 2022.
The plaintiff’s case concerns a search on 23 August 2014. He alleges the warrant was based on flawed sworn information and that the search was carried out unlawfully, with excessive numbers and force causing avoidable damage. He also claims business documents and cash were seized and retained. These allegations have not been determined in the judgment.
The plaintiff’s solicitor cited Covid restrictions, the illness and subsequent death of a barrister retained in the case, and other litigation. The judge found those explanations did not account for the long periods of inactivity. He concluded that the defendants had established both inordinate and inexcusable delay.
The judge then considered whether the balance of justice required dismissal. The defendants relied on the retirement of three Garda members involved in the search and the general effect of time on witnesses’ memories. The court found there was insufficient evidence about the retired members’ roles, when they retired, or whether they would be unavailable or unable to recall events. It did, however, accept that fading memories created a risk of moderate prejudice, particularly because part of the claim would depend on oral evidence.
The plaintiff argued that the State was taking a different position about Garda witnesses’ memories in separate proceedings concerning a 2013 prosecution. The judge said the limited information supplied did not establish that the cases were comparable or that the defendants had taken inconsistent positions.
A factor weighing against dismissal was the claim for the return of property allegedly retained after the search. The plaintiff’s solicitor said copies of company documents and one set of keys had been returned, while envelopes of petty cash, vehicle keys and a Renault truck log book remained with the State. The judgment records this as the solicitor’s account; it does not decide ownership or whether the items must be returned.
The judge refused the dismissal application, finding the defendants had not shown that the balance of justice clearly required the claim to end. He said the parties would first have an opportunity to agree directions, with a tight timetable expected. The plaintiff was primarily responsible for progressing the case. The defendants may bring a fresh dismissal application if there is further significant delay, and the trial judge may reconsider prejudice when the case comes on for trial. The underlying claims remain unresolved.