The Court of Appeal has ordered a fresh jury to assess damages after finding that an earlier High Court judge wrongly withheld a malicious prosecution claim from the jury. The appeal court said the first jury’s finding that Gardaí assaulted Oliver Cully meant his prosecution was malicious, but limited that conclusion to the Gardaí involved in the assault.
The judgment, delivered by Mr Justice Binchy on 2 August 2022, arose from events in the early hours of 24 April 2004 on Camden Street, Dublin. Cully, then an off-duty Garda, was arrested after a dispute with a taxi driver and a scuffle with two Gardaí. He was detained at Harcourt Terrace Garda Station and released at about 6.50am. Public order charges against him were later dismissed after a District Court hearing.
Cully sued the State parties, claiming unlawful arrest, false imprisonment, assault and malicious prosecution, among other matters. At the 2016 High Court trial, a jury found that he had been falsely imprisoned and assaulted. It also found that Gardaí intentionally or recklessly inflicted emotional suffering. The jury awarded €95,000 in general damages, including €49,000 in aggravated damages, and no punitive damages. Special damages of €31,439 had been agreed.
The trial judge had removed the malicious prosecution claim from the jury, finding there was reasonable and probable cause to prosecute and no evidence supporting Cully’s broader allegations of a conspiracy. But the Court of Appeal applied the Supreme Court’s decision in McIntyre v Lewis: if a Garda assaulted a person and then used their position to bring about a prosecution alleging that the person had assaulted the Garda, the prosecution was malicious. The appeal court said the jury’s assault finding resolved that issue. It therefore ordered a new jury to assess malicious-prosecution damages, on the basis that the claim was established only through the assault finding, not on any wider conspiracy theory.
The appeal court also ruled that emotional-suffering damages should not have been put to the jury as a separate claim when the same harm could be compensated under assault, false imprisonment and malicious prosecution. It left the original jury’s aggravated-damages decision undisturbed, but ordered the new jury to reconsider the amount. The new jury must also decide whether exemplary damages are appropriate and, if so, assess them. The judgment did not itself fix any revised damages award.
The court replaced the High Court costs order. The respondents must pay Cully’s High Court costs, except for one day’s costs, which Cully must pay to them; the amounts are to be determined by adjudication if not agreed, with a set-off. The Court of Appeal made no order as to appeal costs, while allowing either side to seek a short hearing on that issue by 16 September 2022.