The Court of Appeal has dismissed John Bowe’s appeal against High Court orders that restored the defendants’ defence in his personal injury action and extended time to comply with a discovery order.
The appeal concerned a default order made by the High Court Deputy Master on 3 May 2022, which struck out the defence after the defendants failed to comply with an order for discovery. The High Court later set that order aside under Order 27, rule 15(2) of the Rules of the Superior Courts and extended time for discovery. The Court of Appeal found no basis to interfere with those decisions.
Bowe’s action alleges that he suffered personal injury from battery, negligence and breach of duty by Garda Sergeant Rory Sherriff and other, unidentified members of An Garda Síochána. He also alleges negligence, breach of duty and vicarious liability against the other defendants. The allegations remain to be determined at trial; the proceedings are to be heard by a jury.
The Court of Appeal said the defendants’ failure to meet the discovery deadline and contest the strike-out motion stemmed from a solicitor’s serious mental health difficulties, worsened by pandemic lockdowns, remote working and problems connecting to office systems. The solicitor’s affidavit said the defendants had supplied discovery documents to him in February 2021, but he was unable to progress the file. The evidence was not disputed or tested by cross-examination in the High Court.
The court held that the combined circumstances were exceptional and explained and justified the default. It also considered the balance of justice, including the gravity of the allegations and the absence of evidence from Bowe setting out specific prejudice from restoring the defence. The court noted delays on both sides during the proceedings.
The High Court had also extended time to appeal the Deputy Master’s order and to comply with discovery. The Court of Appeal upheld the extensions, noting the parties’ approach to the relevant legal test in the High Court and finding no valid basis to disturb the orders.
The appeal was dismissed. The Court of Appeal’s preliminary view was that the defendants should receive their appeal costs, to be adjudicated if not agreed, with the proposed costs order stayed until the High Court proceedings conclude. The parties may make written submissions on an alternative costs order.