The High Court has allowed a former garda to submit an additional affidavit in proceedings brought by the State to dismiss his claim over the termination of his employment. The court has not yet decided the dismissal application.
Mr Justice Dignam’s ruling concerns a narrow question: whether the plaintiff could introduce evidence after the hearing of the State’s motion had ended but before judgment on that motion was delivered. The State sought dismissal on grounds of inordinate and inexcusable delay and prejudice to the defendants.
The plaintiff claims he was unlawfully retired on medical grounds in January 1999. His case includes allegations about Garda operations involving drugs and a detective sergeant identified in the judgment only as Detective Sergeant A. Those allegations are part of the plaintiff’s pleaded case; the present ruling did not determine whether they are true.
The State relied on an affidavit from Detective Superintendent John G Healy describing several claimed forms of prejudice, including faded memories, unavailable witnesses and missing documents. Healy’s affidavit said Detective Sergeant A’s memory was impaired and that he could not consult contemporaneous notes or other reference material.
After the motion hearing, an individual contacted the plaintiff’s legal team and provided an affidavit. He says he was involved in similar operations from about 1997 and identifies Detective Sergeant A as his contact and the person who made key decisions. The plaintiff argued that this account could affect how the court assessed the claim that the detective sergeant could not recall relevant events. The State disputed the evidence’s relevance and potential impact.
The judge found that the proposed evidence did not bear on whether the delay was inordinate or inexcusable. Its possible relevance was to the claimed prejudice, particularly the detective sergeant’s memory. Applying the test that new evidence should be credible, unavailable at the original hearing despite reasonable diligence, and likely to have an important influence on the motion, the judge granted leave to admit the affidavit.
The judge stressed that this was not a finding that Detective Sergeant A’s memory was better than claimed, or that the State would suffer less prejudice. The State must have an opportunity to respond. The judge directed that the parties be given opportunities to exchange affidavits and make further submissions, and said the matter would be listed to discuss directions. The State may also provide evidence of relevant changes since the original hearing, including the reported death of a further witness. The dismissal motion remains to be determined.