The Supreme Court has dismissed Kevin Tracey’s appeal against striking out his claim against the Dublin Metropolitan District, while allowing his appeal in relation to the Courts Service. The latter ruling leaves a pleaded allegation against a Courts Service employee in place for now; it does not decide whether the allegation is true or prevent a separate strike-out application on a different legal basis.
The judgment, delivered by Mr Justice John MacMenamin on 31 July 2018, concerned the High Court’s 2009 decision to strike out claims against the sixth and seventh named defendants under Order 19, Rule 28 of the Rules of the Superior Courts. The Supreme Court considered whether the Dublin Metropolitan District could be sued and whether the pleadings disclosed a cause of action against the Courts Service. It also reviewed Tracey’s complaint that he had been denied the right to cross-examine an affidavit-maker.
Tracey’s wider case arose from a District Court prosecution for alleged dangerous driving near his home. He was acquitted. His claims included allegations of malice, procedural irregularities and wrongful handling of an order. MacMenamin stressed that these were allegations whose proof or disproof remained for trial.
The Court held that the Dublin Metropolitan District was a geographical court district, not a legal person capable of being sued. It therefore upheld the High Court’s decision to strike out the claim against that defendant.
On the Courts Service, the judgment identified an allegation that a District Court clerk had acted irregularly in witnessing or certifying the signing of an order. The allegation was not fully particularised, and the judgment noted there was no specific plea that the clerk acted with malice, ill-will or knowing illegality. But the allegation remained part of the claim. The Court was not persuaded it could be struck out under Order 19, Rule 28, and allowed the appeal on that point.
The High Court had not ruled on the defendants’ alternative request to strike out the Courts Service claim under the court’s inherent jurisdiction. The Supreme Court did not decide that issue because it had not been addressed at the appeal. It said a new application on that distinct basis could be made in the High Court and would not be barred by the earlier application or the Supreme Court judgment.
The Supreme Court also upheld the refusal to allow cross-examination of Margaret O’Neill, who had sworn an affidavit for the Courts Service. The motion concerned the wording of the statement of claim, and Tracey had filed no replying affidavit setting out disputed matters. The Court said cross-examination is a matter of discretion and would be rare in applications of this kind.