The High Court has refused Stephen and Karen Costello’s application to have their action against the Garda Commissioner tried by a judge and jury. The court also refused their request to extend the time for making that application.
Mr Justice Keane held that the damages action, as pleaded, could not be tried with a jury under the Courts Act 1988. He also concluded that, even if a jury trial were available in principle, the plaintiffs had not established a sufficient basis to change the earlier decision to place the case in the non-jury list.
The Costellos’ claim seeks damages for alleged harassment, watching and besetting, intimidation, wrongful arrests and criminal slander, among other relief. Their statement of claim also alleges personal injury, including emotional trauma. The allegations have not been determined at trial.
The proceedings began in December 2005. In July 2011, the plaintiffs’ solicitors served notices referring to a judge-and-jury trial, but the case was set down in the non-jury list on 18 July. The defendant’s motion to strike out the jury-trial notice was later struck out by consent. An affidavit for the Commissioner said the plaintiffs’ counsel had told the court that the jury notice was issued in error and that the plaintiffs had intended a judge sitting alone. The court awarded the Commissioner costs of that motion.
The plaintiffs’ current solicitor later said he believed an unspecified error by the former solicitors had led to the non-jury listing. Mr Justice Keane found that the plaintiffs had not proved, on the balance of probabilities, that the listing decision was an error. He also found there was no satisfactory explanation for the period between the current solicitor taking over the case in October 2013 and the motion issuing in November 2015.
The judge considered that some pleaded incidents, if proved, could amount to false imprisonment or intentional trespass to the person, which remain capable of jury trial under statutory exceptions. But other alleged conduct involved separate acts that did not fit those categories, including claims about Garda vehicles in the cul-de-sac near the plaintiffs’ home and their children being followed. The damages claimed for those other causes did not arise from the same acts or omissions as the alleged false imprisonment or trespass. The action therefore did not qualify for either exception, and the statutory bar on jury trials applied.
The court refused the application. It made no finding on the truth of the underlying allegations.