The Court of Appeal has dismissed Sean O’Brien’s appeal against the High Court’s decision to dismiss his claims over his 1989 dismissal from the Prison Service and injuries he attributed to a 1988 shooting incident at Portlaoise Prison.
The appeal court agreed that the proceedings had lain dormant for 26 years after the defendants served a notice for particulars in August 1993. It found the delay inordinate and inexcusable, and concluded that the balance of justice favoured the defendants because of the prejudice caused by the passage of time.
O’Brien was appointed a prison officer in 1980 and was dismissed in May 1989 after six written warnings concerning absenteeism. The defendants said he had been absent for 782 days during his employment. The court noted that most of the absences predated the 1988 incident and that the reasons for them were disputed.
O’Brien claimed that a bullet narrowly missed him during an attempted escape at the prison on 18 May 1988 and that he later developed post-traumatic stress disorder. The defendants contested his account of the incident. His 1991 proceedings also sought declarations concerning the validity of his dismissal and alleged unpaid wages, as well as damages for personal injuries.
The court rejected O’Brien’s explanation that his mental health had prevented him from progressing the case. It noted that his psychiatrist’s report did not say he was unable to instruct solicitors, and that O’Brien had engaged with the psychiatrist, a former Prison Officers’ Association official, politicians and journalists over the years. His current solicitor was instructed in August 2017, but a notice of intention to proceed was not served until September 2019.
The court also found substantial trial prejudice. Key witnesses connected with the absenteeism dispute were dead or no longer able to give reliable evidence, and the passage of time made it difficult to assess the disputed shooting account. The defendants also said a meaningful psychiatric examination could no longer establish whether O’Brien’s current symptoms were caused by the incident, particularly given other factors in his life.
The appeal court rejected the argument that a 2020 Supreme Court judgment had changed the law on delay or deprived the High Court of jurisdiction. It also dismissed the argument that the High Court had to determine a constitutional challenge to the Civil Service Regulations Act 1956: the challenge was absent from the statement of claim, and the underlying facts would have had to be established first. The court’s order was to dismiss the appeal, leaving the High Court’s dismissal in place.