The High Court has refused an application to end negligence claims brought by Paul Smyth and Philip Smyth over Garda investigations into complaints dating back to 1988. The court held that the claims could not be said to be bound to fail on the facts assumed for the preliminary issue, leaving them to be considered at a substantive hearing.
The defendants had accepted the plaintiffs’ pleaded facts as true solely for deciding the legal issue. They argued that, as a matter of law, An Garda Síochána owed no duty of care to people who complained about alleged crimes in relation to how those complaints were investigated or whether prosecutions were recommended. The issue was not whether the Garda investigation was in fact negligent.
Philip Smyth’s claim concerns a 1988 search of premises then known as Sachs Hotel, following anonymous information, and anonymous calls to British police between 1992 and 1995 alleging serious crimes by him and his brother. His pleaded case includes claims that investigations were deficient and that Gardaí did not pursue leads or act on information about the callers. The judgment records that later civil proceedings found Caroline Devine had made the calls maliciously on behalf of Crofter Properties Limited; Genport Ltd was awarded damages in those proceedings.
Paul Smyth, then a serving Garda officer, claims the allegations damaged his reputation and career, including by contributing to missed promotion opportunities. Both brothers relied on asserted special relationships with Gardaí. Philip Smyth cited assurances that his complaints would be investigated and his earlier assistance to Gardaí in recovering stolen paintings. Paul Smyth relied in part on his employment relationship and his position as a target of the alleged campaign. These were claims advanced by the plaintiffs, not findings made at this hearing.
Justice Michael Peart considered earlier Irish decisions that had rejected a duty of care for Garda investigative and prosecutorial functions, alongside later UK authorities discussing possible exceptions. He said the pleaded special relationships and alleged assurances had to be assumed for this preliminary issue. He also noted the plaintiffs’ contention that little or no investigation had been carried out.
The judge did not decide that an exception applied, that any duty of care existed, or that the Gardaí had acted negligently. He concluded only that the claims could not unequivocally be treated as doomed to fail and should not be ended without a hearing on their merits. The court had earlier ruled that the proceedings were not statute-barred and that discovery was unnecessary for the preliminary issue. On 10 July 2014, it refused the relief sought in the defendants’ notices of motion.