The Supreme Court has allowed Kevin and Karen Tracey’s appeal against the dismissal of proceedings against State defendants and the Courts Service, finding that dismissal was disproportionate despite failures to provide adequate medical reports.
In a judgment delivered by Mr Justice Clarke on 26 July 2016, the court discharged the High Court orders dismissing the relevant proceedings for want of prosecution. It directed that those cases be listed at the earliest convenient date before the President of the High Court, or a judge nominated by the President, for further case management.
The appeal concerned six High Court cases, including the principal proceedings. The Traceys alleged, among other things, malicious prosecution, abuse of legal process and assaults by gardaí. The Supreme Court did not decide those underlying allegations. Its judgment applies to proceedings dismissed by the High Court in March 2011; it does not apply to defendants against whom no dismissal order was made.
The proceedings had initially advanced in an orderly way, and the Supreme Court said there was no suggestion the Traceys had failed to progress them appropriately before Kevin Tracey became ill. In 2010, the cases were brought under a joint case-management process. The High Court later sought detailed medical evidence explaining how his illness affected his ability to progress the litigation and for how long.
The Supreme Court agreed that the reports provided did not meet those directions: they lacked a prognosis and did not adequately address what steps Mr Tracey could take in the proceedings. It held that this was a material procedural failure, and said further substantial failures during future case management could contribute to a basis for dismissal.
However, two medical reports had been submitted and advanced the evidence beyond what had previously been before the court. Given that some medical information had been provided and the cases had earlier progressed in a timely manner, the Supreme Court held that dismissing them was an extreme and disproportionate sanction. A lesser significant measure could have been considered.
The State respondents had argued that the cases should be dismissed for delay. The Courts Service also relied on claimed prejudice, saying relevant personnel had little or no recollection of events and there was little contemporary documentation. The Supreme Court’s ruling set aside the dismissals and called on all concerned to ensure the proceedings could proceed to trial as soon as possible.
The Traceys also alleged bias by the trial judge. The Supreme Court said it was unnecessary to decide that ground after allowing the appeal. It separately rejected an application by Kevin Tracey for two Supreme Court judges to recuse themselves, finding the asserted basis misconceived.