The High Court has ordered former garda Michael O’Dwyer to indemnify the State defendants for a €30,000 settlement and the costs they incurred defending proceedings brought by Timothy McAuliffe and Timothy McAuliffe Limited.
In an ex tempore judgment delivered on 13 May 2011, Mr Justice Clarke considered the State defendants’ claim for contribution or indemnity after they settled the plaintiffs’ allegations of harassment. The settlement was inclusive of costs. The State defendants did not ask the court to determine every allegation originally made; they relied on a narrower set of claims to support their indemnity case.
The judge found that Superintendent William Hayes had directed O’Dwyer not to prosecute matters arising from incidents on 1 November 2002 and 6 January 2003. Despite that direction, O’Dwyer arranged for summonses to issue, generally using the names of other gardaí without their agreement. One limited exception was a summons for overweight approved by Garda Bernard Rohan. The judge found the summonses were issued maliciously and in breach of O’Dwyer’s duties.
The court also found that O’Dwyer contacted the insurance brokers for McAuliffe’s trucks with malice, rather than to make genuine inquiries for Garda business. It found that he added an unauthorised obstruction offence to the summonses. These findings supported the judge’s conclusion that misfeasance in public office had been established and that McAuliffe would have succeeded against O’Dwyer had that claim proceeded.
The court did not accept all the allegations. It found that McAuliffe’s evidence was exaggerated in some respects, rejected the claimed intimidating driving incidents as not proved on the balance of probabilities, and noted that the State defendants abandoned an allegation about former drivers. The judgment addressed whether the settlement was reasonable in light of the matters actually established, rather than deciding every claim made in the original proceedings.
The judge considered that damages would have been in the order of €15,000 to €20,000, with costs also relevant, and concluded that the €30,000 all-in settlement was reasonable. He ordered the State defendants to recover the €30,000 paid in settlement and to receive an indemnity from O’Dwyer for their costs of defending the plaintiffs’ proceedings.