The High Court has dismissed Tony Kennedy’s damages claim against Noel Faherty over a 2003 assault at the Equinox nightclub in Sligo, finding Kennedy had not proved that Faherty was the person who struck him.
In a judgment delivered on 30 June 2015, Mr Justice Michael Peart said Kennedy bore the burden of establishing on the balance of probabilities that Faherty caused his injuries. The judge was not satisfied that this had been shown. The claim therefore failed, and no damages were awarded.
Kennedy suffered serious facial injuries and psychological effects after being punched in the nightclub foyer. He said he did not know or recognise his attacker. Security worker Martin Feeney told the court he saw a tall man raise his arm before Kennedy was struck, and later identified Faherty as the assailant. Feeney said he was certain of the identification.
The judge found significant difficulties with that evidence. Feeney described the attacker as about 6ft 5in or 6ft 6in, while Faherty was about 6ft 3in. The judge also considered Feeney’s account that he had handed Faherty to a Garda alongside the custody record and investigation evidence. The record showed Faherty had been detained on suspicion of public order offences, with no suspected assault listed. Detective Garda Eddie MacHale said the Gardai he consulted were unaware of an assault complaint when Faherty was taken into custody.
Kennedy also relied on footage from one nightclub camera, which showed Faherty in the bar and foyer shortly before the assault. He argued that a group seen moving between the areas had gathered to plan an attack. The judge said the footage showed Faherty among people who went to the foyer and later returned, but did not establish that a group had planned an assault. He described Kennedy’s interpretation as speculative. Faherty said he had gone into the foyer to take telephone calls from his brother, who was outside the club; the judge accepted that explanation.
Most of the nightclub’s CCTV footage, including footage of the foyer, was unavailable. The judge acknowledged Kennedy’s concerns about its disappearance and about the Garda investigation. He also noted that a complaint about the initial handling of the investigation had been upheld and disciplinary action taken against a Garda. However, he accepted Faherty’s denial that he was involved in any alleged pressure on Kennedy to drop the case or offer of money.
The judgment addresses civil liability only. The Director of Public Prosecutions had decided not to prosecute Faherty for the assault. The civil court’s decision was that Kennedy had not proved Faherty was responsible for his injuries.