THE HIGH COURT
Record No. 1996 No. 641P
BETWEEN
Herbert Patrick McGrath
Plaintiff
and

The Minister for Justice, and the Attorney General
Defendants
Judgment of Mr. Justice Frederick Morris delivered on the 9th day of November 2000

The circumstances in which this matter comes before the Court are most unusual. This is the fourth occasion upon which the Plaintiff has found it necessary to institute High Court proceedings in order to obtain from the Court the remedies to which he has felt entitled.

It is unnecessary in this Judgment to recount in detail the particulars of his litigation to date. It is however necessary to state in broad terms the

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circumstances of his previous litigation and the results of that litigation in order to identify the issues which now come before the Court.

The Plaintiff is a member of An Garda Síochána. In 1987 the Plaintiff was accused of criminal embezzlement. It was alleged that he, as a member of An Garda Síochána, had received monies paid to him but that he had failed to account for this money. On these charges he was returned for trial to the Circuit Court. He has been suspended from duty since the 15th December 1987 on foot of thirteen Suspension Orders each of which was effective for three months.

He was tried in the Circuit Court for the offences with which he was indicted and was found not guilty. During the period of his suspension he was paid a suspension allowance which was equivalent to two thirds of his basic pay in lieu of pay.

At the conclusion of the criminal proceedings the Commissioner of An Garda Síochána set about the procedure of holding a disciplinary enquiry pursuant to the Garda Siochana (Disciplinary) Regulations 1971. This enquiry was into the alleged misconduct on the part of the Plaintiff arising out of the incident in respect of which he had been acquitted by the jury.

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The Plaintiff applied to the High Court for an Order of prohibition prohibiting the holding of this enquiry. I shall refer to these proceedings as “the proceedings before Mr. Justice Lynch”. In his Judgment dated the 11th September 1989 Mr. Justice Lynch made an Order prohibiting the holding of an enquiry into certain alleged breaches of discipline on the grounds that it was not open to the enquiry to investigate into charges of corruption or improper practice insofar as such charges alleged corruption or dishonesty on the part of the Applicant and thereby contradict the findings and verdict of the Jury on charges arising from the same matters. He did however order that the Respondent was entitled to cause an enquiry to be held into three charges dealing with the Applicant’s failure to account for sums of money received in the course of his duty, provided that the breach of discipline alleged was confined to a charge of merely improper rather than corrupt practice.

On appeal to the Supreme Court by Judgment delivered the 17th July 1990 this decision was affirmed.

At the conclusion of these proceedings the Garda Commissioner set about the holding of the enquiry permitted by the Order of Mr. Justice Lynch. However, a further application for prohibition by way of Judicial Review was made by

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the Applicant to the High Court and this came on for hearing before Mr. Justice Lardner on the 22nd February 1991 (I shall refer to these proceedings as “the proceedings before Mr. Justice Lardner”). In these proceedings the Applicant complained that the Investigating Officer who was carrying out the investigation into the breaches of Garda Síochána (Disciplinary) Regulations 1971 had available to him and used statements which were taken with a view to the criminal investigation which led to the prosecution in the Circuit Court. It was submitted that they were taken with a view to prosecuting the offence under the Larceny Act not with a view to disciplinary offences for failure to account. It was held by Mr. Justice Lardner that “the decisions taken by the Appointing Officer and the Commissioner to proceed with the enquiry seemed to have been taken when they had charges before them which were too wide and material which related to a far wider scope than merely improper practices than failure to account, so the decision at each point was taken on material which was inappropriate and wrong.”

Mr. Justice Lardner accordingly made an Order of Prohibition but directed at the request of Counsel for the Commissioner, that “If it is decided to proceed anew, I think the safest thing (is) for an investigating officer to be appointed and to conduct an investigation limited to allegations of improper practice and (he) should take whatever decision he decides at the end of that and for the

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Commissioner then to make a fresh decision. Anything short of that would be liable to run into difficulties which may not be apparent today.”

No appeal was taken from this decision.

On the 1st June 1989 the Garda Síochána (Discipline) Regulations 1989 came into operation and the Garda Síochána (Discipline) Regulations 1971 were revoked.

Following the decision of Mr. Justice Lardner a decision was taken formally to discontinue the disciplinary proceedings which were the subject matter of the proceedings before Mr. Justice Lardner and to institute a new disciplinary investigation. A new Appointing Officer and Investigating Officer were appointed and the matter proceeded in accordance with the 1989 Regulations.

On the 31st July 1991 the Applicants sought and obtained leave to apply for Orders of Certiorari and Prohibition and this matter came on for hearing before Mr. Justice Murphy who delivered his Judgment on the 8th May 1992. Mr. Justice Murphy made an Order disallowing the cause shown by the Respondents and granted the Plaintiff an Order of Prohibition on the ground

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that it was improper to rely on the 1989 Regulations as the basis for the enquiry.

From this decision the Commissioner appealed to the Supreme Court. The Judgment of Murphy J. was affirmed. Finlay C.J. delivering the Judgment of the Court held that it would be quite unfair for the Commissioner to be permitted to proceed with the existing proceedings and moreover prohibited the institution of any further proceedings in any form in respect of the events asserting that the Plaintiff was in breach of the Disciplinary Code. The Judgment of the Supreme Court was delivered on the 26th January 1993. That then concluded the disciplinary proceedings against the Plaintiff.

An Order terminating the Plaintiffs suspension was made on the 28th January 1993 and on the 2nd April 1993 a pay order in the sum off 13,305.68 was sent to the Plaintiff which is stated to be “The amount of pay etc., due in respect of the period from the 15th December 1987 - 28th January 1993.” This was intended to represent the one third of the Plaintiffs pay which was not discharged in the form of the suspension allowance paid.

The Plaintiff now makes four claims.

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(1) The Plaintiff’s claim is, were it not for his suspension, that he would have earned additional pay in respect of work which he would have carried out on night duty, weekend duty and public holidays duty. In addition he claims that he would have earned Saturday premiums and for work on public holidays.

(2) The Plaintiff claims that because the pay to which he was lawfully entitled was held back by the Defendant he is entitled to interest on the monies due to him while it is outstanding.

(3) The Plaintiff claims that in 1988 an opportunity was available to him whereby the house in which he now resides was available for purchase for the sum of £16,000. He claims that he missed this opportunity and he claims damages for the loss which he has suffered as a result.

(4) The Plaintiff claims general damages for personal injuries and for loss and distress which he suffered by reason of his loss of standing in the community arising from his suspension. He says that this has led to grave upset for both him and other members of his family and claims general damages accordingly.

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Amendment of Pleadings

The Statement of Claim delivered on the 9th July 1996 (referred to at the foot thereof as “Revised Statement of Claim delivered to the Chief State Solicitor by Donal Farrelly & Company Solicitors for the Plaintiff on the 25th September 1997” makes a claim for

Damages for:

(a) The wrongful suspension of the plaintiff from his duty as a member of An Garda Siochana;

(b) The taking of all appropriate accounts and enquiries and the payment to the Plaintiff of such monies so found due to him;

(c) Such further and other Order as to this Honourable Court may see

(d) Costs.”

During the course of the hearing Counsel for the Plaintiff sought, at my suggestion, liberty to deliver an amended Statement of Claim I expressed the view that this was necessary in view of the lack of form of the Plaintiff’s Statement of Claim. I granted this relief on the grounds that the Defendant

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would be entitled to deliver an amended Defence and in particular, if so advised, plead the Statute of Limitations. I made the Order granting liberty to amend the Statement of Claim because I am of the view that there can be no doubt whatever that both the general endorsement of claim in the Plenary Summons and the Statement of Claim made clear the nature of the Plaintiffs complaint and that no possible prejudice could result to the Defendants by the delivery of a Statement of Claim identifying with clarity the Plaintiffs cause of action.

On foot of this Order the Plaintiff filed an amended Statement of Claim in court claiming inter alia damages for negligence. The Defendants have filed an amended Defence.

In support of the Plaintiff’s claim Counsel for the Plaintiff Mr. Sweetman S.C. relies upon the authority of Stephen Flynn v An Post [1987] I.R. 68 as authority for the proposition that the power of suspension must be construed as permitting the suspension to have been continued only for the period of time in which it would not have been reasonably practicable to have held a full hearing into the suspension. He submits that a suspension which is prolonged beyond that time, as in this case, is invalid. He submits that the Plaintiff’s suspension having commenced on the 15th December 1987 became invalid in May of 1988

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on the Plaintiff’s acquittal by the Jury. The Plaintiff however agreed in cross-examination that a period of perhaps 3 - 6 months thereafter would have been reasonable. He believes that his suspension became unlawful in or about the month of December 1988. In this regard the evidence of former Assistant Commissioner Sloyan is that normally enquiries of this nature are concluded within five to six months.

Counsel on behalf of the Defendants Mr. O’Reilly S.C. submits that there is a fundamental difference between the facts of Flynn’s case and the present case. In Flynn’s case, he submits, the Plaintiff was using his best endeavours to have the enquiry completed with the minimum possible delay and accordingly the failure of the Defendants to conclude the enquiry was the factor which rendered the suspension unlawful. However he submits in the present case it was the Plaintiff himself, by reason of his applications to the court, which prevented the conclusion of the enquiry. In these circumstances he submits that the Defendant is not responsible for the delay the validity of the suspension remains.

It is further submitted on behalf of the Defendants that the Plaintiff s right of action is barred both by reason of the Statute of Limitations and moreover, since the Plaintiff’s relief has been available to him by way of Judicial Review

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he is guilty of inordinate delay in pursuing his relief and has failed to comply with the time limit provided for under Order 84 Rule 2 1(1) of the Rules of the Superior Courts which apply in relation to the belated challenge to the legality of the aforesaid Suspension Order and as a result is debarred.

In my view the Defendant’s first submission cannot be correct. While it is true that the Plaintiff’s action is instituting proceedings was the cause of the enquiry to be postponed, in my view it cannot be correct to say that a Litigant by instituting proceedings in Court seeking a relief to which he was ultimately found to be entitled to, was the person responsible for the delay. Rationally the blame for the delay must fall upon the person whose action was found to be wrong and which necessitated the institution of legal proceedings. In my view it cannot be right for the Defendant to be permitted to successfully make the case that the Plaintiff was under a duty to disregard the defects in the enquiry procedures simply to allow these enquiries to be held expeditiously. I am satisfied that a member of An Garda Síochána faced with disciplinary proceedings does not have the option of dictating the speed at which the proceedings progress. If the proceedings had been unflawed they would have concluded in approximately five or six months. It was the defective nature of the proceedings and the necessity to seek a remedy in the High Court which

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was the sole cause of the delay and this delay must be the responsibility of the Defendants.

Accordingly I can see no distinction between the basis upon which Flynn -v- An Post was decided and the present case.

It is next necessary to consider the plea of the Statute of Limitations. The Defendant’s submission may be summarised in the following way. It is submitted that since the suspension became unlawful in December 1988 then the six year time limit within which the Plaintiff must institute his proceedings expired in December of 1984. In fact the proceedings were instituted on the 25th January 1996. It is therefore submitted that they are out of time.

I do not agree with this submission. The matter came on for hearing before Mr. Justice Lynch in the High Court and Judgment was given on the 11th September 1989. The Judgment in the Supreme Court was delivered on the 17th July 1990. In my view whatever the Plaintiff’s advice may have been or whatever his own beliefs may have been it was only on the delivery of the Supreme Court Judgment that the Plaintiff knew that the procedures being adopted by the Defendants were improper and would be prohibited by the courts. His cause of action in my view for a claim based upon an unlawful

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suspension irrespective of its merits can only have arisen when, in spite of the Defendant’s assertions to the contrary, the procedures were found to be flawed. In my view then and only then does the six years start to run and would expire only on the 16th July 1996 which is six months after the institution of these proceedings.

With regard to the suggestion that the time limit provided by Order 84 Rule 21 (1) of the Rules of the Superior Court should apply in this case, I am of the view that insofar as it may be necessary to do so the court should grant whatever extension of time is necessary to comply with the rules.

While I am left in no doubt that the Plaintiff’s suspension became unlawful by reason of lapse of time brought about entirely by reason of the default on the part of the Defendant, I am also satisfied that the Plaintiff is entitled to seek reliefs based upon the established negligence of the Defendant. There was, in my view, a failure on the part of the Commissioner, or those to whom he had delegated the function of performing the appropriate duties, to carry out these duties with reasonable care. These failures took the form firstly of attempting to investigate matters which had already been the subject matter of a Jury’s enquiry (Mr. Justice Lynch’s case), using statements for the purposes of the enquiry which were taken for the purpose of the criminal prosecution (Mr.

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Justice Lardner’s case) and finally seeking to conduct the enquiry in reliance upon the incorrect regulations (Mr. Justice Murphy’s case).

In my view this conduct constituted negligence as a result of which the Plaintiff suffered and continued to suffer loss in respect of which he is entitled to be compensated. Again I am of the view that the Statute of Limitations has no application in the circumstances of this case for the reasons already stated.

Accordingly I am satisfied that the Plaintiff is entitled to succeed.

Damages

I am satisfied on the evidence tendered to the court by the Defendants that the normal policy of the Garda Authorities is, at the conclusion of an enquiry, to make up the shortfall of the one third difference between pay and suspension allowance in full to the Garda involved. That is to say all statutory pay. It is not the policy of An Garda Síochána to make good any loss which a Guard would have suffered by reason of his inability to perform rostering duties because those duties would only be performed with the approval and sanction of the local Chief Superintendent. Since it is not possible to assume what duties might, in any particular case, have received this sanction this shortfall is not made good.

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Simply because it is not the Garda Policy to make these payments it does not mean that the Plaintiff is precluded from recovering these monies as damages.

I am satisfied in the particular circumstances of this case that had the Plaintiff not been under unlawful suspension during the relevant time, he would have worked the roster duties claimed in the form of night, weekend and public holidays premium payments. I have had the benefit of the evidence of Miss Deirdre Farrelly, an Accountant that the gross amount of pay which would have been earned was £14,283.75 and that the interest which has been lost to the Plaintiff by reason of late payment is £16,117.56. However I also accept Miss Farrelly’s evidence that these two items must suffer the impact of taxation and therefore she calculates that the figures net down to £7,500 and £8,500 respectively. One element which has not been taken into account in these figures is that to which Mr. Gerard O’Donovan of the Finance Section of An Garda Síochána has referred namely that during the relevant period account must be taken of the fact that the Plaintiff would have taken holidays.

I am satisfied that on that basis the correct figures are respectively £5,826, and

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£6,372.04 i.e. £12,198.04.

I turn next to deal with the Plaintiff’s third claim namely his loss of opportunity to acquire his house under the Scheme which existed in 1988.

In my view the Plaintiff is not entitled to succeed in this claim

He has told the Court that it was his wish to avail of this Scheme and that he made informal application to his Bank Manager who declined to make a loan available to him, he says, because he was suspended at the time. He claims that there was no other door open to him and so his opportunity to buy the house failed.

To succeed in a claim of this nature, in my view, the Plaintiff would require to satisfy the Court that he had taken every reasonable step to obtain a loan for the house. This would have included, for instance, making application to building societies, following up the matter with the Garda Authorities and explaining the position in which he found himself so as to give them an opportunity of meeting the situation or taking such other reasonable steps as were necessary to look after his own interests. I am satisfied that the Plaintiff has failed to show that this lost opportunity was something that could reasonably have been within

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the contemplation of the Defendants and been foreseeable to them as a consequence of their conduct.

I now pass to consider the Plaintiff’s claim for general damages.

At the outset the Defendant was entitled under the terms of the Garda Síochána Regulations to suspend the Plaintiff. That in itself would carry with it a stigma in the community for which the Plaintiff is not entitled to be compensated. The fact that he went on trial before a Judge and Jury would exacerbate this fact. I accept that if the Plaintiff had been exonerated from all complaints at the enquiry this matter would have been concluded by December 1988. In fact the Supreme Court Judgment prohibiting further investigations and enquiries is dated January of 1993. Accordingly I am satisfied that for just over four years the Defendant’s conduct has caused the Plaintiff to remain in a state of suspension and caused him distress and upset.

In assessing damages one must have regard to the fact that there was a period of lawful suspension and there was an appearance on a charge of embezzlement before a Judge and Jury of which the Plaintiff was acquitted.

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To compensate the Plaintiff for the stress and anxiety and the general disruption to his enjoyment of life during that four year period I assess damages at £40,000.

To that will be added the sum of £12,198.04.

Accordingly I award damages in the sum of £52,198.04.