Herbert Patrick McGrath (plaintiff) v The Minister for Justice, and the Attorney General (defendants).

Damages - Disciplinary inquiry - Plaintiff suspended pending inquiry into alleged misconduct - Defendants prohibited by court order from pursuing inquiry - Period of suspension prolonged by virtue of plaintiff's judicial review proceedings - Whether plaintiff entitled to damages in respect of period during which plaintiff was engaged in judicial review proceedings.

Limitation of actions - Negligence of defendants in conducting defective disciplinary proceedings - Accrual of the cause of action.

The High Court (before Mr Justice Morris); judgment delivered 9 November 2000.

Where a period of suspension was prolonged by court proceedings instituted by the plaintiff, the delay was not the fault of the plaintiff. It was the defective nature of the disciplinary inquiry procedures and the necessity to seek a remedy in the High Court which was the sole cause of delay and this must be the responsibility of the defendants. Accordingly, the plaintiff was entitled to damages for the loss occasioned by the prolonged period of suspension.

Furthermore, until the first set of proceedings had been concluded in the Supreme Court, the plaintiff did not know that the procedures being adopted by the defendants were improper. The plaintiff's cause of action in negligence against the defendants did not accrue until that time.

Mr Justice Morris so held in awarding £52,198.04 in damages to the plaintiff, to include £40,000 in general damages in respect of the distress and upset to the plaintiff arising out of the prolonged period of suspension.

John Sweetman SC, John Phelan SC and Simon McDonald BL for the plaintiff. James O'Reilly SC and Colm MacEochaidh BL for the defendants.

Mr Justice Morris said that this case had come to court in the most unusual circumstances in that this was the fourth occasion on which the plaintiff, who was a garda, had instituted proceedings in order to obtain remedies to which he felt he was entitled. Three sets of judicial review proceedings had been instituted by the plaintiff seeking to restrain the Garda Commissioner from holding a disciplinary inquiry into matters alleged against the plaintiff. Ultimately, on 26 January 1993, the Supreme Court upheld a decision of Mr Justice Murphy prohibiting existing disciplinary proceedings against the plaintiff and ordered that no further proceedings in any form in respect of the events asserting that the plaintiff was in breach of the disciplinary code should be instituted.

The plaintiff had been suspended from duty on 15 December 1987, and was paid two thirds of his basic pay in lieu of pay during the period of suspension. On 28 January 1993, that suspension was terminated, and on 2 April 1993, a pay order was sent to the plaintiff in respect of that one third of the plaintiff's pay which had not been discharged in the form of the suspension allowance paid.

Mr Justice Morris said that the plaintiff now claimed

(1) Additional sums in respect of the addition work which he would have carried out on night duty, weekend duty and public holidays duty.

(2) Interest on the monies due to him while it was outstanding.

(3) Damages for loss of opportunity in that, in 1988, an opportunity was available to him whereby the house in which he now resided had been available for purchase for the sum of £16,000. The plaintiff claimed that he had been unable to avail of this opportunity.

(4) General damages for personal injuries and for loss and distress which he had suffered by reason of his loss of standing in the community arising from his suspension. This had led to grave upset for him and for his family.

In support of the plaintiff's claim, counsel relied upon Flynn v An Post [1987] IR 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. A prolonged suspension was invalid. Counsel had submitted that the plaintiff's suspension, having commenced on 15 December 1987, became invalid in May 1988, when he had been acquitted. Mr Justice Morris said that the plaintiff had agreed in cross-examination that a period of perhaps three to six months thereafter would have been reasonable and that his suspension became unlawful in or about December 1988. The evidence of the former assistant commissioner was that normally inquiries of this nature were concluded within five to six months.

Counsel for the defendants sought to distinguish Flynn v An Post on the basis that in that case the plaintiff had used his best endeavours to have the inquiry completed with the minimum possible delay and it had been the failure of the defendants to conclude the inquiry which had rendered the suspension unlawful. In this case, it was submitted, it was the plaintiff himself who, by his applications to court, had prevented the conclusion of the inquiry. The defendants also submitted that the plaintiff's right of action was barred both by reason of the Statute of Limitations 1957, and because the plaintiff's relief had been available to him by way of judicial review and he had failed to comply with the time limits set out in Order 84, rule 21(1), of the Rules of the Superior Courts 1986 for applications for judicial review.

Mr Justice Morris said that the first submission could not be correct. It could not be correct to say that a litigant, by instituting proceedings in court seeking relief to which he ultimately found to be entitled, was the person responsible for the delay. The blame for the delay must fall upon the person whose action was found to be wrong and necessitated the institution of legal proceedings. The plaintiff was under no duty to disregard the defects with the inquiry procedures simply to allow those inquiries to be held expeditiously.

Mr Justice Morris said that the submission in relation to the Statute of Limitations could be summarised as follows: since the suspension became unlawful in December 1988, then the six year time limit within which these proceedings should have been instituted expired in December 1994. In fact, proceedings had been instituted on 25 January 1996.

Mr Justice Morris said that he did not agree with this submission. The first set of proceedings had been determined by the Supreme Court on 17 July 1990. It was only on 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 based upon an unlawful suspension irrespective of its merits could only have arisen when, in spite of the defendants' assertions to the contrary, the procedures were found to be flawed. Therefore, time did not expire until 16 July 1996, six months after the institution of these proceedings.

Mr Justice Morris said that with regard to the suggestion that the time limits provided by Order 84 of the Rules of the Superior Court should apply in this case, he was of the view that, insofar as it might be necessary to do so, the court should grant whatever extension of time was necessary to comply with the rules. While there was no doubt but that the plaintiff's suspension became unlawful by reason of lapse of time brought about entirely by the default of the defendants, the plaintiff was entitled to seek reliefs based on the established negligence of the defendants. There was a failure on the part of the commissioner, or his delegates, to perform the appropriate duties with reasonable care. Those failures took the form, firstly, of attempting to investigate matters which had been the subject of an acquittal by a jury; secondly, using statements for the purposes of the inquiry which had been taken for the purpose of the criminal prosecution; and thirdly, seeking to conduct the inquiry in reliance upon the incorrect regulations.

Mr Justice Morris said that in his view, this conduct constituted negligence as a result of which the plaintiff suffered loss in respect of which he was entitled to be compensated. The Statute of Limitations had no application in the circumstances of this case, for the reasons already stated.

The plaintiff was therefore entitled to succeed, and Mr Justice Morris said that he was satisfied on the evidence tendered by the defendants that the normal policy of the Garda authorities was, at the conclusion of an inquiry, to make up the shortfall of the one-third difference between pay and suspension allowance in full to the garda involved. It was not the policy to make good any loss which a garda 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.

Mr Justice Morris said that simply because it was not the policy to make those payments did not mean that the plaintiff was precluded from recovering those monies as damages. Mr Justice Morris said that he was satisfied 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. Mr Justice Morris awarded the sum of £5,826 to represent the net amount of pay which would have been earned, together with interest thereon in the sum of £6,372.04, making a total of £12,198.04.

Mr Justice Morris said that the plaintiff was not entitled to succeed in his claim in relation to loss of opportunity. The plaintiff's evidence was that he had made an informal application to his bank manager who had declined to make a loan available to him because he was suspended at the time. He claimed that there was no other door open to him and so his opportunity to buy the house failed. Mr Justice Morris said that to succeed in a claim of this nature, the plaintiff would have to satisfy the court that he had taken every reasonable step to obtain a loan for the house. This would have included, for example, 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 interest.

Mr Justice Morris said that the plaintiff had failed to show that this lost opportunity was something that could reasonably have been within the contemplation of the defendants and been foreseeable to them as a consequence of their conduct.

Passing to the claim for general damages, Mr Justice Morris said that, in assessing damages, one must have regard to the fact that there was a period of lawful suspension and an appearance before a judge and jury on criminal charges for which the plaintiff was not entitled to be compensated. If the plaintiff had been exonerated from all complaints at the inquiry, this matter would have been concluded by December 1988. The Supreme Court judgment prohibiting further investigations and inquiries was dated January 1993. For the stress and anxiety and the general disruption to his enjoyment of life during that four-year period, Mr Justice Morris assessed damages at £40,000.

Accordingly, Mr Justice Morris awarded damages in the sum of £52,198.04.

Solicitors: Donal Farrelly & Co (Tullamore) for the plaintiff; Chief State Solicitor for the defendants.