[2019] IEHC 452
REFERENCE NO 7939 P 2007
KEVIN TRACEY
PLAINTIFF
V.
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, IRELAND, THE ATTORNEY GENERAL, THE COMMISSIONERS OF AN GARDA SÍOCHÁNA, THE DIRECTOR OF PUBLIC PROSECUTIONS, THE COURTS SERVICE, AND KEITH RUANE
DEFENDANTS
RULING OR MR. JUSTICE EAGAR DATED 19TH JUNE, 2019
1. This is a ruling of the court in respect of the transfer of this plenary case to the jury list on the 20th June 2019.
2. In October 2016 this Judge was directed to case manage the series of cases which had been sent back to the High Court for case management by the Supreme Court. The Supreme Court in its judgment of the 26th day of July, 2016 had set aside the order of Kearns P. striking out the proceedings (including these proceedings) in the High Court.
3. This Court took over the matter in October 2016, there were six cases for Civil jury trial.
4. At least three cases were awaiting decisions of the Supreme Court and in those circumstances, the first case which the court concentrated on was the case of 2006/6407 P.
5. In a ruling of this Court on the 2nd May 2017, this Court noted that O. 26, r. 42 (1) provides that an officer of the court may require any party to proceedings to provide a reasoned estimate of the time likely to be spent in the trial of the proceedings including a list of the witnesses intended to be called by that party and an estimated time for the examination or cross - examination as the case may be. The court quoted from Irvine J. in the Court of Appeal in Cassidy v. The Provicialate [2015] IECA 74 as follows: -
"In some of the more recent decisions concerning prejudicial delay, reference has been made to the constitutional imperative to bring to an end a culture of delays in litigation so as to ensure the effective administration of justice and the application of procedures which are fair and just".
6. The court noted that this case related to events that occurred on the 28th May 2001 in which proceedings were issued in 2006. It was clearly an imperative on the court managing the proceedings to actively intervene to ensure expeditious disposal of this case, and quoted in relation to case management: - "When settlement cannot be achieved by negotiation progressing cases to trial as speedily and as little cost as is appropriate".
The court then dealt with the discovery in the case of 2006/6407 P, and on the 31st July 2017, this Court gave a judgment outlining the claim in relation to the issue of discovery, and the court noted that on the first application that there were two orders of the Master, one dated 2nd December 2009 and the other on the 4th February 2010. The court dealt with the issue of discovery in that case and the court in concluding its judgment, said in the court's view, all relevant documentation demanding to be discovered by the defendants in this matter and the court indicates that the motion seeking further and better particulars of discovery has now been completed, the case should be ready for trial once the witnesses have been summoned by Mr. Tracey to the next jury list which was the beginning of October 2017.
7. As it turns out, this case was initially heard before Coffey J. and a jury and subsequently by Barton J. and a jury, and the case was dismissed.
8. The next case that the court dealt with was 2007/7939 P, which is the relevant case in this matter.
9. The court made an order of discovery on the 8th June 2018. Following on the plaintiff's notice of motion dated the 12th July 2017, coming on for hearing before the court on the 23rd of March 2018.
10. There have been delays caused by this Court not being able to deal expeditiously with these matters due to the attendance by Mr. Tracey at the Supreme Court. The court also notes that having made an order of discovery, the affidavit on behalf of the State defendants has been delayed for no obvious reason. The court made its order on the 8th June 2018 for the purpose of having this matter transferred to the jury list as soon as possible. The affidavits of discovery were those of Insp. Stephen Keane of the Bridewell Garda Station dated the 5th March 2019, and contained therein at para. 4, an objection to producing the documents and electronically stored information set forth in the second part of the first schedule.
11. The only document in his possession was the copy notebook entry of Gda. Keith Lambe dated the 6th July 2006, and in his affidavit at para. 5, he says: -
"I have had but do not have in my possession power or procurement all of the documents set forth in the second schedule and he has not had nor never had in his possession documents or records or any electronically stored information relating to the matters specified in the court order other than accepted documents in this schedule".
12. When this matter came back before the court, Mr. Tracey indicated that he was not happy with the affidavits of discovery but did not seek further or better particulars of the documents.
13. Mr. Tracey had said previously that he sought to inspect all documents in respect of the discovery.
14. The affidavit of discovery of Kevin Fidgeon sworn on 5th September, 2018 on behalf of the Courts Service, identified the documents which had been directed to be discovered by the court and objected to the producing of documents and electronically stored information because these documents consisted solely of either: -
It was also identified that the Courts Service did not have in their possession, power or procurement of electronically stored information. He was also advised that some of the documentation never existed or was never in the possession of the sixth named defendant. However, the relevant documents which were discovered related to the eleven documents, copies of which were provided and the second schedule which objection was raised to, was a copy of telephone records detailed in Category 5 of the 2009 letter and Category 5 of the 2010 letter and specified as such in the order, and copies of the videotape footage detailed at Category 7, Category 8 and Category 9 of the 2009 letter and specified as set out in the order of this Court.
15. In respect of inspecting any discovered material, the court invited the plaintiff to make an arrangement with the solicitors acting for the Courts Service and acting for the State defendants, to view this material. The plaintiff did not do so. This and all the other matters came before the court on the 20th May 2019. The court dealt with some other matters which again were matters for which a jury trial is sought. In relation to the case numbers 2007/7939P, Mr. Compton BL on behalf of the Courts Service, said that no contact had been made but he had been served with an affidavit of Kevin Tracey which in effect was an application for this Judge to recuse himself.
16. This Judge, however, had already indicated to Mr. Tracey that if he wanted to consider the issue of my recusing myself he would have to serve by way of notice of motion an affidavit so that the Courts Service and the State bodies would be in position to respond either by way of affidavit or by way of legal argument. Mr. Tracey then proceeded to read from an affidavit which was in effect an application for this Court to recuse itself. The court insisted that a notice of motion should be filed in this regard. Mr. Compton then raised the issue of an affidavit of Mr. Tracey which was served dated the 13th May 2019 and which was produced to the court. In this affidavit, he states that: -
"This Court is currently involved in case management of five plenary applications claiming damages for wrongful prosecution/conviction following the Supreme Court decision of the 26th July 2016 to return the cases to this Court for case management in October 2016".
Mr. Tracey mentioned the issues of discovery, stating that it had not been received by him and that the issue of discovery is not satisfactory. Mr. Tracey said it was not acceptable that the court ignores this fact.
17. Mr. Tracey also stated that " inspection and authenticity verification of any document ever produced in this case will be necessary as arranged. Experts in this field will already have to be booked ". He also sets out what he says are the dishonest actions of the Courts Service and gives a number of examples:-
(a) They had been found guilty of backdating an order to block an appeal,
(b) They had produced false documents,
(c) They had committed perjury in the full eyes of the court without any accountability,
(d) They had fabricated documents,
(e) They had written orders/judgments for the court.
18. He said due to the blatant perversion of the course of justice by the trial court in one plenary action in July 2018, the plaintiffs are requesting that this case and other plenary actions when complete be brought before the President of the High Court for fair disposal of their trial.
19. The court was also given a letter by Mr. Compton of correspondence from A&L Goodbody on behalf of the Courts Service to Mr. Tracey in which they set out his failures to comply with judicial direction and provides as follows:-
"(i) On the 5th September 2018, the sworn affidavit of discovery of Kevin Fidgeon was served on the plaintiff, but the plaintiff still maintains in his affidavit of the 13th May 2019 that this discovery was not received despite, having acknowledged in open court on the 22nd March 2019 that he had in fact received this affidavit of discovery.
(ii) On the 5th October 2018, the court directed the plaintiff to write to A&L Goodbody setting out his issues with the discovery made in advance of the next mentioned date the 7th of December 2018 and he said the plaintiff had failed to comply with this directive.
(iii) On the 7th December 2018 the court again directed the plaintiff to write to A&L Goodbody setting out his issues with the discovery made in advance of the next mentioned date and the response was that the plaintiff had failed to comply with this direction.
(iv) On the 25th January 2019, the court heard the plaintiff's submissions in respect of the slip rule application made and perfected the order. A&L Goodbody confirmed to the court that they had not received any correspondence from the plaintiff in relation to the purported issues with discovery. The court adjourned the matter to the 1st March 2019 and indicated that the matter would be sent for jury trial on this date if no progress was made between the 25th January 2019 and no correspondence was received from the plaintiff in this regard. On the 1st March the plaintiff was unable to attend as he suffered a family bereavement and the matters were accordingly adjourned to the 22nd March. The court adjourned the matter on the 22nd March until the 5th April and directed the plaintiff to set out his issues with the discovery made in advance of the 3rd April 2019. The plaintiff failed to comply with this direction.
(v) On the 4th April 2019, the plaintiff emailed A&L Goodbody, setting out what that discovery was not received in compliance with the order for discovery dated the 8th June 2018."
20. The plaintiff failed to address with any level of specificity his purported issues with this discovery made by the Courts Service, merely describing it as totally unsatisfactory. He had indicated on the 5th April 2019 to the court that he had emailed A&L Goodbody setting out his issues with the discovery. Counsel for the Courts Service noted that this email had not in fact set out any issues with the discovery made but it merely expressed the plaintiff's dissatisfaction with same. The court directed the plaintiff to write to A&L Goodbody within seven days on the 12th April 2019 and agree a date to attend A&L Goodbody's offices and inspect the discovery documentation.
21. The plaintiff failed to comply with this direction. A letter was not received within seven days as directed and to date no letter seeking to arrange inspection has been received by the solicitor for the Courts Service.
22. The letter notes that the plaintiff did however swear an affidavit on the 13th May 2019 which was received by the Courts Service on the 15th May 2019 which again fails to adequately specify the plaintiff's issues with this discovery made by the court.
23. The letter continued that these proceedings have now been delayed for a period of nine months due to Mr. Tracey's consistent failure to comply with judicial direction as matters stand.
24. The letter also refers to para. 5.8 of the judgment of Clarke J. on the 26th July 2016 in Tracey v. McDowell & ors [2016] IESC 44 in which: -
"A significant or persistent failure to comply with express court orders or direction might justify dismissal as a proportionate consequence of any procedural non - compliance".
In these circumstances, Mr. Compton applied to have the matter put in to the next list of dates.
25. Mr. Tracey said he wanted an expert to come and inspect the issues relating to CCTV which he said the court had already directed discovery. He then referred to the dishonest actions of the Courts Service. There was also reference to a suggestion by Mr. Tracey that Charleton J.'s judgment in a case had been written by Mr. Jackson BL, counsel for the State defendants. This is quite a scandalous statement to have made and the court is satisfied that Mr. Tracey had an opportunity to inspect the documents but had not sought to do so and the court is not going to put the matter back for any further time but is going to list it for jury action call over list for the 20th June 2019. Mr. Tracey objected to this but the court is satisfied to do so.
26. This Court is of the view that Mr. Tracey did not want any of these matters to go before a jury in regard to what happened to the previous case as referred by a jury but was seeking to have issues raised which might lead him to be in a position to appeal the matters in the Court of Appeal and the Supreme Court.
27. The court proposes to deal with all the remaining matters within a short time frame so that all matters could be sent for trial before a jury which was what was sought by Mr. Tracey in these proceedings.
