McGuinness v The Commissioner of An Garda Siochana & Ors (Approved)

Factual and Procedural Background

The Plaintiff initiated proceedings following a search of his premises by members of An Garda Síochána on 23 August 2014. The Plaintiff alleged that the search was unlawful, asserting that the warrant was based on flawed sworn information, was not shown to any person at the premises before or during the search, involved excessive personnel and force, and caused avoidable damage. The Plaintiff also claimed unlawful retention of business documents and cash envelopes seized during the search.

The proceedings began promptly with a plenary summons issued on 2 September 2014 and an ex parte order granted the following day compelling the defendants to return seized items and provide a copy of the warrant. Over the subsequent years, the case experienced various procedural steps including motions, orders striking out and reinstating claims, delivery of pleadings, and appeals. Notably, after the Court of Appeal dismissed the Plaintiff’s appeal in December 2017, there was a nearly five-year period of inactivity on the Plaintiff’s part until a motion to dismiss for delay was issued by the defendants in November 2022.

Legal Issues Presented

1. Whether the Plaintiff’s delay in prosecuting the claim was inordinate and inexcusable.
2. Whether, given any such delay, the balance of justice favours dismissal of the proceedings.
3. The extent and nature of prejudice to the defendants arising from the delay.
4. The appropriate exercise of the court’s discretion in light of constitutional and procedural fairness considerations.

Arguments of the Parties

Defendants' Arguments

• The Plaintiff’s delay of approximately five years without any step in the proceedings was inordinate and inexcusable.
• The delay caused prejudice, including the retirement of key Garda witnesses and the fading of memories, which would impair a fair trial.
• The case requires oral evidence, increasing the impact of memory fade and the passage of time on witness reliability.
• The onus rests on the defendants to establish all three limbs of the Primor test: inordinate delay, inexcusable delay, and that the balance of justice favours dismissal.

Plaintiff's Arguments

• The delay was partly due to the illness and subsequent death of the Plaintiff’s barrister from June 2021 onwards.
• Covid-19 restrictions contributed to delay but cannot explain the entire period of inactivity.
• The Plaintiff was engaged in other litigation which accounted for some delay.
• The defendants exhibited acquiescence by not raising complaints about delay prior to issuing the motion to dismiss.
• The public interest in investigating alleged unlawful conduct by An Garda Síochána weighs against dismissal.
• The Plaintiff highlighted inconsistencies in the defendants’ stance on memory fade in other related proceedings.
• The claim includes the return of seized property, which is qualitatively significant in the balance of justice.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by affirming the well-established Primor test requiring the defendant to prove that the delay was inordinate, inexcusable, and that the balance of justice favours dismissal. The Court found the Plaintiff’s delay from December 2017 to November 2022—nearly five years without any prosecutorial step—to be both inordinate and inexcusable. The Plaintiff’s explanations, including the illness and death of his barrister, Covid-19 restrictions, and involvement in other litigation, failed to adequately justify the lengthy inactivity, particularly as the illness and Covid restrictions only partially overlapped with the delay period.

In assessing the balance of justice, the Court recognized the serious prejudice dismissal would cause the Plaintiff, including loss of opportunity to recover seized property. The Court also acknowledged the constitutional right of access to courts and the public interest in timely justice and investigation of alleged unlawful conduct.

The defendants relied on prejudice from the retirement of key Garda witnesses and fading witness memories. The Court found insufficient evidence of prejudice from retired witnesses, noting lack of detail on their roles, willingness to testify, or availability of notes. The Court accepted that general prejudice from fading memories was likely, especially as the case depends heavily on oral testimony relating to the manner of the search.

However, the Court emphasized that such general prejudice must be carefully assessed and tied causally to the period of delay attributable to the Plaintiff. It noted that the Plaintiff commenced proceedings promptly after the search, likely prompting investigative steps that may mitigate memory fade. The Court also considered inconsistent positions alleged by the Plaintiff regarding memory fade in other proceedings but found no evidential basis to support these assertions.

Ultimately, balancing the moderate risk of prejudice to the defendants against the significant prejudice to the Plaintiff from dismissal, particularly regarding recovery of property, the Court concluded the balance of justice did not favour dismissal. The Court stressed the necessity for the Plaintiff to proceed with urgency to avoid further prejudice and indicated that any future significant delay could prompt a fresh dismissal application.

Holding and Implications

The Court REFUSED the defendants’ application to dismiss the Plaintiff’s claim for inordinate and inexcusable delay.

This decision means the Plaintiff’s claim will continue to be heard, preserving his opportunity to seek remedies, including the return of allegedly unlawfully retained property. However, the Court imposed a clear obligation on the Plaintiff to prosecute the claim expeditiously going forward, warning that further significant delay could lead to dismissal. The ruling does not establish new precedent but applies existing principles with careful consideration of the facts, emphasizing the balance between timely justice and fairness to both parties.