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AR v Ireland & Anor (Approved) (Rev1)
Factual and Procedural Background
The High Court considered the Defendants’ application under Order 19, rule 28 of the Rules of the Superior Courts, alternatively under the Court’s inherent jurisdiction, to strike out the proceedings as disclosing no reasonable cause of action, being bound to fail, or constituting an abuse of process. [1]
The proceedings arose against the background of family-law proceedings, domestic-violence orders, criminal investigations and pending indictable charges involving the Plaintiff. The Fourth Defendant, a member of An Garda Síochána, was involved in the investigation of the indictable charges and had attended certain family-law proceedings. [2][3][4]
The Plaintiff complained about the Fourth Defendant’s conduct, alleged defamation and negligent misstatement, objected to bail checks and an arrest warrant, and sought interlocutory relief restraining alleged harassment or interference with the criminal proceedings. [5][6][7][8]
The Court also considered the Plaintiff’s application for interlocutory relief and his application to correct the title of the proceedings. [9][10][11][12]
Legal Issues Presented
- Whether the proceedings disclosed a reasonable cause of action or were otherwise bound to fail under Order 19, rule 28 or the Court’s inherent jurisdiction. [1]
- Whether the pleaded complaints could constitute defamation, negligent misstatement, malicious prosecution or misfeasance in public office. [13][14][15][16]
- Whether the proceedings amounted to an abuse of process because their purpose was to impede or frustrate the pending criminal prosecution. [17][18]
- Whether the Plaintiff had established even a fair question to be tried for the purpose of interlocutory relief. [19]
- Whether the title of the proceedings should be amended to comply with the prescribed court form. [20][21]
Arguments of the Parties
Defendants’ Arguments
- The Defendants sought dismissal on the basis that the proceedings disclosed no reasonable cause of action, were bound to fail, or were frivolous, vexatious and an abuse of process. [1]
- The Defendants submitted that there was no proximity or reliance capable of establishing negligent misstatement. [22]
- The Defendants submitted that the statements complained of were protected by absolute privilege and that the requirements for malicious prosecution were not satisfied. [23][24][25]
- The Defendants identified misfeasance in public office as the closest potentially relevant tort in relation to the bail checks. [26]
- The Defendants argued that the proceedings could be intended to shield the Plaintiff from legitimate criminal prosecution and therefore constitute an abuse of process. [17]
Plaintiff’s Arguments
- The Plaintiff alleged that the Fourth Defendant had become overzealous, ignored evidence, supported the positions of the Plaintiff’s former partners, and acted with prejudice. [27]
- The Plaintiff alleged defamation arising from statements made to witnesses, professionals and the court-appointed psychologist. [7]
- The Plaintiff complained about bail checks at his residence, alleged harassment, and challenged the validity of an arrest warrant. [28][16][8]
- The Plaintiff’s affidavit attributed the alleged malice concerning the bail checks to one of his former partners rather than to the Defendants. [29]
- The Plaintiff argued that the use of block capitals in the title represented that he was a corporation rather than a natural person. [30]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Barry v. Buckley [1981] I.R. 306 | The former distinction between striking out on the pleadings and dismissal under the inherent jurisdiction where the evidence showed that a claim could not succeed. | The Court explained the historical distinction and noted the effect of the amended Order 19, rule 28. [31][32][33][34] |
| O.N. v. McD [2013] IEHC 135 | Anonymisation in family-related proceedings and the requirement for Personal Injuries Assessment Board authorisation for certain personal-injury claims. | The Court anonymised the parties and held that the claim for stress and anxiety could not proceed without the required authorisation. [35][36][37] |
| R.C. v. K.E. [2022] 1 I.R. 266 | Absolute privilege for statements made to a professional conducting an investigation pursuant to a court direction. | The Court held that statements to the psychologist and statements made in court or to witnesses could not support a defamation claim. [23][13] |
| Evans v. London Hospital [1981] 1 W.L.R. 184 | The rationale and scope of immunity for statements connected with the preparation and giving of evidence. | The decision supported the conclusion that the alleged statements were protected by absolute privilege. [38][39][13] |
| Hedley Byrne and Company Limited v Heller and Partners Limited [1964] AC 465 | Liability for negligent misrepresentation or misstatement requires an appropriate relationship, representation, reliance and detriment. | The Court found no relevant proximity, representation, reliance or detriment in the pleadings. [22][40][14] |
| Hanrahan v. Garda Commissioner [2020] IEHC 180 | The constituent elements of malicious prosecution, including institution of proceedings, unsuccessfulness, absence of reasonable and probable cause, malice and damage. | The Court applied those requirements and found that the various proceedings could not establish malicious prosecution. [24][41][42][43][44][45][25] |
| Three Rivers District Council v. Bank of England (No. 3) [2003] 2 A.C. 1 | Two possible forms of misfeasance in public office: targeted malice and knowingly exercising power without lawful authority in a manner likely to injure. | The Court considered the first category potentially arguable but cautioned that the decision should not be treated as definitively stating Irish law. [46][47][48][49][50] |
| McAuliffe v. O'Dwyer [2011] IEHC 270 | Evidence of malice in a claim concerning alleged misuse of public office. | The Court contrasted the substantial evidence of malice in that case with the bare allegations made here. [51][52][53] |
| Sherry v. Primark [2010] 1 I.R. 407 | The requirement for authorisation before certain personal-injury proceedings may be brought. | The Court relied on the principle, as applied through the discussion in O.N. v. McD, to reject the claim for stress and anxiety. [36][37] |
| Cunningham v. North Eastern Health Board [2012] IEHC 190 | The requirement for Personal Injuries Assessment Board authorisation as a jurisdictional condition. | The Court held that it had no jurisdiction to entertain the relevant damages claim without authorisation. [36][37] |
Court's Reasoning and Analysis
The Court noted that the amended Order 19, rule 28 permits consideration, where appropriate, of affidavit evidence, but held that reliance on such evidence must be confined to admitted or indisputable facts because of the constitutional importance of access to litigation. [33][34]
The alleged defamatory statements were held to be absolutely privileged because they concerned communications to a court-appointed psychologist, evidence in court, or communications with witnesses in the course of proceedings. They therefore could not support a defamation claim. [23][13]
The negligent-misstatement claim failed because the pleadings did not allege the necessary proximity, representation, reasonable reliance or detriment. The Plaintiff’s case was instead that he disputed the Fourth Defendant’s statements and never relied upon them. [22][14]
The proposed malicious-prosecution claims also failed. The relevant family-law proceedings had been instituted by other complainants or were private proceedings, some proceedings had been successful, and the pending indictable prosecution had not concluded. The Fourth Defendant was also not involved in several of the proceedings relied upon by the Plaintiff. [54][25][55]
The complaints about bail checks did not themselves disclose a recognised tort of harassment. Although misfeasance in public office was potentially relevant, the pleaded facts did not allege that the Fourth Defendant acted maliciously, and the checks were prima facie authorised by the Plaintiff’s bail conditions and curfew. [16][56][57][58]
Nevertheless, the Court considered that a claim based on malicious use of an otherwise lawful power was at least arguable at the pleading stage. The claim ultimately failed because the Plaintiff’s affidavit attributed the alleged malice to a former partner rather than to the Defendants. [49][50][29]
The claim concerning the allegedly unsigned arrest warrant was also insufficient. Although the signature issue was arguable under the District Court Rules, the Plaintiff had not identified a cause of action flowing from the alleged defect, and the proceedings constituted a collateral attack on subsequent judicial processes. [8][59]
The Court had significant doubts that the proceedings and interlocutory application were designed to restrain or frustrate the pending criminal prosecution. Such a purpose would constitute an abuse of process and would be contrary to public policy. [17][18][60]
The claim for damages for stress and anxiety was treated as a personal-injury claim. Because the Plaintiff had not obtained the required authorisation, the Court had no jurisdiction to entertain it. [36][37]
Since the proceedings could not establish even a fair question to be tried, the application for interlocutory relief necessarily failed. The Court did not need to consider the balance of justice. [10][19]
The application concerning the use of block capitals was rejected as frivolous and vexatious. However, the Court amended the title to describe the Plaintiff as “Plaintiff” and to remove the non-standard wording, thereby bringing the title into compliance with the Rules. [61][20][21][62]
Holding and Implications
The proceedings were struck out. The Court concluded that they were doomed to fail for the reasons identified, independently of the potential abuse-of-process ground. [63]
The Plaintiff’s application for interlocutory relief was refused because he could not meet the threshold of showing a fair question to be tried. [19][11]
The application to alter the title on the basis that block capitals affected the Plaintiff’s legal status was refused, while the title was amended to comply with the procedural Rules. [61][21]
The decision directly disposed of the Plaintiff’s claims and applications. The opinion did not state that a new precedent was created.
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