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You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Breslin & Ors v McKenna & Ors (Omagh Bombing case) [2009] NIQB 50 (08 June 2009) URL: https://www.bailii.org/nie/cases/NIHC/QB/2009/50.html Cite as: [2009] NIQB 50 |
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Neutral Citation No. [2009] NIQB 50 | Ref: | MOR7534 |
Judgment: approved by the Court for handing down | Delivered: | 08/06/09 |
(subject to editorial corrections)* |
BETWEEN:
PLAINTIFFS;
DEFENDANTS.
MORGAN J
The Claim
"4 As to the second issue, the claimants have an arguable claim for battery of the deceased which cannot be struck out as disclosing no cause of action, which has not been the subject of previous adjudication and which can in principle succeed consistently with the acquittal of Police Constable Sherwood at the criminal trial and without throwing doubt on his innocence. Success in establishing this claim will bring the claimants no additional compensation and may expose them to financial risk. But it is ordinarily for the claimant, properly advised of the litigation risk, to decide what claim, being arguable and legally unobjectionable, he wishes to pursue, and case management, legitimately used to ensure that the court's process is efficiently and justly used, gives no warrant to extinguish the autonomy of the individual litigant. The claimants' reasons for wishing to pursue their claim in battery are readily understandable, as are the chief constable's reasons for wishing to resist it, but it is not the business of the court to monitor the motives of the parties in bringing and resisting what is, on the face of it, a well recognised claim in tort."
Lord Scott specifically recognised that proceedings had a vindicatory purpose at paragraph 22.
"22 The claim forms issued by the Ashleys simply seek damages for the torts giving rise to the deceased Mr Ashley's death. These torts include, of course, the assault and battery tort. The only legitimate purpose for which Fatal Accident Act damages can be claimed and awarded for this tort is, in my opinion, compensatory. The damages are awarded for a loss of dependency. But the purposes for which damages could have been awarded to the deceased Mr Ashley himself, if he had not died as a result of the shooting, are not confined to a compensatory purpose but include also, in my opinion, a vindicatory purpose. In Chester v Afshar [2005] 1 AC 134 , para 87 Lord Hope of Craighead remarked that "The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached" and that unless an infringed right were met with an adequate remedy, the duty would become "a hollow one, stripped of all practical force and devoid of all content". So, too, would the right. How is the deceased Mr Ashley's right not to be subjected to a violent and deadly attack to be vindicated if the claim for assault and battery, a claim that the chief constable has steadfastly and consistently disputed, is not allowed to proceed? Although the principal aim of an award of compensatory damages is to compensate the claimant for loss suffered, there is no reason in principle why an award of compensatory damages should not also fulfil a vindicatory purpose. But it is difficult to see how compensatory damages can could ever fulfil a vindicatory purpose in a case of alleged assault where liability for the *976 assault were denied and a trial of that issue never took place. "
In this case there is no admission of responsibility of any kind by any of the defendants and those against whom these proceedings have been launched are persons whom the plaintiffs claim were involved in the planning, production, planting and detonation of the bomb. No criminal proceedings are contemplated. It is clear from the speeches of the dissenting members of the Committee in Ashley that the admissions made by the Chief Constable leading to the entry of judgment for the plaintiffs in negligence were critical to their reasoning. Neither of them would have contemplated staying proceedings in the circumstances of this case. In my view Ashley strongly supports the view that the abuse of process claim in this case is without foundation.
"In the view of the Court, the fact that an act which may give rise to a civil compensation claim under the law of tort is also covered by the objective constitutive elements of a criminal offence could not, notwithstanding its gravity, provide a sufficient ground for regarding the person allegedly responsible for the act in the context of a tort case as being "charged with a criminal offence". Nor could the fact that evidence from the criminal trial is used to determine civil law consequences of the act warrant such characterisation. Otherwise, as rightly pointed out by the Government, Article 6 § 2 would give a criminal acquittal the undesirable effect of pre-empting the victim's possibilities of claiming compensation under the civil law of tort, entailing an arbitrary and disproportionate limitation on his or her right of access to court under Article 6 § 1 of the Convention. This again could give an acquitted perpetrator, who would be deemed responsible according the civil burden of proof, the undue advantage of avoiding any responsibility for his or her actions. Such an extensive interpretation would not be supported either by the wording of Article 6 § 2 or any common ground in the national legal systems within the Convention community. On the contrary, in a significant number of Contracting States, an acquittal does not preclude establishing civil liability in relation to the same facts."
That was a case in which the applicant had been convicted of sexual assault and homicide. In linked civil proceedings he was ordered to pay compensation to the victim's parents. On appeal he was acquitted of the criminal charges but the compensation order was upheld. He succeeded in the European Court in a claim that the judgment in the civil proceedings breached the presumption of innocence protected by article 6(2) of the ECHR on the relatively narrow ground that in determining the compensation claim the court concluded that it was clearly probable that he had committed the criminal offences alleged against him. In this case there is no criminal charge at issue and it is not for the court to determine whether any criminal offence has been committed. The role of the court in this case is to establish whether the plaintiffs have discharged the burden of demonstrating that the defendants were responsible for causing harm to the plaintiffs in the manner alleged and, if so, to determine what, if any, damages are payable in respect of the harm proved.
The Causes of Action
"As to the cases cited, most of them are really decisions on the form of action, whether case or trespass. The result of them is this, and it is intelligible enough: if the act that does an injury is an act of direct force vi et armis, trespass is the proper remedy (if there is any remedy), where the act is wrongful either as being wilful or as being the result of negligence. Where the act is not wrongful for either of these reasons, no action is maintainable, though trespass would be the proper form of action if it were wrongful. That is the effect of the decisions."
Although the plaintiff in that action failed because he could not establish negligence it is clear that negligence would have been sufficient. This decision was considered by the English Court of Appeal in National Coal Board v Evans [1951] 2 KB 861 and approved. The necessary elements to establish this tort were considered subsequently by Diplock J in Fowler v Lanning [1959] 1 QB 426. He summarised the relevant law at 439.
"(1) Trespass to the person does not lie if the injury to the plaintiff, although the direct consequence of the act of the defendant, was caused unintentionally and without negligence on the defendant's part.
(2) Trespass to the person on the highway does not differ in this respect from trespass to the person committed in any other place.
(3) If it were right to say with Blackburn J. in 1866 that negligence is a necessary ingredient of unintentional trespass only where the circumstances are such as to show that the plaintiff had taken upon himself the risk of inevitable injury (i.e., injury which is the result of neither intention nor carelessness on the part of the defendant), the plaintiff must today in this crowded world be considered as taking upon himself the risk of inevitable injury from any acts of his neighbour which, in the absence of damage to the plaintiff, would not in themselves be unlawful - of which discharging a gun at a shooting party in 1957 or a trained band exercise in 1617 are obvious examples. For Blackburn J., in the passage I have quoted from Fletcher v. Rylands was in truth doing no more than stating the converse of the principle referred to by Lord Macmillan in Read v. J. Lyons & Co. Ltd., that a man's freedom of action is subject only to the obligation not to infringe any duty of care which he owes to others.
(4) The onus of proving negligence, where the trespass is not intentional, lies upon the plaintiff, whether the action be framed in trespass or in negligence. This has been unquestioned law in highway cases ever since Holmes v. Mather, and there is no reason in principle, nor any suggestion in the decided authorities, why it should be any different in other cases. It is, indeed, but an illustration of the rule that he who affirms must prove, which lies at the root of our law of evidence."
" If A., by failing to exercise reasonable care, inflicts direct personal injuries upon B., it is permissible today to describe this factual situation indifferently, either as a cause of action in negligence or as a cause of action in trespass, and the action brought to obtain a remedy for this factual situation as an action for negligence or an action for trespass to the person - though I agree with Lord Denning M.R. that today "negligence" is the expression to be preferred. But no procedural consequences flow from the choice of description by the pleader: see Fowler v. Lanning. They are simply alternative ways of describing the same factual situation."
[11 That approach accords with the development of the criminal law of assault. R v Venna [1976] 1 QB 421, approved in R v Ireland [1997] 4 All ER 225, makes it plain that in order to establish a criminal assault it is necessary to prove either that the offender intended to directly inflict harm or that he actually foresaw that the risk of inflicting harm was likely but decided to take that risk. It is clear that this mental element would be sufficient to establish a civil trespass but Fowler v Lanning remains authority for the proposition that a civil trespass may be committed negligently.
"The defendant has, as I assume for the moment, wilfully done an act calculated to cause physical harm to the plaintiff—that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant."
It is clear that the defendant did not intend to commit an act harmful to the plaintiff but the court felt able to impute an intention to the defendant on the basis that it was difficult to imagine such a statement failing to produce grave effects. The decision was considered by the Court of Appeal in Janvier v Sweeney [1919] 2 KB 316 and followed. Bankes LJ said that the case had been approved in other cases and did not create any new rule of law except in relation to remoteness.
"12. For the tort to be committed, as with any other action on the case, there has to be actual damage. The damage is physical harm or recognised psychiatric illness. The defendant must have intended to violate the claimant's interest in his freedom from such harm. The conduct complained of has to be such that that degree of harm is sufficiently likely to result that the defendant cannot be heard to say that he did not 'mean' it to do so. He is taken to have meant it to do so by the combination of the likelihood of such harm being suffered as the result of his behaviour and his deliberately engaging in that behaviour."
(a) Where personal injury is inflicted directly or indirectly an intention to cause that harm or proceeding in the knowledge that personal injury was the likely consequence will be sufficient to establish a trespass or intentional infliction of harm.
(b) Where the personal injury is inflicted indirectly the tort of intentional infliction of harm may be established where it is obvious that personal injury will result even though the defendant may not actually foresee it.
(c) Fowler v Lanning remains authority for the proposition that trespass may be inflicted negligently.
The Standard of Proof
"The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A step-father is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established."
I have italicised a portion of this quotation because of the significance subsequently attached to it by Lord Hoffmann and Baroness Hale.
"27 Richards LJ expressed the proposition neatly in R (N) v Mental Health Review Tribunal (Northern Region) [2006] QB 468 , para 62 where he said:
'Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application . In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities.'
In my opinion this paragraph effectively states in concise terms the proper state of the law on this topic. I would add one small qualification, which may be no more than an explanation of what Richards LJ meant about the seriousness of the consequences. That factor is relevant to the likelihood or unlikelihood of the allegation being unfounded, as I explain below.
28. It is recognised by these statements that a possible source of confusion is the failure to bear in mind with sufficient clarity the fact that in some contexts a court or tribunal has to look at the facts more critically or more anxiously than in others before it can be satisfied to the requisite standard. The standard itself is, however, finite and unvarying. Situations which make such heightened examination necessary may be the inherent unlikelihood of the occurrence taking place (Lord Hoffmann's example of the animal seen in Regent's Park), the seriousness of the allegation to be proved or, in some cases, the consequences which could follow from acceptance of proof of the relevant fact. The seriousness of the allegation requires no elaboration: a tribunal of fact will look closely into the facts grounding an allegation of fraud before accepting that it has been established. The seriousness of consequences is another facet of the same proposition: if it is alleged that a bank manager has committed a minor peculation, that could entail very serious consequences for his career, so making it the less likely that he would risk doing such a thing. These are all matters of ordinary experience, requiring the application of good sense on the part of those who have to decide such issues. They do not require a different standard of proof or a specially cogent standard of evidence, merely appropriately careful consideration by the tribunal before it is satisfied of the matter which has to be established. "
Events on the Day of the Bomb
"Bomb courthouse Omagh, Main Street. 500lbs explosion, 30 minutes. Martha Pope. IRA Oglanahan"
She immediately transmitted this message to police in Belfast and it was received by police communications at Omagh approximately 4 minutes later. A second call was made to the same newsroom two minutes later and another warning given.
"Martha Pope 15 minutes, bomb Omagh Town."
This warning appears to have been received by police communications at Omagh at approximately the same time as the first warning. At about the same time a call was received by a Samaritans volunteer at Coleraine. It appears that the call had been diverted from the Samaritans service at Omagh. The warning advised that a bomb was going to go off in the centre of Omagh in 30 minutes and gave the code word "Marta Pope". The volunteer asked for clarification as to where the bomb would go off and was told "Main Street about 200 yards from the courthouse". The evidence indicates that this warning was received at the communications office at Omagh approximately 5 minutes after the first two warnings, at 2:38 p.m.
The Telephone Evidence
"5. - (1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
(2) Regard shall be had, in particular, to whether the party by whom the hearsay evidence is adduced gave notice to the other party or parties to the proceedings of his intention to adduce the hearsay evidence and, if so, to the sufficiency of the notice given.
(3) Regard may also be had, in particular, to the following-
(a) whether it would have been reasonable and practicable for the party by whom the evidence is adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight."
The Evidence in Relation to Particular Defendants
Evidence in relation to the first named defendant
"My husband made the call, I remember, I just (inaudible) think about it last night. He made the call that day and it was me took the call…. yeah, yeah, because I remember it now, ahm I remember just what he'd normally say, ah well Annie what's the crack, that's normally what he'd say to me when he'd ring, what are you at and I remember saying where are you and he said he was in Dundalk. That's I, I would normally say when he'd ring where are you and he said I'm in Dundalk because he said ahm to me was I heading out that night…"
Mrs McKenna said that the first named defendant had indicated that he might go down to Donnelly's pub for a pint that evening. She said she did not know why he rang. When asked why she had not mentioned this before she said she spent last night trying to study her brain as to when he had rung her and it just came. When pressed about the conversation she said that "would have been the full conversation". She said that she took the call because her young son was outside playing and she didn't think her daughter was in the living room. She was asked if she remembered if it was a sunny day or a sunny afternoon. She could not remember. She said that he said the sort of things he would normally say. When pressed further about why she had taken so long to remember this she said it had been awful lying in a cell without sleeping. In an interview commencing at 1229 on 4 March 1999 she said she could think no more. Later that afternoon she denied that she had failed to give a true account of the conversation on the phone. It was then put to her that she was covering up for someone else but she denied that. There were various other possible callers in relation to that call that were put to her by police. She had no recollection about any other phone call she had on the day of the Omagh bomb.
Evidence in relation to the Real IRA
"The rule as to representative actions is an old Chancery rule which the Rules of the Supreme Court later made statutory. The present provision is Ord. 15, r. 12 . The classic statement is that made by Lord Macnaghten in Bedford (Duke of) v. Ellis [1901] AC 1 . He said there, at p. 8:
'The old rule in the Court of Chancery was very simple and perfectly well understood. Under the old practice the court required the presence of all parties interested in the matter in suit, in order *370 that a final end might be made of the controversy. But when the parties were so numerous that you never could 'come at justice,' to use an expression in one of the older cases, if everybody interested was made a party, the rule was not allowed to stand in the way. It was originally a rule of convenience: for the sake of convenience it was relaxed. Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent." From the time the rule as to representative suits was first established, he said, at p. 10, "... it has been recognised as a simple rule resting merely upon convenience. It is impossible, I think, to read such judgments as those delivered by Lord Eldon in Adair v. New River Co., 11 Ves. 429 , in 1805, and in Cockburn v. Thompson, 16 Ves.Jun. 321 , in 1809, without seeing that Lord Eldon took as broad and liberal a view on this subject as anybody could desire. 'The strict rule,' he said [ibid. 325], 'was that all persons materially interested in the subject of the suit, however numerous, ought to be parties ... but that being a general rule established for the convenient administration of justice must not be adhered to in cases to which consistently with practical convenience it is incapable of application.' 'It was better,' he added [ibid. 329], to go as far as possible towards justice than to deny it altogether. He laid out of consideration the case of persons suing on behalf of themselves and all others, 'for in a sense,' he said, 'they are before the court.' As regards defendants, if you cannot make everybody interested a party, you must bring so many that it can be said they will fairly and honestly try the right. I do not think, my Lords, that we have advanced much beyond that in the last hundred years, and I do not think that it is necessary to go further, at any rate for the purposes of this suit."
This seems to me to make it plain that the rule is to be treated as being not a rigid matter of principle but a flexible tool of convenience in the administration of justice."
I am satisfied, therefore, that in considering any representation order my objective should be to ensure that all parties that can be fairly dealt with before the court should have the issue of liability determined in respect of them.
Evidence in relation to the third named defendant
The statements of David Rupert
Observations of David Rupert
The Woolwich evidence and the conviction of the third named defendant
The Character of David Rupert
Further e-mail material
The application of the Civil Evidence (NI) Order 1997
"(3) Regard may also be had, in particular, to the following-
(a) whether it would have been reasonable and practicable for the party by whom the evidence is adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight."
" ARTICLE 6 RIGHT TO A FAIR TRIAL
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court."
In Al-Khawaja the European Court concluded that in a criminal case where the hearsay evidence constituted the sole or decisive evidence a conviction based upon such hearsay offended the protections contained in article 6(3)(d) other than in exceptional circumstances. The Court of Appeal in R v Horncastle carefully considered this decision and the authorities from the European Court which preceded it. The Court of Appeal concluded that the statement in Al-Khawaja was not supported by the earlier authorities in the European Court and that the test of whether admission of hearsay evidence offended article 6(3)(d) should be determined by examining the reliability of the evidence in the particular circumstances.
Evidence in relation to the fourth named defendant
Daniel Hughes who is now deceased was interviewed by police in June 1999. He was asked about the 430 phone. Although it is registered to a person for whom the fourth named defendant used to work Hughes said that it was in fact used by the fourth named defendant. He explained that he had the number in his own phone under the name "Liam C". He also had a notebook with the number recorded against the fourth named defendant's name. Hughes also stated that he had contacted the fourth named defendant on the night of the bomb using the 430 phone.
Evidence in relation to the Fifth named defendant
The interviews of the fifth named defendant
Other relevant material
Evidence in relation to the sixth named defendant
The interviews of Denis O'Connor
Other evidence
Conclusions on liability
"In our legal system generally, the silence of one party in face of the other party's evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party's failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party, may be either reduced or nullified."
Since no prima facie case has been established against this defendant I do not consider that any adverse inference is justified. Accordingly I dismiss the action against him.
Damages