ROI: Court of Appeal dismisses action by Jules Thomas to prevent pre-trial hearing in damages case

Ms Jules Thomas, partner of Mr Ian Bailey, is in the process of suing the Garda Commissioner and the State over alleged ‘incalculable’ damage and psychiatric illness suffered arising from the Gardaí investigation into the murder of French National, Sophie Toscan du Plantier in Schull, Co. Cork on 23rd December 1996.

Ms Thomas claims that she was ‘maliciously and wrongfully arrested’, initially on 10th February 1997, and subsequently in 2000 and 2002, on suspicion of the murder of Sophie Tuscan du Plantier.

Ms Thomas’s arrest and interrogation, which she maintains was conducted in an aggressive and intimidatory matter, was closely associated with the arrest and interrogation of her partner, Mr Bailey, whom the Gardaí suspected was implicated in Ms du Plantier’s murder.

Neither Ms Thomas, nor Mr Bailey, has ever been charged with the murder, or any offence connected therewith.

In March 2016, Mr Bailey lost his long-running civil action against the State, suing the Garda Síochána, the Minister for Justice, and the Attorney General for damages. In a jury trial that consisted of 64 days in court, many of Mr Bailey’s claims were struck out by Mr Justice Hedigan on grounds they were brought outside of applicable time-limits set by the Statute of Limitations. In regard to the remaining claims by Mr Bailey, the jury unanimously decided that the Gardaí in question had not conspired to obtain false statements or intimidated key witness Marie Farrell. This decision is currently the subject of an appeal to the Court of Appeal.

Given that the background and details of Ms Thomas’ case were shared to a significant extent with separate High Court proceedings between Mr Bailey and the same defendants, Ms Thomas’ case had been parked pending the outcome of Mr Bailey’s case.

In similar claims to that which were unsuccessful for Mr Bailey, Ms Thomas claims damages (including aggravated or exemplary damages) for inter alia unlawful arrest, false imprisonment, conspiracy, personal injury, and breach of her constitutional rights.

The respondents have delivered a full defence, including that Ms Thomas’ claim is barred by virtue of the operation of the Statute of Limitations, and that Ms Thomas is guilty of inordinate and inexcusable delay and / or laches in and about the institution and prosecution of these proceedings.

Following extensive oral submissions from Ms Thomas and the respondents, order and the judgment of Justice Hedigan dated 9th October 2015 delivered ex tempore directed that certain issues be subject of preliminary trial, namely whether Ms Thomas’ claim was barred by operation of the Statute of Limitations and / or whether the claim should be dismissed for want of prosecution and / or for inordinate and inexcusable delay insofar as the said claim relates to matters touching upon and concerning:

(1) The taking of a hair sample from Ms Thomas in early 1997 including all alleged actions of the defendants associated therewith

(2) The arrest and detention of Ms Thomas on 10th February 1997 including all alleged actions of the defendants associated therewith

(3) The allegation that the defendants were the source of certain “rumours” alleged to have been in circulation

(4) All and any phone calls allegedly made by the defendants to Ms Thomas

(5) The allegations that the defendants inappropriately offered substantial sums of monies and other inducements to Martin Graham

(6) The search of Ms Thomas’ home by the defendants on 21st September 2000, including all alleged actions of the defendants associated therewith

(7) The arrest and detention of Ms Thomas on 22nd September 2000 including all alleged actions of the defendants associated therewith.

Ms Thomas has applied to amend her Statement of Claim, which is currently awaiting determination in the High Court. This may, if fully successful, alter and extend Ms Thomas’ claims as against the respondents - a further reason she proposes as justification for halting the preliminary trial hearing as ordered. Ms Thomas’ application to amend her Statement of Claim is being fully contested by the respondents.

Ms Thomas’ primary objection to the order directing that certain preliminary issues be tried is based on her contention that:

(a) The conspiracy alleged was, and is, ongoing

(b) The resolution of the conspiracy claim is dependant upon a full plenary hearing of the evidence related to all, or almost all, the issues arising, and it is therefore inappropriate that the trial of such preliminary issues be ordered

(c) Due to the need for a full plenary hearing, the determination of the directed preliminary issues will have no positive or practical consequences for either Ms Thomas or the respondents irrespective of the outcome

(d) It will not be possible to agree facts to facilitate a preliminary trial of issues, such is the nature and complexity of those issues, and the evidence required to be heard to determine them.

Ms Thomas contends that the issue as to whether all or most of her claim may be statute barred will be impossible to determine in the absence of a full hearing of almost the entire case.

Essentially, this contention is based on the fact that the main issues in the proceedings are not what might be described as “single date” incidents, but rather, they relate to matters spread out over time, and continuing, over many years, and, indeed, in some respects, up to the present day.

While Ms Thomas denies that her proceedings are statute barred she is adamant that the issue as to whether or not they are statute barred can only be determined by a full and extensive hearing of evidence such as would, if tried as a preliminary hearing, result in no time or cost saving.

Pointing to the decision in Tara Exploration and Development Company Limited v. Minister for Industry and Commerce IR 242, Ms Thomas also maintains that a necessary pre requisite to the trial of preliminary issues as ordered by the High Court, namely that it be undertaken in the context of agreed or established facts is impossible to satisfy.

Justice Mahon gave careful consideration to the principles governing the trial of a preliminary issue set out in Tara Exploration; BTF v. The DPP 2 ILRM 367; Champion v. Tipperary County Council IESC 79; Civil Procedure in Superior Courts, Delaney and McGrath (3rd Ed, Round Hall Press 2012); and Orders 25 and 34 of the Rules of the Superior Courts.

Justice Mahon stated that the purpose behind the procedure for determining a preliminary issue is to save time and costs, in the interests of both parties, and the administration of justice generally

Taking into consideration Windsor Refrigeration Co. Ltd v Branch Nominees Ltd Ch 375 and Cork Plastics (Manufacturing) v Ineos Compound UK Ltd IEHC 93; Justice Mahon asserted that a full hearing of these issues would be both lengthy and costly, and that it was therefore not surprising that the respondents would seek to identify legal issues suitable for determination by way of preliminary trial.

Justice Mahon also emphasised the Statute of Limitations as the crucial issue in Ms Thomas’ case and the extent to which the proceedings, or significant aspects of the proceedings, may be statute barred (considering BTF v. Director of Public Prosecutions 2 ILRM 367)

In dealing with the prospect of Ms Thomas’ application to amend her Statement of Claim resulting in Justice Hedigan’s order being rendered redundant, Justice Mahon stated that there was nothing to prevent a further application being made to the High Court to review, alter or amend Justice Hedigan’s order for a preliminary trial in the light of any permitted alteration or amendment of the Statement of Claim.

Justice Mahon also considered that Justice Hedigan was particularly well placed to assess the likely benefit of directing the preliminary trial of the issues as sought by the respondents, as a result of the fact that he “case managed” both Ms Thomas’ and Mr Bailey’s actions. Due deference should therefore be accorded to the decision of Justice Hedigan made in the exercise of his discretion as per Collins v The Minister for Justice IECA 27 and Lismore Builders Limited (in receivership) v Bank of Ireland Finance Limited IESC 6.

Ms Thomas’ appeal was therefore dismissed and the preliminary hearing will go ahead.

  • by Róise Connolly for Irish Legal News