Garda must indemnify State after claim of harassment

McAuliffe Ors -v- O’Dwyer Ors

McAuliffe Ors -v- O’Dwyer Ors

Neutral citation: (2011) IEHC 270.

High Court

Judgment was delivered ex tempore on May 13th, 2011, by Mr Justice Frank Clarke.

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Judgment

The State was entitled to be indemnified against a former member of the Garda Síochána against whom harassment proceedings had been brought by his brother-in-law and the latter’s company.

Background

The plaintiffs, Timothy McAuliffe and Timothy McAuliffe Ltd, brought the harassment proceedings against the garda, Michael O’Dwyer, the Minister for Justice, Ireland and the Attorney General. The proceedings were settled for €30,000 inclusive of costs, and the State then brought proceedings seeking indemnification against Mr O’Dwyer.

Mr Justice Clarke said this required considering whether the plaintiffs had a claim and whether the settlement was reasonable.

This required considering whether there was harassment or abuse of public office on the part of Mr O’Dwyer.

The State defendants listed a number of allegations against the former garda, including that he had been motivated by a sense of grievance over alleged favouritism shown by the parents of the plaintiff against their daughter, his wife; that he “tail-gated” the plaintiff in an intimidatory fashion; that he spoke in a threatening way to the plaintiff while in uniform; that he falsely alleged and commenced a prosecution against him for an alleged assault, despite an order from a Garda Superintendent not to proceed with prosecutions against the plaintiff.

The State defendants also claimed the former garda had told the plaintiff’s insurers that the plaintiff had committed numerous offences and had pursued a prosecution over his trucks being overweight, despite the fact the amount by which they were allegedly overweight normally was dealt with by gardaí by way of a caution.

Mr Justice Clarke said some of the allegations came down to the credibility of the two main witnesses, Mr McAuliffe and Mr O’Dwyer. He was satisfied some of Mr McAuliffe’s evidence was exaggerated. He was also satisfied not all the evidence given by Mr O’Dwyer was correct.

Mrs McAuliffe, the mother of Mr O’Dwyer’s wife, recounted an incident where Mr O’Dwyer complained her husband’s business had been handed over to the son, Mr McAuliffe, but no comparable provision had been made for the daughter, his wife. Mr Justice Clarke said he was satisfied there was a resulting sense of grievance on the part of Mr O’Dwyer.

He said he was not satisfied the “tail-gating” incident occurred on the date or in the manner alleged by Mr McAuliffe.

Turning to the question of the truck allegedly being overweight at the weighbridge, which had given rise to a very acrimonious exchange between the plaintiff and first defendant, Mr Justice Clarke said the local Garda superintendent had given very clear instructions to Mr O’Dwyer not to proceed with a prosecution.

A number of matters occurred the next month, including that Mr O’Dwyer contacted Mr McAuliffe’s insurers, and an official at the insurance brokers concluded Mr McAuliffe was a “serial offender”.

It was not normal practice for gardaí to go to brokers and inform them of prosecutions, Mr Justice Clarke observed, adding he was satisfied this conversation was motivated by malice.

Mr O’Dwyer also arranged for the issuing of summonses against his brother-in-law, and for them to be issued in the names of other gardaí, in circumstances where the garda concerned had not agreed to allow his name to be used. This was wrong on two fronts: he had direction from his superior not to do it, and on two occasions went behind the backs of the other gardaí, motivated by malice against Mr McAuliffe.

Decision

Mr Justice Clarke found that Mr O’Dwyer had acted with malice towards the plaintiffs in three matters – the issuing of the summonses, the contact with the insurers and the obstruction in connection with the summonses in the names of other gardaí.

Thus a case of misfeasance of public office had been made out by the State defendants. He considered this case should be treated as one worth €15,000 to €20,000 in damages.

Given the costs would have been Circuit Court costs, the amount paid by the State defendants of €30,000 was reasonable, and it was prudent of the State to settle.

He was satisfied the State had made out a case for indemnity against Mr O’Dwyer and he ordered that it recover the sum of €30,000 and be indemnified with regard to the costs incurred in defending Mr McAuliffe’s action.

The full judgment is on courts.ie