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2005 IEHC 375

THE HIGH COURT

DUBLIN

Case No. 1999 43 JR

D. K.

PLAINTIFF

And

JUDGE TIMOTHY CROWLEY, IRELAND

and

DEFENDANTS

THE ATTORNEY GENERAL

MR. JUSTICE ABBOTT DELIVERED HIS JUDGMENT ON FRIDAY 29TH JULY 2005

In this case the Applicant, who is now in the position of Plaintiff, is seeking damages as a result of a breach of constitutional right and false imprisonment arising from the making of an interim Barring Order on 6th November 1996. It is necessary for me to make some comment generally in relation to the Plaintiff's background. He had an unfortunate episode of meningitis when he was a child which resulted, apparently, in him not being good at school, resulting in him being illiterate notwithstanding one-to-one teaching.

In 1991 he married his wife L. who had one child by another relationship at the time and with whom the Plaintiff had a child, who was six at the time of the incident complained of. The Plaintiff was not in employment in the usual sense of the word, he was on Unemployment Assistance, or some other Social welfare benefit relating to unemployment, but he did a certain amount of work, driving a van for a subcontractor to a milk supply company, which was done on a casual basis. He said himself that if he did a full day he would tell the Department of Social welfare and his means tested unemployment Assistance was adjusted accordingly and if he did a part of a day that might have been overlooked.

Initially the couple got a one bedroom flat in the Ballybough area and later they a got a two bedroom apartment more or less in the same area. The evidence of the Applicant himself in terms of its consistency and the consistency with the information he gave Dr. D., who gave evidence of his emotional and psychological suffering and problems as a result of the matters complained of in this case arising from the making of an interim Barring Order on 6th November 1998 (I think I said 1996 but it was 1998).

In any event there were a number of inconsistencies between the account given to Dr. D. of what he was told by the Applicant and what the Applicant said himself. In addition, the Applicant was inaccurate in relation to one date in his grounding affidavit in relation to Judicial Review, which was corrected later. That leaves me in a position where I cannot absolutely depend on the evidence of the Applicant in all cases. There were certain instances where there was a conflict of evidence between the Applicant and his wife L., and I will deal with credibility issues as I go through the evidence and the way in which I resolved credibility issues on the various issues I feel constrained to resolve in reaching judgment in the case against that background and I will thus be in a position to give a detailed account and every time I relate to an issue I will resolve it one way or another as against husband or wife.

I hold as follows: The incident which provoked the whole history of this case occurred on 5th November 1998. There are two conflicting accounts as to how it happened. The Plaintiff/Applicant described the incident where he was told by one of his children to come downstairs to see where his wife was having some kind of intimate contact with a person with whom she has now had a relationship for the past few years and in fact now has a child. He went down to investigate and his evidence was that he was disturbed and attacked by a number of men and he was followed upstairs by these men with implements of various descriptions.

The account of his wife L. was not so dramatic in terms. She admitted that she was downstairs talking to a friend and contested that she was in any intimate relationship whatsoever, never mind having intimate contact with the man she is alleged to have been with by the Plaintiff in the downstairs flat. She did say however that the Plaintiff himself kicked up a rumpus and shouted and caused difficulty with the neighbours.

In relation to resolving the two accounts, having regard to the fact of what I said in relation generally to my reluctance to believe everything the Plaintiff said I think there are objective reasons why I prefer his account on this occasion for two reasons: Number one, his wife when she later gave evidence described the situation where the marriage had broken down for some time for various reasons and they were sleeping in separate beds, she was in the children's room and he in the marital bedroom. Notwithstanding that she asserted that for the purpose of going to O'N. pub three times a week and having a few pints with her husband that things may have looked okay to Mr. L., the proprietor of O'N., but she was putting on a show, in other words conducting a sham marriage. That portrays a situation where whatever might have been going on between the couple in terms of disputes and possible violence and annoyance the marriage outwardly to the public was not one where the Applicant was rowdy or created an open breach of the peace before. Apart from one incident on the night of 14/15^th November, which I will later describe in more detail, the Applicant does not seem to have been a person to cause a breach of the peace notwithstanding living in very challenging conditions and going through the City of Dublin in circumstances where one would expect that he would get into some scrape of other. Both before and since November 1998 there seems to be no great tendency on the part of the Plaintiff to publicly demonstrate any violent or rowdy characteristics. I can only conclude from that that it is more probable that he was incensed by finding his wife with a person with whom she was having a relationship, albeit probably at its early stages, but it is likely that his account is more preferable, as I said, and that there was some type of relationship going on between his wife and her present partner, and father of her youngest child, at the time of 15th.

On the basis of such an event it is easy enough to understand why a District Court would, not withstanding the view I have taken in relation to the account of the matter, make the Barring Order on the basis that here is a situation where violence was erupting and were it not for the unconstitutionality of the section I could see lots of socially justifiable reasons why a Barring Order, as it is generally known, would be made subject to the adherence to the natural constitution of justice to stop this matter going on and the whole of the situation pending an early consideration of the situation by the court in the interests of the safety of the spouse and in the express of the children, and possibly the interests of the children, and having regard to the general consideration of the Family Law Acts in place and the policy of the State towards ensuring these difficult problems are dealt with.

I hold that the Applicant applied for a discharge having heard that his wife had obtained an interim Barring Order on 6th November after the incident involving the downstairs flat the day before. He applied with the advice of a friend for the discharge of the Barring Order to the return date of 23rd November 1998.

In the meantime an incident arose on the night of 14th/15th November, some days after that, the Plaintiff says that he was invited by his wife to mind the children, she contests that. I have no means of resolving that particular dispute and having regard to my general comments at the start of my judgment I would be inclined to say that there is no proof of the Plaintiff's allegations but rather the likelihood is that he was not invited and was either flagrantly or technically in breach of the Barring Order and came uninvited. That constituted either a technical or an intentional breach which was sufficient to spark off the complaint of his wife L. to the Gardaí and leading to Garda O'S. coming along and very fairly and courteously putting to the Plaintiff his options as to whether he would go away and enquired whether he had a place to stay, and he said that he had, his father's. Then having got an adverse response from the Plaintiff Garda O'S. seemed reluctant to arrest the Plaintiff without a warrant and bring him to the Garda Station to be dealt with under the terms of the Barring Order legislation.

He had on this account said he spent three days in prison, on later cross-examination he said that he had two breakfasts. He spent the morning of 14th/15th from 1 o'clock or 2 o'clock after his arrest until the morning of 16th when he was brought to court and released on bail having been charged with an offence involving a breach of the Barring Order that he was incarcerated in the local Garda Station for that period of time.

The Barring Order itself created an effective return date and hearing for the Barring Order application on 9th February 1999. It appears that the Applicant did not proceed with the application to discharge or vary the Barring Order on 23rd November and the State, the Respondents, Mr. O'Moore, does not criticise them very much for that by reason of the fact that there was then an existing criminal charge pending against the Applicant. While Mr. O'Moore did make submissions in relation to the fact that the civil aspect of the case could not be used against the Applicant in the criminal proceedings by reason of the secrecy of family law proceedings nevertheless I conclude that the Respondents are not pressing that point to the point that the Plaintiff is to be criticised for not proceeding with the application to discharge. I hold that he cannot be criticised for not proceeding with it on 23rd November for the reason that matters had changed very much from the situation of a clean slate Respondent on 6th at the time he made the application to discharge to a situation where he had been found to be guilty, or charged at least with a criminal offence under the Barring Order Code and where his wife L. and the Gardaí could give evidence of a breach of the Barring Order. His merits for a discharge there would be certainly very poor indeed and his application for a discharge would be more likely to incense a district judge than incite sympathy. He made his decision in relation to that and he is not to be criticised for it, unlike other situations, which I will come to, where he can be criticised from the point of view of not mitigating his loss by taking appropriate action.

The District Court Order making the Interim Order was found to be unconstitutional by the Supreme Court or the legislation underlying it in respect of which the Order was made was found by the Supreme Court to be unconstitutional on 9th November 2002.

It has been argued by the Respondents that the Applicant cannot complain of any damages by reason of his false imprisonment. They accept that the imprisonment was false imprisonment and there is no justification for it but that damages would not arise by reason of the fact that the plaintiff had the option of not responding as he did on the night of 14th/15th November 1998 by an apparent breach of the impugned interim Barring Order. The Respondents rely on the rules to be applied regarding the remoteness of damage and the obligation of the Applicant to avoid situations where he may suffer injury or damage through false imprisonment.

I consider and I hold that the rules of remoteness of damage and the right to mitigate loss should not be applied with the usual strictness to a situation where the Applicant found himself in factual if not legal breach of the Interim Barring Order on 14th/15th November 1998. The Applicant in that situation had a right to the constitutional inviolability of his home from which he had been barred unconstitutionally. He had an express right under the Constitution to his good name and he had an implied or expressed right under the Constitution to the right to family privacy and the enjoyment of his family life which at that time, even if matters had very substantially come to an end as between himself and his wife, still remained as between himself and his children. I consider that it would not be the policy of the law to apply the very beneficial policies and tests of remoteness to a very tension-ridden situation where the Plaintiff objectively was entitled to return to the house. Objectively he was not barred at all and in the context of being out there almost leading the life of an urban rapparee the law would be very, very mean and astringent if it expected the Plaintiff in that situation to be bound by the rules of remoteness and causation, which may apply in ordinary run-of-the-mill situations which are not tainted with constitutional wrong-doing by the State on the one hand or so laden with constitutional rights on the other hand.

Going on then in relation to findings in relation to what would have happened on the probabilities without speculating if this section had a constitutional makeup, the prime requirement of which would be a provision of an early return date to have the matter sorted out to give the Applicant a chance to make his case to have it discharged on any onus of proof, and one would be inclined to adopt the model of the later 2002 Act as the model or the interim followed by the interlocutory injunction as taken by the Supreme Court as a guide to the procedure as to what would occur.

I am of the view that on the probabilities if there was a return date available before the 14th/15th, which on any reasonable view of the notice would be required to allow a person to have the matter re-visited, that without the intervention of the breach of the order a district judge in the cut and thrust of a busy district court would in most likely events react to the situation by perhaps not hearing the case in full but initially giving the Applicant a chance to undertake not to behave in this way until the matter had been dealt with fully and until the family situation could be sorted out. That most probably would have avoided the tense situation which gave rise to the false imprisonment and what eventually became, on any account in this case, a medium term exclusion from the family home to 9th February 1999, which was the next point which possibly might have resolved the matter. There may have been other outcomes mostly favourable to the Applicant in the form of enabling him to be master of his own affairs and have mediation and advocacy applied to his situation either by himself or by others on his behalf so as to leave him in a situation where he was not put off addressing court objectively and subjectively. Of course there is a possibility in all of these cases that the district judge within his jurisdiction would react with an order in the nature of repeating or continuing the Interim Barring Order, but I don't think that is the most probable consequence by a long shot.

From the outset in relation to developing the family and legal situation facing the Applicant the Applicant was as a result of the unconstitutionality of this section, under which the Interim Barring order was made, denied opportunities to apply to the Court to have his case made and to have the right of natural and constitutional justice applied for his benefit and for the purpose of sorting out the problems he had in a matter consistent with the rights of his wife and his children.

Whereas I have held that it would be very surprising if a district judge didn't make an Interim Barring Order, even with the knowledge of the fact that there was some dallying by the wife with a third party, equally it was most probable that the matter would have been sorted out had the section dealing with the Interim Barring Order had constitutional provision which would allow that opportunity to be given.

The Supreme Court in their judgment on 9th October 2002 have outlined the disadvantages of the making of the Interim Barring Order and its constitutional infirmities in having regard to the way family law proceedings would evolve and arrangements between the parties evolve over time, the Supreme Court particularly mentioned how the situation regarding the custody of the children would suffer inevitably by the wrongful making of the Interim Barring Order and its bedding down into the family. Mr. O'Moore suggested to me that 1 should only consider what the Supreme Court considered in relation to how matters would deteriorate in the balance of arms, so to speak, between husband and wife as time went on. I consider the Supreme Court considered this section on a theoretical basis having regard to the public aspects of it and did not purport, and should not, I consider have purported to focus on the actual issues between the parties as they have arisen in this case.

I have considered, notwithstanding the strong argument made by Mr. O'Moore, that it is open to me to analyse what the likely outcomes would have been and the likely disadvantages that would have accrued to the Plaintiff in relation to his family and any family law litigation or property arrangements as time went on. In a manner consistent with the view of the Supreme Court that family law proceedings are not like other proceedings insofar as they have an internal dynamic and that as they go on and as orders are made the parties to the marriage and the children react to that by acquiring rights, or quasi rights, of residence, of attachment and eventually as a court proceeds the court having made interim and interlocutory orders an relation to all sorts of matters regarding custody, residence, maintenance and in relation to all of the other ancillary matters which can be dealt with as proceedings move along one finds that the court at the end of the day will consider the situation at the final hearing having regard not only to the facts preexisting the commencement of the litigation but also the facts in relation to how they have evolved in reaction to the history of the litigation itself. That is what the Supreme Court had in mind in particular in custody but also I consider that that approach should be taken in this particular case in relation to all of the other aspects that arise from time to time in relation to the issues.

It appears that while the access arrangements between the Applicant and the children did not take place ever again at least in the family home they did take place in an atmosphere of co-operation and civilised behaviour, albeit in poor circumstances. At one stage Mr. O'Kennedy challenged L. K., the Applicant's wife, in relation to whether she was satisfied the access was satisfactory to the children having regard to the fact that one could say that in a way the access arrangements made almost street children out of children so far as they were going into a pub or into strangers' houses, into all sorts of places, wherever the Applicant ended up in residence at the particular time. While that may be a criticism and it might be a matter of concern in many family law cases it appears that the proof of the pudding is in the eating and there isn't the slightest complaint anywhere to the unsatisfactory outcome of this access. Both parents demonstrate a keen interest in not disturbing the children. The Applicant himself has indicated that he would not demand at this stage to get back to the house because he would be disturbing his family and has indicated at this stage his daughter, whom he referred to as the "young one", would probably prefer to live with him at this stage. She is now going on 15 years of age, but that is probably neither here nor there.

The situation has now been reached that there is a family law litigation between the parties. L. is seeking divorce, presumably with all of the ancillary relief, and the issue will come up in relation to the family home, which is still a joint tenancy of the parties, the Applicant and L., and the Applicant was criticised by not bringing these proceedings forward or letting them come forward before this so that he could get on the route towards getting Local Authority housing for himself as a single person with the possibility of access to his child or children in a one or a two bedroom flat in the City.

Whereas I have found that the rule of remoteness and duty to mitigate loss should not be applied back to a situation such as occurred on 14th/15th November 1998 I consider that as matters sorted themselves out and with the onset of a solicitor's advice and counsel's advice over the years things have cooled off, the situation is not as charged as one would be expecting from a reasonable reaction of people in a commercial way reflecting the normal rules of law and that being so I consider that whatever claim, whether by way of rent or inconvenience, the Plaintiff may have for loss of accommodation up to the present day it should not go any longer than the date, or sometime round the date of the Supreme Court judgment. When the Plaintiff's solicitor reacted to the hearing of the divorce proceedings and possible determination of the situation regarding the family home and getting Plaintiff out of the catch 22 situation where he could not get on the housing list or the emergency housing list of the Corporation unless he gave up his tenancy. Whereas I find that it would be entirely unreasonable to expect him to have volunteered to give up his tenancy in the circumstances any time before that Supreme Court, and perhaps after it, it is another matter to allow him to postpone the divorce proceedings which would allow him to ascertain with certainty what he was going to do with his interest in the house, sine die, or at least until the determination of these proceedings.

I find that the Plaintiff's damages, whether by way of rent equivalent or inconvenience for the type of life he was leading or the accommodation he had, should not be given between the end of 2002, by which time the divorce proceedings could have been well determined, and the present date.

While I am on the subject then - I will be going on to deal with the various items of damage under the various headings - I will stay with that point and deal with the manner in which I approach damages for loss of accommodation. The matter was put forward in terms of the cost of an equivalent flat and there was auctioneering evidence given of almost £39,000 in past rent and rent into the future over a period of time such as might be determined by the court. At one stage there was a suggestion that there would be an actuarial calculation somewhere in the region of £300,000. I ruled on that as it was being put forward and nipped it in the bud, so to speak, because I considered that it did not offer itself as helpful evidence at this stage, and I am still of that mind. It was left to the court to determine just how much the damages for loss of accommodation might proceed into the future.

For a start dealing with the last point Mr. O'Moore made regarding the loss of accommodation only up to 9th February 1999, which was the return date envisaged by the district judge for the Barring Order summons, I consider that it is entirely unreal to expect the matter of accommodation to be sorted out at that stage. The Applicant was entirely at a disadvantage and on the back foot and could not be regarded as being in a position where he was in any sort of reasonable or optimal situation to get the type of hearing which would result in a satisfactory resolution of the matter which would not give rise to a claim of loss at that stage. I accept that has not been claimed and it is not open to me to impugn the order in terms of a return date or the decision of the district judge in relation to determining the matter.

As I said the Plaintiff in real terms is so much at a disadvantage on the back foot by 9th February that one cannot see that as a vehicle for a resolution of matters, so that it could be marked as a point at which the Plaintiff could not be entitled to damages for loss of accommodation.

In terms of the catch 22 situation in the City Council or Corporation Housing Section the evidence was that the Plaintiff would have to renounce the joint tenancy, thereby becoming a homeless person, he would be on the housing list or emergency housing list for two and a half years, or possibly three years, and would thereby be assisted by the Health Board to get emergency accommodation which could consist of bed and breakfast and/or hostel accommodation or accommodation of both to be funded by the Health Board, or certainly the Health Board acting as agent for the Corporation. The Plaintiff himself when cross-examined in relation to this option indicated a very strong dislike to the whole proposal by reason of the fact that it involved, as far as he was concerned, staying in hostels. Whereas I have no doubt that hostel accommodation for all sorts of people round the City is excellent and provided in the very best spirit of serving the particular need, looking at the matter from the perspective of the Applicant himself I can see that he is fully entitled to express a dislike for hostel or bed and breakfast accommodation. The nature of that accommodation in any event is that it isn't actually bed and breakfast and the persons who have the good fortune or misfortune to avail of that situation do not get during the day television lounge facilities: they are on the street. I take judicial notice of that fact and I have considerable sympathy for the dislike and abhorrence of the Applicant towards that solution, having to go on that pilgrimage for two and a half or three years before eventually getting a house of his own and suffering in the meantime the slings and arrows of being passed out on the list by more deserving people when he might expect to be hitting in on his chosen house at the two and a half year mark only to be beaten at the tape by other more deserving and more unfortunate people in that race for housing.

I consider that while he can be criticised and penalised for not getting his divorce proceedings sorted out some time after the Supreme Court decision had left him in a situation where he could go in and get the benefit of whatever arguments he would like to make as a result of having parts of the section declared unconstitutional in the circuit court where the divorce proceedings are, he cannot be criticised for not taking up the option of the emergency housing waiting list for this reason: Coming from a secure and respected position in his own culture, a universal situation of the population where he was married, had children, had a flat with the usual very secure tenure of Local Authority Housing subject to the payment of rent - which is modulated having regard to the policy of the differential scheme - going from that situation of standing and respect in the community to a situation where he was going into the hostel/bed and breakfast merry-go-round where no doubt he would have met many people from his own background, not very well off but with their self-esteem and their record of good behaviour (apart from his conviction for the unfortunate fatal car accident, and except for the allegations of violence towards his wife, otherwise a publicly law abiding man) and to go into a situation where not only would there be people of his own background but he would also be mixing with people that he wouldn't otherwise be mixing with at all and he would have to live with, unfortunate people who may have an alcohol habit or a drug habit or people who are completely down and out for other reasons. That is not a situation that a person can be expected to tolerate by the courts on the basis of mitigation of loss, the State would be harsh indeed if it expected a person to have to go on that pilgrimage to mitigate their loss as a result of a breach of his constitutional rights by the State, which is admitted. It is not just an emotional reaction, mind you one can be emotional about it, I have to justify my view about it, not in emotional or rhetorical terms but on the basis of the reasoning based on the way the law and these courts react to situations in personal injury cases or assessments (rather than in this case) where a Plaintiff is left in a situation where they have a very bad back they are told by their surgeon they can get a cure of their back complaint by having a back operation but they are also told by the surgeon there will be downsides of that operation in terms of risk, in terms of side effects and in terms of intrusiveness. The courts take a humane view of situations like that and say that the Plaintiff is not to be penalised by not accepting intrusive surgery. On the same basis, using the same rationale I consider that it is appropriate for the court to take the same approach to the suggestion that the Plaintiff, has to for the sake of allegedly mitigating his loss engage in what I have described as the pilgrimage through the bed and breakfast and hostel sector in this town.

The problem is that the court cannot then proceed from that situation, where the court does not compel for reasons of mitigation of loss, the Plaintiff to take that route and then what are the logical consequences for compensation? One logical consequence would be that the Plaintiff could live in the Ritz, so to speak, for the rest of his life in terms of compensation and the matter never comes to an end and that compensation would be completely disproportionate on that view. I don't propose to accept that view or to embark upon it rather I take the view that given that the bed and breakfast/hostel route is unpleasant the type of catch 22 situation relating to the calculation of damages should be resolved by the court taking an objective view and assuming, without any belief that the Plaintiff would adopt the same view, for the sake of bringing proportion and reality into the assessment of damage, assume that Plaintiff would in the future - as apparently he must if he wishes to get into the housing list eventually of the Dublin Corporation - embark upon the bed and breakfast/hostel route. In respect of that course the court must take into consideration the compensation which the Plaintiff would merit for enduring that come down in life to which he would have to volunteer and on the basis of three years' compensation I consider that should resolve the matter of compensation in regard to it insofar as it would likely result in an award of a one or two bedroom flat, as indicated by the housing section witness. I say that of course again emphasising that it may not happen. I take the view that having regard perhaps to the other items of damage which would be awarded here that the probable outcome of the case in fact would be that the Plaintiff would probably not be able to buy a house in the normal market on what he would expect to get from this court but I bear in mind that he probably would be able to go back to the Housing Authority and have such compensation in his pocket that if he wished he could ask the Housing Authority to consider providing him and give him an opportunity to purchasing social housing of some description. There are various schemes available through the years and the Local Authority is still charged with the provision of social housing on a grading basis not only for rented accommodation but those who come from the emergency housing list. I consider that that is the level to which the Plaintiff may in fact be compensated but it is not a level to which I set out to compensate him from the beginning. It may well be that it may be the way in which he works but he still within the context of the judgment and the awards would have the option of going the bed and breakfast/hostel route but my concern is that creates a catch 22 situation insofar as the bed and breakfast/hostel route would seem to be based on means test criteria from beginning to end, tailor-made for the destitute, and if the Plaintiff were to emerge from this court on the agreed basis of the State it would probably be enough to disqualify him for a time at least from getting on to the bed and breakfast emergency housing route and thereby lies the difficulty.

The Court takes the view that reasonable compensation has to be paid and a proportion has to be brought into the situation and I have taken views in relation to the situation as to how I have to bring that about.

Having regard to the foregoing I will deal with the housing aspect for a start: In terms of the loss of rent, loss of convenience of housing up to the date of 9th October 2002 I consider that four years at €3,000 a year compensation is appropriate for that, that is €12,000. No compensation under that category from 9th October to 2002 to the present date. I note there may be some discrepancy there for allowing the family law proceedings to come on but I don't propose to complicate matters in that way.

In terms of allowing a reasonably liberal figure of years for getting on to the housing list going by the bed and breakfast/hostel route I consider that is a much more challenging and serious downturn of the Plaintiff's situation and very intrusive of his rights and his culture and his personal self-esteem and pride and also challenging to his health. On that basis, even though it might be notional in the out turn of events, I consider that if he were brave enough to face into that, a modest figure to compensate him for that would be €15,000 a year, and that by three years into the future amounts to €45,000.

Going back to the other items of loss in relation to arrest, custody, false imprisonment and any indignity suffered during the course of the preparation of the custody record and the appearance in court until the granting of bail by the court I consider a sum of €20,000 appropriate for that.

In terms of the implications for the loss of work, which I accept was not really proved in relation to the loss of work driving the van but in relation to the loss of work being the local handyman and having the status of the local handyman and the work satisfaction of going round and being an important member of the community he lived, in over a period of three years at best, on the basis that he got his life together afterwards, and I suppose there would be a fade factor as well in relation to whatever Pariah status he had at the time, I consider that the situation should be dealt with in the same way as a personal injuries court would be dealing with a claim by a person in their twenties or thirties where the loss perchance of the enjoyment of amenities and facilities of life by reason of sporting activities. Perhaps it might not be unfair to the Plaintiff to say that the analogy might be that of a person who was playing on the third, C rugby team and perhaps not a very good player on it but nevertheless enjoyed the days out on a Saturday and the esteem and the company that that brought. The courts would not unusually allow a sum for the loss of that type of facility of life if it is a loss for a period of years in a personal injury action so for that reason for the three years or so in the past the Plaintiff suffered that loss, not a loss of income at all but just a loss of amenity of life, I award €12,000.

In terms of the loss of the constitutional right to the privacy of life with his family and children, not putting his wife into the equation at all because I don't think it is appropriate to put his wife into the equation, although there would have been what I described as an existential residue of a relationship between himself and his wife, which isn't the case of all separated, estranged and divorced couples, there is often an intangible element of value and worth between couples which I never cease to tell them about in family law cases when they are over and done with and settled and judgment is recorded, and people seem to appreciate that that fact is noted.

Notwithstanding my interest in this existential residue between husband and wife and partner it passes as a philosophical comment and it is not part of the compensation in this case, I don't think it is appropriate that I impose personal views of mine in a situation which would not be generally recognised by the law, certainly in terms of the constitutional right to the enjoyment of privacy, marital privacy in the sense of his children, which was seriously damaged; in terms of the poor access, access into the house; the publicly perceived rift between himself and the children and that that is a past element, which is mainly in the past, but will also persist into the future until things settle down, but it is mainly in the past and accordingly I award €50,000 in respect of that item, €40,000 for the past and €10,000 for the future totalling €50,000.

In terms of the Plaintiff's loss of good name I consider that this arises on a constitutional basis, it cannot be defined nor is it pleaded as a matter of defamation because the ingredients of defamation seem to be lacking here. Nevertheless the Plaintiff's good name was generally destroyed very substantially. I accept Mr. O'Moore's submission that Mr. L. of O'N. pub, who was in a good position to notice things, did not know about the Barring Order. The fact is that the Plaintiff gave evidence that his brothers, with whom he had a rocky enough relationship, took a poor view and he only remained on fairly good terms with just one brother. The relationships suffered and people avoided him and shunned him, he had this feeling. It was in many respects worse than a bad enough defamation for a man of his background and one asks would it be Circuit Court jurisdiction or High Court jurisdiction, I think it would be more in the High Court jurisdiction if it were viewed in defamation terms. Having regard to the fact that the Plaintiff might well have suffered a certain amount of loss of his good name if family law proceedings had gone on ahead anyway the fact that he was not in a position to choose his ground, so to speak, or to prepare people of eventualities by reason of the suddenness of this onset into his life of the Interim Barring Order, which was found to be unconstitutional, I find that the Plaintiff was not in a position to avail of the usual possibilities of using spin, so to speak, to his friends and neighbours to put his family law difficulties in a better light as it turned out. Having regard to the seriousness of this matter I consider a sum of €50,000 is appropriate compensation for that.

The next item is in relation to what I describe as emotional or psychological suffering. Dr. D. even when he was appraised by Mr. O'Moore of the discrepancies or inaccuracies of the information he got from the Plaintiff continued to assert that the Plaintiff had suffered emotionally considerably. He was also inclined to assert that his alcoholism and his suicidal thoughts and his attempts on his life, indicated by cuts on his arm, et cetera, were as a result of the Barring Order. I couldn't go the whole way with Dr. D. At the end of the day I consider the Plaintiff was a poor subject for the onslaught of the unconstitutional Order but that he had his problems before, he may well have been somewhat a heavy drinker, he might have been subject to a bout of alcoholism, he may well have been subject to suicidal thoughts, but that is not exceptional for a person in marital difficulties anyway. I accept these difficulties have been made worse, and considerably worse on any view of Dr. D.'s evidence, but I accept that they have been in the past and having regard to that and having regard to the fact that no medical evidence in relation to a suicide attempt was introduced and no psychiatric evidence was given in relation to any serious clinical depression I characterise the damages as being damages to date only of €25,000 for emotional and psychological suffering. No damages for future loss.

I have already dealt with the accommodation aspect at the outset. Hopefully that does justice to the situation and I can give the tot as follows: Damages for inconvenience for future involvement with bed and breakfast in a hostel situation €45,000; four years at €3,000 a year for inconvenience of the irregular housing up to 9th October 2002, that is €12,000; emotional suffering, et cetera, €25,000; good name, €50,000; interference to rights of children €50,000; loss of amenity through work activities €12,000 and false imprisonment €20,000. That totals a sum of €214,000 damages.

I don't propose to give any aggravated damages. The State were entitled to probe and test this case vigorously. It was put forward on a high basis and the State are duty bound to test the evidence and to ensure that the taxpayer in the State are not unnecessarily burdened with compensation. That is in terms of running the case. I accept that there was some confusion in relation to the High Court, Kelly J's judgment does indicate that the constitutional point was not argued but he deals with the constitutional issue and the comment of the Supreme Court in regard to the fact that Kelly J. did in fact deal with the constitutional issue and the parties should get on with that and it should not be taken as a matter which should attract my probing of the point that I could give exemplary damages. As I indicated during the course of the hearing that alone is something that would stick in my mind as a possible area where I would give exemplary damages but having heard the submission of Mr. O'Moore in relation to the matter I am satisfied I would have been wrong in coming to that conclusion.

In regard to other areas where aggravated damages could possibly arise I find that the section is unconstitutional but really there was no positive bloody mindedness on the part of the State at any stage such that would excite the probing and as discussed at court. There was no cruel or oppressive action, even though I have to admit that the situation of the Plaintiff has been cruel and oppressive. It may well be a part of the hard slings and arrows of life that he is not a man of great resources and there are quite cruel aspects of life in his situation where he loses the enjoyment of large aspects of his family, in particular loses a roof over his head of a permanent nature. These are all facts that excite the natural sympathy of the court but I consider that in the absence of aggravated activities by the State and their servants or agents that the court should not be willing to engage in the process of rewarding aggravated damages whatever category there is - and I described it as bloody mindedness - a lack of malice, it has not been proved but there is a lack of malice. I accept of course that Mr. 0' Kennedy and his colleagues advocated this in the sense of the tragedy of it all but I am not moved sufficiently to embark on the aggravated damages rule. I consider if there is any question that the damages awarded by me are not adequate having regard to the fact that I have said they probably wouldn't buy the Plaintiff a place of his own even at lowest end of the market, having regard to all of his other requirements, nevertheless I do not consider that that is not a criteria on which I should embark on topping up the figure I have decided upon just because of that test. That concludes the judgment subject to you checking the tot.

MR. O'MOORE:

The tot is right.

MR. JUSTICE ABBOTT:

I give judgment of €214,000.

MR. O'KENNEDY:

May it please your Lord. And costs, my Lord.

MR. JUSTICE ABBOTT:

And costs.

MR. O'KENNEDY:

Can I also mention, my Lord, insofar as this judgment is an award for the Plaintiff personally would your Lordship so hold they are exclusively for his personal use?

MR. JUSTICE ABBOTT:

I can't do that. I can't do that.

MR. O'KENNEDY:

I don't mean to say that it won't be shared among his family.

MR. JUSTICE ABBOTT:

I have already dealt with that as best I can. He can go the Housing Authority and ask their advice to get his name on some sort of social housing as quickly as possible. There may be all sorts of garnishee applications.

MR. O'KENNEDY:

Costs to include reserve costs.

MR. O'MOORE:

In light of the award I cannot resist the application for costs and if there are reserved costs I cannot resist that either. I would ask for a stay of the award and costs in the event of an appeal. Your Lordship may stipulate, in my submission, two conditions of such a stay: Firstly, the notice of appeal will be in within time, within 21 days of today; secondly the Books of Appeal will be lodged before the new term begins. The second stipulation, it seems to me, follows the stipulation of your Lordship that there will be some payment out in favour in Mr. K., and I suggest a payment out of say €30,000 immediately.

MR. O'KENNEDY:

If your Lordship is disposed to allow a stay I would certainly suggest that the figure mentioned is far too modest in the circumstances having regard to your Lordship's judgment. I will leave that to your Lordship. It is far too modest.

MR. JUSTICE ABBOTT:

€30,000 from €214,000. Having regard to the fact there are significant arguments in relation to practically all aspects of damages I do consider that I have to give a stay in the first instance. I also bear in mind the likely damages that the Plaintiff might get and the highest point of the Defendant's case, also the fact that the case has dragged on for a considerable period of time the Plaintiff may have his own requirements, also that he needs some funding to go about mitigating his loss in terms of accommodation, that is a festering sore on one view of the case, which is the view that I have given in the judgment, and an obligation to mitigate his loss. The State should take some responsibility in terms of the stay to ensure that his capacity to mitigate his loss is not limited. I don't know what he can do with a lesser figure than €214,000 to convince the Housing Authority to get on and fast track the social housing. That is a matter that is in the back of my mind. For that reason I grant a stay in the terms suggested on the basis of a notice of appeal being in on time, the Book of Appeal being lodged within the period necessary, it is to lodged currently with the appeal.

MR. O'MOORE:

No, it is not. The Supreme Court will take notice of appeal and the Book of Appeal is almost always lodged afterwards.

MR. JUSTICE ABBOTT:

What time afterwards?

MR. O'MOORE:

I can tell your Lordship that it will be lodged by the end of September, we have to take up the transcript, and so on. We will, if your Lordship requires, apply for some priority in terms of the hearing of the appeal, which in the light of what your Lordship said may be an attractive proposition for both sides.

MR. JUSTICE ABBOTT:

The Registrar tells me that Order may not be perfected for three weeks.

MR. O'MOORE:

One way or another the appeal will be ready to rule to seek a date by the start of next term.I can tell your Lordship I have experienced recently applying earlier this month to the Supreme Court and getting a date of 2nd November, so they do facilitate appeals if there is some reason shown for them to be expedited.

MR. JUSTICE ABBOTT:

On the basis that the appeal will be ready for hearing, subject to the listing arrangements of the Supreme Court, by the first day of next term I grant a stay on the decree and costs, because there is a problem if we don't deal with costs as well, subject to the payment out of €150,000.

MR. O'MOORE:

I can tell your Lordship that in itself would be the subject of appeal, that is the lion's share of the award, it is way above the sum that would be suggested by my submissions to your Lordship. If it goes to Mr. K. there is no reason to believe it will come back in the event that we win the appeal and the appeal will become not quite moot but in large measure moot if that happens. I know in the DeRossa case, where there was an award of €300,000, there was an appeal on the basis of a stay with payment out of one third of the award. That seems a more appropriate sum with all respect to your Lordship.

MR. JUSTICE ABBOTT:

Mr. DeRossa was a free agent. The State has to have some regard, and here you might be running into the danger of aggravated damages perhaps at some future date if you cut off the possibility of the Plaintiff being somehow released out of a searing Catch 22 situation where he is in the depths of misfortune. I bear in mind your submission. What do you say, Mr. O'Kennedy?

MR. O'KENNEDY:

First of all I cannot see that the DeRossa situation is any way analogous to what is here. Secondly, the very point you made yourself, which is a central element of your whole judgment, to actually get him out of the totally unacceptable situation which he is now he will have to have enough to get into the social housing area and he cannot begin to start that unless he gets a sufficiently reasonable sum, and certainly the figure mooted by my friend up to now - I am not going to suggest what it should be but I think your Lordship could stand over the figure you mentioned.

MR. JUSTICE ABBOTT:

At the same time you have to bear in mind Mr. O'Moore's submission, it might be moot on his view of the case, which I disagree with. It would have to be fair.

MR. O'KENNEDY:

I accept that.

MR. JUSTICE ABBOTT:

Doing the best I can having regard to Mr. O'Moore's submissions that the matter might become moot and having regard to the Plaintiff's situation, I still bear in mind the Plaintiff's situation and the moot point but I also bear in mind the situation insofar as he needs to go to the Local Authority and show the Local Authority the colour of his money to get on to the housing list or the social housing list, which is the only realistic prospect this man has of getting any such accomodation.

MR. O'KENNEDY:

I suggest 100,000.

MR. JUSTICE ABBOTT:

If he doesn't do that the money will drain away, he is not an investor, or anything like that. Perhaps I am taking too social a view of it. I take these matters into consideration and balancing all of that I consider a payment out of €110,000

... (INTERJECTION)

MR. O'MOORE:

That is more than Mr. O'Kennedy suggested. Perhaps 100,000.

MR. JUSTICE ABBOTT:

Well 100,000.

MR. O'KENNEDY:

If we are getting into.

... (INTERJECTION)

MR. JUSTICE ABBOTT:

You must have muttered that hoping I wouldn't hear.

MR. O'KENNEDY:

I am not going to quarrel.

MR. JUSTICE ABBOTT:

100,000. Mr. O'Kennedy is a lot fairer than I am.

MR. O'KENNEDY:

I am obliged to your Lordship.

MR. JUSTICE ABBOTT:

Yes. There is nothing else arising.

MR. O'KENNEDY:

No, nothing else. I will give back all the books I can give back. Thank you very much, gentlemen, for all your assistance it was not an easy case to do.

MR. O'KENNEDY:

I am obliged to the Court despite the availability of the Court to deal with matters of fundamental liberty we appreciate the Court was disposed to hearing this case right to the end.

MR. JUSTICE ABBOTT:

Well we are now facing a break so I trust you will enjoy the break.

MR. O'MOORE:

May it please your Lordship.

MR. O'KENNEDY:

May it please the Court.

THE HEARING THEN CONCLUDED

Approved: Abbott J.