Breslin (Mark Christopher) and others v McKevitt (John Michael)
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2011] NICA 33 |
| Date | 07 July 2011 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation No. [2011] NICA 33
Ref:
HIG8088
G
Judgment: approved by the Court for handing down
Delivered:
7/7/2011
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
BETWEEN:
MARK CHRISTOPHER BRESLIN (BY HIMSELF AND ON BEHALF OF
THE ESTATE OF GERALDINE BRESLIN)
CATHERINA ANNE GALLAGHER
MICHAEL JAMES GALLAGHER (BY HIMSELF AND ON BEHALF OF
THE ESTATE OF ADRIAN GALLAGHER)
EDMUND WILLIAM GIBSON
STANLEY JAMES McCOMBE (BY HIMSELF AND ON BEHALF OF THE
ESTATE OF ANNE McCOMBE)
MARION ELAINE RADFORD (BY HERSELF AND ON BEHALF OF THE
ESTATE OF ALAN RADFORD)
PAUL WILLIAM RADFORD
COLIN DAVID JAMES WILSON
DENISE FRANCESCA WILSON
GARRY GODFREY CHARLES WILSON
GERALDINE ANN WILSON (BY HERSELF AND ON BEHALF OF THE
ESTATE OF LORRAINE WILSON)
GODFREY DAVID WILSON (BY HIMSELF AND ON BEHALF OF THE
ESTATE OF LORRAINE WILSON)
Respondents/Plaintiffs;
-and-
JOHN MICHAEL McKEVITT (SUED ON HIS OWN BEHALF AND/OR AS
REPRESENTING THE REAL IRISH REPUBLICAN ARMY (“RIRA”)
AND/OR THE ARMY COUNCIL AND/OR LEADERS AND/OR
MEMBERS OF RIRA)
LIAM CAMPBELL (SUED ON HIS OWN BEHALF AND/OR AS
REPRESENTING RIRA AND/OR ARMY COUNCIL AND/OR LEADERS
AND/OR MEMBERS OF RIRA)
MICHAEL COLM MURPHY
SEAMUS DALY
Appellants/Defendants.
________
Before: Higgins LJ, Girvan LJ and Coghlin LJ
________
2
Introduction
[1] On 15 August 1998 at 3.05 pm a 500lb bomb planted in the boot of a car
exploded in the centre of Omagh, County Tyrone. The bomb had been
planted in the main shopping street of the town. As a result of the explosion
29 people and 2 unborn babies were killed and over 300 people were injured,
many very seriously, and there was extensive damage to property in the
town. The Omagh bomb was the worst single terrorist atrocity in the course
of the years of violence which occurred in Northern Ireland from the late
1960s onwards. It occurred at a time when the main body of Republican
terrorists, who had been protagonists in the years of violence, had decided to
abandon the use of violence, as a means of achieving their political ends. The
Omagh atrocity was undoubtedly perpetrated by dissident republicans who
wanted to continue the campaign of terrorist violence to achieve their political
aims notwithstanding the abandonment of the campaign by other
republicans. The bombing was claimed by a body purporting to call itself
Óglaigh na hÉireann, an organisation which claimed to be the Irish
Republican Army, “the real Irish Republican Army” and which came to be
commonly called “The Real IRA” (“the RIRA”).
[2] No individual has been convicted of causing the explosion or the
consequent deaths and injuries. Many of the families of those who suffered
grievously as a result of the explosion considered that they should hold
account in civil proceedings those whom they believed they could
demonstrate were responsible for the event. Hence they instituted
proceedings in tort to make good their claims that the parties identified were
indeed responsible for the deaths and injuries which flowed from the
explosion. The fact that the plaintiffs believe that the defendants were guilty
of the crimes of murder and causing grievous bodily harm to the victims did
not prevent them seeking to vindicate their civil law rights in connection with
tort. This point was made clear by the House of Lords in Ashley v Chief
Constable [2008] UKHL 25. As Lord Bingham stated:
“It is not the business of the court to monitor the
motives of the parties in bringing or resisting what is,
on the face of it, a well recognised claim in tort.”
Lord Scott stressed that:
“Although the principal aim of an award of
compensatory damages is to compensate the
claimants for loss suffered, there is no reason why an
award of compensatory damages should not also
fulfil a vindicatory purpose.”
3
The learned trial judge Morgan J (“the judge”) rightly rejected the argument
that the civil proceedings were in the circumstances an abuse of process.
[3] In his judgment in the proceedings delivered on 8 June 2009 following
a difficult and protracted trial the judge concluded that the plaintiffs had
established their claim for damages for trespass to the person against
John Michael Henry McKevitt (“McKevitt”), Liam Campbell (“Campbell”),
Michael Colm Murphy (“Murphy”) and Seamus Daly (“Daly”). He also
appointed Campbell to represent the Army Council of the Real Irish
Republican Army. The plaintiff’s claim against the first defendant Seamus
McKenna was dismissed. In his judgment the judge assessed damages
recoverable in respect of each of the plaintiffs and awarded aggravated
damages.
[4] McKevitt, Campbell, Murphy and Daly have appealed against the
judge’s decision on a number of grounds to which detailed reference will be
made below. The plaintiffs for their part have cross-appealed on the ground
that the judge was wrong not to order exemplary damages and that the
award of aggravated damages was insufficient. In addition the plaintiffs seek
to affirm the decision of the trial judge by relying on evidence of convictions
outside the United Kingdom of McKevitt, Murphy and Daly which the
plaintiffs argue should be admissible as evidence that they committed the acts
in respect of which the convictions occurred and that the contrary authority
of Hollington v Hewthorn [1943] KB 587 should be treated as no longer good
law. While the plaintiffs also appealed on the ground that the judge was
wrong in law to confine himself to finding that the RIRA could only be sued
under the provisions of Order 15 rule 12 in a representative action and not in
its own right the plaintiffs did not pursue that ground of appeal and sought
to stand over the judge’s representation order against Campbell as
representing the Army Council of the RIRA.
[5] McKevitt was represented by Mr O’Higgins SC and Mr Vaughan.
Mr Brian Fee QC appeared with Mr Devine on behalf of the Campbell.
Dermott Fee QC appeared with Ms McMahon on behalf of Murphy.
Ms Higgins QC and Mr Stockman appeared for Daly. The plaintiffs,
respondents to the appeal, were represented by Lord Brennan QC,
Mr Lockhart QC and Mr McGleenan. The court is indebted to counsel for
their helpful written and oral submissions.
The relevant appellate principles
[6] Lord Brennan reminded the court of its powers and functions relying
among others on the authorities of this court in Northern Ireland Railways v
Tweed [1982] NIJB, Murray v Royal County Down Golf Club [2005] NICA 2
and McClurg v Chief Constable [2009] NICA 37. He reminded the court of
Lord Hoffman’s dictum in Brogan v Medeva Plc [1996] 38 BMLR that
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