Doherty, Desmond James as executor of the estate of Bridget McGuigan Gallagher (Deceased) and Ministry of Defence
| Jurisdiction | Northern Ireland |
| Judge | McCloskey LJ |
| Judgment Date | 06 February 2020 |
| Neutral Citation | [2020] NICA 9 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 06 February 2020 |
1
Neutral Citation No: [2020] NICA 9
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McC11180
Delivered: 06/02/2020
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
_______
QUEEN’S BENCH DIVISION
________
BETWEEN:
DESMOND JAMES DOHERTY
AS EXECUTOR OF THE ESTATE OF
BRIDGET MCGUIGAN GALLAGHER (DECEASED)
PLAINTIFFS/RESPONDENTS;
-and-
MINISTRY OF DEFENCE
DEFENDANT/APPELLANT.
Before: McCloskey LJ, Colton J and Sir Richard McLaughlin
________
McCLOSKEY LJ (delivering the judgment of the court)
Introduction
[1] This is an appeal in a fatal case in which there are two parties, namely
Desmond James Doherty, executor of the estate of Bridget McGuigan Gallagher
(deceased), whom we shall describe as “the Plaintiff” and the Ministry of Defence,
whom we shall describe as “the Ministry”.
[2] The appeal is against the judgment of McAlinden J (“the judge”) delivered on
02 April 2019 (neutral citation [2019] NIQB 35) and ensuing order. By his judgment
the judge determined one discrete and contentious aspect of the Plaintiff’s claim
relating to the quantum of damages recoverable. We shall explore in appropriate
detail infra the nature and contours of the disputed issue. The judge made two
principal conclusions. First, damages for this contentious aspect of the Plaintiff’s
claim were recoverable as a matter of law. Second, such damages fell to be assessed
in the amount of £15,000. The Ministry appeals against this award.
2
[3] There were other aspects of the Plaintiff’s claim for damages against the
Ministry. This is reflected in the final order of the court whereby the Plaintiff had
judgment against the Defendant in the global sum of £264,985, together with costs to
be taxed in default of agreement. Having regard to the Ministry’s appeal the order
further recorded that enforcement of the judgment be stayed in respect of the
discrete award of £15,000 and an unspecified “agreed interest figure”. The judge was
not required to adjudicate upon any of the other aspects of the Plaintiff’s claim and
these are not before this court in consequence.
Factual Matrix
[4] It is appropriate to identify at the outset the evidence upon which the
judgment below was based. There was no viva voce evidence. There was, rather, a
trial bundle containing documentary evidence. The only feature of this bundle with
which this court is concerned is the section containing excerpts from the Report of
the Bloody Sunday Inquiry (the “Inquiry Report”) which was presented to both
Houses of Parliament on 15 June 2010. The relevant excerpts are contained in
Volume VII which is partly entitled “Sector 5: Events in the Area South of the
Rossville Flats”. This had the status of agreed documentary evidence. This status is
reflected in the fact that no element of its content was contested or challenged either
at first instance or upon the hearing of this appeal. It is abundantly clear from his
judgment that the judge drew on this evidential source in his consideration and
determination of the issues.
[5] The following synopsis is taken from the Plaintiff’s skeleton argument and
is uncontentious:
- “The Deceased was part of a group who took shelter at a gable
wall near a telephone box at the south end of Block 1 of
Rossville flats when the shooting started in this area;
- there was intense shooting by soldiers so that, for example, Paul
McLaughlin, an Ambulance Corps volunteer had to shelter by
the telephone box just before the Deceased moved out of the
sheltered area and was shot;
- Hugh Gilmour was shot and killed close by;
- Patrick Campbell was shot and wounded close by, as he tried to
run from the southern end of block 1 towards Joseph Place
alleyway;
- Almost immediately after that Daniel McGowan was shot and
wounded, after he had emerged from the gap between Blocks 2
and 3;
- Patrick Doherty was shot in the buttock and fatally wounded as
he crouched or crawled from the front of Block 2 towards Joseph
Place;
- when Patrick Walsh crawled out to assist the dying Patrick
Doherty, he had to return due to the shooting;
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Michael Monaghan and Chief Constable of the Police Service of Northern Ireland
...of McAlinden J in Quinn v Ministry of Defence [2018] NIQB 82; the Northern Ireland Court of Appeal in Doherty v Ministry of Defence [2020] NICA 9; Cheema-Grubb J in Rees v Commissioner of the Police of the Metropolis [2019] EWHC 2339 as approved by the Court of Appeal [2021] EWCA Civ 49. [1......
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Patricia McClarnon v The Sisters of Nazareth and Lindsay O'Neill as Personal Representative of the Estate of John McGuinness, (Decased) v The Sisters of Nazareth
...I bear in mind that aggravated damages are not available for negligence but are available for assault and battery. In Doherty v MOD [2020] NICA 9 the Court of Appeal considered the question of aggravated damages, albeit in different factual circumstances. At paragraph [15] McCloskey LJ said......