Joseph Holbeach and Chief Constable of the Police Service of Northern Ireland
| Jurisdiction | Northern Ireland |
| Judge | Master Bell |
| Judgment Date | 13 April 2023 |
| Neutral Citation | [2023] NIMaster 4 |
| Court | King's Bench Division (Northern Ireland) |
1
Neutral Citation No: [2023] NIMaster 4
Judgment: approved by the court for handing down
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE OF NORTHERN IRELAND
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KING’S BENCH DIVISION
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BETWEEN:
Joseph Holbeach
Plaintiff
and
Chief Constable of the Police Service of Northern Ireland
Defendant
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Master Bell
Introduction
[1] On 8 November 1987 a bomb exploded in Enniskillen. Eleven people were
killed in the blast and over sixty were injured. Many people particularly remember
the incident because of what was said during a television interview after the
explosion by Gordon Wilson, who lost his daughter in the blast and who was
himself injured. He said that he bore no grudges and called for forgiveness and
reconciliation in our community.
[2] The plaintiff recognises in his skeleton argument that the bomb which caused
his injuries was planted by the Provisional IRA and the explosion was not caused by
the police. However, he considers that, nonetheless, he has a valid claim in
negligence against the police. The essence of his argument is that police owed him a
duty of care because they had assumed responsibility for his safety as an attendee at
the Remembrance Day parade. However, they had acted negligently in the way in
which they carried out the operation to protect those attending the parade by failing
to search the Reading Rooms in Enniskillen where the bomb was apparently
planted.
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[3] The application before the court is the defendant’s application by summons to
strike out the plaintiff’s Statement of Claim “on the grounds that it discloses no
reasonable cause of action and is scandalous, frivolous and/or vexatious or is
otherwise an abuse of the court.” (The final expression is a typographical error
which should have referred, as stated in the Rule, to “an abuse of the process of the
court”). The defendant’s application is therefore an application under Order 18 Rule
19(1)(a), (b) and (d).
[4] The plaintiff was represented by Mr Scott and the defendant was represented
by Mr Reid. I am grateful to them both for their helpful written and oral
submissions.
[5] In the light of the fact that the Court of Appeal for Northern Ireland had in
recent times delivered its judgment in Magill v Chief Constable [2022] NICA 49 on the
subject of when a duty of care might be owed by police to those harmed by the acts
of third parties, I offered the plaintiff the opportunity to make an application to
amend his Statement of Claim. In the light of the decision in Magill, it was inevitable
that plaintiffs in cases such as these would have considered the terms in which their
pleadings had been drafted and whether they required amendment so as to amount
to more that an omissions case. Mr Scott was nevertheless content to proceed with
the defendant’s application on the basis of the Statement of Claim which had been
served. He indicated that the plaintiff’s case had been pleaded at its height. He
recognised that this was an omissions case and that the only way in which the
plaintiff could succeed was to fall within the exception of assumption of
responsibility.
Strike Out Applications
[6] In the decision of the court in Magill v Chief Constable, McCloskey LJ
summarised the principles to be applied in strike out applications:
“[7] In summary, the court (a) must take the plaintiff’s
case at its zenith and (b) assume that all of the factual
allegations pleaded are correct and will be established at
trial. As a corollary of these principles, applications under
Order 18 rule 19 of the 1980 Rules are determined
exclusively on the basis of the plaintiff’s statement of
claim. It is not appropriate to receive any evidence in this
exercise. Based on decisions such as that of this court in
O’Dwyer v Chief Constable of the RUC [1997] NI 403 the
following principles apply:
(i) The summary procedure for striking out pleadings
is to be invoked in plain and obvious cases only.
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1 cases
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Richard Kerr and The Department of Health, Social Services, and Public Safety and The Northern Ireland Office and The Chief Constable of the Police Service of Northern Ireland and The Secretary of State for the Home Department and Gary Hoy and The Department of Health, Social Services, and Public Safety and The Chief Constable of the Police Service of Northern Ireland and The Secretary of State for the Home Department
...create or increase a risk of harm.” [20] I recently dealt with the issue of assumption of responsibility in Holbeach v Chief Constable [2023] NIMaster 4. My judgment in that case outlines the law on this issue. Of particular note is the decision in Michael and Others v Chief Constable of So......