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
| Jurisdiction | Northern Ireland |
| Judge | Master Bell |
| Judgment Date | 16 August 2023 |
| Neutral Citation | [2023] NIMaster 5 |
| Date | 16 August 2023 |
| Court | King's Bench Division (Northern Ireland) |
1
Neutral Citation : [2023] NIMaster 5
Ref: [2023] NIMaster 5
Judgment: approved by the Court for handing
down
Delivered: 16/8/23
(subject to editorial corrections)
IN THE HIGH COURT OF JUSTICE OF NORTHERN IRELAND
------
KING’S BENCH DIVISION
------
BETWEEN:
Richard Kerr
Plaintiff;
and
The Department of Health, Social Services, and Public Safety
First Defendant
and
The Northern Ireland Office
Second Defendant
and
The Chief Constable of the Police Service of Northern Ireland
Third Defendant
and
The Secretary of State for the Home Department
Fourth Defendant.
------
AND BETWEEN
Gary Hoy
Plaintiff;
2
and
The Department of Health, Social Services, and Public Safety
First Defendant
and
The Chief Constable of the Police Service of Northern Ireland
Second Defendant
and
The Secretary of State for the Home Department
Third Defendant
------
Master Bell
Introduction
[1] This written judgment concerns four applications in two separate actions, one
commenced by Richard Kerr and the other by Gary Hoy. Both actions concern the
treatment which they allege occurred in Kincora Boys’ Home (and in Mr Kerr’s case
also in Williamson House and Millisle Borstal). Because of the considerable overlap
in respect of two of the applications, I shall address all the applications in one
judgment.
[2] In the public memory, for those who recognise it, the name Kincora Boys’
Home (hereafter “Kincora”) will forever evoke feelings of societal shame because it
was there that a number of young boys, who ought to have been cared for and
supported, were abused and violated in the 1960s and 1970s. The plaintiffs were
amongst those young boys who later made such allegations and they have now
brought civil proceedings against various agencies of the state which they claim are
liable.
[3] The defendants whom Mr Kerr is claiming against are the Department of
Health, Social Services and Public Safety (hereafter referred to as “the Department of
Health”), the Northern Ireland Office, the Chief Constable of the PSNI, and the
Secretary of State for the Home Department (hereafter referred to as “the Home
Secretary”). The defendants whom Mr Hoy is claiming against are the Department
of Health, the Chief Constable of the PSNI and the Home Secretary.
[4] The Department of Health is sued on the basis that it was the authority
responsible for Kincora and Williamson House. The Northern Ireland Office is sued
on the basis that it was responsible for the Millisle Borstal. The Chief Constable is
sued in connection with criminal investigations into what occurred at Kincora and at
Williamson House. The Home Secretary is sued on the basis of her responsibility for
the Security Service (often referred to as “MI5”) in connection with the activities of
3
William McGrath who is alleged to have been an agent of both the Chief Constable
and the Security Service.
[5] I am grateful to Mr Aidan Magowan who appeared on behalf of Mr Kerr and
Mr Hoy, to Mr Andrew McGuiness who appeared on behalf of the Department of
Health, and to Miss Fiona Fee who appeared on behalf of the Chief Constable, the
Northern Ireland Office, and the Home Secretary, for their written and oral
submissions.
The Department of Health’s Application
[6] The First Defendant in Mr Kerr’s action is the Department of Health and it
will come as no surprise to any member of the public that the plaintiffs have sued
the Department which the plaintiffs allege was responsible for running Kincora. It is
obvious that something went seriously wrong in Kincora and the Historical
Institutional Abuse Inquiry concluded that there were systemic failings in the way
Kincora operated.
[7] The Department of Health issued a summons on 24 February 2022 in respect
of Mr Kerr’s action, seeking to have his action struck out. A detailed defence filed by
the Department of Health argued that it was not the entity responsible for the
running of Kincora and that that responsibility fell to the Welfare Authority (the
predecessor of the Health and Social Services Boards) and later to the relevant
Health and Social Services Board.
[8] Subsequent to the filing of that defence, however, the Northern Ireland
Assembly passed the Health and Social Care Act (Northern Ireland) 2022. Section 5
of the Act required the Department of Health to make one or more schemes for the
transfer of all the assets and liabilities of the Board. In the light of this legislation, the
Department of Health did not consider that their strike out application could now be
sustained. I therefore dismiss that element of their summons and Mr Kerr’s action
against the Department of Health in respect of what he alleges happened to him at
Kincora and Williamson House will continue.
[9] The Department’s summons also sought a second form of relief, namely the
provision of proper replies to their Notice for Further and Better Particulars dated 20
November 2020. In relation to this second aspect of the Department’s summons, the
parties agreed at the hearing that the application for replies should be adjourned
until Mr Kerr’s application to amend his Statement of Claim had been determined. I
therefore adjourn that element of the summons to a date to be fixed by the parties
with the Masters’ Office.
Mr Kerr’s application to amend his Statement of Claim
[10] Mr Kerr’s application seeks an order under Order 20 Rule 5 granting him
leave to amend his Writ and Statement of Claim. It is grounded on an affidavit from
To continue reading
Request your trial