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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Sullivan -v- Boylan & Ors [2013] IEHC 104 (12 March 2013) URL: http://www.bailii.org/ie/cases/IEHC/2013/H104.html Cite as: [2013] IEHC 104 |
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Judgment Title: Sullivan -v- Boylan & Ors Neutral Citation: [2013] IEHC 104 High Court Record Number: 2012 8738 P Date of Delivery: 12/03/2013 Court: High Court Composition of Court: Judgment by: Hogan J. Status of Judgment: Approved |
Neutral Citation Number: [2013] IEHC 104 THE HIGH COURT [2012 No. 8738 P] BETWEEN/ DEIRDRE SULLIVAN PLAINTIFF AND
GERARD BOYLAN, GERARD BOYLAN BUILDING CONTRACTORS LTD. AND PATRICK MCCARTAN (No.2) DEFENDANTS JUDGMENT of Mr. Justice Hogan delivered on 12th March, 2013 1. Few things are more important in life than the security of one’s own dwelling and the right to come and go from that abode without interference. It is a right which perhaps most of us take for granted. It is only when that security has been threatened by intruders - such as in the aftermath of a burglary – that we realise that how important that sense of safety, security and a general sense of repose from the cares of the world actually is. It is precisely for those reasons that Article 40.5 of the Constitution safeguards the inviolability of the dwelling: see generally The People (Director of Public Prosecutions) v. Barnes [2006] IECCA 165, [2007] 3 IR 130, per Hardiman J. 2. In this judgment I am now called upon to make an award of damages following a finding by me that the third defendant had gravely infringed the constitutional rights of this plaintiff in my first judgment in this matter: Sullivan v. Boylan [2012] IEHC 389. While the details of the ordeal to which the plaintiff was subjected by the third defendant are recorded in that judgment, it may be helpful if the background facts are briefly recapitulated. 3. The plaintiff, Ms. Sullivan, lives alone in Clontarf, Dublin 3. She engaged the first and second defendants (whom I shall collectively describe as “Boylan contractors”) in December, 2011 to build an extension to her property and to carry out certain refurbishments works. The works commenced in February, 2012 and ceased in May, 2012. By April, Ms. Sullivan had paid €84,000 of the initial contract sum of €91,250. There was subsequently a dispute as to whether certain contracted works had been carried out or whether instead certain additional work had to be performed over and above that which had originally been contracted for. In sum, therefore, the issue is whether Ms. Sullivan owes the Boylan contractors €7,000.00 (approximately) or €20,000.00 (approximately) or perhaps nothing at all. 4. It is clear nevertheless that there is a legitimate argument regarding the existence of any such debt or, if there is a debt, the amount of same. The Boylan contractors decided, however, to put the matter into the hands of a debt collector, Patrick McCartan. It is the latter’s conduct which gave rise to these proceedings and which required to be restrained by injunction. The Conduct of Mr. McCartan 6. Ms. Sullivan did not have to wait long for Mr. McCartan. He turned up unannounced on the 3rd August, and appears to have allowed himself through the front door. Ms. Sullivan, whilst surprised, was not taken aback by this because Mr. McCartan did not then behave aggressively. He identified himself as the person who had rung earlier, and she invited him further into the house to show the difficulties which had arisen on the construction works. Mr. McCartan did not say that he was a debt collector but rather indicated that - or, at least appeared to indicate that - there might be some room for a constructive engagement between Ms. Sullivan and Mr. Boylan. Ms. Sullivan was quite happy with that meeting. 7. Matters changed for the worst on the 8th August, 2012, when Ms. Sullivan received an email from Mr. McCartan claiming she owed the sum of €23,783 to the Boylan contractors. The email was in the following terms:-
8. On receipt of this email Ms. Sullivan contacted her solicitor who, in turn, sent a letter to Mr. Boylan asking him to desist. On the 10th August, Mr. McCartan contacted Ms. Sullivan by telephone. She explained that she had instructed her solicitor to handle matters with Mr. Boylan. Shortly after that she received a text message from Mr. McCartan in the following terms:-
9. Not surprisingly, Ms. Sullivan was extremely distressed by this persistent calling and she sent him a text message asking him to desist from this. Giving evidence before me at the damages hearing on 1st March, 2013, Ms. Sullivan explained that she found this series of threatening phone calls very distressing and frightening and she felt that she was being watched. 10. She then received a further text message from Mr. McCartan in the following terms:-
11. Unfortunately, however, Mr. McCartan did not desist. He sent her an email on the 15th August in the following terms:-
Unfortunately for you and your lies this matter is now being in possession and legal charge being obtained immediately please do not insult me with a letter of a so called solicitor with no letter heading or qualifications why has he to hide all you have a minimum of three days to pay or your broader investments and business will be of interest to the Revenue, do not underestimate my knowledge of your hidden undeclared properties and business.”
Your non-cooperation adds to our increased demand for payment due to Mr. Boylan. If you decline to acknowledge as from tomorrow as previously indicated we will cause you severe embarrassment, your neighbours have also indicated they will not tolerate increased traffic or nuisance operations causing inconvenience to their access. We are within our rights and failure by you to settle your debt will only add to your discomfort in the area. You owe the money so pay up and save yourself all this embarrassment. We look forward to your early settlement. Greenbank Collections Licensed Debt Collectors.”
13. As indicated, Ms. Sullivan was extremely distressed as a result of this and drove to Clontarf Garda Station. Ms. Sullivan found the Gardaí very sympathetic and they had not previously been aware of Mr. McCartan’s presence outside her house. They accompanied her back to her house where after discussions with Mr. McCartan the Gardaí indicated that he would leave shortly. The Gardaí acknowledged, however, that they were powerless to stop him coming back. The Gardaí were also plainly of the view that they could take no steps as such to stop Mr. McCartan parking his vehicle with the debt collection signage directly outside Ms. Sullivan’s house. 14. Shortly after he had parked his van outside her house, Mr. McCartan then sent Ms. Sullivan another text in the following terms:-
Ms. Sullivan was naturally extremely frightened and shocked to receive this text message. She spoke with Garda Hanrahan of Clontarf Garda Station who had been present earlier that day. While Garda Hanrahan advised her to retain all emails and text messages, Ms. Sullivan formed the view that the Gardaí considered the Mr. McCartan was within his rights in parking the vehicle outside her front door. 15. Matters came to a head on Monday 27th August, 2012, when Mr. McGuill sought undertakings on behalf of Ms. Sullivan from both Mr. Boylan and Mr. McCartan prior to making an application to this Court. The prospect of litigation did not, however, daunt Mr. McCartan in the least. The telephone calls kept coming and on that morning he had sent an email saying that she had “one hour” to contact him with payment as otherwise “the van goes back, and seizure of goods will take place [and] a vigil will be maintained outside your home to let everyone know how deceptive your are.” Further emails along similar lines were sent later that day and, as it happens, on the 28th and 29th August. 16. It was against this background that the application for an interlocutory injunction was first made to me on the following day, Tuesday, 28th August. While I granted certain relief ex parte, the matter was adjourned on a number of occasions to enable the defendants to put their side of the case. Although the Boylan contractors have subsequently given appropriate undertakings to the Court and have terminated Mr. McCartan’s retainer, Mr. McCartan has never appeared and has not been represented at any of these hearings. 17. I accordingly granted the plaintiff an interlocutory injunction restraining Mr. McCartan from effectively watching and besetting her home. I subsequently granted a permanent injunction restraining Mr. McCartan from engaging in such conduct. 18. It is clear that Ms. Sullivan found the entire episode frightening and deeply traumatic. She felt that there was no one to whom she could turn, as her parents were elderly and she did not want to cause them needless anxiety. She lost weight and she was prescribed a mild sleeping tablet by reason of the extreme stress to which she had been subjected. 19. As I observed in the course of the original judgment:-
20. In the course of the first judgment I concluded that Mr. McCartan’s conduct amounted to a prima facie breach of ss. 10 and 11 of the Non-Fatal Offences against the Person Act 1997 (“the Act of 1997”) . These sections provide:-
(2) For the purposes of this section a person harasses another where—
(b) his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other's peace and privacy or cause alarm, distress or harm to the other. (4) A person who fails to comply with the terms of an order under subsection (3) shall be guilty of an offence. (5) If on the evidence the court is not satisfied that the person should be convicted of an offence under subsection (1), the court may nevertheless make an order under subsection (3) upon an application to it in that behalf if, having regard to the evidence, the court is satisfied that it is in the interests of justice so to do. (6) A person guilty of an offence under this section shall be liable—
( b ) on conviction on indictment to a fine or to imprisonment for a term not exceeding 7 years or to both.
(b) the person falsely represents that criminal proceedings lie for non-payment of the debt, or (c) the person falsely represents that he or she is authorised in some official capacity to enforce payment, or (d) the person utters a document falsely represented to have an official character.” 22. I went on to hold that the third defendant’s conduct had involved a breach of her constitutional rights to the protection of the person (Article 40.3.2) and the inviolability of the dwelling (Article 40.5):-
...In the present case it requires little imagination to visualise the acute mental distress which Ms. Sullivan suffered as a result of this this outrageous conduct. The citizen’s right to the security of his or her person necessarily implies that the subjection by unlawful means of any person to what would objectively be regarded as acute mental distress must be regarded as amounting in itself to a breach of Article 40.3.2. Nor could she find that repose from the cares of world presupposed by Article 40.5 – again to adopt the words of Hardiman J. in O’Brien – in the comfort of her own dwelling. The Irish language text of Article 40.5 (“Is slán do gach saoránach a ionad cónaithe….”) captures and expresses the essence of the English language word (“inviolability”) by stressing the concepts of safety and security of the dwelling. Here again all of this was compromised by the actions of Mr. McCartan. One might ask: who in such circumstances would feel safe in their house if, prior to entering or exiting their own private dwelling, they were effectively forced to run the gauntlet of passing what amounts to a picket bearing unpleasant messages by a menacing stranger, especially where these messages were designed to intimidate and humiliate?” The remedies for this unlawful conduct 25. It is true that in Hanrahan Henchy J. envisaged that this would be done only where the existing tort law was “basically ineffective” to protect constitutional rights. But it is far from clear that the existing law of torts sufficiently or adequately protects the constitutional interests of the plaintiff in the present case. It is true that, as might be expected, there are features of tort law which to some degree cover some of the interests which the plaintiff here seeks to vindicate. The principal nominate torts which might serve for this purpose are, of course, an action in private nuisance and the rule in Wilkinson v. Downton [1897] 2 QB 57. We may consider each of these torts in turn. The law of nuisance
28. This is borne out by developments in the United Kingdom within the last twenty years or so, starting with the decision of the English Court of Appeal in Khorasandjian v. Bush [1993] QB 727. In this case an 18 year old young woman had formed a romantic relationship with an older man. When that relationship ended, the older man pestered and harassed her in a most intolerable fashion. In the Court of Appeal one of the issues was whether the courts had jurisdiction to grant an injunction restraining the defendant from endeavouring to contact her by telephoning her at her parent’s home where she resided. A majority of the Court held that it had such a jurisdiction, but it is clear that the reasoning in that case – whatever about the actual result – did not survive the subsequent decision of the House of Lords in Hunter v. Canary Wharf Ltd. [1997] UKHL 14, [1997] AC 655. 29. In Hunter Lord Goff summarised thus the issues in Khorasandjian ([1997] AC 655, 690-691):-
But I must go further. If a plaintiff, such as the daughter of the householder in Khorasandjian v. Bush, is harassed by abusive telephone calls, the gravamen of the complaint lies in the harassment which is just as much an abuse, or indeed an invasion of her privacy, whether she is pestered in this way in her mother's or her husband's house, or she is staying with a friend, or is at her place of work, or even in her car with a mobile phone. In truth, what the Court of Appeal appears to have been doing was to exploit the law of private nuisance in order to create by the back door a tort of harassment which was only partially effective in that it was artificially limited to harassment which takes place in her home. I myself do not consider that this is a satisfactory manner in which to develop the law... In any event, a tort of harassment has now received statutory recognition: see the Protection from Harassment Act 1997. We are therefore no longer troubled with the question whether the common law should be developed to provide such a remedy. It follows that, on the authorities as they stand, an action in private nuisance will only lie at the suit of a person who has a right to the land affected. Ordinarily, such a person can only sue if he has the right to exclusive possession of the land, such as a freeholder or tenant in possession, or even a licensee with exclusive possession. Exceptionally…. this category may include a person in actual possession who has no right to be there; and in any event a reversioner can sue in so far his reversionary interest is affected. But a mere licensee on the land has no right to sue.” 31. Much the same can also be said with regard to Wilkinson v. Downton. In that case the defendant falsely told the plaintiff as a practical joke that her husband had been injured in an accident involving a horse-drawn vehicle and that he was lying prostrate on the ground with his legs broken and that he had summoned her to fetch him. While the plaintiff’s husband returned safely by train from the races at Harlow that evening, the effects on the plaintiff were nonetheless dramatic. She became violently ill, her hair turned white and she seems to have suffered a severe psychiatric illness as a result. 32. The plaintiff sued for damages in an action on the case. Wright J. held the defendant liable on the ground that ([1897] 2 QB 57,58-59):-
34. An essential element of the tort in Wilkinson v. Downton is that the words were spoken falsely and were calculated to cause physical harm. One might, of course, say that in one sense Mr. McCartan spoke falsely in asserting that monies were due. Critically, however, he believed this to be true and, in any event, it may well be that when their dispute is finally resolved Ms. Sullivan may possibly find herself having to pay a particular sum to the Boylan contractors. But even if he had spoken the truth, it would not in the least have excused his behaviour or avoided an infringement of Article 40.3.2 and Article 40.5. 35. One might equally contend that the actions of the Mr. McCartan were calculated to physical harm to Ms. Sullivan and that they did in fact do so. It would nevertheless be artificial to extend the rule in Wilkinson v. Downton in this fashion. In the latter case the injuria was the acute physical harm which the plaintiff had suffered. It is true that in the present case Ms. Sullivan lost weight and in the end was prescribed a mild sedative to assist her to have sleeping pattern restored. 36. But there the comparisons end, as unlike Wilkinson v. Downton, the claim here is not really for physical injury at all. It is rather for the acute distress caused by the outrageous invasion of her personal space which is the very essence of the inviolability guarantee in Article 40.5. This guarantee is complemented by the protection of the person in Article 40.3.2, the effect of which, if I may venture to repeat what I said in Kinsella v. Governor of Mountjoy Prison [2011] IEHC 235, is that:-
In some civil law jurisdictions traditional tort law on this subject has, moreover, been supplemented and augmented by the judicial invocation of relevant constitutional guarantees. This has been particularly true in Germany where the Basic Law’s guarantees in terms of human dignity and the protection of the person are in terms very similar to our own constitutional guarantees: see, e.g., Zweigert and Kötz, An Introduction to Comparative Law (Oxford, 1992) at 729-730. 38. All of this is merely to say that the common law might well yet develop unaided to match its civilian counterparts so that in time that the law of nuisance and the rule in Wilkinson v. Downton would be regarded as just distinct sub-rules of a more general tort which protected human dignity and the person. As it happens, save in part for the fact that a statutory tort of harassment was created in the United Kingdom by the Protection from Harassment Act 1997, there might well have been English developments along these lines in the intervening period. 39. Indeed, in his concurring judgment in Hunter, Lord Hoffman may be thought to have contemplated that such might well occur ([1997] AC 655, 707):
43. But just because the common law might have so developed or might yet so develop at some stage in the future does not take from the fact that the existing law of torts is still basically ineffective to protect the plaintiff in a case of this kind. It is true that – just as with the UK – our law of harassment has been placed on a statutory footing (s. 10 of the 1997 Act), but in this jurisdiction – unlike the UK Act - this is confined to the criminalisation of such conduct and does not address the question of remedies in tort. The fact that there is no statutory right to recover damages for this wrong simply underscores the basic ineffectiveness of traditional tort law fully to vindicate the constitutional rights to the protection of the person and the inviolability of the dwelling. 44. In the light of these conclusions it is not necessary for me to effect a re-shaping of existing common law rules. It follows, therefore, that for all of the above reasons the plaintiff can nevertheless sue and recover damages in respect of the violation of her constitutional rights as guaranteed by Article 40.3.2 and Article 40.5 given the basic ineffectiveness (in the Hanrahan sense) of the existing common law rules to protect the important interests relating to the protection of the person and the security of the dwelling which are safeguarded by these constitutional provisions. Even if the common law has not (yet) developed a general principle of tortious liability by reference to which the person is to be protected, that it is irrelevant given that Article 40.3.2 of the Constitution articulates such a general principle in clear and express terms. I am accordingly obliged as a result to fashion remedies which will uphold that constitutional right. The appropriate level of damages 46. In the present case the interference with the plaintiff’s freedom was nothing as far-reaching as in Raducan. Nevertheless, whereas the deprivation of liberty in that case was the result of a bona fide mistake contrast, the defendant’s conduct here has been outrageous, contumelious and malicious. The offending conduct, moreover, lasted for a three week period as compared with the three days in Raducan. 47. In Herrity v. Associated Newspapers Ltd. [2008] IEHC 249, [2009] 1 I.R. 326 the defendant newspaper published detailed transcripts of the plaintiff’s private telephone conversations which had apparently been obtained by her estranged husband. The transcripts showed that the plaintiff had a romantic relationship with a Roman Catholic priest and the details of these transcripts were then published by the defendant newspaper to the plaintiff’s immense distress. 48. Dunne J. held that the defendant had thereby violated the plaintiff’s constitutional right to privacy. Addressing herself to the question of damages Dunne J. concluded ([2009] 1 I.R. 326, 347):
Accordingly, there will be a decree in favour of the plaintiff in the sum of €90,000.” 50. In the circumstances, I consider that the present case is somewhat closer to Raducan in terms of the effects on the plaintiff’s life and welfare, even if the breaches of constitutional rights in the present case were more sustained and had a longer duration. In these circumstances I will award the plaintiff the sum of €15,000 by way of general damages. Whether exemplary damages should be awarded Conclusions |
