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 ________ 1 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.” 2 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 3 “expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said la vérité est dans une nuance) of which time and language do not permit exact expression but which may play an important part in the judge’s overall evaluation.” [7] In Smith New Courts Securities Limited v Citibank NA [1997] AC 259 at 274H Lord Steyn pointed out that: “Where there has been no misdirection on an issue of fact the presumption is that the conclusion on issues of fact is correct. The Court of Appeal will only reverse the trial judge on an issue of fact when it is convinced his view is wrong.” In the same vein Goddard LCJ in Lofthouse v Leicester Corporation (1948) 64 TLR 604 stated that: “The court ought not to interfere when the question is a pure question of fact and where the only matter for decision is whether the judge has come to a right conclusion on the facts unless it can be shown clearly that he did not take all the circumstances and evidence into account or that he has misapplied certain of the evidence or has drawn an inference which there is no evidence to support.” [8] In relation to the appellate court’s approach to the judge’s judgment and reasoning process it must be borne in mind, as Kerr LCJ pointed out in Stewart v Wright [2006] NICA that “It is not incumbent on a judge to rehearse every single issue that has been raised much less to record a finding in respect of each of them. Provided he deals with the substantial issues in the case and reaches, supportable factual conclusions on them and does not neglect to take account of matters that might affect those conclusions his findings on disputed facts cannot be disturbed.” [9] Thus a judge’s judgment must be read in bonam partem. An appellant starts off with the burden of demonstrating that the judge’s conclusions are legally unsustainable either on the basis that he misunderstood the law, 4 misdirected himself on relevant issues or reached conclusions which were evidentially unsustainable. [10] The court must also bear in mind the powers that are set out in section 38(1)(e) of the Judicature (NI) Act 1978 which include the power to “draw any inference of fact which might have been drawn or give any judgment or make any order which might have been given or made by the original court and make such further or other order as the case may require”. The events on the day of the bomb [11] In paragraphs [22] to [35] of his judgment the judge set out details of the sequence of events which occurred on 15 August 1998 in Omagh. The facts relating to that event can be summarised as follows: (a) The car used for the planting of the bomb was a maroon Vauxhall Cavalier which had been stolen some time prior to 3.30 am on 13 August 1998 in Carrickmacross.