An application to strike out personal injury claims arising out of the Troubles succeeded in part. The case raises unusual issues, which are analysed by John-Paul Swoboda.
No ordinary personal injury claim
Clark v Adams [2024] EWHC 62 (KB) is an unusual personal injury claim: three joined claims brought for injuries suffered as a result of bombings attributed to the Provisional Irish Republican Army (‘provisional IRA’) at the Old Bailey in March 1973, the London Docklands in February 1996 and the Arndale Centre in Manchester in June 1996. The claims were brought against the provisional IRA and against Gerry Adams, both in a representative capacity (as a representative of the provisional IRA) and in his personal capacity.
It does not take much scratching of the surface to realise these are no ordinary personal injury claims. For a start, the provisional IRA is a designated terrorist organisation, which (almost by definition therefore) is an unincorporated association. Second, these claims were not restitutionary, but brought for vindicatory purposes with damages limited to £1. Third, they would have been prohibited by the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 but for the fact they were commenced before the coming into force of that Act; commenced just in the nick of time. That Act aimed to limit legal proceedings relating to The Troubles, defined in section 1 as affairs relating to Northern Ireland (1966-1998).
What, amongst other things, would be required to prove the claim? The answer: that Gerry Adams was a member and guiding force of the provisional IRA. Des Long who was a member of the provisional IRA army council when interviewed by the BBC in 2019 laughed at the suggestion Gerry Adams was not a member of the army council. Many investigative journalists, such as Patrick Radden Keefe in his book on ‘the troubles’, Say Nothing, set out the case that Gerry Adams was deeply involved in (and a member of) the provisional IRA. Yet Gerry Adams has steadfastly denied being a member of the provisional IRA despite having been asked the question many times in a public forum. If this case were to go to trial, a court of law would have to decide that issue, on the balance of probabilities. It was against this backdrop that Mr Adams sought to strike out the claim brought against him, as a representative of the provisional IRA, and sought a declaration that these claimants did not benefit from QOCS protection which would make the personal claim against him more difficult, if not stymie it.
The strike-out decision
Mr Justice Soole struck out the claim against the provisional IRA since “an unincorporated association is not a legal entity and therefore cannot be joined as a party in its own right”. [13, 93]
He also struck out the claim against Mr Adams as a representative of the provisional IRA on the basis that,
“…the question of whether a person meets the ‘same interest’ condition should not depend on the outcome of the litigation. It has to be satisfied from the outset.” [34]
In otherwords, the representative action was defeated by Mr Adams’ longstanding denial of membership of the provisional IRA, which meant he could not be shown to have the same interests as other members of the provisional IRA. Whilst Soole J acknowledged the difficulties this posed in respect of secretive organisations, he found he was bound by authority and in any event that difficulty did not “provide any reason to depart from the general principle.” [36]
Emphasising the difficulty of suing a member of a secretive organisation, Soole J found a second reason to strike the claim out was because the claimants had “failed to identify a coherent class of defendants with ‘the same interest’”, which is to say the claimants had (unsurprisingly) not identified other members of a designated terrorist organisation. [40]
QOCS: Was this a personal injury claim?
Mr Adams did not seek to strike out the claim brought against him in a personal capacity but instead sought a declaration that the claims against him (including the personal claim against him) did not “include a claim for damages… for personal injuries” such that QOCS did not apply. The statement of case confirmed that claims were for nominal damages (£1) pursued for vindicatory purposes.
Removal of QOCS protection for the claimants would have left them vulnerable to large costs bills should they lose the action. There is nothing in the judgment which directly goes to the financial situation of the three claimants; they were simply people who suffered injury as a result of the bombs in March 1973, February 1996 and June 1996. Whatever their financial situation, the claimants would have had more to lose without QOCS protection which would have made it less easy for them to pursue the claim. Soole J rejected Mr Adams’ arguments that this was not a personal injury claim [74, 77]. It did not matter for QOCS purposes that the claim was for assault/battery (which is actionable without proof of damage) because damages for injury were in fact sought [80]. Further, even though damages were nominal only and sought for vindicatory purposes, QOCS was available. The motivation or purpose for bringing a claim is irrelevant where there is no abuse of process [85]. As to the nominal sum, Soole J observed that a claimant may properly decide to limit the amount of damages claim for personal injury to a sum which does not reflect full compensation. This may be for a number of reasons including limiting the fee payable for issuing the claim [87]. Soole J rejected the submission that the claim was, in effect, for declaratory relief [89]. There had been no compensation from either Defendant, and it was not known whether criminal injuries compensation had been obtained [91]. Even if it had, this constituted a collateral benefit that would be disregarded in calculating what a tortfeasor owed [91].
The upshot: a trial court will decide if Gerry Adams was a member of the provisional IRA
The upshot is that the claim against Gerry Adams in his personal capacity proceeds and, if it were to go to a trial, “the question of whether Mr Adams was at the material times a member of the PIRA and/or of its Army Council and/or one of its ‘leaders’ is a question [to] be determined at full trial.” [34].
Comment
Courts have often had to determine contentious historical questions of current significance, and indeed much litigation has arisen out of the Troubles (as well as the Bloody Sunday Inquiry). Clark v Adams raises an unusual factual question for a court to determine because of the political history. Legally it is, and will no doubt be treated as, a finding of fact like any other.
The claim was brought in a court before the coming into force of section 43 of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, rather than in the Independent Commission for Reconciliation and Information Recovery which was established by the Act.
The Act itself is controversial and led to an inter-State challenge brought by the Republic of Ireland against the United Kingdom in the European Court of Human Rights (ECtHR) on 17 January 2024 (application no. 1859/24).
Whilst a final determination of the ECtHR application has not yet occurred, practitioners will follow it and Clark v Adams with interest.
