Breslin v Mckevitt [2011] NICA 33 (07 July 2011)

Civil action by families of victims of the 1998 Omagh bombing against alleged perpetrators. The Court of Appeal upheld findings of liability in trespass to the person against McKevitt and Campbell, ordered retrials for Murphy and Daly due to evidential errors, and rejected claims for exemplary damages whilst confirming aggravated damages awards.

Facts

On 15 August 1998, a 500lb car bomb exploded in Market Street, Omagh, killing 29 people and two unborn children, and injuring over 300 others. The bombing was claimed by the Real IRA (RIRA). No criminal convictions resulted, prompting victims’ families to bring civil proceedings in trespass to the person against four defendants: Michael McKevitt, Liam Campbell, Colm Murphy, and Seamus Daly.

Evidence Against Defendants

The plaintiffs relied heavily on hearsay evidence from David Rupert, an FBI informant who had infiltrated dissident republican organisations. This included emails documenting meetings with defendants and intelligence that led to a sting operation revealing McKevitt’s involvement in arms procurement. Garda Inspector Sheridan identified McKevitt’s voice on telephone recordings. Telephone records traced mobile phones used on the day of the bombing. Against Murphy and Daly, additional hearsay evidence from Garda interviews and witness statements was adduced.

Issues

The principal issues were: (1) the admissibility and weight of hearsay evidence under the Civil Evidence (Northern Ireland) Order 1997; (2) the appropriate standard of proof; (3) whether foreign convictions were admissible; (4) whether adverse inferences could be drawn from defendants’ failure to testify; and (5) whether exemplary damages were recoverable.

Judgment

Standard of Proof

The Court confirmed that the civil standard of proof (balance of probabilities) applied, despite the serious allegations. The criminal standard was reserved for a residual category involving state action, interference with liberty, and criminal sanctions for breach.

Hearsay Evidence

The Court upheld the trial judge’s approach to the Rupert hearsay evidence. Under the 1997 Order, hearsay evidence is admissible but must be carefully weighed. The judge properly considered Rupert’s credibility issues, including his financial motives and prior dishonesty, whilst recognising corroborating evidence including Garda observations and the Woolwich sting operation.

Foreign Convictions

The Court held that the rule in Hollington v Hewthorn remained binding: foreign convictions were inadmissible as evidence that defendants committed the relevant acts. The judge erred in giving any weight to such convictions.

Individual Defendants

McKevitt’s appeal was dismissed. The evidence, including Rupert’s emails, the Woolwich operation, and McKevitt’s failure to testify, overwhelmingly established his leadership role and involvement.

Campbell’s appeal was dismissed. Evidence of his Army Council membership and telephone evidence linking him to the bombing were sufficient, strengthened by his failure to answer the case.

Murphy’s appeal was allowed and a retrial ordered. The judge failed to analyse the critical Morgan hearsay evidence and erroneously relied on foreign conviction evidence.

Daly’s appeal was allowed and a retrial ordered. The key O’Connor hearsay evidence contained significant inconsistencies which the judge failed to adequately address, and he erroneously considered inadmissible conviction evidence.

Representation Order

The representation order against Campbell to represent the RIRA Army Council was set aside as inappropriate for a tort claim where individual liability must be established.

Exemplary Damages

The Court declined to extend exemplary damages beyond the categories in Rookes v Barnard. The case did not fall within the recognised categories, and extension was a matter for Parliament or the Supreme Court.

Aggravated Damages

The awards of £30,000 aggravated damages per plaintiff were upheld as appropriate compensation for injury to feelings caused by the appalling nature of the atrocity.

Implications

This case demonstrates that civil remedies remain available to terrorism victims even absent criminal convictions. It affirms that hearsay evidence, whilst admissible under the 1997 Order, requires careful scrutiny, particularly where decisive. The judgment maintains the traditional categories for exemplary damages whilst confirming that aggravated damages can reflect the horrific nature of intentional torts. The ruling on foreign convictions preserves Hollington v Hewthorn pending legislative or Supreme Court intervention.

Verdict: Appeals by McKevitt and Campbell dismissed; appeals by Murphy and Daly allowed with retrials ordered; representation order set aside; plaintiffs’ cross-appeal on exemplary and aggravated damages dismissed

Source: Breslin v Mckevitt [2011] NICA 33 (07 July 2011)