Brothers entitled to sue State and gardai, says judge
A BUSINESSMAN who claims that he risked his life meeting gangster Martin Cahill to help gardai recover stolen paintings is entitled to proceed with his action for damages against the the State, the High Court ruled.
Phillip Smyth's Garda Chief Superintendent brother, Paul Smyth, is also entitled to proceed with his action relating to allegations that the gardai failed to properly investigate complaints dating from 1988.
Their complaints were about malicious phone calls to gardai, the UK police and others, falsely alleging that they were involved in serious crime with subversives.
Chief Supt Smyth also claims that this led to his being passed over for promotion to the rank of Assistant Commissioner numerous times.
Mr Justice Michael Peart dismissed a pre-trial application by the Garda Commissioner and the State to halt the case alleging that it is doomed to fail.
Both brothers alleged that their case is exceptional, on grounds including they had a special relationship with the gardai under which they were owed a duty of care – arising from Paul being a chief superintendent, and Philip's assistance with undercover gardai.
These included operations to recover valuable paintings stolen from a judge and from the home of Sir Alfred Beit.
Philip Smyth said he was sometimes put in considerable personal danger and needed to make many trips across the Border into Northern Ireland.
Paintings stolen from a judge's home were recovered in large part due to his bravery, he claimed.
He claimed gardai asked him to demand a personal meeting with Dublin criminal Martin Cahill – who was later shot dead – rather than meet with subordinate members of Cahill's criminal gang. Although gardai assured him no such meeting would happen, Cahill contacted him and they did meet a number of times, he said.
Mr Smyth alleged he was acting at all times under direction of gardai – and eventually travelled to Antwerp to "inspect" stolen paintings recovered shortly afterwards.
Mr Justice Peart said it could not be unequivocally said that the brothers' case was doomed to failure. There may be exceptions to the defendants' claim that the garda force has blanket immunity from being sued over alleged failure to investigate complaints and the court should not undervalue the importance people attached to their reputations, he said.