Decision to award Co Down bartender £10,000 in damages 'doctrinally wrong', court told

A decision to award £10,000 damages to a bartender who survived a loyalist gun attack on a village pub was fundamentally flawed, the Court of Appeal was told today.

John McEvoy secured the payout due to police delays in carrying out an effective probe into the shootings at the Thierafurth Inn in Kilcoo, Co Down more than 30 years ago.

But counsel for the PSNI argued that the force was prevented from taking investigative steps until the Supreme Court reversed previous findings that held it lacked the necessary independence in December 2021.

Tony McGleenan KC claimed: “From the perspective of the Chief Constable, the ruling (on damages) is doctrinally wrong.”

One of the pub’s customers, 42-year-old Peter McCormack, was murdered and three others seriously wounded when a UVF gang opened fire during a darts tournament in November 1992.

Mr McEvoy, who was on duty in the bar and suffered post-traumatic stress disorder, challenged the PSNI’s alleged failure to properly examine circumstances surrounding the gun attack. 

In October last year the High Court found police were in breach of a legal duty to carry out a human rights-compliant probe within a reasonable time.

A judge held that new material within a watchdog report and a documentary film which named suspects represented plausible evidence of significant state collusion.

The decision to grant Mr McEvoy’s application for judicial review has not been contested. 

However, the Chief Constable is appealing a subsequent ruling on the appropriate remedy for the identified breach of obligations within the European Convention on Human Rights.

Mr McGleenan contended that an award of £10,000 damages was not necessary to provide just satisfaction to Mr McEvoy, and that the level of payout had been excessive.

“It’s a fundamental flaw in the judgment,” he submitted.

The case is centred on information about suspected collusion between members of the security forces and the UVF operating in the south Down area at that time.

It followed the publication in 2016 of a Police Ombudsman report into the Loughinisland massacre.

In that attack, loyalist gunmen murdered six Catholic men watching a World Cup football match in June 1994.

A film on the Loughinisland killings, No Stone Unturned, named suspects and strengthened the case for a fully independent probe, it was contended.

One of those referred to in the documentary as Person A was allegedly linked to the Thierafurth Inn attack.

Even though the PSNI’s Legacy Investigation Branch (LIB) is to re-examine the circumstances surrounding the Thierafurth Inn shootings, Mr McEvoy’s lawyers claimed there will be an unlawful delay of several years.

The High Court found that the new material has been in the public domain for up to six years without prompting any action by the state.

But according to Mr McGleenan, nothing could be done because the litigation had been put on hold pending the Supreme Court’s determination on the PSNI’s independence to investigate. 

He claimed the award was based on a presumption about the six-year period without properly assessing if there had been the necessary culpable delay.

Citing Section 8 of the Human Rights Act, the barrister said the decision on remedies did not deal with a requirement to be specific about the delay.

“This is a case where for very extensive periods the issue in the litigation was the subject of court findings that the PSNI could not proceed with investigative steps,” Mr McGleenan added.

“In terms of the quantum, there was no explanation why the figure of £10,000 was selected.

“It was wrong to award damages, but if damages were to be awarded it should be much more modest.”

Counsel for Mr McEvoy, Hugh Southey KC, he maintained that the PSNI were not absolved of a responsibility to probe the attack and could have brought in an outside investigator.

“The primary response of the Chief Constable was to say ‘we don’t have the resources,” he told the court.

Describing the breach of the police’s legal duty as unacceptable, he argued that his client should receive damages for the frustration suffered.

Judgment in the appeal was reserved.

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