Explainer: Why was McGregor case heard in a civil court and what does that mean?

A HIGH COURT jury today decided that Conor McGregor sexually assaulted a woman in a Dublin hotel in 2018, and awarded her over €240,000 in damages.

Nikita Hand (Ní Laimhín) alleged that McGregor “sexually assaulted her, and in effect, raped her” in a hotel penthouse in Dublin on 9 December 2018, and that a second defendant, James Lawrence, of Rafter’s Road, Drimnagh, “did likewise”, Mr Justice Alexander Owens had told the jury on the first day of the civil trial.

The jury found that Lawrence did not sexually assault Hand. 

The allegations in the civil action were fully denied.

Typically, rape cases are prosecuted by the state as a criminal matter in Ireland, while sexual assault cases are usually criminal too. Almost 2,900 rape and sexual assault claims were recorded by gardaí last year, although about a third of these incidents had occured more than a year earlier; victims do not always immediately come forward.

This, however, was a civil case. 

What are the differences between civil and criminal cases? 

A crime is an act which can be punished by the state, and in a criminal case, the state takes the case against the accused.

Civil cases are between two people, or between one person and an organisation. 

Most civil claims are personal injuries claims, according to Citizens’ Information.

Legal experts told The Journal any civil court decision against McGregor does not mean the Director of Public Prosecutions (DPP) is now under pressure to reconsider or reopen its decision not to prosecute a criminal case. 

That’s because there are different burdens of proof in criminal and civil trials.

In a criminal case – following which a person can be imprisoned – the burden of proof is “beyond reasonable doubt”, whereas in a civil case, it’s “on a balance of probabilities”.

The onus of proof in a civil case is on the plaintiff, in this case Nikita Hand.

Because the proceedings were in a civil court, there will be no criminal sanction against McGregor.

Civil cases only come before a jury for particular actions, namely defamation and assault; in this case the claim is assault. 

Why was there no criminal case here?  

The High Court heard that the DPP told Nikita Hand in 2020 that it would not prosecute a criminal case against McGregor or his co-accused James Lawrence. Hand had made a statement to gardaí on 5 January 2019, which was followed by a garda investation.

The office of the DPP told Hand that in their view there was not sufficient evidence to prosecute.

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In a letter to Hand in August 2020, the DPP said there was a very high standard of proof required in criminal cases and if the available evidence was not strong enough, there can be no prosecution.  

In November 2020, the DPP told Hand that a “careful” review of its original decision had reaffirmed the decision not to prosecute as there was “no reasonable prospect of conviction”.

Hand told the court she felt “devastated” and “let down” by the DPP’s decision not to prosecute McGregor.

A civil case can’t be heard while a criminal case is underway or pending. 

Hugh Mohan, a barrister and former chairman of the Bar Council of Ireland, told The Journal this civil case couldn’t have gone ahead until the criminal proceedings were brought to a close – in this case by the decision not to prosecute. 

“There are different factors to weigh up” in the decision to take a criminal as opposed to a civil case “because of the standard of proof”, Mohan added.

Is a civil case of this kind unusual? 

Not really, says Mohan.

The senior counsel said that while it is relatively unusual to have one individual suing another for damages for assault, civil assault cases against the state, in particular alleging assault by gardaí, are more frequently heard before the courts – perhaps a couple each year.

Neither is it out of the ordinary for civil claims for damages to be brought over alleged sexual assault.

Mohan said there have been many examples over the past 20 years of individuals claiming damages for assaults of a sexual nature, for example against members of their family, or against religious institutions in the case of abuse by members of religious orders.

He said it’s likely that such cases will continue to be brought, although given how onerous it is to mount a case against an individual – compiling medical reports, getting a solicitor and barrister and so on – people may choose not take cases “where there’s very little chance of getting an award satisfied” i.e. getting damages paid.

He added that in the past people have taken cases and been awarded damages that are not ultimatedly paid, but the decision of the court is nevertheless important to the individual taking the case.

Do criminal and civil cases proceed differently? 

Criminal and civil cases are similarly adversarial in nature in Ireland and would involve the same process of questioning and cross-examining witnesses, lawyers told The Journal.

In a criminal case, a book of evidence is served on the accused. In a civil case there isn’t an exchange of witness statements, but there is an exchange of pleadings in the case. There can also be requests for further particulars of pleadings and for ‘interrogatories’ – questions to be answered on affidavit.

In a civil case the person who brings the case gives evidence and direct evidence is cross-examined, and in a criminal case it’s the same process for the person making an accusation.

Can a civil case be appealed? 

A High Court civil case may be appealed to the Court of Appeal or, in exceptional circumstances, to the Supreme Court.

The Courts Service states that appeals from decisions of the High Court in civil cases must be brought within 28 days of the court registrar signing the order in question.

In a post on X after today’s verdict, McGregor said that he would appeal the ruling.

“The judge’s instruction and the modest award given was for assault, not for aggravated or exemplary damages. I am disappointed that the jury did not hear all the evidence that the DPP reviewed. I am with my family now, focused on my future,” he said.

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