Breaden v Cúnamh
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 05 September 2019 |
| Neutral Citation | [2019] IEHC 632 |
| Court | High Court |
| Docket Number | 2015 No. 6753P |
| Date | 05 September 2019 |
[2019] IEHC 632
THE HIGH COURT
Garrett Simons
2015 No. 6753P
Inordinate and inexcusable delay – Statute barred claim – Breach of rights – Defendant seeking to dismiss the proceedings – Whether the claim was statute barred
Facts: The plaintiff, Ms Breaden, gave birth to a daughter in July 1979. She was sixteen years old at that time. She claimed that the circumstances surrounding the subsequent adoption of her daughter entailed a breach of her rights. The gravamen of the claim made against the second defendant, the Adoption Authority of Ireland, was that the Authority failed to ensure that the plaintiff was in a position to give informed consent to the adoption of her daughter. The Authority applied to the High Court to dismiss the proceedings (i) on the basis that the claim was statute barred, and (ii) on the grounds of inordinate and inexcusable delay.
Held by Simons J that, having regard to the principles set out in the judgment of the Court of Appeal in Cassidy v The Provincialate [2015] IECA 74, he was satisfied that were these proceedings to be allowed to go to full hearing there would be a real and serious risk of an unfair trial and/or an unjust result. Simons J noted that by the time these proceedings were instituted on 19 August 2015, a period of some thirty-five years had elapsed since the date of the events said to give rise to the plaintiff’s claim. Simons J held that the ability of the Adoption Authority to defend these proceedings had been seriously prejudiced by this delay; in particular, it would be unable to adduce evidence of the key events in 1980 in circumstances where the principal participants were either deceased or had no specific recollection of the events. Simons J held that the nature of the claim advanced by the plaintiff and, in particular, her seeming intention to contradict the content of the contemporaneous documentation meant that a fair trial of this action would necessitate all relevant witnesses being available. Simons J held that the absence of testimony from relevant witnesses on behalf of the Adoption Authority and the first defendant, Cúnamh, would have the effect that a trial would be one-sided and would not meet the constitutional requirements for a fair trial. Simons J held that there was also a real risk that the trial judge would be unable to reach a just result in circumstances where he or she would not have the benefit of all relevant evidence. Simons J was also satisfied that the proceedings should be dismissed on the separate ground that there had been inordinate and inexcusable delay on the part of the plaintiff and her legal representatives in prosecuting same, i.e. post-commencement delay. Simons J held that the ongoing failure to reply to the notice for particulars served on behalf of the Adoption Authority on 26 November 2015 was inexcusable. Simons J held that the notice for particulars raised issues which were critical to a fair adjudication of the proceedings, and it should have been replied to years ago.
Simons J proposed making an order dismissing the proceedings as against the Adoption Authority.
Proceedings dismissed.
This judgment is delivered in respect of an application to dismiss the within proceedings (i) on the basis that the claim is statute barred, and (ii) on the grounds of inordinate and inexcusable delay. The application is made by the second named defendant, the Adoption Authority of Ireland (“ the Adoption Authority“). The proceedings arise out of events which occurred in 1979 and 1980. The Plaintiff had given birth to a daughter in July 1979. The Plaintiff was sixteen years old at that time. The Plaintiff claims that the circumstances surrounding the subsequent adoption of her daughter entailed a breach of her rights. The gravamen of the claim made against the Adoption Authority is that the Authority failed to ensure that the Plaintiff was in a position to give informed consent to the adoption of her daughter.
It should be emphasised that this judgment is confined to the two delay-related issues identified above, and has nothing to say in relation to the underlying merits of the case. In assessing the effect of the lapse of time, however, it is relevant to note that the claim as pleaded is inconsistent with the contemporaneous documentation. This documentation includes an affidavit sworn by the Plaintiff herself on 5 October 1980 wherein she expressly waived her right to be heard before the making of the adoption order, and confirmed that she consented to the adoption. This inconsistency between the claim as pleaded and the contemporaneous documents has the consequence that a trial judge could only make a fair adjudication on the Plaintiff's claim if there were evidence available to the court from individuals directly involved in the key events of 1979 and 1980. The Adoption Authority submits that a fair trial is not possible at a remove of some thirty-five to forty years, in circumstances where a number of potential witnesses are unavailable or do not have any specific recollection of the relevant events.
The Plaintiff seeks to resist the application to dismiss the proceedings on the basis that she had been suffering from post-traumatic stress disorder. A report has been exhibited from a consultant psychiatrist which expresses the opinion that, up until when the Plaintiff began attending a psychotherapist in more recent years, it would not have been possible for her to bring the events of 1979 and 1980 to mind in a way which would have allowed her to make decisions or to consider legal action. The Plaintiff's counsel goes further and suggests that the Plaintiff had been of “unsound mind”, and thus labouring under a “disability” for the purposes of section 48 of the Statute of Limitations.
The application before the court presents an important issue of principle: to what extent, if any, is it appropriate to attempt to resolve disputed issues of fact on an application to dismiss proceedings.
For the reasons set out herein, I have concluded that the objection that the proceedings are statute barred cannot be determined on an interlocutory application heard on affidavit only. Whereas the evidential basis for the argument that the Plaintiff has been labouring under a “disability” is scant, it would be inappropriate to rule on this issue without the benefit of oral evidence and cross-examination.
I have, however, been able to form a definitive view on the application to dismiss the proceedings on the grounds of inordinate and inexcusable delay. The delay both prior to and post the commencement of the proceedings is inordinate. Even if one assumes for the purposes of argument that the pre-commencement delay might have been excusable on the basis that the Plaintiff was incapable of instituting proceedings any earlier, the post-commencement delay is inexcusable. Given the late start to the proceedings, it behoved the Plaintiff and her legal representatives to pursue the litigation with expedition. The ongoing failure to reply to the notice for particulars served on behalf of the Adoption Authority on 26 November 2015 is inexcusable. The notice for particulars raised issues which are critical to a fair adjudication of the proceedings, and it should have been replied to years ago.
I have also been able to reach a definitive view on the separate question of whether it would be unjust to allow the trial to proceed. Having regard to the principles set out in the judgment of the Court of Appeal in Cassidy v. The Provincialate [2015] IECA 74, I am satisfied that there is a real and serious risk of an unfair trial and/or an unjust result.
Accordingly, I propose to make an order dismissing the proceedings as against the Adoption Authority.
In order to put the arguments of the parties into context, it is necessary first to provide a brief overview of the events said to give rise to the Plaintiff's claim in these proceedings. This exercise is not straightforward in that (i) the Plaintiff has not yet provided a detailed account of her version of events (the Plaintiff has failed to reply to a notice for particulars served on behalf of the Adoption Authority), and (ii) the Adoption Authority asserts that—as a consequence of the significant lapse of time—it is unable to adduce evidence as to the relevant events. Indeed, it is precisely because of this (asserted) inability that the Adoption Authority has brought the application to dismiss the proceedings.
The chronology which follows is confined to events and dates which are not in dispute, such as, for example, the date upon which the Plaintiff's daughter was born and the date upon which the adoption order was made. Reference will also be made to the content of some of the contemporaneous documentation. It appears to be acknowledged on the part of the Plaintiff that she did sign certain documents at the relevant time, but the Plaintiff's case as pleaded is to the effect that she did not understand the content, import or consequences of the documents.
It bears emphasising that, in referring to this contemporaneous documentation, the court is not expressing any view as to the legal effect of this documentation nor as to the underlying merits of the Plaintiff's case. Rather, the sole purpose of referring to the documentation is to seek to identify the nature of the issues which would be in dispute were the case to proceed to full hearing.
The Plaintiff became pregnant in or about October 1978. At that time, the Plaintiff would have been fifteen years old. It is pleaded in the Personal Injuries Summons that the Plaintiff attended at the premises of the Catholic Protection and Rescue Society of Ireland in...
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Harpur v Brogan
...see Bergin v. Smith (Unreported, High Court, Faherty J., 11th January, 2019), O'Brien v. Murphy [2019] IEHC 640 and Breaden v. Cúnamh [2019] IEHC 632. Conclusions 31 By agreement between the parties, the issue raised in the defendants' defence that the plaintiff's action was statute barred,......