O'Brien v Murphy
| Jurisdiction | Ireland |
| Judge | Mr. Justice Binchy |
| Judgment Date | 04 September 2019 |
| Neutral Citation | [2019] IEHC 640 |
| Docket Number | [2001 No. 10146 P.] |
| Court | High Court |
| Date | 04 September 2019 |
[2019] IEHC 640
THE HIGH COURT
Binchy
[2001 No. 10146 P.]
AND
Damages – Assault – Delay – Defendant seeking an order dismissing the plaintiff’s claim for want of prosecution – Whether it would be contrary to natural and constitutional justice to allow the proceedings to continue
Facts: The plaintiff, Mr O’Brien, claimed damages, inter alia, for assault, battery and trespass to the person. He alleged that he was subjected to episodes of sexual assault on diverse dates from in or about 1952/1953 until approximately 1960. He claimed that these assaults were inflicted upon him by an Oblate priest in a Dublin parish. It was established, subsequent to the issue of proceedings, and almost as a matter of certainty, that the said priest died in 1989. In any case, he was not named as a party to the proceedings and instead the first defendant, Father Murphy, was joined to the proceedings in a representative capacity as nominee of the Oblate Fathers in Ireland. In effect, the plaintiff sought to hold the first defendant vicariously liable for the actions of the priest. Before the conclusion of the application, the provincial of the order, Father Barry, was substituted for the first defendant, who died since the proceedings commenced. The first defendant applied to the High Court seeking an order pursuant to O. 122, r. 11 of the Rules of the Superior Courts dismissing the plaintiff’s claim for want of prosecution, or, alternatively, an order pursuant to the inherent jurisdiction of the court to dismiss the proceedings on the grounds of want of prosecution and/or inordinate and inexcusable delay, and/or on grounds that it would be contrary to natural and constitutional justice to allow the proceedings to continue given the extent of the delay on the part of the plaintiff in progressing the proceedings.
Held by Binchy J that the plaintiff did not claim that he was subject to any disability of any kind, including psychological disability, whether by reason of the abuse or otherwise, and that the plaintiff had advanced no reason at all for the delay in the issue of the proceedings. Binchy J held that, since the plaintiff himself said that there were no witnesses to the alleged abuse there could be no doubt but that the first defendant, if forced to go on with these proceedings, would be forced to do so without the benefit of any evidence from the person most critical to the defence of the proceedings, and quite probably without the benefit of any evidence at all. Binchy J noted that, following upon the issue of the proceedings, the plaintiff caused another delay of 10 years to lapse from the time the first defendant filed his defence, and while some of that period may be excused while the plaintiff sought to avail of the therapeutic services offered by the Oblate community, this further delay must, to some degree at least, make it more difficult for the first defendant to defend the proceedings. Binchy J held that the first defendant did not contribute in any way, by his conduct, to the delays in the proceedings; the delays were caused solely by the inaction of the plaintiff.
Binchy J held that it could not have been more clear that the first defendant was entitled to succeed with this application, and that the proceedings must be dismissed.
Application granted.
This is a decision on an application brought by the first named defendant whereby he seeks an order pursuant to O. 122, r. 11 of the Rules of the Superior Courts dismissing the plaintiff's claim for want of prosecution, or, alternatively, an order pursuant to the inherent jurisdiction of the court to dismiss the proceedings on the grounds of want of prosecution and/or inordinate and inexcusable delay, and/or on grounds that it would be contrary to natural and constitutional justice to allow the proceedings to continue given the extent of the delay on the part of the plaintiff in progressing the proceedings.
In the proceedings, the plaintiff claims damages, inter alia, for assault, battery and trespass to the person. He alleges that he was subjected to episodes of sexual assault on divers dates from in or about 1952/1953 until approximately 1960. He claims that these assaults were inflicted upon him by a Father Bernard L., an Oblate priest in a Dublin parish. While there was some confusion about the identity or the correct first name of Father L., it was established, subsequent to the issue of proceedings, and almost as a matter of certainty, that the said Father L. died in 1989. In any case, he was not named as a party to the proceedings and instead the first named defendant was joined to the proceedings in a representative capacity as nominee of the Oblate Fathers in Ireland. In effect, the plaintiff seeks to hold the first named defendant vicariously liable for the actions of Father L. Before the conclusion of this application, the current provincial of the order, Father Gerald Oliver Barry, was substituted for the first named defendant, who has died since the proceedings commenced.
The chronology of events, insofar as is relevant to this application, may be summarised as follows:-
• Dates of alleged assaults: 1952-1960.
• Date of issue of plenary summons: 20 th June, 2001.
• Date of service of plenary summons on first named defendant: 14 th June, 2002.
• Appearance entered on behalf of first named defendant: 18 th June, 2002.
• Plenary summons renewed for six months: 19 th June, 2002.
• Notice of discontinuance of proceedings against second named defendant: 5 th July, 2004.
• Notice of intention to proceed issued against first, third, fourth, fifth and sixth named defendants: 5 th July, 2004.
• Statement of claim delivered: 11 th November, 2004.
• Notice for particulars of third, fourth, fifth and sixth named defendants: 15 th June, 2005.
• Notice for particulars of first named defendant: 10 th August, 2005.
• Notice of discontinuance issued in respect of fourth named defendant: 18 th July, 2006.
• Replies to notice for particulars of first named defendant, 8 th February 2007.
• Defence of first named defendant delivered: 28 th February, 2007
• Notice of discontinuance issued in respect of third, fifth and sixth named defendants: 2 nd April, 2009.
• Notice of intention to proceed issued against first named defendant: 22 nd February, 2017.
• Notice of motion to dismiss proceedings issued: 23 rd May, 2017.
There is no need to describe the nature of the assaults alleged by the plaintiff for the purposes of this application. Suffice to say that it is clear from the allegations made in the statement of claim and the replies to particulars, that the alleged assaults are of the most appalling kind, and, if proven, and if the first named defendant was found to be vicariously liable for the same, then it is very likely that the plaintiff would succeed in obtaining an award of substantial damages.
The defence of the first named defendant denies each and every allegation of the plaintiff, and puts the plaintiff on full proof of the same. In addition, it is pleaded that the plaintiff's claim is statute barred, and that the plaintiff has been guilty of inordinate and inexcusable delay in bringing these proceedings.
The application of the first named defendant is grounded upon an affidavit sworn by a Father Ray Warren, dated 22 nd May, 2017, at which point in time Father Warren was Provincial of the Oblate Fathers. He avers that over the preceding ten years the plaintiff had failed to take any substantive steps to advance his claim, and that the plaintiff could have done so, and further that he was not precluded or hampered from doing so by any fault on the part of the first named defendant. He avers that that ten year delay is further exacerbated by the 40/50 year delay from the date of the alleged events to the institution of the proceedings.
In regard to the identity/first name of the alleged abuser, whom the plaintiff identified as Father Bernard L., Father Warren avers that there was no Father Bernard L. who was a member of the Oblate community in the parish concerned during the years referred to by the plaintiff, but there was another Father L. in the said parish during that period, who passed away in 1989.
The plaintiff responded to the affidavit of Father Warren by an affidavit of 4 th October, 2017. In this affidavit, while the plaintiff acknowledges that there has been delay, he avers that the delay was not inordinate and inexcusable. Moreover, he avers that since Father L. died in 1989, before the institution of these proceedings, the first named defendant has suffered no prejudice by reason of the delay, and although Father Warren claims that the first named defendant is also prejudiced by the absence of any relevant witnesses, the plaintiff avers that no details were given as to the steps taken by the first named defendant to identify any such witnesses. In any case, there were no such witnesses to the alleged abuse. Accordingly, the plaintiff avers, there is no real and serious risk of an unfair trial as claimed by Father Warren.
Additionally, in response to a statement published on behalf of the first named defendant in 2011, the plaintiff avers that he tried to make an appointment to speak with the Oblate Fathers’ protection officer for the purposes of obtaining therapeutic help, but he was informed that this was not possible because the plaintiff was engaged in litigation against the first named defendant. The plaintiff was advised to make the request through his solicitors, which he did, but following correspondence between the plaintiff's solicitors and the solicitors for the first...
To continue reading
Request your trial
-
Harpur v Brogan
...outlined above have been applied, 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 Conclusions 31 By agreement between the parties, the issue raised in the defendants' defence that the plaintiff......