D.F. v McGarty
| Jurisdiction | Ireland |
| Judge | Gilligan J. |
| Judgment Date | 12 July 2007 |
| Neutral Citation | [2007] IEHC 467 |
| Court | High Court |
| Date | 12 July 2007 |
| Docket Number | [1999 No. 8398 |
[2007] IEHC 467
THE HIGH COURT
BETWEEN
AND
CHILDREN'S ACT 1908 S58
RULES OF THE SUPERIOR COURTS (NO 6)(DISCLOSURE OF REPORTS & STATEMENTS) 1998 SI 391/1998
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6
O DOMHNAILL v MERRICK 1984 IR 151
TOAL v DUIGNAN (NO 1) 1991 ILRM 135
TOAL v DUIGNAN (NO 2) 1991 ILRM 140
O'C (J) v DPP 2000 3 IR 478 2000/13/5164
KELLY v O'LEARY 2001 2 IR 526
MANNING v BENSON & HEDGES LTD & GARLAND v JOHN PLAYER & SONS LTD & MCNEVIN v P J CARROLL & CO LTD 2004 3 IR 556 2005 1 ILRM 190 2004/29/6876
PRACTICE AND PROCEDURE
Dismissal of proceedings
Want of prosecution - Delay - Prejudice - Principles to be applied - Balance of justice - Inherent jurisdiction of court - Availability of witnesses - Whether delay inordinate and inexcusable - Whether real and serious risk of unfair trial - Manning v Benson and Hedges Ltd [2004] 3 IR 556 followed - Constitution of Ireland 1937, Articles 34.1 and 40.3 - European Convention on Human Rights Act 2003 - European Convention on Human Rights, article 6 - Claim dismissed (1999/8398P - Gilligan J - 12/7/2007) [2007] IEHC 467
F(D) v McGarty
JUDGMENT of Gilligan J.delivered on the 12th day of July, 2007.
The plaintiff in these proceedings was born on 27 th day of April, 1944, and on 4 th day of November, 1946, at the age of two years and seven months, by reason of the fact that she was found on 26 th day of November, 1946, receiving alms she was ordered by the Dublin Metropolitan District Court pursuant to s. 58 of the Children's Act 1908 to be sent to a certified industrial school namely St. Joseph's in Clifden, Co. Galway, and there to be detained until she attained the age of sixteen years on 26 th day of April, 1960.
The thrust of the plaintiff's claim against the various defendants can be divided into three parts; firstly the lawfulness of the plaintiff's detention in the certified industrial school; secondly her general ill treatment while detained in the industrial school; thirdly an allegation that she was sexually abused while detained therein.
In the statement of claim as delivered in October, 1999 the plaintiff alleges that she was falsely and maliciously prosecuted for the offence of receiving alms at a time when she was two years and seven months old and incapable of committing a crime. It is alleged that she was convicted of the offence and sentenced to detention for sixteen years. It is alleged that the State failed to uphold and vindicate her legal and constitutional rights.
It is further alleged that while detained at St. Joseph's Orphanage, Clifden the plaintiff was subjected to physical and emotional abuse and deprivation. She alleges that for sixteen years she had to endure a brutal and brutalising regime with regular beatings and frequent acts of humiliation and that her treatment was in wanton disregard of her constitutional rights.
There are allegations of sexual abuse to the effect that the plaintiff was regularly humiliated at night time by having the bed clothes pulled from her and that a named member of the clergy touched the plaintiff in a sexually intimate manner.
Particulars were raised and replied to and I take the view that it is fair to come to a conclusion that the sexual aspect of the allegations were not being pressed to the forefront of the plaintiff's claim when it came to the disclosure of expert medical reports in accordance with the provisions of the Rules of the Superior Courts (No. 6) (Disclosure of Reports and Statements) 1998 (S.I. No. 391 of 1998). It is evident that the sexual abuse aspect was somewhat clouded because in the medical report of 20 th day of February, 2003, the medical doctor specifically refers to the question of having discussed the aspect of sexual abuse with the plaintiff and that it was clear that the plaintiff had no memory of overt sexual assault but there was however a somewhat sexual undertone to some of the plaintiff's alleged experiences including being dragged out of bed at night and such incidences as public bathing.
The various defendants have filed defences with extensive denials and in particular have alleged that the plaintiff's claim is statute barred pursuant to the provisions of the Statute of Limitations, 1957 as amended and further, by reason of the fact that there has been inordinate and inexcusable delay, the plaintiff should not be permitted to maintain these proceedings as against the defendants.
The various defendants bring before the court notices of motion which claim relief which can be summarised in the following terms;
Firstly, an order pursuant to the inherent jurisdiction of this court dismissing the plaintiff's claim for want of prosecution on the grounds of inordinate and inexcusable delay which delay has prejudiced the defendants and that the balance of justice requires that the claim be dismissed.
Secondly, an order pursuant to the inherent jurisdiction of the court dismissing the plaintiff's claim in effect due to lapse of time, in the interests of justice and pursuant to the European Convention for the Protection of Human Rights and Fundamental Freedoms particularly pertaining to the defendants rights to a fair hearing within a reasonable period of time.
The pleadings having closed in this action and the various relevant documentation having being interchanged between the parties pursuant to the relevant provisions of the Rules of the Superior Courts (No. 6) 1998 (S.I. No. 391 of 1998), the case came on for hearing before this court (Herbert J.) on 1 st day of February, 2006. The trial was adjourned pursuant to an application as made by senior counsel on the plaintiff's behalf on the basis that on the morning of the 1 st of February, 2006, a full consultation was held with the plaintiff and her many witnesses and during that consultation and with the help of her witnesses and counsellor the plaintiff particularised certain events relating to sexual abuse.
In making the application for adjournment to the Court counsel on the plaintiff's behalf indicated that further incidences of sexual abuse of a fundamental nature during the course of the plaintiff's enforced custody had come to light, that they were more systematic, more serious, more profound and had significant psycho sexual connotations according to the evidence that will have to be adduced in relation thereto.
Following the adjournment the solicitors for the fifth named defendant sought and received further and better particulars and then served rejoinders to those particulars. The remaining defendants also raised a notice of further and better particulars and to date no reply to these particulars has been delivered.
Senior counsel for the plaintiff when asked by the court on the adjournment application as to when he envisaged that the case would be ready to proceed to a hearing indicated that he was in a difficult position in that regard because matters in effect had not yet fully clarified themselves.
The defendants in maintaining the motion before this court emphasised the inordinate and inexcusable nature of the delay in prosecuting the plaintiff's claim arising out of events which occurred between 1946 and 1964 and set out extensively the nature not only of the presumed prejudice that arises but of actual prejudice and effectively, in this regard, all relevant witnesses are mostly dead and of the very few persons who remain alive, they are now of very advanced years and incapable of giving any meaningful evidence to the court. In effect there is no one left to give evidence on the defendants behalf in this case against a background where the various defendants...
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