O'D (J) v Min for Education and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Dunne |
| Judgment Date | 13 May 2009 |
| Neutral Citation | [2009] IEHC 227 |
| Court | High Court |
| Date | 13 May 2009 |
[2009] IEHC 227
THE HIGH COURT
BETWEEN
AND
O'KEEFFE v HICKEY UNREP SUPREME 19.12.2008 2008 IESC 72
STATUTE OF LIMITATIONS 1957 S48(A)(1)
STATUTE OF LIMITATIONS (AMDT) ACT 2000 S2
T (R) v P (V) 1990 1 IR 545
F (J) v DPP 2005 2 IR 174
RSC O.40 r4
RSC O.122 r11
PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459
STEPHENS v FLYNN LTD UNREP CLARKE 2005/56/11682 28.4.2005 2005 IEHC 148
COMCAST v MIN FOR ENTERPRISE UNREP GILLIGAN 13.06.2007 2007/10/1913 2007 IEHC 297
BIRKETT v JAMES 1978 AC 297 1977 2 AER 801
O'DOMHNAILL v MERRICK 1984 IR 151
TOAL v DUIGNAN (NO 2) 1991 ILRM 135
PRACTICE AND PROCEDURE
Dismissal of proceedings
Delay - Statute barred - Whether fair trial impossible due to delay -Personal injuries -Pupil at industrial school - Physical and sexual assaults -Whether action against State bound to fail -Assaults between 1968 and 1970 -Whether plaintiff under disability due to sexual abuse -Whether medical report admissible where no affidavit sworn -Opportunity to have plaintiff examined -Interlocutory application -Procedural steps -Applicable principles - Whether inordinate and inexcusable delay -Balance of justice -Balancing of interests -Prejudice to parties -Deaths of perpetrators of assaults -Difficulties in defending claim -Impact on memories of witnesses - Whether real and serious risk of unfair trial -Vagueness of plaintiff's recollections -Confusion of plaintiff as to facts -RT v VP [1990] 1 IR 545 and JF v DPP [2005] 2 IR 174 distinguished; O'Keeffe v Hickey [2008] IESC 72 (Unrep, SC, 19/12/2008); Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459; Stephens v Flynn Ltd [2005] IEHC 148 (Unrep, Clarke J, 28/4 2005); Comcast v Minister for Enterprise [[2007] IEHC 297 (Unrep, Gilligan J, 13/6/2007); Birkett v James [1978] AC 297; O'Domhnaill v Merrick [1984] IR 151; Toal v Duignan (No 2) [1991] ILRM 135 considered -Statute of Limitations 1957 (No 6), s 48 -Rules of the Superior Courts 1986 (SI 15/1986), O 40 and 122 -Proceedings struck out (2001/17320P -Dunne J -13/5/2009) [2009] IEHC 227
O'D(J) v Minister for Education
: The plaintiff issued proceedings against the defendants for physical and sexual abuse alleged to have occurred between 1968 and 1970 when the plaintiff was a pupil at a particular school. The State was alleged to have failed in its duties. The defendant contended that the proceedings were statute barred and that a fair trial was not possible on account of the inordinate inexcusable delay in prosecuting the action.
Held by Dunne J. that there were risks and dangers of an unfair trial inherent in an action commenced long after the events in question. A trial taking place forty years after the events would entail unfairness. The plaintiff had difficulties in recollecting events and there was a lack of detail and specificity as to the events in question. It was difficult to see how the defendant could defend himself. There was a real and serious risk of an unfair trial by reason of the delay. The prejudice to the defendant outweighed the prejudice to the plaintiff. The reliefs sought would be granted.
Reporter: E.F.
JUDGMENT of Ms. Justice Dunne delivered on the 13th day of May, 2009
The plaintiff herein issued proceedings by way of plenary summons against the defendants on 27 th November, 2001. The plenary summons was served on the first, second and third named defendants on 10 th April, 2003. It is not entirely clear when the plenary summons was served on the fourth named defendant but an appearance was entered on his behalf on 7 th May, 2003, by Messrs. O'Flynn, Exhams & Partners, solicitors. O'Flynn, Exhams & Partners took over the defence of these proceedings on behalf of the first, second and third named defendants ("the State defendants") on 24 th July, 2006. A notice of change of solicitors was filed on that day. Thereafter, O'Flynn, Exhams & Partners have represented all of the defendants herein. The fourth named defendant herein is sued as the nominated representative of the Presentation Brothers, having been nominated for the purpose of these proceedings.
Following the entry of appearances by the defendants, a statement of claim was delivered herein on 13 th November, 2003. The statement of claim herein alleges, inter alia, as follows:
"At all times material to these proceedings and in particular from the years 1968 to 1970, the plaintiff was a pupil at the above described school, and while therein, was subjected to a number of ongoing assaults of both a physical and sexual nature, which said assaults were carried out by members of the fourth named defendant's school and/or by lay teachers under its direction and control, with the result that the plaintiff has suffered and continues to suffer severe personal injury, loss and other damage."
The school in question is described elsewhere in the statement of claim as G. School, otherwise G. Industrial School/St. J's School.
The liability of the State defendants is said to derive from their responsibility for the welfare of children within the State and, in particular, the welfare of children who were placed in institutions such as that operated by the fourth named defendant herein. Thus, it was alleged that the State defendants were vicariously responsible to the plaintiff for the alleged personal injuries, loss and damage. It was also pleaded against the State defendants that the allegations against them arising out of the same facts gave rise to a constitutional tort for which they were also liable in damages.
Following the delivery of the statement of claim, a defence was delivered on behalf of the fourth named defendant on 5 th January, 2004. An exchange in respect of particulars took place between the plaintiff and the fourth named defendant between 5 th January, 2004, and 10 th May, 2005. A reply to the defence was furnished on 10 th May, 2005.
A defence was delivered on 12 th January, 2006, on behalf of the State defendants and particulars were also raised by them.
A notice of motion was issued herein on 16 th May, 2008, on behalf of all the defendants, grounded on an affidavit of Richard Neville, solicitor. The relief sought in the notice of motion included the following:
a "(a) An order dismissing the plaintiff's claim for failure to commence the proceedings within the time limits provided for by the Statute of Limitations;
(b) an order pursuant to the inherent jurisdiction of the honourable court, dismissing the plaintiff's claim by reason of his inordinate and inexcusable delay in prosecuting the same;
(c) in the alternative, an order pursuant to the inherent jurisdiction of this honourable court, dismissing the proceedings by reason of the fact that the matters at issue between the parties cannot now be fairly tried;
(d) further, or in the alternative, an order pursuant to the inherent jurisdiction of this honourable court, striking out the plaintiff's claim as against the first, second and third named defendants, by reason of the fact that it is unsustainable and/bound to fail."
As can be seen from the notice of motion, three distinct points are made by the defendants against the plaintiff, namely:
(i) the proceedings are statute barred;
(ii) the matters at issue cannot now be fairly tried by reason of the inordinate and inexcusable delay in the prosecution of the action and by reason of the fact that the matters at issue cannot now be fairly tried;
(iii) the action as against the State defendants is bound to fail.
So far as the last of these points is concerned, it was conceded by counsel on behalf of the plaintiff that the claim against the State defendants would not be pursued following the decision of the Supreme Court in the case of Louise O'Keeffe v. Leo Hickey, unreported, 19 th December, 2008.
Mr. Gleeson S.C., on behalf of the plaintiff, made one other concession during the course of the hearing. He accepted that insofar as the plaintiff's claim was for damages for physical abuse as opposed to sexual abuse, that element of the claim is statute barred.
It is now necessary to look more closely at the details of the plaintiff's claim as set out in the statement of claim and the replies to particulars and to consider the affidavit of Richard Neville grounding this application and the replying affidavits of Eugene Murphy sworn herein on behalf of the plaintiff.
As mentioned previously, the plaintiff's claim is stated to arise out of assaults of a physical and sexual nature whilst he was a pupil at the school run by the Presentation Brothers. The assaults were alleged in the statement of claim to have occurred from 1968 to 1970. In the particulars of personal injuries set out in the statement of claim, some detail is given of the nature of the assaults and the abuse alleged. It is the plaintiff's case that he was a pupil at the school over a two-year period.
The details of the abuse can be summarised as follows:
The plaintiff was subject to a wholly unacceptable and abusive regime.
He was not provided with adequate food and was constantly hungry.
He worked in the fields and was so hungry that he would eat raw potatoes.
He was abused by a Brother C.
He was buggered by Brother C. on a number of occasions and touched inappropriately.
He was abused by two other teachers, a Brother E. and an unnamed Brother.
He alleged that he was beaten on a number of occasions and has outlined one particular beating by Brother C. with a billiard cue.
He complained of a lack of education.
He complained of a number of issues surrounding...
To continue reading
Request your trial