D. & Ors -v- O'K. & Anor, [2009] IEHC 422 (2009)

Docket Number:1998 7983, 4484, 7984, 3185, 7982, 3184 , 1449, P & 2000 10188 P
Party Name:D. & Ors, O'K. & Anor
Judge:Hedigan J.
 
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THE HIGH COURT1998 7983 P, 1998 4484 P, 1998 7984 P,

1998 3185 P, 1998 7982 P, 1998 3184 P,

1998 1449 P, 2000 10188 P

BETWEEN:

J.D., J.F., H.M., M.M., L.N.,

M.O'B., B.T., and M.O'S. PLAINTIFFSAND

D.J.L. O'K. and THE BROTHERS OF CHARITYDEFENDANTS

Judgment of Mr. Justice Hedigan delivered the 6th day of October, 2009

  1. The plaintiffs have brought proceedings against the first named defendant in respect of a series of alleged sexual assaults which are said to have taken place during the course of their medical treatment by him, on a series of dates between 1976 and 1991.

  2. The first named defendant, who died in 2004, was at all material times a consultant psychiatrist at Belmont Hospital, County Waterford at which all the plaintiffs received treatment. His estate is party to the present proceedings by means of an authorised representative and is insolvent.

  3. The second named defendant is a religious order whom, it is alleged, was the employer of the first named defendant at all material times.

  4. The defendants are seeking the following, by way of a preliminary application to this Court:-

    (a) An order pursuant to Order 122, rule 11 of the Rules of the Superior Courts ('the Rules'), dismissing the plaintiffs' claim for want of prosecution;

    (b) An order pursuant to the inherent jurisdiction of this Court, dismissing the plaintiffs' claim on grounds of inordinate and inexcusable delay; and

    (c) An order pursuant to the inherent jurisdiction of this Court, dismissing the plaintiffs' claim on the basis of a violation of the defendants' rights to natural and constitutional justice, as well as prejudice arising therefrom.

    1. Factual and Procedural Background

  5. Each of the plaintiffs received, on various occasions between 1976 and 1991, psychiatric treatment from the first named defendant at Belmont Hospital, County Waterford. Some of the plaintiffs were treated as outpatients, while others were in residential care. Each of them has commenced a separate set of proceedings making allegations of, inter alia, sexual assault, trespass to the person and breach of their constitutional right to bodily integrity.

  6. The plaintiffs' claims lie not only against the first named defendant as the alleged assailant, but also against the second named defendant in its alleged capacity as the employer of the first named defendant. Specifically, the plaintiffs' claim against the second named defendant alleges that it failed to provide adequate staff, care or supervision for the plaintiffs and that its agents knew, or ought to have known, that the first named defendant was engaged in the alleged conduct.

  7. The distinct sets of proceedings brought by each of the plaintiffs have a long and convoluted history, involving various lengthy periods of delay and inaction. Certain incidents have undoubtedly contributed to the length of time which has passed. The fourth and sixth named plaintiffs, for example, chose to change their solicitors around six months after the issue of the plenary summons in each of their cases. Another contributing factor has been the failure by all of the plaintiffs, apart from the seventh named plaintiff, to deliver replies to particulars. In any event, and for ease of reference, the parties have created a detailed chronology of events which I set out below:-

    PlaintiffJ.D.J.F.H.M.M.M.

    Date of Alleged Incidents13th October 1980Before 29th March 1990July 1986 - January 19911985 - 1991

    Plenary Summons Issued10th July 19989th April 199810th July 199811th March 1998

    Appearance Entered4th November 1998N/A4th November 1998N/A

    Notice of Change of Solicitor FiledN/AN/AN/A16th September 1998

    Statement of Claim Delivered3rd February 199927th May 19993rd February 19993rd February 1999

    Request for Particulars by First Named Defendant11th March 199924th June 199911th March 199911th March 1999

    First Reminder Letter Sent31st May 199928th February 200031st May 199931st May 1999

    Second Reminder Letter Sent28th February 2000N/A28th February 200028th February 2000

    Death of First Named Defendant20th January 200220th January 200220th January 200220th January 2002

    Reconstitution of Proceedings13th May 200413th May 200413th May 200413th May 2004

    PlaintiffL.N.B.T.M.O'B.M.O'S.

    Date of Alleged Incidents1986 - 1991January 1987 - June 19871983 - 19881976 - 1990

    Plenary Summons Issued10th July 199811th March 19983rd February 19981st September 2000

    Appearance Entered4th November 1998N/A4th November 199825th October 2001

    Notice of Change of Solicitor FiledN/A16th September 1998N/AN/A

    Statement of Claim Delivered3rd February 19993rd February 19993rd February 1999None Delivered

    Request for Particulars by First Named Defendant11th March 199911th March 19995th December 2003N/A

    First Reminder Letter Sent31st May 199931st May 199931st May 1999N/A

    Second Reminder Letter Sent28th February 200028th February 200028th February 2000N/A

    Death of First Named Defendant20th January 200220th January 200220th January 200220th January 2002

    Reconstitution of Proceedings13th May 200413th May 200413th May 200413th May 2004

  8. In relation to the above chronology, submitted by the first named defendant, it must be noted that in the case of the seventh named plaintiff, replies were furnished to the second defendants in December, 2003. Further particulars were sought in February, 2004 but replies have not to date been delivered. In relation to all bar the eighth named plaintiff, who has never served a statement of claim on the second defendant, the notices for particulars were served by the second defendant on the 15th September, 1999. In light of the delays apparent, the defendants brought motions on the 28th day of April 2008, seeking to dismiss each of the plaintiffs' claims for want of prosecution and on grounds of inordinate and inexcusable delay.

    1. The Submissions of the Parties

  9. The defendants argue that each of the plaintiffs have been guilty of culpable delay both in the institution of proceedings ('pre-commencement delay') and in the prosecution of those proceedings, once instituted ('post-commencement delay')...

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