Daniel Scannell v Thomas Beecher

• Jurisdiction: Ireland
• Judge: Mr Justice Cian Ferriter
• Judgment Date: 16 March 2022
• Neutral Citation: [2022] IEHC 169
• Court: High Court
• Docket Number: Record No.: 2012/52P

Between:-

Daniel Scannell

Plaintiff

and

Paudie Kennedy and Michael Meehan (As Executors of the Estate of Thomas Meehan, Deceased)

and

John Kevin Mullan

and

Thomas Beecher

Defendants

[2022] IEHC 169

Record No.: 2012/52P

THE HIGH COURT

Prosecutorial delay – Inordinate and inexcusable delay – Balance of justice – Defendants seeking to dismiss proceedings – Whether the plaintiff’s delay in prosecuting the proceedings was inordinate and inexcusable

Facts: The plaintiff, Mr Scannell, sought damages arising out of acts of sexual abuse allegedly perpetrated on him between 1993 and 1998 by the late Mr Meehan while the plaintiff was a secondary school student in Waterpark College, Waterford. The late Mr Meehan was a vice principal and career guidance counsellor at the school at the time. The sexual abuse was alleged to have occurred in the late Mr Meehan’s office on the school grounds, in private and during the school day. The proceedings were commenced by plenary summons on 5th January, 2012. The first and second defendants, Mr Kennedy and Mr Meehan, applied to the High Court to have the proceedings dismissed pursuant to the inherent jurisdiction of the Court, on two alternative grounds: (a) that the plaintiff’s delay in prosecuting the proceedings was inordinate and inexcusable and the balance of justice required the proceedings to be dismissed against those defendants (Primor v SKC [1996] 2 IR 459); (b) that the length of time which had elapsed since the alleged events giving rise to the proceedings rendered it unjust to require those defendants to defend the proceedings (O’Domhnaill v Merrick [1984] I.R. 151).

Held by Ferriter J that, on any view, the lapse of time since the events the subject matter of the proceedings allegedly occurred, being well over 20 years, was inordinate. In Ferriter J’s view, the evidence which the plaintiff had put before the Court was sufficient to demonstrate that he had both an explanation and a good excusable reason for not having issued the proceedings before January, 2012; it was clear that he was inhibited up to 2010 in getting to the point where he could issue proceedings against the late Mr Meehan, in light of the very adverse effects on his psychological, emotional and mental well-being suffered as a result of the abuse he claimed was perpetrated on him, and that position was amply supported by the medical evidence tendered on his behalf on the application. In Ferriter J’s view, on the principles established by the authorities, the plaintiff could not excuse the delay of some three and a half years in failing to prosecute his proceedings in the period March 2014 to November 2017. In Ferriter J’s view, that period was also inordinate. In Ferriter J’s view, it would not be fair or appropriate to leave to trial the issue of the prejudice resulting from the unavailability through death of the late Mr Meehan, the sole alleged perpetrator of sexual abuse against the plaintiff, and the balance of justice in Ferriter J’s view accordingly favoured dismissal of the proceedings. In Ferriter J’s view, the very serious prejudice caused to the applicants by the death of the late Mr Meehan was such to lead to a very real and substantial risk that there would be an unfair trial or an unjust result at trial in the matter; the right of the first and second defendants to call evidence in defence of the very serious allegations made was effectively set at nought by the death of the late Mr Meehan.

Ferriter J granted the orders sought. He was provisionally minded to take the view that a just order on costs would be no order as to costs.

Application granted.

Judgment of Mr Justice Cian Ferriter delivered this 16th day of March 2022

Introduction

1 This is the application of the first and second defendants to have these proceedings dismissed pursuant to the inherent jurisdiction of the Court, on two alternative grounds:

• (a) that the plaintiff's delay in prosecuting these proceedings is inordinate and inexcusable and the balance of justice requires the proceedings to be dismissed against these defendants (“ the Primor ground”);

• (b) that the length of time which has elapsed since the alleged events giving rise to these proceedings renders it unjust to require these defendants to defend the proceedings (“ the O'Domhnaill ground”).

Applicable legal principles

2 The principles applicable to each of these grounds are well established. In short, pursuant to the line of jurisprudence commencing with Primor v. SKC [1996] 2 IR 459, the Court has a jurisdiction to dismiss proceedings where there has been both inordinate and inexcusable delay on the part of a plaintiff in prosecuting the proceedings and where the balance of justice favours the dismissal of the action. The onus is on the moving party (the first and second defendants in this case) to demonstrate inordinate and inexcusable delay. Since the Court of Appeal decision in Cassidy v the Provincialate [2015] IECA 74, it is clear that pre-commencement delay can be taken into in seeking to demonstrate that there has been inordinate and inexcusable delay. If the applicant can demonstrate inordinate and inexcusable delay, it then falls to the respondent (the plaintiff in this case) to establish countervailing circumstances which would otherwise allow the proceedings to continue on the balance of justice.

3 It is clear from the Primor jurisprudence that where there has been significant delay prior to the issue of proceedings, there is a special obligation of expedition on a plaintiff to prosecute proceedings without delay once the proceedings have commenced.

4 In assessing the balance of justice, the applicant does not have to establish prejudice amounting to a significant risk of an unfair trial; the recent authorities have established that relatively modest prejudice may suffice to dismiss the proceedings once inordinate and inexcusable delay has been established: see McNamee v. Boyce [2016] IECA 19 and Millerick v Minister for Finance [2016] IECA 206.

5 The test is different under the O'Domhnaill line of jurisprudence. In O'Domhnaill v. Merrick [1984] I.R. 151, the Supreme Court stated as follows:

“where there is a clear and patent unfairness in asking a defendant to defend a case after a very long lapse of time between the acts complained of and the trial, then if that defendant has not himself contributed to the delay, irrespective of whether the plaintiff has contributed to it or not, the court may as a matter of justice have to dismiss the action.”

6 In order to successfully invoke this jurisdiction, it is not necessary for a defendant to show that there was been culpable delay on the part of the plaintiff. Rather, if there has been a long time between the events complained of and the likely time of trial, a defendant must establish prejudice likely to lead to a real risk of an unfair trial as an unjust result, and proof of moderate prejudice will not suffice: Irvine J. in Cassidy v. Provincialate [2015] IECA 74 (at para. 37).

Background

7 In these proceedings, the plaintiff seeks damages arising out of acts of sexual abuse allegedly perpetrated on him between 1993 and 1998 by the late Thomas Meehan while the plaintiff was a secondary school student in Waterpark College, Waterford. The late Mr. Meehan was a vice principal and career guidance counsellor at the school at the time. The sexual abuse is alleged to have occurred in the late Mr. Meehan's office on the school grounds, in private and during the school day.

8 The proceedings were commenced by plenary summons on 5th January, 2012. I have appended to this judgment an agreed chronology of the material steps in the proceedings. In short, there was an exchange of pleadings and the hearing of the matter was originally listed for Waterford High Court on 13th March, 2014. It was adjourned from that list to Dublin for hearing. There was relative inactivity in the proceedings thereafter for a number of years until the plaintiff served a notice of intention to proceed on 31st August, 2017. Thereafter, the plaintiff advanced the issue of discovery with the then third defendant (now fourth defendant) who was sued as the nominee of the Board of Management of Waterpark College. The original second defendant (now the third defendant) is a nominee of St. Helen's Province of the Christian Brothers congregation. The late Mr. Meehan was a member of that Christian Brothers provincialate.

9 The late Mr. Meehan died on 7th April, 2019. Pursuant to the provisions of the Civil Liability Act, 1961, the plaintiff's cause of action against the late Mr. Meehan survived his death. A grant of probate was taken out in the names of Paudie Kennedy and Michael Meehan, the executors of the late Mr Meehan's estate, on 1st December, 2020 and an order was made by the High Court on 21st December, 2020 substituting those personal representatives for the first defendant in the proceedings, so that his executors are now the first and second defendants.

10 The first and second defendants now bring this application to have the plaintiff's proceedings against them struck out on the basis that there has been inordinate and inexcusable delay both prior to and subsequent to the commencement of the proceedings and that the balance of justice decisively favours dismissal of the proceedings. In the alternative, they contend that even if there has been no culpable delay on the plaintiff's part, the lapse of time since the events in issue in the proceedings (which occurred between some 24 and 28 years ago) is such that, arising from the death of the late Mr Meehan, there is a real and serious risk of an unfair trial. The applicants rest their case on prejudice in respect of both the Primor test and the O'Domhnaill test on the fact that the alleged perpetrator of the sexual abuse, the late Mr. Meehan, has died and that, therefore, it will be impossible for...