Donoghue v Connolly

JurisdictionIreland
JudgeMs. Justice Mary Rose Gearty
Judgment Date16 June 2022
Neutral Citation[2022] IEHC 386
CourtHigh Court
Docket Number[Record No. 2016/3315P]
Between:
Sandra Donoghue
Plaintiff
and
Gerard Connolly
Defendant

[2022] IEHC 386

[Record No. 2016/3315P]

THE HIGH COURT

Judgment of Ms. Justice Mary Rose Gearty delivered on the 16th day of June, 2022

1. Introduction
1.1

This Plaintiff alleges that she was sexually abused by the Defendant, her uncle. She claims damages for frequent acts of indecent assault carried out at her grandfather's home when she was between 5 and 15 years of age, in the 1970's and 80's. The Plaintiff claims that she suffered from depression, up to and including suicidal ideation, ongoing anxiety and the aggravation of a debilitating bowel condition as a result of the abuse. Effectively, she says, her childhood was taken from her and she dissociated herself from the little girl she was, in order to protect herself. She still takes anti-anxiety medication to cope with her low mood.

1.2

The Defendant represented himself at the hearing. He claimed that the action was statute-barred as the case did not commence until many years after the last alleged assault. The Defendant denied the allegations and, while his denials were not specifically put to the Plaintiff in evidence, it was clear from the defence filed and the conduct of the case that no assault was admitted. He did not give evidence in the proceedings, nor did he call witnesses.

1.3

In separate criminal proceedings, the Defendant was convicted by a jury of several counts of indecent assault in respect of this Plaintiff. That trial took place in 2015 and the convictions were upheld by the Court of Appeal in 2017. The convictions were in respect of events for one year of the period complained of, when the Plaintiff was 5 years old.

2. Procedural History: The Adjournment Applications and the Right to a Lawyer
2.1

This case was listed for hearing in February, but the defence solicitors came off record on the hearing date. The Defendant asked for time within which to instruct other lawyers. As the case continued before he could do so, it is important to set out the history of events, which explains how this arose.

2.2

The Personal Injury Summons is dated the 15th of April, 2016. Pleadings were exchanged and a full defence filed in 2017. Notices of Intention to Proceed were served on the Defendant in March, 2019 and in September, 2020. The Notice of Trial was dated the 16th of April, 2019 and the case was given a hearing date: the 9th of February, 2022. There were, therefore, clear indications of an impending trial date from early 2019.

2.3

The motion to come off record, filed by the Defendant's legal team, was listed on the 3rd of February, 2022, the week before the hearing date. On the 9th of February, the case and the motion were both assigned to this Court for hearing. The application of the Defendant's solicitors to come off record was heard and granted, leaving the Defendant without legal representation. The Court heard that there had been no reply from the Defendant to messages from his solicitors for a period of well over a year before that date. The Defendant wanted time to obtain legal aid and told the Court that he had applied to the Legal Aid Board. The Court heard both parties and, although the Plaintiff objected, granted a short adjournment of the hearing to allow his application to be assessed by the Board.

2.4

The parties came before the Court again on the 1st of March, 2022, when the Defendant told the Court about his correspondence with the Legal Aid Board. The Defendant was confident that he would probably get legal aid funding and gave a letter to the Court to support this understanding. The wording of the letter explained why he had had this impression as the letter indicated that his financial situation was such that he would be eligible, but the letter did not confirm that legal aid would, in fact, be granted. The Court adjourned the case again to allow time for the application to be processed but stressed the urgency of the matter. A hearing date was set: 26th of April, 2022. The Court listed the case for mention in the interim, to monitor the progress of the application to the Legal Aid Board.

2.5

On the 22nd of March, 2022 it became clear to the Court that the application was not making progress. The Defendant, as of that date, had not filed sufficient information to allow the Board to make a decision. In other words, his initial application was not yet complete. The Court was reluctant to vacate the hearing date and set a further date for the matter to be mentioned prior to that hearing date, again emphasising how important it was that the Defendant press for an early decision. The Court also took it upon itself to contact the Legal Aid Board in an attempt to ascertain the prospects of a decision being finalised before the hearing date, which remained 26th of April, 2022.

2.6

On the 31st March, 2022, the Court informed the parties that in response to its letter to the Legal Aid Board, the Board confirmed it was not in a position to communicate with any party, aside from the relevant applicant, in relation to the status of an application. The Defendant could provide no further information to the Court in relation to the progress of his application and could not point to a completed application having been made. The Court ruled on this date that the hearing was to commence on the assigned date. In coming to this decision, the Court took into account the following considerations:

  • (a) the seriousness of the case and of the injuries allegedly suffered by the Plaintiff.

  • (b) the impact of a further delay on the Plaintiff.

  • (c) the length of time since the alleged incidents and the time since the case started.

  • (d) the Defendant's inactivity from the time he became aware of the trial date and the date on which his solicitors came off record. Throughout that time, the Defendant ignored messages from his solicitors then came to court on the trial date seeking additional time to get different legal representation.

  • (e) the prospect of the Defendant obtaining legal aid considering Section 28 of the Civil Legal Aid Act 1995, which prescribes the legislative basis on which legal aid may be granted, and which includes the prospects of success in the action itself.

  • (f) the fact that the Defendant had already been convicted of offences identical to some of the civil wrongs alleged in the case, which fact is admissible in evidence.

  • (g) the Defendant's inability to give an indication as to when he would complete his application form, let alone when he might be in a position to proceed with the case.

2.7

Balancing the interests of both parties and on the basis of the above considerations, the Court held that it would not be appropriate to grant a further adjournment. The Defendant had made such little progress in an application that was now extremely urgent, and this had to be seen against a background of inactivity stretching back over the previous year. The prospects of success in his application had to be slim indeed, taking into account his previous convictions, which was a factor that was likely to weigh against him in the assessment of the Board. As a result of this ruling, the hearing began on the 26th of April, 2022.

3. The Scope of the Claim – Constitutional Breaches and Nominate Torts
3.1

The reliefs claimed, as outlined in the Personal Injuries Summons, include damages, including aggravated damages, for assault, sexual assault and trespass against the person, and various breaches of the Plaintiff's constitutional rights.

3.2

In D.F. v. Garda Commissioner, Minister for Justice, Equality and Defence and others [2014] IEHC 213, Mr. Justice Hogan held that where constitutional reliefs sought replicate claims in respect of nominate torts, the Court should strike out the claim based on a breach of constitutional rights where the tort ‘ provides a full and complete protection for the constitutional right.’ In other words, the Plaintiff's case should not include claims for damages for breaches of constitutional rights where the acts complained of also fall within the recognised categories of civil wrongs for which damages are payable. This approach is consistent with that adopted in many cases, as described by Mr. Justice Murray, delivering the Court of Appeal decision in G.E. v. The Commissioner of An Garda Síochána and Others [2021] IECA 113. Murray J. traced the history of this approach from Hanrahan v. Merck Sharpe and Dohme [1988] ILRM 629, to M.C. v. Clinical Director of the Central Mental Hospital [2020] IESC 28, summarising the position by saying that liability for constitutional damages would arise only if there was no (or no adequate) common law or statutory cause of action covering the activity held to comprise a breach of constitutional rights. He noted that it is the function of the Oireachtas to defend and vindicate constitutional rights through its laws by providing remedies in damages, before concluding that the courts would intervene to supply such a remedy only where there was a failure by the legislature to do so, via statute or common law.

3.3

In respect of the facts of this case, the Plaintiff's claim for damages for sexual assault, as a trespass against the person, describes the essence of the case and that claim is sufficient to vindicate her right to compensation in respect of all the conduct alleged. It is not necessary for the Court to consider the same activities under the heading of a breach of constitutional rights, nor should that case be pleaded: an award of damages for the tort of trespass against the person provides the necessary protection for any constitutional rights which have been breached simultaneously and by the same acts.

4. The Plaintiff's Evidence
4.1

The Plaintiff's evidence was to the effect that she did not know anything about sex or sexual matters as a young girl. Her grandfather raised a large family, his wife having died in her...

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    ...have any right of audience in that she is neither a party to the litigation, nor a qualified lawyer. (See generally Donoghue v. Connolly [2022] IEHC 386 (at paragraphs 5.8 and 5.9)). However, given the gravity of the proceedings, I took the very unusual step of allowing her to address the c......

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