Fiona Whelan v Bridget Lawn and Others

JudgeMr. Justice Hardiman
Judgment Date18 December 2014
Neutral Citation[2014] IESC 75
CourtSupreme Court
Date18 December 2014
Whelan v Lawn (personal representative of James Whelan, deceased)

[2014] IESC 75

Denham C.J.

Hardiman J.

McKechnie J.

Clarke J.

Laffoy J.

[Appeal No: 20/10]


Appeal – Witnesses –Delay – Prejudice – Notice of Motion – Sexual Offences – Statute of Limitations – Family – Practice and Procedures

Facts: This case concerned an appeal from a judgement and order of the High Court whereby the plaintiff”s proceedings were dismissed, due to prejudice including the death of a principle witness. The dismissal of the plaintiff”s proceedings took place on foot of the defendant”s Notice of Motion to dismiss the proceedings on the grounds of delay and prejudice. The Court had to decide whether the underlying dispute had passed beyond the reach of fair litigation.

Held by Justice Hardiman, in consideration of the serious nature of the alleged crime and the resulting implication of the case that he was prepared to dismiss the action on the grounds that it had passed beyond the reach of fair litigation. He stated that the action could not proceed because of the lapse of time and the death of the defendant himself and of the principal defence witness which meant that the issues had gone beyond the reach of fair litigation. He could find nothing in the evidence to displace the learned trial judge”s finding, that the plaintiff”s delay was inordinate and inexcusable. Consequently, it was determined that the appeal must be disallowed and the Order of the High Court that the action be dismissed must be affirmed.

GRANT v ROCHE PRODUCTS (IRL) LTD 2008 4 IR 679 2008/27/5893 2008 IESC 35




O'C (J) v DPP 2000 3 IR 478 2000/13/5164 2000 IESC 58


O DOMHNAILL v MERRICK 1984 IR 151 1985 ILRM 40 1984/5/1593



ALLEN v SIR ALFRED MCALPINE & SONS LTD 1968 2 QB 229 1968 2 WLR 366 1968 1 AER 543


TOAL v DUIGNAN (NO 1) 1991 ILRM 135 1987/8/2248

TOAL v DUIGNAN (NO 2) 1991 ILRM 140 1990/8/2334

KELLY v O'LEARY 2001 2 IR 526 2001/13/3651


Judgment of Mr. Justice Hardiman delivered the 18th day of December, 2014.


1. This is the plaintiffapos;s appeal from the judgment and order of the High Court (Charleton J.) of 18 December 2009 whereby the plaintiff's proceedings were dismissed, due to prejudice including the death of a principal witness.


2. The dismissal of the plaintiff's proceedings took place on foot of the defendant's Notice of Motion to dismiss the proceedings on the grounds of delay and prejudice, issued in August 2009.

Factual background.

3. The plaintiff issued these proceedings against th|e original defendant James or Jim Whelan, on the 7 th September, 2008. This was within the limitation period as it was within six years of the plaintiff's majority. She did not, therefore, need to avail of the extended limitation period which is mentioned below. The original defendant was the plaintiff's grandfather; in the proceedings the plaintiff alleges against him various episodes of sexual assault, "generally" taking place in his and his wife's home in Finglas. These alleged assaults took place, according to the plaintiff's affidavit, between 1989 and 1992 i.e. between twenty-five and twenty-two years ago. The defendant denied these allegations.


Before the proceedings were issued the plaintiff's grandmother, the wife of the defendant who had always resided with him, had died. The original defendant himself, who was ninety-one years old at the time of the High Court judgment in December 2009, and who had suffered a stroke in December 2008, died in 2011. Accordingly the proceedings have been reconstituted with the estate of the deceased now represented by his Personal Representative. Ms. Bridget Lawn.


4. In his judgment of the 18 th December, 2009, the learned trial judge sets out a background to these allegations in great detail. This includes details of the plaintiff's distressing circumstances which include a history of psychiatric illness and of substance abuse on her part and of the birth to her of two children in her mid and late teens.


There are also included details of what is said to be a most unfortunate omission on the part of the Garda Sípochána to investigate complaints made to them by the plaintiff both in Mayo (where she now resides) and in Dublin. There are details of the effect on the defendant, and in particular on his memory and intellectual functioning, of the stroke which he suffered in 2008 However, in my view it is unnecessary to discuss these matters in any detail for the purposes of the present case. The salient factual features, in my view, are as follows:


(a) Proceedings were issued against the deceased defendant many years after episodes of alleged assault were said to have taken place, between 1989 and 1992.


(b) The defendant was the plaintiff's grandfather and the assaults, or the generality of them, were said to have taken place in his house which he shared with his wife.


(c) The defendant's wife, the plaintiff's grandmother, died before proceedings were issued.


(d) The defendant, Jim Whelan, died in 2011, after delivery of the High Court judgment dismissing the action against him.

The defendant's estate.

5. The estate left by the defendant amounts to less than €140,000 net. It is evident that this would be insufficient to meet an award of damages of the order previously awarded in similar cases. Apart from any award of damages, the sum would probably be exhausted in dijscharge of the costs of both sides, including V.A.T. There would be nothing left for the beneficiaries even if he won the case. This result is only constitutionally possible after a finding of liability in a fair trial in which both sides were fully heard.

The legal background.

6. The most obvious primary recourse for a person who has been the victim of crime is to complain to An Garda Síochacute;na, the sole police force in the State. The plaintiff in the present proceedings says she did this but that, for one reason or another, no meaningful action was taken on foot of her complaint. I say "for one reason or another" because it emerged during the hearing of the present appeal that the plaintiff's advisers had it in mind to institute proceedings against An Garda Síochána but had deferred doing so pending the outcome of the present application. Since the gardaí were not heard in the present proceedings I forbear to say anything about the merits, or lack of merits, of such a claim, without hearing the other side of the story.


7. A person who is the victim of a crime, or of a wrongful act which does not constitute a crime, also has available to him or her a civil remedy in the form of an action for damages. In the case of Grant v. Roche Products (Ireland) Limited [2008] 4 I.R. 679, a fatal case, this Court held that such a remedy was part of the mechanisms made available by the State for the vindication of its citizens human and personal rights. Accordingly, in the ordinary course of events, it is most important that a person who considers himself or herself to have been wronged in an actionable way should have the opportunity to pursue redress in the form of a civil action.


8. Indeed, in recent years there has been an increased consciousness of the need to provide redress for those who can demonstrate injury loss or damage arising from sexual assault. Criminal cases of this kind have been permitted to proceed after periods previously regarded as unthinkable. The Statute of Limitations (Amendment) Act, 2000 extended the time limit for taking civil proceedings for sexual assault (see s.2 of the Statute).


9. The developments, however, can throw up circumstances which are legally problematical. This arises, in particular, after some very long delays in instituting such proceedings and from the difficulty, and sometimes the impossibility, of finding evidence with which to rebut a false claim of this sort. Of course, the grossest form of prejudice in civil proceedings is the death of the defendant himself, so that he is not able to deny what is alleged against him in evidence, or of witnesses who might have been available to the defence at an earlier stage.


10. Bearing these things in mind, it is not surprising that s.3 of the Statute just cited provides:

"Nothing in s.48A of the Statute of Limitations 1957, (inserted by s.2 of this Act) shall be construed as affecting any power of a court to dismiss an action on the ground of their being such delay between the accrual of the cause of action and the bringing of the action as, in the interests of justice, would warrant dismissal".


11. Although s.48A did not have to be invoked in the present case, s.3 of the Act of 2000 acknowledges the recognised inherent power which the Court is invited to exercise in this case. It is most important to emphasise that the Court is not required to make any decision about the merits of the case and indeed it cannot do so because that requires a court to see and hear the witnesses on both sides. I wish to reiterate what was said by the learned trial judge at para. 7 of his judgment on this case:

"I am not in a position to make any judgment as to whether anything which the plaintiff complains of occurred. Nor can I judge, as has been said on his behalf, whether the defendant is a victim of a false allegation....

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    ...and a proper verdict determined in accordance with the evidence and the law. It is also important to emphasise, as Hardiman J. noted in Whelan v. Lawn [2014] IESC 75, that there has been an increasing recognition, in the context of the criminal process, of the rights of victims. The entitle......
  • McDonagh v O'Shea
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    ...considered that to allow the trial to proceed would result in the 'grossest imaginable prejudice', quoting Hardiman J. in Whelan v. Lawn [2014] IESC 75, the prejudice arising from the fact that Brother G. is deceased. Twomey J. took the view that there was 'substantial risk of the first na......
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    ...Kelly v. O'Leary [2001 ] 2 I.R. 256, and Hardiman J. in Whelan v. Bridget Lawn, Legal Personal Representative of James Whelan Deceased [2014] I.E.S.C. 75. Submissions on behalf of the plaintiff/respondent 29 19. Mr. McGrath, S.C., on the plaintiff's behalf, submitted that there was nothing ......
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    ...Kelly v. O'Leary [2001 ] 2 I.R. 256, and Hardiman J. in Whelan v. Bridget Lawn, Legal Personal Representative of James Whelan Deceased [2014] I.E.S.C. 75. Submissions on behalf of the plaintiff/respondent 29 19. Mr. McGrath, S.C., on the plaintiff's behalf, submitted that there was nothing ......
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