G.K v St John of God Trust
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 10 February 2023 |
| Neutral Citation | [2023] IEHC 60 |
| Court | High Court |
| Docket Number | [Record No. 1995/6602 P] |
[2023] IEHC 60
[Record No. 1995/6602 P]
THE HIGH COURT
Want of prosecution – Delay – Balance of justice – Defendant seeking to strike out the plaintiff’s action for delay and want of prosecution – Whether the delay in the case was excusable
Facts: The plaintiff alleged that while he was attending the school of the defendant, St John of God Trust (Ireland), he was seriously sexually assaulted by a male care worker employed in the school. The plaintiff instituted civil proceedings against the defendant by plenary summons issued on 23rd August, 1995. On 13th February, 2019, the defendant issued a notice of motion seeking to strike out the plaintiff’s action for delay and want of prosecution. The defendant submitted that given the inordinate passage of time that had elapsed, in particular the inactivity on the part of the plaintiff to progress his action between 2000 and 2019, when the defendant issued its notice of motion, the defendant had suffered general prejudice due to the lapse of time since the events giving rise to the allegation and had suffered specific prejudice due to the loss of the garda file; such that the defendant satisfied the tests set out down in O’Domhnaill v Merrick [1984] IR 151 and in Primor PLC v Stokes Kennedy Crowley [1996] 2 IR 459, and the plaintiff’s action against it should be struck out. In response, the plaintiff conceded that there had been inordinate delay in the action, but argued that having regard to the almost unique circumstances of the plaintiff, that the delay in the case was excusable; or in the alternative, it was submitted that the balance of justice was in favour of allowing the plaintiff’s action to proceed. The adverse circumstances relied upon by the plaintiff were the following: he was under a cognitive disability; he could not read or write; his formal education effectively ceased at the age of 14 years; the plaintiff’s parents separated after the action had commenced; the plaintiff lived with his father far from where he originally grew up; his father was unable to read or write; and the plaintiff had abused alcohol for a period, which had required the intervention of the local mental health services.
Held by the High Court (Barr J) that the lapse of time, coupled with the loss of the garda file, gave rise to a situation where the defendant could not get a fair trial. Barr J held that this satisfied the test set down in O’Domhnaill v Merrick, because a trial held at that remove, and in the absence of the garda investigation file, ran a real risk of arriving at an unjust result. Barr J held that the defendant was also entitled to an order striking out the proceedings under the Primor test. Barr J could not hold that the delay that had occurred in the case was excusable due to the plaintiff’s mental disability and due to the other circumstances outlined in his argument. Barr J found that the delay between 2000 and 2019 was not excusable as there was nothing more that the plaintiff’s solicitor needed from the plaintiff to bring the action on for hearing. Barr J was satisfied that the balance of justice favoured the action being struck out. Barr J was satisfied that given the lapse of between 29-32 years between the events complained of, and the service of the notice of motion in 2019, the defendant would suffer general prejudice in the conduct of its defence. Barr J held that in this case there was also the issue of specific prejudice caused by the loss of the garda file. Barr J was satisfied that the defendant had not caused, or contributed to any delay in the conduct of the action to date. Barr J was not satisfied that the plaintiff’s personal circumstances were such as would justify complete inaction in relation to the carriage of the litigation for a period of 19 years between 2000 and 2019.
Barr J held that the plaintiff’s actions against the defendant must be struck out on grounds of delay and want of prosecution. Barr J granted the reliefs sought by the defendant in its notice of motion dated 13th February, 2019.
Application granted.
JUDGMENT of Mr. Justice Barr delivered on the 10th day of February, 2023.
. This is an application by the defendant to have the plaintiff's action struck out on grounds of inordinate and inexcusable delay.
. The plaintiff was born in Q1 of 1976. He suffers from longstanding Klinefelter's syndrome and has also been diagnosed as having a mild intellectual disability.
. In the years November 1987 to March 1990, the plaintiff was a five-day border in a school run by the defendant. He spent Monday to Friday residing in the school and spent weekends at home with his parents and two younger sisters.
. Stated very briefly, the plaintiff's case is that while he was attending the defendant's school, he was seriously sexually assaulted, by a male care worker employed in the school. He alleges that these acts took place in a number of locations: in the care worker's office; on the school grounds; in a nearby park; in the care worker's flat and at another house.
. After the plaintiff left the school in or about March 1990, he made two detailed statements to An Garda Síochána in April 1990. His mother also made a detailed statement at that time. Having investigated the plaintiff's complaints, a file was sent by the gardaí to the DPP. The DPP directed that there should be no prosecution in the matter.
. The plaintiff instituted civil proceedings against the defendant by plenary summons issued on 23rd August, 1995, by which time the plaintiff was 19 years of age. A statement of claim was delivered on 5th June, 1997. A notice for particulars was raised on 12th August, 1997, with replies thereto being furnished by the plaintiff on 22nd January, 1998. Copies of the two statements made by the plaintiff to the gardaí in April 1990, were furnished with the replies. Pleadings closed with delivery of a defence on behalf of the defendant on 3rd March, 1998.
. On 6th September, 2000, the plaintiff's solicitor served a notice of trial. However, that was not valid, due to the fact that the plaintiff's solicitor had not previously filed a notice of intention to proceed, there having been no step taken in the action for the preceding two years. On 18th January, 2006, the plaintiff's solicitor served a notice of intention to proceed. However, no further steps were taken in the action consequent upon that notice.
. On 15th March, 2006, the defendant's solicitor sought a copy of the garda investigation file. By letter dated 5th June, 2006, the gardaí confirmed that the DPP had directed that there be no prosecution in the matter, but informed the defendant's solicitor that the investigation file could not be located.
. In 2015, the defendant's solicitor wrote to the plaintiff's solicitor, indicating that given the delay in the proceedings, the plaintiff should withdraw the action and the defendant offered to bear their own costs if the plaintiff did so. The plaintiff's solicitor replied that he had encountered difficulties obtaining instructions from his client and had concerns about the plaintiff's capacity to furnish instructions to him. Further correspondence in the broadly similar terms was exchanged in 2016, 2017, 2018 and 2019.
. On 13th February, 2019, the defendant issued the present notice of motion seeking to strike out the plaintiff's action for delay and want of prosecution.
. On 22nd November, 2022, an order was made by the Deputy Master, on the application of the plaintiff's solicitor, appointing the plaintiff's mother as his next friend for the purposes of the litigation. This was based on a medical report furnished by Dr. Karen Elizabeth Humphries, Consultant Psychiatrist, dated 6th May, 2019.
. To briefly summarise the arguments: the defendant submits that given the inordinate passage of time that has elapsed, in particular the inactivity on the part of the plaintiff to progress his action between 2000 and 2019, when the defendant issued its notice of motion, and having regard to this inordinate period, the defendant has suffered general prejudice due to the lapse of time since the events giving rise to the allegation and has suffered specific prejudice due to the loss of the garda file; such that the defendant satisfies the tests set out down in O'Domhnaill v. Merrick [1984] IR 151 and in Primor PLC v. Stokes Kennedy Crowley [1996] 2 IR 459, such that the plaintiff's action against it should be struck out.
. In response, the plaintiff concedes that there has been inordinate delay in the action, but argues that having regard to the almost unique circumstances of the plaintiff, that the delay in this case was excusable; or in the alternative, it was submitted that if the court looks at the balance of justice, when one weighs up the adverse circumstances of the plaintiff, the balance of justice is in favour of allowing the plaintiff's action to proceed.
. The adverse circumstances relied upon by the plaintiff, are the following: he is under a cognitive disability as set out in the medical report furnished by Dr. Humphries; he cannot read or write; his formal education effectively ceased at the age of 14 years; the plaintiff's parents separated after the action had commenced; the plaintiff now lives with his father far from where he originally grew up; his father is unable to read or write; and the plaintiff had abused alcohol for a period, which had required the intervention of the local mental health services. It was submitted that taking all of these matters into account, the delay involved was excusable, or in the alternative, the balance of justice lay in favour of allowing the action to proceed.
. The relevant dates can be...
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