A (H) v B (C)

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 10 March 2015
• Neutral Citation: [2015] IEHC 154
• Court: High Court
• Date: 10 March 2015

[2015] IEHC 154

THE HIGH COURT

[No. 6288 P/2011]

A (H) v B (C)

No Further Redaction Needed

BETWEEN

H.A

PLAINTIFF

AND

C.B.

DEFENDANT

Tort – Personal Injury – Assault – Damages – S. 11 of the Statute of Limitations Act 1957 – Inordinate delay whether excusable – Fair procedure

Facts: The defendant sought an order for dismissal of the plaintiff's claim for exemplary damages for assault comprising physical and sexual abuse on the ground of lapse of time as envisaged under s. 11 of the Statute of Limitations Act 1957. The defendant contended that the time barred claim would be against the principles of fair procedure.

Mr. Justice McDermott held that an order for the dismissal of the plaintiff's claim would not be granted. The Court concluded that though there was an inordinate and inexcusable delay in instituting the proceedings by the plaintiff yet it would not prejudice the interests of the defendant. The Court observed that there was no corroborative evidence to support the allegations made by the plaintiff against the defendant except the admission made by the defendant to some of those allegations, which would not in any likelihood result in an unfair trial. The Court found that there was a plethora of complaints made against the defendant and subsequent medical and other records that in fairness required that the plaintiff must be given an opportunity to pursue the present case.

1 1. By notice of motion dated 21 ^st January, 2014, the defendant seeks an order dismissing the plaintiff's claim on the grounds of inordinate and inexcusable delay. The plaintiff's claim was initiated by plenary summons dated 15 ^th July, 2011, following an authorisation by the Personal Injuries Assessment Board under s. 17 of the Personal Injuries Assessment Board Act 2003, dated 20 ^th June, 2011. The plaintiff's affidavit of verification is dated 6 ^th September, 2011. A memorandum of appearance was entered on 21 ^st July and a statement of claim was delivered on 25 ^th A notice for particulars was raised by the defendant on 15 ^th November, to which a reply was made on 2 ^nd February, 2012.

2 2. Judgment in default of defence was sought on 10 ^th May, 2012, following which a defence was delivered on 18 ^th June.

3 3. The defence claims that the action brought by the plaintiff arose more than six years before the commencement of the action and was statute barred pursuant to the provisions of s. 11(2) of the Statute of Limitations Act 1957, as amended. The defendant also claimed that the plaintiff had been guilty of inordinate and inexcusable delay in the institution of the proceedings, and that as a result the defendant had suffered prejudice in his defence such that the balance of justice required that they should be dismissed. It was also claimed that the maintenance and continuance of the proceedings constituted an infringement of the defendant's rights under the Constitution and his right to a fair and expeditious and/or his right to a fair hearing and trial within a reasonable time under Article 6 of the European Convention on Human Rights Act 2003.

4 4. A reply was delivered to the defence on 13 ^th August, 2012, and the discovery process commenced in 2012 and continued through 2013 and 2014, up to and during the course of the hearing of this motion.

5 5. A notice of trial issued on 11 ^th July, 2013, and a certificate of readiness was issued dated 4 ^th June, 2014.

6 6. The present notice of motion was grounded on the affidavit of the defendant on 13 ^th January, 2014. The court ordered (Birmingham J.) on 12 ^th May, 2014, that the defendant attend court for cross examination on his affidavit on 8 ^th July, 2014. This order was appealed to the Supreme Court which affirmed the order. A further notice of motion seeking the dismissal of the action and the determination of the issue which arises on the defence under the Statute of Limitations issued on 3 ^rd October, 2014. The motion seeking the dismissal of the action for want of prosecution was adjourned to 21 ^st October, 2014, when an order for discovery was made in respect of the plaintiff's medical records.

7 7. Both motions were adjourned from time to time and the motion to dismiss for want of prosecution was heard on 21 ^st January, 2015, when the plaintiff and defendant were cross examined on their respective affidavits. The motion was resumed on 5 ^th March, when medical evidence was heard and legal submissions were concluded. Judgment was reserved and the motion seeking the determination of the legal issue concerning the statute of limitations was adjourned to the hearing of the action.

Chronology of Events

8 8. The plaintiff's claim is for "aggravated, punitive or exemplary" damages for assault constituting physical and sexual abuse and resultant psychological damage. It is alleged that the plaintiff was sexually abused by her father and two older brothers. The worst abuse is alleged to have been committed by the defendant continuously until the plaintiff was approximately 15 years old.

9 9. The particulars of the claim alleged against the defendant state that he first abused her in 1979 when she was approximately five to six years old. She was told to get into bed with him and he touched her inappropriately. The degree and intensity of the sexual abuse escalated in 1980 when the touching became more intimate and involved digital penetration three times per week approximately. There was further escalation of abuse to vaginal and anal intercourse once or twice per week when she reached the age of puberty. When asked to stop, it is alleged that the defendant told the plaintiff that he would tell their mother about other sexual activity between her and her older brother, D.B., and that she would not be believed.

10 10. It is claimed that the plaintiff disclosed the abuse to a fellow pupil at school when she was thirteen in or about 1986, and on the same day to a nun working at the school. The nun informed the principal of her brother's school who interviewed her about the abuse in or about September/October, 1987 when she was approximately fourteen years old. It is claimed that the defendant apologised to her, having been spoken to by the principal of his school and promised that it would not happen again. However, it is claimed that the defendant continued to abuse her after the principal had spoken to him, but less often.

11 11. A referral was made to Dr. Imelda Ryan, St. Louise's Unit at Crumlin Hospital, with whom the plaintiff attended when she was about fifteen or sixteen years old. She then attended counselling with Dr. Rosaleen McElvanney weekly for approximately two years. The abuse ceased for a period when the defendant left home for college in 1988, but it is alleged there are a number of occasions when home from college that he abused her between September, 1988 and when he left for France in 1989.

12 12. The defendant was born on 15 ^th August, 1970 and was aged between eight and nine and eighteen and nineteen at the time of the alleged abuse.

1989 - 2004

13 13. The plaintiff in her replying affidavit to this motion states that she has no knowledge of her father's whereabouts since her parents' separation in 1989. The defendant left the country when he was nineteen and moved to France. Her other brother, D.B., left home after completing his leaving certificate and attended college, and left the country when he was 22.

14 14. The plaintiff states that she attended Dr. Imelda Ryan at Our Lady's Hospital for Sick Children between the ages of fourteen and seventeen and thereafter in 1990, she was referred to the Rape Crisis Centre by Dr. Ryan. She complained about the sexual abuse allegedly perpetrated by her father and her two brothers to An Garda Síochána in a series of statements dated 16 ^th September, 4 ^th November, and 7 ^th December, 1992. She claims that her mother put her under severe pressure to withdraw her complaint to the Gardaí, due to the fact that her mother was fearful that her sons' lives would be ruined if the full force of the law were applied to them. She was living with her mother at the time and it was made clear to her that if she did not withdraw her criminal complaint that she would no longer be allowed to reside at the family home. She withdrew the complaint some time in 1993 and states that she did so because she succumbed to pressure from her mother. The statements made to An Garda Síochána were furnished to the defendant as part of the particulars of the plaintiff's claim, and contained detailed allegations. The plaintiff made a further statement to the Gardaí concerning her alleged sexual abuse in or about June, 2013 and the garda investigation was reopened as a result.

15 15. The plaintiff wrote to the defendant when she was approximately eighteen years old while doing voluntary work with CARI, a voluntary organisation providing child centred therapy and support to children, families and groups affected by child sexual abuse. Though she did not keep a copy of this letter, the defendant wrote a reply which was exhibited in her replying affidavit in which he accepted that he had an unhealthy attachment to or fascination with the plaintiff. It states:-

"As we both grew older I slowly began to realise the unhealthiness and abnormality of what I was doing. Guilt was tearing me to one side whilst a deep desire to be intimate with you (or actually, as I have learned with any female) was driving me to have this "secret attachment" between us. As crazy as it may sound, the very last incidents which occurred were an attempt to gain forgiveness through trying to make you love me. I am, as I was then, so sorry."

She also states that the defendant has always in his dealings with her accepted that he has abused her, and the first time that he denied the abuse was in the defence...