Hayes v McDonnell

JurisdictionIreland
JudgeMr. Justice Hanna
Judgment Date15 December 2011
Neutral Citation[2011] IEHC 530
Judgment citation (vLex)[2011] 12 JIC 1505
CourtHigh Court
Date15 December 2011

[2011] IEHC 530

THE HIGH COURT

[No. 9063 P/1999]
Hayes v McDonnell & Ors

BETWEEN

TOM HAYES
PLAINTIFF

AND

ANTHONY MCDONNELL, COLLETTE CULLINANE, THE MINISTER FOR EDUCATION AND SCIENCE, THE MINISTER FOR HEALTH AND CHILDREN, IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

RSC O.20 r2

RSC O.122 r7

RULES OF THE SUPERIOR COURTS (PERSONAL INJURIES) 2005 SI 248/2005 RULE 11

RAINSFORD v LIMERICK CORP 1995 2 ILRM 561 1981/7/1121

PRIMOR PLC v STOKES KENNEDY CROWLEY & OLIVER FREANEY & CO 1996 2 IR 459 1995/20/5287

GILROY v FLYNN 2005 1 ILRM 290 2004/19/4269 2004 IESC 98

DONNELLAN v WESTPORT TEXTILES LTD & ORS UNREP HOGAN 18.1.2011 2011 IEHC 11

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 2ED 2005 PARA 13.08

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

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

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

MCBREARTY v NORTH WESTERN HEALTH BOARD & ORS UNREP SUPREME 10.5.2010 2010/31/7749 2010 IESC 27

QUINN v FAULKNER T/A FAULKNERS GARAGE & MMC COMMERCIALS LTD UNREP 14.3.2011 2011 IEHC 103

HOGAN & ORS v JONES & ORS 1994 1 ILRM 512 1994/4/946

STOLLZNOW v CALVERT 1980 2 NSWLR 749

K (P) v DEIGNAN & ORS UNREP DUNNE 2.12.2008 2009 4 IR 39 2008/31/6814 2008 IEHC 407

STEPHENS v PAUL FLYNN LTD 2008 4 IR 31 2008/59/12277 2008 IESC 4

DESMOND v MGN LTD 2009 1 IR 737 2008/12/2410 2008 IESC 56

BIRKETT v JAMES 1978 AC 297 1977 3 WLR 38 1977 2 AER 801

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S13(10)

BYRNE v MIN FOR DEFENCE & ORS 2005 1 IR 577 2005/7/1413 2005 IEHC 147

PRACTICE & PROCEDURE

Delay

Inordinate delay - Application to strike out - Want of prosecution - Inherent jurisdiction - Balance of justice - Claim of abuse in residential institution - Psychological and psychiatric problems - Deceased witnesses - Public interest - Delay in issuing statement of claim - Notice of intention to proceed - Pre-commencement delay - Acquiescence - Withdrawal of application from Board - Whether inordinate delay inexcusable - Whether prejudice - Whether delay justified dismissal of action - Whether unfair in all circumstances - Rainsford v Limerick Corporation [1995] 2 ILRM 561; Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459; Gilroy v Flynn [2005] 1 ILRM 290; Donnellan v Westport Textiles Ltd (In Voluntary Liquidation) [2011] IEHC 11, (Unrep, HC, Hogan J, 18/1/2011); O'Domhnaill v Merrick [1984] IR 151; Toal v Duignan (No 1) [1991] ILRM 135; Toal v Duignam (No 2) [1991] ILRM 140; McBrearty v North Western Health Board [2010] IESC 27, (Unrep, SC, 10/5/2010); Quinn v Faulkner [2011] IEHC 103, (Unrep, Hogan J, 14/3/2011); Hogan v Jones [1994] 1 ILRM 512; Calvart v Stollznow [1982] NSWLR 749; K v Deignan [2008] IEHC 407, (Unrep, HC, Dunne J, 2/12/2008); Stephens v Paul Flynn Ltd [2008] IESC 4, [2008] 4 IR 31; Desmond v MGN Ltd [2008] IESC 56, [2009] 1 IR 737; Birkett v James [1977] 2 All ER 801 and Byrne v Minister for Defence [2005] IEHC 147, [2005] 1 IR 577 considered - European Convention on Human Rights Act 2003 (No 20) - Residential Institutions Redress Act 2002 (No 13), s 13(10) - Rules of the Superior Courts 1986 (SI 15/1986), O 20, r 2 and O 122, r 7 - Rules of the Superior Courts (Personal Injuries) 2005 (SI 248/2005), r 11 - Rules of the Superior Courts (Order 27 (Amendment) Rules) 2004 (SI 63/2004) - European Convention on Human Rights, art 6 - Application refused (1999/9063P - Hanna J - 15/12/2011) [2011] IEHC 530

Hayes v McDonnell

1

JUDGMENT of Mr. Justice Hannadelivered the 15th day of December, 2011

2

This application is moved by the defendants by way of notice of motion. They seek the following reliefs by way of preliminary application:-

3

1. An Order pursuant to the inherent jurisdiction of the Court striking out or otherwise dismissing the plaintiff's claim wherein it is claimed that there has been inordinate and inexcusable delay on his part in prosecuting the claim, which delay has prejudiced the defendants and where the balance of justice is against allowing the claim to proceed.

4

2. An Order pursuant to the inherent jurisdiction of the Court dismissing the plaintiff's claim due to the lapse of time, in the interests of justice and / or otherwise dismissing the claim of the plaintiff in accordance with Article 6 ofthe European Convention on Human Rights and Fundamental Freedoms and the European Convention on Human Rights Act, 2003.

5

3. Such further and other relief as is deemed just and appropriate on foot of the delay and want of prosecution on the part of the plaintiff, including in circumstances where the plenary summons is dated the 9 th September, 1999, and the statement of claim was purported to be delivered on the 20 th April, 2009, and/or where the matters in respect of which the plaintiff makes complaint are alleged to have occurred between in or about 1949 and 1962.

6

The application is grounded on the affidavit of [...], who is assistant principal legal executive in the Chief State Solicitor's Office.

The Parties
7

The plaintiff is a retired civil servant and was born in 1946, and now resides in Northern Ireland.

8

The first named defendant is sued in his capacity as representative of a religious order. It is alleged that the first named defendant, his predecessors in title, their servants or agents, were the owners, occupiers and in control of an industrial school for boys in the southwest of the country and as such they owed a duty of care to the plaintiff whilst resident there from 1954 to 1962.

9

The second named defendant is sued in her capacity as representative of another religious order. It is alleged that the second named defendant, her predecessors in title, their servants or agents, were the owners, occupiers and in control of a convent in the southwest and as such they owed a duty of care to the plaintiff whilst resident there from 13 th May, 1949, to 1 st September, 1954.

10

The third, fourth, fifth and sixth named defendants join in this application. Paragraph 7 of the statement of claim sets the context of their purported liability to the plaintiff. It alleges that "...the second, third, fourth, and fifth, named defendants and each or either of them, their respective servants or agents, had statutory responsibility for the management, inspection, and certification of schools (including industrial schools) and orphanages and the plaintiff was in the care, custody and control of them at all material times hereto and as such they owed him a duty of care."

Background Facts
11

It is important, given the nature of this application, that I preface the outline of the facts alleged, both on affidavit and in the statement of claim. The proceedings before this Court are not a trial of the substantive issues in contest between the parties. No case is made on behalf of the defence of vexatiousness or scandalousness or frivolousness on the plaintiff's part. This application centres on the issue of delay by the plaintiff. He admits that that delay is inordinate. The impact and the consequences of that delay is what concerns us.

12

Thus, any recitation of facts alleged by either party or any observation therein is not intended to offer a definitive view of the substantive issues between the parties. It was agreed by counsel at the hearing that the applicant must take the applicant's case as set forth in the statement of claim and replying affidavits at its' height. Cross-examination at the substantive hearing, if such might materialise, would, in ordinary circumstances, provide the appropriate anvil upon which to forge the sword of probability.

13

At a tender age- two or three and a half years- it is not entirely clear - the plaintiff was placed into care at the convent school in 1949. At that time it was underthe control and management of a religious order of nuns. The plaintiff alleges that on numerous dates between 1949 and 1954 whilst he was a resident at the convent school, he was subjected to severe physical and psychological abuse by the second named defendant, her servants and agents. Particulars of the alleged physical and mental abuse, negligence and breach of duty (including statutory duty) in that regard are set out in the statement of claim.

14

In 1954, the plaintiff was transferred at the age of eight years to the industrial school, which at that time was under the control and management of another religious order of brothers. The plaintiff alleges that on numerous dates during 1954 and 1962 whilst he was a resident at the industrial school, the defendants, their servants or agents subjected him to sexual, physical and psychological abuse. Particulars of this abuse, torture, negligence and breach of duty (including statutory duty) in that regard are set out in the statement of claim. The particulars of personal injuries are also detailed in the statement of claim. A Consultant Psychiatrist examined the plaintiff and submitted three reports dated 12 th February, 2003, 18 th August, 2004, and 18 th March, 2009 which were exhibited in the plaintiffs replying affidavit sworn on 3 rd March, 2010. She has diagnosed the plaintiff with post traumatic stress disorder as a result of the alleged abuse. She reported also that he experiences depression and anxiety and finds it very distressing to recall the alleged events.

15

When the plaintiff left the industrial school, the religious order secured work for him as a farm labourer. He was extremely unhappy in this placement. He then secured work for himself in a hotel in the south of Ireland. After this he worked with a family in a neighbouring county. During this time he had all of his teeth removed because they were decayed which he alleges was due to malnutrition and poor dental hygiene over many years while at the convent and in the industrial school....

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