I.I. v J.J.

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 05 July 2012
• Neutral Citation: [2012] IEHC 327
• Court: High Court
• Date: 05 July 2012

[2012] IEHC 327

THE HIGH COURT

[No. 977 P/2006]

I (I) v J (J)

BETWEEN

I.I.

PLAINTIFF

J.J.

DEFENDANT

SOUTHERN MINERAL OIL LTD v COONEY 1997 3 IR 549

KELLY v O'LEARY 2001 2 IR 526

H v DPP 2006 3 IR 575

DONNELLAN v WESTPORT TEXTILES LTD UNREP HOGAN 18.1.2011 2011 IEHC 11

CONSTITUTION ART 34.1

MANNING v BENSON & HEDGES LTD 2004 3 IR 556 2005 1 ILRM 190

GILROY v FLYNN 2005 1 ILRM 290

CONSTITUTION ART 34

CONSTITUTION ART 40

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6(1)

RSC O.122 r11

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459 1995/20/5287

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

HAYES v MCDONNELL & ORS UNREP HANNA 15.11.2011 2011/24/6421 2011 IEHC 530

SHEEHAN v AMOND 1982 IR 235

W (M) v W (S) UNREP KEARNS 6.5.2011 2011 IEHC 201

O'DOMNHAILL v MERRICK 1984 IR 151

O'C (J) v DPP 2000 3 IR 478

R (J) v MIN FOR JUSTICE 2007 2 IR 748

High court ? Litigation ? Delayed child sexual abuse allegations ? Undue delay ? Statute of Limitations ? Statute barred ? Risk of unfairness ? Interests of justice

Facts: The plaintiff commenced proceedings against her brother, the defendant, in 2006 alleging she was raped and subjected to sexual abuse by him during the period between 1976 and 1980. Given the amount of time between the incident and the commencement of litigation, the Court was asked to strike out proceedings on the grounds of them being statute?barred.

Held by Hogan J that even though in cases of this nature longer time periods are allowed before commencing litigation, the length of the delay in this particular case was so much that the fairness of proceedings could be compromised. The Statute of Limitations (Amendment) Act 2000 allows an extension of time, but it is not enough for the plaintiff to show the action is not statute?barred; an action may still be dismissed on the grounds of undue delay if it is in the interests of justice to do so.

The test used in the present case to measure the delay was that formulated in Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459. The three considerations relevant were whether the delay had been inordinate, whether such delay was inexcusable and even if the delay has been inordinate and inexcusable, what the interest of justice required. Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 applied.

Hogan J deemed the delay inordinate as 26 years had passed between the alleged sexual abuse and the commencement of proceedings. The plaintiff had made these allegations known to family members and friends in late 2004. Whilst personal distress may have precluded the commencement of litigation up until this point, thereafter proceedings should have been issued promptly and the delay that ensued was inexcusable.

In deciding what is in the interests of justice, the test laid down in Manning v Benson & Hedges [2004] 3 IR 566 was used. Given the lack of exact dates and locations as well as direct evidence, the defendant would struggle meeting the allegations in any form beyond denying them. Essentially, the case would proceed on the basis of the plaintiff?s word against the defendant?s. Taking the 36 year delay into consideration, the risk of an unfair trial was severe, and the proceedings were therefore not to be continued. Manning v Benson & Hedges [2004] 3 IR 566 applied.

1 1. The plaintiff and the defendant are siblings. The net issue which I am now called upon to decide is whether proceedings commenced by the plaintiff against her brother in 2006 alleging that she was raped and sexually abused by him during the period between 1976 to 1980 should be struck out on grounds of undue delay.

2 2. The emergence since the early 1990s of the phenomenon of delayed child sexual abuse allegations has presented the legal system with enormous problems relating to issues of proof, credibility, fading memories and general fairness to both accuser and accused with which it is still struggling to cope. Given the furtive nature of sexual abuse and the appalling psychological and other problems with which such victims suffer, it is generally quite unrealistic to expect them to commence litigation within orthodox time periods originally prescribed by the Statute of Limitations 1957. In recognition of this problem the Oireachtas has provided for more generous time periods: see Statute of Limitations (Amendment) Act 2000 ("the Act of 2000"). At the same time, very long delay hampers the capacity of the legal system to produce a fair result, especially where - as is so often the case - there are no documentary or other records which enable the courts to assess the credibility of witnesses by reference to known or independently provable facts.

3 3. For the purposes of this particular motion, I will assume that the plaintiff will be able to shown that her action is not statute-barred and that, if necessary, she would be in a position to avail of the provisions of the Act of 2000 to extend time. As Keane J. observed in Southern Mineral Oil Ltd. v. Cooney [1997] 3 I.R. 549, 562:

"It is clear that the jurisdiction to strike out proceedings where there has been delay can be exercised even though the proceedings were instituted within the relevant limitation period. Where the delay has been so extreme that it would be unjust to call upon a particular defendant to defend himself or herself, the guarantee under the Constitution of fair procedures cannot be defeated by the operation of a particular limitation period."

4 4. It is not enough, however, for the plaintiff to show that the action is not statute-barred. As Kelly J. specifically noted in Kelly v. O'Leary [2001] 2 I.R. 526, 536, s. 3 of the Act of 2000 expressly acknowledged and preserved the power of the court "to dismiss an action on the ground of there 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 its dismissal." The real question, accordingly, is whether these proceedings should be struck out on grounds of undue delay, independently of the Statute of Limitations.

5 5. The courts have naturally acknowledged that considerable latitude must be given to the victims of sexual abuse to commence proceedings in view of the psychological trauma which such victims inevitably suffer. This is especially true given that the climate which prevailed in Ireland up to relatively recent times made it all but impossible for victims to come forward with any confidence that their complaints would be treated with the sensitivity and understanding and, perhaps, most importantly, that otherwise credible accounts of abuse would be believed: see here the comments of Murray C.J. in H. v. Director of Public Prosecutions [2006] IEHC 55, [2006] 3 I.R. 575. All of this means that, as Mr. Murphy SC, counsel for plaintiff, put it, the considerations which obtain with regard to the passage of time and the prosecution of civil litigation in a case of this kind are very different than those which obtain in a case such as Donnellan v. Westport Textiles Ltd. [2011] IEHC 11 (a hearing loss case).

6 6. It is, however, one thing to say that both the courts and the Oireachtas have come to realise that orthodox legislative limitation periods are largely unsuited to the special category of claims arising from allegations of child sexual abuse. At the same time it must equally be recognised that this development, however, presents its own difficulties given that it opens up the real likelihood that cases will then be heard decades after the incidents complained of. Indeed, just as the courts have come to acknowledge that victims cannot be expected to sue their abusers within the same sort of timeframe as would be expected if they were pursuing a routine personal injuries action, another important development is independently taking shape in that at the same time the courts have also become more conscious of the importance of the speedy resolution of litigation. The duty to ensure the efficient dispatch of litigation within a reasonable time forms an important part of the judicial constitutional mandate to administer justice under Article 34.1 of the Constitution ( cf. the comments of Finlay Geoghegan J. in Manning v. Benson & Hedges Ltd. [2004] 3 I.R. 566, 568 and my own judgment to this effect in Doyle v. Gibney [2011] IEHC 10). This duty must also be viewed in the context of the State's distinct obligation to safeguard the right to good name in Article 40.3.2.

7 7. These constitutional obligations are further underscored by the State's commitment to the right to a hearing within a reasonable time under Article 6 ECHR and the incorporation of the ECHR (admittedly at sub-constitutional level) by the European Convention of Human Rights Act 2003. Moreover, the Supreme Court has made it clear that an earlier culture of tolerance of and indulgence towards otherwise unacceptable delay in the conduct of litigation must come to an end: cf. here the comments of Hardiman J. in Gilroy v. Flynn [2004] IESC 98, [2005] 1 I.L.R.M. 290. These obligations must nevertheless be applied sensitively in the case of persons coming forward with allegations of the child sexual abuse, as otherwise there would be a risk that Article 34 and Article 40 of the Constitution and Article 6(1) ECHR would be deployed with a degree of remorseless rigour such as might frustrate the rights of victims of sexual abuse to seek justice.

The background to the present proceedings

8 8. These are the considerations which must inform an examination of the defendant's application to dismiss the present proceedings on the ground of inordinate and inexcusable delay. The plaintiff is the sister of the defendant and there are four other siblings. She issued the present proceedings in March, 2006 in which she...