J C v S D
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 17 August 2012 |
| Neutral Citation | [2012] IEHC 383 |
| Court | High Court |
| Date | 17 August 2012 |
BETWEEN
AND
[2012] IEHC 383
THE HIGH COURT
PRACTICE AND PROCEDURE
Dismissal of action
Inordinate delay - Prejudice - Claim for damages for personal injuries - Alleged assault and sexual assault in institutions - Complaint after 42 years - Balance of justice - Want of prosecution - Inherent jurisdiction - Fairness - Whether inordinate delay - Whether inordinate and inexcusable delay - Whether defendant contributed to delay - Whether delay unjust in circumstances - Whether prejudice - Whether real and serious risk of unfair trial - Whether clear and patent unfairness to defendant- Whether claim should be dismissed in interests of justice - Domhnaill v Merrick [1984] IR 151; Toal v Dignan (No 1) [1991] ILRM 135; Toal v Dignan (No 2) [1991] ILRM 140; Primor v Stokes Kennedy Crowley [1996] 2 IR 459; R(J) v Minister for Justice, Equality and Law Reform [2007] IESC 7, [2007] 2 IR 748; Gilroy v Flynn [2004] IESC 98, [2005] 1 ILRM 290; McBrearty v North Western Health Board [2010] IESC 27, (Unrep, SC, 10/5/2010); Rainsford v Corporation of Limerick [1984] IR 151; Manning v Benson & Hedges Ltd [2004] IEHC 316, [2004] 3 IR 556; K(P) v Deignan [2008] IEHC 407, [2009] 4 IR 39; Kelly v O'Leary [2001] 2 IR 526; McH(J) v M(J) [2004] IEHC 112, [2004] 3 IR 385; O'S v O'S [2009] IEHC 161, (Unrep, Dunne J, 2/4/2009); W(M) v W(S) [2011] IEHC 201, (Unrep, Kearns P, 6/5/2011); W(F) v W(J) [2009] IEHC 542, (Unrep, Charleton J, 18/12/2009); Hayes v McDonnell [2011] IEHC 530, (Unrep, Hanna J, 15/12/2011); Killeen v Thornton Waste Disposal Ltd [2009] IEHC 131, [2010] 3 IR 457 considered - Statute of Limitations (Amendment) Act 2000 (No 13), s 3 - Claim dismissed (2007/309P - McDermott J - 17/8/2012) [2012] IEHC 383
C(J) v D(S)
Facts: The plaintiff commenced proceedings in 2007 against the defendant, who were in charge of a primary school at all material times, alleging he had been subjected to physical and sexual assault in as a pupil by two members of the defendant order. Psychiatric reports showed that the plaintiff suffered psychological and psychiatric difficulty. The plaintiff alleged this was as a direct consequence of the abuse which affected his later life in a negative manner. The defendant sought to dismiss the claim on the grounds that the delay in issuing proceedings was contrary to the interests of justice.
The plaintiff alleged that he had not contacted a solicitor until 2003 because it was only following psychiatric therapy that he felt able to do so. It was when he heard of the Residential Institutions Redress Board that he specifically decided to seek redress. The affidavit of the plaintiff's solicitor outlined the difficulties he had in obtaining instructions from his client due to his mental trauma and medical difficulties. He also outlined how proceedings had initially been made against another order by mistake, but these proceedings were withdrawn upon the mistake being identified. These factors meant that the defendant was only made aware of proceedings in 2007.
Held by McDermott J that in deciding whether a claim should be struck out on this basis, the narrow test is to determine whether the delay was inordinate and if so, was the delay inexcusable. This then allowed the Court to determine whether allowing the claim to proceeds was in the interests of justice and not unfair. The party seeking to have the claim dismissed bore the burden of proving the test had been met.
In the instant case, the Court was satisfied that the defendant had not contributed to the delay in proceedings between 2003 and 2007. The initial delay in initiating proceedings from 1964 to 2003 was excusable in consideration of the significant psychological difficulties the plaintiff had suffered.
Notwithstanding the fact the initial delay was excusable, the Court considered that there was a serious risk of an unfair trial due to the lapse of time. The defendant would have great difficulty in defending the action. The proceedings would therefore be dismissed and struck out.
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
PRIMOR PLC v STOKES KENNEDY CROWLEY & OLIVER FREANEY & CO 1996 2 IR 459 1995/20/5287
R (J) v MIN FOR JUSTICE & ORS 2007 2 IR 748 2006/49/10426 2007 IESC 7
GILROY v FLYNN 2005 1 ILRM 290 2004/19/4269 2004 IESC 98
MCBREARTY v NORTH WESTERN HEALTH BOARD & ORS UNREP SUPREME 10.5.2010 2010 IESC 27
RAINSFORD v LIMERICK CORP 1995 2 ILRM 561 1981/7/1121
STATUTE OF LIMITATIONS (AMDT) ACT 2000 S3
MANNING v BENSON & HEDGES LTD 2004 3 IR 556 2005 1 ILRM 190 2004 29 6876 2004 IEHC 316
K (P) v DEIGNAN & ORS 2009 4 IR 39 2008/31/6814 2008 IEHC 407
KELLY v O'LEARY 2001 2 IR 526 2001/13/3651
MCH (J) v M (J) & ORS 2004 3 IR 385 2004/35/8084
O'S (M) (ORSE G (M)) v O'S (W) & ORS UNREP DUNNE 2.4.2009 2009/46/11424 2009 IEHC 161
M (T) v H (J) & ORS UNREP JOHNSON 18.7.2006 2006/37/7952 2006 IEHC 261
W (M) v W (S) UNREP KEARNS 6.5.2011 2011/49/13800 2011 IEHC 201
W (F) v W (J) UNREP CHARLETON 18.12.2009 2009/57/14611 2009 IEHC 542
HAYES v MCDONNELL & ORS UNREP HANNA 15.12.2011 2011/24/6421 2011 IEHC 530
KILLEEN v PADRAIG THORNTON WASTE DISPOSAL LTD 2010 3 IR 457 2009/31/7736 2009 IEHC 131
2 1.1 This is an application by notice of motion dated the 25 th August, 2011, to dismiss the plaintiff's claim by reason of inordinate delay in instituting these proceedings and what is said to be the resultant prejudice to the defendant. The notice of motion is framed on the basis of "inordinate" delay and is not expressed to be on the basis of "inordinate and inexcusable" delay.
3 1.2 The plaintiff's claim is for damages primarily for personal injuries suffered by reason of alleged assault and sexual assault. The defendant is sued in his capacity as representative of a religious Order of Brothers who were at all material times the owners and operators of a primary school. The plaintiff's claim is that while he was a pupil at the school he was sexually assaulted by a "Brother Brendan". In para. 5 of the statement of claim the plaintiff originally asserted that he was subjected to multiple assaults commencing in the year 1964, and in para. 7 claims that the defendant is vicariously liable "for the actions and activities perpetrated by the said Brother Brendan and by another". The extent of this claim was later limited in Replies to Particulars dated the 31 st March, 2010 in which the plaintiff's solicitors stated that the alleged sexual abuse by Brother Brendan occurred on only one occasion in or about 1964 when the plaintiff was approximately eight years old. There was also an allegation of assault against a second unnamed Brother. The two incidents now relied upon were also described in the statement of claim as follows:-
"When the plaintiff was approximately eight/nine years old, he was confronted by the said Brother Brendan who accused the plaintiff of stealing. The plaintiff was brought to a room and was beaten and lashed with a leather strap and the said individual, (Br. Brendan) had sexual intercourse with the plaintiff. The plaintiff was not touched by the said individual on any subsequent occasion. However, approximately three weeks subsequent to the incident described, the plaintiff was confronted by another Brother who made a similar allegation and who commenced beating the plaintiff. The plaintiff was not sexually assaulted or molested during or at the time of this incident."
4 1.3 The plaintiff was born on the 29 th January, 1956. He was first enrolled in the primary school on the 1 st July, 1963, when he was approximately seven years and six months old. The records of his attendance, which are still available, record that he remained in the school until he left at the age of thirteen years and five months approximately. Afterwards the plaintiff had a troubled teenage period and adult life. The affidavits record periods spent in Marlborough House and St. Patrick's Institution in his mid to late teens.
5 1.4 The replies to particulars also clarified that the alleged assaults occurred "in or about 1964", when the plaintiff "was approximately eight years of age".
6 1.5 The initiating letter giving notice of this claim to the Order for the first time came from the plaintiff's solicitors on the 7 th February, 2006. The allegation made was very general. It stated:-
"Our client instructs us that on various occasions he was abused including sexually abused by members of your Order as a result of which he sustained personally (sic) injuries, loss and damage."
The letter went on to call on the Principal of the school to admit liability, compensate the plaintiff and indicate an appropriate nominee for proceedings.
7 1.6 By letter dated the 16 th February, 2006, the solicitors for the defendant sought some basic information about the claim to enable their clients to investigate the matter, including:-
"1. Date of birth of your client.
The dates between which your client was a student in the (school).
Details of all allegations being made by your client.
The identity of each individual against whom each such allegation is being made.
Confirmation as to whether your client has reported these allegations to An Garda Síochána."
8 1.7 The plaintiff's solicitors replied with these further details:-
"1. Our client was between eight and nine year's age when he first recalled the first incident of assault and a sexual assault.
Our client left the school at fourteen years of age.
Our client alleges that he was assaulted and sexually assaulted. His first recollection is being assaulted and sexually assaulted by a Brother...
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