J.McH v J.M, The Minster for Education and Science, T.F, Ireland and Attorney General

• Jurisdiction: Ireland
• Judgment Date: 03 March 2004
• Date: 03 March 2004
• Docket Number: [2001 No.
• Court: High Court

J. McH. v. J.M.

J. McH.

Plaintiff

and

J.M., The Minster for Education and Science, T.F., Ireland and The Attorney General

Defendants

[2004] IEHC 112

[2001 No. 9513P.]

High Court

Practice and procedure - Delay - Pre-commencement of proceedings - Dismissal of action - Inordinate and inexcusable delay prior to commencement of proceedings - Jurisdiction of court to dismiss action where delay excusable - Principles to be applied.

The plaintiff sought damages for personal injuries sustained in the 1940s as a result of alleged acts of sexual abuse perpetrated by the first defendant whilst the plaintiff was a pupil at a national school. Proceedings issued on the 28th June, 2001, 57 years after the last alleged incident of abuse. By notice of motion, the third defendant, who was sued in his capacity as a trustee of the said school, applied to the High Court for an order dismissing the plaintiff's claim on the grounds of inordinate and inexcusable delay and or an order striking out the plaintiff's plea in respect of fraudulent concealment.

On behalf of the plaintiff, it was submitted that her delay in issuing proceedings was excusable having regard to her medical history as set out in the affidavits sworn on her behalf by her medical advisors. It was argued that the third defendant could not succeed as the plaintiff's delay was not therefore inordinate and inexcusable. Without prejudice to this contention, it was further submitted that the third defendant had suffered no prejudice as a result of the plaintiff's delay as his principal defence was based on a legal argument that vicarious liability did not attach to the actions of the first defendant.

Held by the High Court (Peart J.), in refusing to dismiss the plaintiff's claim in its entirety but dismissing her claim in respect of fraudulent concealment, 1, that, in respect of pre-commencement delay, the court had an inherent jurisdiction to dismiss a claim in the interests of justice. Whereas the existence of culpable delay on the part of the plaintiff was of considerable relevance, it was not an essential ingredient for the exercise of the court's inherent jurisdiction to dismiss.

Primor plc. v. Stokes Kennedy Crowley [1996] 2 I.R. 459distinguished, Toal v. Duignan (No. 2)[1991] I.L.R.M. 140applied.

2. That, whereas the delay on the part of the plaintiff was inordinate, it was not inexcusable having regard to the medical evidence adduced on behalf of the plaintiff.

3. That the prejudice to the third defendant, if any, did not outweigh the prejudice to the plaintiff in the event of her claim being dismissed on the grounds of delay.

4. That the plaintiff could not be allowed to proceed with her claim for fraudulent concealment given her failure to particularise in any way that aspect of her claim.

Cases mentioned in this report:-

Dowd v. Kerry County Council [1970] I.R. 27.

Glencar Exploration p.l.c. v. Mayo County Council (No. 2) [2002] 1 I.R. 84; [2002] 1 I.L.R.M. 481.

Kelly v. O'Leary [2001] 2 I.R. 526.

Lister v. Hesley Hall Ltd. [2001] UKHL 22; [2002] 1 A.C. 215; [2001] 2 W.L.R. 1311; [2001] 2 All E.R. 769.

Primor plc. v. Stokes Kennedy Crowley [1996] 2 I.R. 459.

O'Domhnaill v. Merrick [1984] I.R. 151; [1985] I.L.R.M. 40.

Toal v. Duignan (No. 2) [1991] I.L.R.M. 140.

Motion on notice

The facts have been summarised in the headnote and are more fully set out in the judgment of Peart J., infra.

By notice of motion dated the 16th May, 2003, the third defendant applied to the High Court for, inter alia, an order dismissing the plaintiff's claim on the grounds of inordinate and inexcusable delay. The matter was heard by the High Court (Peart J.) on the 19th February, 2004.

Cur. adv. vult.

Peart J. 3rd March, 2004

1 The third defendant brings this application on foot of a notice of motion dated the 16th May, 2003, grounded upon his grounding affidavit sworn on the 8th May, 2003. To that affidavit the plaintiff has sworn a replying affidavit on the 10th July, 2003. Two further affidavits have been sworn in support of the plaintiff's opposition to this application, namely one by Dr. Michael Loftus sworn on the 18th September, 2003 and one (undated) by John F. Connolly, consultant psychiatrist.

2 The said notice of motion seeks the following substantive reliefs:-

• 1. an order dismissing the plaintiff's claim against the third defendant on the grounds of inordinate and inexcusable delay;

• 2. further, and in the alternative, an order striking out the plaintiff's claim against the third defendant on the grounds that it is statute barred;

• 3. further and in the alternative an order striking out the plea of fraudulent concealment contained in the statement of claim as against the third defendant, for want of particularity and/or as an abuse of process of the court.

3 Counsel for the third defendant has informed the court that the relief sought at para. 2 above is not being pursued or argued at the present time. Submissions are made only in respect of paras. 1 and 3 thereof.

4 The plaintiff issued these proceedings on the 28th June, 2001, in which she claims damages for personal injuries allegedly sustained in the 1940s while she was a pupil at a national school in which the first defendant was a teacher, and by whom she alleges she was sexually abused over a period of one year. In short, she claims that she suffered severe emotional trauma then and that the effects of this abuse have endured to this day and have effectively destroyed her life. The full details of her claim are more particularly set forth in the statement of claim and replies to notice for particulars and there is no need for me to deal with those details in any more detail for the purposes of my judgment on the application presently before this court for determination.

5 The third defendant is sued in a representative capacity. Paragraph 8 of the statement of claim states that the national school at which the plaintiff attended "was under the management and/or control and/or supervision and/or was financed and funded by the second, third, fourth and fifth defendants, and/or each of them."

6 It is alleged, inter alia, in the statement of claim that the defendants, including the third defendant, are responsible for the alleged failures in supervision, control and management of the school at the material time. The basis on which the third defendant has been sued is described in the replies to particulars dated the 9th January, 2002, at para. 1 as follows:-

"There is no allegation made against the third defendant personally. Mr. F is sued in a representative capacity and this is clear from para. 4 of the statement of claim. However, as such the third defendant's predecessors in title would have been responsible for the appointment of the first defendant to the primary school."

7 In addition to any direct involvement that the third defendant's predecessor may have had in the appointment of the first defendant, it is, I am informed, also to be alleged or submitted that if the first defendant is found to be liable for the plaintiff's injuries, the third defendant would also be vicariously liable in respect of any such actions of the first defendant which gave rise to such liability.

8 Ihave been informed on this application that as far as the third defendant's involvement in the appointment of the first defendant is concerned, the position is that the third defendant's predecessor for the time being in that area would have appointed the parish priest in the village where the national school was located to be the manager of the school and that the parish priest would have in turn appointed the staff to the school, including the first defendant.

9 The third defendant also refers to the claim against him of fraudulent concealment made at para. 10 of the statement of claim and that no details of this claim is set forth and submits that it is insupportable as a matter of fact and that it is an absurd claim against the third defendant and has not been particularised in any way, as is required in the case of such a claim. Having sought particulars of this claim of fraudulent concealment at para. 2 of his notice for particulars, the plaintiff replied simply that it was a matter for evidence.

10 Ishould perhaps note at this stage that defences have been delivered by each defendant, including the third defendant. All such defences plead that the plaintiff's claim is statute barred and also plead that the plaintiff has been guilty of inordinate and inexcusable delay.

11 The defence of the first defendant states that this delay renders these proceedings an abuse of process, or in the alternative the proceedings are not maintainable by virtue of the delay because of the prejudice to the first defendant in his defence of the claim.

12 The defence of the third defendant makes a preliminary objection that the proceedings should be dismissed on the grounds of this delay, as it would be contrary to natural and constitutional justice to require him to defend the proceedings after such delay.

13 The remaining defendants also plead similarly, but go on to indicate that an application to dismiss the claim on account of the delay will be made at the hearing of this action by way of preliminary application. These defendants have before me, through their counsel, expressed their view...