J. R v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 01 February 2007
• Neutral Citation: [2007] IESC 7
• Date: 01 February 2007
• Court: Supreme Court
• Docket Number: [S.C. No. 385 of 2004]

R (J) v MIN FOR JUSTICE & ORS

J.R.

Plaintiff/Appellant

and

The Minister for Justice, Equality and Law Reform, Ireland, The Attorney General, and The Commissioner of An Garda Síochána

Defendants

[2007] IESC 7

[S.C. No. 385 of 2004]

THE SUPREME COURT

PRACTICE AND PROCEDURE

Dismissal of action

Delay - Whether delay inordinate and inexcusable - Whether in circumstances of case defendants could avail of issue of delay as reason to dismiss proceedings - Discretion of court - Whether proportionate to dimiss plaintiff's claim because of delay which was essence of claim - Test to be applied - Whether balance of justice favoured continuance of case - Factors to be taken into account in determining whether delay excusable - Inherent jurisdiction of court - Whether countervailing circumstances - Whether defendants' conduct to be scrutinised carefully - Whether contribution to delay important and relevant factor - Whether defendants' contribution to delay prejudiced claim to have proceedings dismissed - Ó Domhnaill v Merrick [1984] IR 151, Toal v Duignan [1991] ILRM 135 and Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 considered - Plaintiff's appeal allowed (385/2004 - SC - 1/2/2007) [2007] IESC 7R(J) v Minister for Justice

Facts: The defendant sought to dismiss the plaintiff's proceedings alleging inaction on the part of the State

defendants in respect of sexual abuse allegedly suffered on grounds of delay. The defendant alleged that the

absence of records prejudiced the defendant.

Held by the Supreme Court, per Denham J. that it would not be proportionate to dismiss the plaintiff's claim.

The onus of proof lay upon the State. The State could not avail of the issue of delay as a reason to dismiss the proceedings.

Reporter: E.F.

O'DOMHNAILL v MERRICK 1984 IR 151

TOAL v DUIGNAN & ORS (NO 2) 1991 ILRM 135

STATUTE OF LIMITATIONS (AMDT) ACT 2000 S2

STATUTE OF LIMITATIONS ACT 1957 S 48(A)

H v DPP UNREP SUPREME 31.7.2006 2006 IESC 55

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

1 Judgment delivered the 1st day of February, 2007 by Denham J.

2 1. The Minister for Justice, Equality and Law Reform, Ireland, the Attorney General and the Commissioner of An Garda Síochána, the defendants, (hereinafter referred to as "the State") brought a motion in the High Court seeking an order dismissing the proceedings of J.R. (hereinafter referred to as "the plaintiff") on the basis of delay. On 22nd July, 2004 the High Court granted the State's application and ordered that the plaintiff's proceedings be dismissed on the grounds of inexcusable and inordinate delay. Against that order and judgment the plaintiff has appealed to this Court.

3 2. In her statement of claim the plaintiff has claimed that on occasions commencing in or around 1960, when she was approximately 5 years of age, she was repeatedly assaulted, battered indecently and/or sexually assaulted, raped, beaten and intimidated in the family home by family members, in particular her brother J.B., her father and her mother. Because of this situation the plaintiff claims that in or around 1967, at approximately the age of 12 years, she visited Raheny Garda Station in the City of Dublin and complained to members of An Garda Síochána, on at least two occasions, of the abuse. The plaintiff claims that members of An Garda Síochána, rather than heed or act upon her complaints, stated to the plaintiff that she must have enjoyed the abuse, that she must have got something out of it, that otherwise she would have reported it sooner. Despite the said alleged complaints the members of An Garda Síochána took no action save to send her back home, as a result of which she was continually and systematically beaten, intimidated sexually, and/or indecently and incestually assaulted and raped until in or about 1996. By reason of these matters the plaintiff maintains that she suffered and sustained severe personal injury, physical and mental distress, loss and damage. By reason of the failure, refusal and neglect of the members of An Garda Síochána to heed her complaints she claims that the abuse continued until about 1996. By reason of the manner in which she had been received by members of An Garda Síochána the plaintiff felt she could not confide in anyone for help. At the age of 19 the plaintiff bore a child by her brother J.B., as a result of an incident of rape. As a consequence of these events the plaintiff has developed suicidal tendencies.

4 3. On behalf of the State, Brian Fenton, Inspector in An Garda Síochána, deposed that between 1967 and 1968 there were 34 members of An Garda Síochána serving in Raheny Garda Station, that eight of those persons are now deceased and that three persons could not be interviewed because of old age and infirmity. He further stated that there are no records available at Raheny Garda Station which show any reports made there during the period 1967 – 1968 inclusive. He deposed that at this time it is impossible for the State to negate by evidence the propositions raised by the plaintiff, that if the proceedings had been instituted at an earlier stage, witnesses or records may have been available which may have assisted in the defence of the action. "Prosecutorial delay" on behalf of the plaintiff was also alleged, in that the plenary summons was issued on the 6th February, 1998 and the statement of claim on 10th July, 2001.

5 4. The High Court, (Kearns J.), in an ex tempore judgment delivered on 22nd July, 2004, on the notice of motion to dismiss the proceedings, ordered that the plaintiff's proceedings be dismissed. The learned High Court judge held:

"Essentially they allege two grounds for making the application, and the first, and the one on which I propose to resolve this issue, is that they are unable to defend the proceedings by reason of the fact that as a consequence of the lapse of time between the date of the alleged wrong and the anticipated date of trial evidence relevant to liability is no longer available uniquely to defendants to such an extent as to render the trial impossibly unfair if it were to proceed. They contend that the plaintiff has been guilty of inordinate and inexcusable delay.

...

It appears from this material that thirty-four members of An Garda Síochána were stationed at Raheny Garda Station at about the time that the complaint was allegedly made and by the time this matter came to be investigated, when the proceedings commenced, thirteen of those individuals have died, and another twenty two have sworn affidavits in which they state that no complaint of the type alleged by the plaintiff was made to them personally and no records have been turned up nor do they exist in respect of which could lend credence to the allegations or enable the matter to be resolved one way or the other."

6 The learned trial judge referred to the concession made by counsel on behalf of the plaintiff, that every Garda may be expected to say that it did not happen on his watch and to deny that any complaint was ever made or received. He held that:

"... the defendants are in quite an impossible position in trying to defend a case, particularly when the individual Guard or Guards or Sergeant cannot be named or identified, where there is absolutely no written record of a complaint or anything of the sort, where numerous individual Gardaí have died, and to my way of thinking the lapse of time, which at this stage is approaching forty years from the time when the complaint was allegedly made is of such a magnitude as to render it palpably unfair any trial which might take place were the court to decline to grant the relief sought."

7 The learned trial judge found that there had been inordinate and inexcusable delay. He accepted that there was an explanation which explains to a large degree why the plaintiff could not complain but held that it did not resolve the issue. The trial judge held that the State was left in a hopeless position in trying to defend the case. He pointed out that this was not like a sex abuse case where the defendants were the alleged oppressors, where there may be dominion. He granted the State's application and ordered that costs follow the event.

8 5. Nicole Dillon, Solicitor for the plaintiff, deposed, in an affidavit sworn on 14th March, 2003, as to certain relevant matters. She stated that by reason of the manner in which the plaintiff had been received by members of An Garda Síochána in Raheny with regard to her initial complaints, and owing to the trauma she suffered as a result of the continuing abuse, the plaintiff felt she could not confide in anyone for help. In or around 1993/1994 the fact of this continuing abuse came to the knowledge of An Garda Síochána indirectly through a social worker who had dealings with the plaintiff. Afterwards J.B. was charged with various counts on indictment including unlawful carnal knowledge on a number of occasions, rape and sexual assault, to which he pleaded guilty in the Central Criminal Court on 7th April, 1997. On the 13th June, 1997 he was sentenced in the Central Criminal Court by Carney J. to fifteen years" imprisonment. Nicole Dillon deposed that J.B. had recently been granted a retrial by the Court of Criminal Appeal in respect of the allegations of rape, but that the counts of unlawful carnal knowledge and sexual assault of the plaintiff stand uncontested. At the sentencing of J.B., Carney J. appeared to accept that the plaintiff had complained to Raheny Garda...