Keating v Riordan

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 09 November 2016
• Neutral Citation: [2016] IEHC 635
• Court: High Court
• Date: 09 November 2016
• Docket Number: [2010 No. 6773 P]

[2016] IEHC 635

THE HIGH COURT

Baker J.

[2010 No. 6773 P]

BETWEEN

HENRY KEATING

PLAINTIFF

AND

TOM RIORDAN, CITY OF CORK VOCATIONAL EDUCATION COMMITTEE

AND,

BY ORDER, JOHN BUCKLEY

DEFENDANTS

Tort – Damages & Restitution – Personal injury – Sexual Assault – Dismissal of proceedings – Inordinate delay – Risk of fair trial – death of witnesses

Facts: Following the institution of proceedings by the plaintiff seeking an order for damages arising out of personal injury caused to the plaintiff by the first named defendant in the form of infliction of sexual assault over time, the first named defendant had now filed the present application, being supported by the other defendants seeking an order for the dismissal of the plaintiff's proceedings on the basis of inexcusable delay. The defendants asserted that since the alleged incidents had occurred 52 years ago, it was not possible to have fair trial of the issues between the parties. The second named defendant being the representative of the body responsible for the management of the school wherein the alleged incidents of sexual assault of the plaintiff took place had contended that since there were no documents pertaining to the relevant years, the trial against her would be highly prejudicial. The defendants also argued that since the plaintiff's witnesses being his mother and cousin were dead, it would not be possible to corroborate the conduct and effect of the alleged incident on the plaintiff, the fact which had significant bearing in relation to the present proceedings. The third named defendant being the bishop for the concerned diocese asserted that he had no documentation establishing the relationship between the first named defendant and the diocese and that the persons involved with the first named defendant were now deceased.

Ms. Justice Baker granted an order for the dismissal of proceedings against the second and third named defendants while refusing to dismiss the proceedings against the first named defendant. The Court found that since the second and third named defendants had failed to provide any concrete documentation concerning the education records of the plaintiff during the relevant years, despite their best efforts, it would be against justice to allow the trial to proceed against them. The Court observed that though there had been inordinate delay in initiating the present proceedings, an order for dismissal would not be warranted as the plaintiff had adequately explained the reason for delay namely, making extensive inquiries, collection of evidence, psychiatric treatment and threats by the first named defendant. The Court, in conformity with the principles laid down by the Supreme Court in Primor v Stokes Kennedy Crowley [1996] 2 I.R. 459, held that the conduct of the parties and fairness should be seen while deciding whether to grant an order for dismissal. The Court held that in the absence of any oral evidence by the first named defendant, it was not possible for the Court to deal with the issue of time-limit raised by the first named defendant under s. 2 of the Statute of Limitations (Amendment) Act 2000.

JUDGMENT of Ms. Justice Baker delivered on the 9th day of November, 2016.

1 The plaintiff issued a personal injury summons on 15th July, 2010, seeking damages arising from alleged sexual assaults, including a particular sexual assault, said to have been visited upon him by the first defendant, a Roman Catholic chaplain in the school in which the plaintiff was a pupil. The first defendant was at all material times a priest in the Roman Catholic diocese of Cork and Ross, and was engaged as spiritual advisor in the school attended by the plaintiff at the relevant time operated by the second defendant. The second defendant is sued as the body responsible for the conduct of persons in authority or who might engage with students attending the school. The third defendant is the Roman Catholic bishop for the diocese of Cork and Ross and is sued as the person responsible for the admission, selection, training, supervision and education of persons admitted as priests of the diocese.

2 This judgment is given in a motion brought by the first defendant that the proceedings be struck out on the grounds that the plaintiff has been guilty of inordinate and inexcusable delay such that the defendant ought not to be subject to trial in respect of the claim.

3 The motion is supported by the second and third defendants, although each of them makes distinct and different arguments.

4 No argument or plea is made by the plaintiff that there has been a fraudulent concealment or any concealment of facts by any of the defendants.

5 The claim is fully defended by all three defendants.

6 The incidents in respect of which the plaintiff brings this claim are alleged to have arisen between September, 1964 and June, 1965, more than 50 years ago. The plaintiff was a first year secondary school student in the School of Commerce run by the second defendant in Cork City. The plaintiff was born on 28th September, 1950. He says he had a happy and normal childhood, but that during the school year in respect of which he brings these proceedings, he was persistently assaulted, and sexually interfered with and sexually assaulted by the first defendant. He sets out a narrative of these claims, and alleges that they occurred primarily in the cloakroom at school or in the school gymnasium. He says they occurred once or twice a week through the school year. He also claims that a most serious incident occurred on a school outing to Redbarn beach near Youghal, Co. Cork towards the end of the school year and says that the first named defendant sexually assaulted and raped him.

7 The plaintiff claims to have suffered serious and profound psychological injury and trauma, which has had a devastating and destructive impact on his personal, family and social life, his education and working career. He says he continues to suffer residual effects of the alleged assaults.

Inordinate and inexcusable delay

8 The defendants argue that the plaintiff has been guilty of inordinate and inexcusable delay to an extent and with an effect that the claim against each of them should be struck out.

9 Briefly, the alleged incidents occurred almost 52 years ago, the plaintiff reached the age of majority 44 years ago, 16 years have passed since the television documentary, ‘States of Fear’ in May, 1999, the publicity from which led to an increase in the number of complaints of sexual abuse made against persons in authority. The claim was commenced 10 years after the commencement of the Statute of Limitations (Amendment) Act 2000, 8 years from the death of his mother, which the plaintiff himself explains as freeing him to engage the matters in issue in these proceedings. The last factor is of some consequence in that it is stated in one of the several medical reports obtained by the plaintiff that some sexual abuse may have occurred in the plaintiff's family home, not by an immediate family member but by a person identified as living in the family home for a period.

10 The proceedings were commenced by personal injury summons on 15th July, 2010 and the defendants claim significant post-commencement delay on the part of the plaintiff, including that it was not until the 15th February, 2011 that the plaintiff issued a motion to join the third defendant; the delay of the plaintiff in furnishing replies to particulars which resulted in a motion to compel particulars of the first defendant issued on 16th June, 2011; the order of the court made on 18th July, 2011 directing the delivery of replies to particulars; the failure of the plaintiff to furnish these particulars until 17th February, 2012, after a motion to strike out for failure; a further motion seeking replies to a notice for further particulars issued on 12th February, 2013; the failure of the plaintiff to make discovery in accordance with an order made on 15th April, 2013 which resulted in a motion issued on 17th July, 2014 by the first defendant. These are mere examples of the post-commencement delay, and mean that six years had passed at the hearing of the motion before me, from the date when the personal injury summons issued.

11 It is convenient first to set out the law governing an application to strike out proceedings on account of inordinate and inexcusable delay. A number of judgments have been delivered by Irvine J., giving the judgment of the Court of Appeal, in regard to the test to be applied by a court in the exercise of its jurisdiction to strike out. Cassidy v. The Provincialate [2015] IECA 74 is a convenient starting point, wherein Irvine J. clarified the difference between the two lines of jurisprudence, which fall to be considered on such an application.

12 The broad jurisdiction of the court to strike out a claim if it is satisfied that to do so is in the interest of justice was first considered in detail by the Supreme Court in O'Domhnaill v. Merrick [1984] 1 I.R. 151, and as Irvine J. explained in Cassidy v. The Provincialate, many defendants in historic sexual abuse cases have sought to rely upon the jurisprudence arising from that authority when they would otherwise fail the more narrow test established in Primor v. Stokes Kennedy Crowley [1996] 2 I.R. 459, and Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561. These cases establish that the court should engage the question of the interests of justice by testing the interests of each of the parties and their conduct. One of the factors which is relied on, and as Irvine J. said, ‘may go into that scales’ is whether the delay is such to give rise to a real risk that it is not possible to have a fair trial.

13 The three defendants rely on both lines of jurisprudence, and have placed emphasis on the recent jurisprudence of the Court of Appeal.

14 Each of them...