M.O'S. v W.O'S. and Others

CourtHigh Court
JudgeMs. Justice Dunne
Judgment Date02 April 2009
Neutral Citation[2009] IEHC 161
Date02 April 2009

[2009] IEHC 161


[No. 5792 P/2001]
O'S (M) (Orse G (M)) v O'S (W) & Ors





TOAL v DUIGNAN & ORS (NO 1) 1991 ILRM 135 1987/8/2248

R (J) v MIN FOR JUSTICE & ORS 2007 2 IR 748 2006/49/10426 2007 IESC 7


JUDGMENT of Ms. Justice Dunne delivered on the 2nd day of April, 2009


This is an application on behalf of the second, third, fourth and fifth named defendants (hereinafter referred to as the State defendants) seeking orders as follows:-


(a) An order dismissing the plaintiff's action by reason of lapse of time between the events complained of and the date of the trial of the action as a result of which the second, third, fourth and fifth named defendants are no longer in a position to properly defend the action and a fair trial is no longer possible.


(b) An order dismissing the plaintiff's action by reason of want of prosecution on the part of the plaintiff.


The plaintiff herein was born in June 1955. It is alleged that when the plaintiff was between the ages of 21/2 and 151/2, she was severely sexually assaulted, including acts of sexual intercourse by the first named defendant, a neighbour of the plaintiff. It appears that when the plaintiff was aged between 5 and 7 approximately, the abuse of the plaintiff included the taking of pornographic photographs of the plaintiff. Sometime around 1961/1962 when the plaintiff would have been approximately 6 to 7 years of age, it appears that the gardaí received an anonymous complaint at Kilkenny garda station. As a result of that complaint, it appears that there was a garda investigation during which the first named defendant's home was searched; photographs and film of a number of children including the plaintiff were found. The first named defendant was apparently then questioned in Kilkenny garda station. The plaintiff was also apparently brought to the garda station, shown the photographs and questioned by the gardaí. In the course of the statement of claim herein, it is pleaded as follows:-

"The plaintiff was extremely frightened as the plaintiff was conscious of being blamed by members of An Garda Síochána, her parents and the local priest for jeopardising the first named defendant's marriage. Thereafter, the plaintiff was ostracised by her neighbours. Approximately, one month after the plaintiff had been questioned in the garda station, a member of An Garda Síochána called to the plaintiff's family home and informed her that they were not charging the first named defendant. The members of An Garda Síochána further told the plaintiff's mother that the first named defendant was a good father and husband and that he regretted his actions."


It is then pleaded in the statement of claim that approximately a month after the visit of the Garda Síochána to the plaintiff's home to inform the plaintiff's mother that they were not charging the first named defendant, the first named defendant continued his pattern of abusing the plaintiff. The plaintiff has set out details of the abuse that took place after the garda investigation apparently ceased and without setting the same out in detail, it is sufficient to say that the particulars of sexual abuse set out in the statement of claim are very serious. The complaint of the plaintiff in respect of the State defendants is that "the collusive behaviour of the gardaí resulted in a complete lack of protection and appropriate care for an extremely needy and deprived child". In essence, the plaintiff's complaint against the State defendants is that as a result of the negligence and breach of duty on the part of the State defendants, the first named defendant was in a position to continue the acts of sexual abuse of the plaintiff, as a result of which she suffered severe personal injuries, including emotional injury, loss, damage, inconvenience and expense. The particulars of negligence alleged against the State defendants include, inter alia,

"Failing to prosecute the first named defendant, exonerating the abuse of the plaintiff by the first named defendant and facilitating the continuing and systematic abuse of the plaintiff by the first named defendant."


Subsequently, the plaintiff herein made a complaint at Carlow garda station in July, 1998, in respect of the matters complained of herein. As a result of the complaint made at that time, a prosecution was initiated against the first named defendant. The matter did not proceed to trial as a nolle prosequi was entered by the Director of Public Prosecutions.


It also appears that the solicitors for the first named defendant has recently come off record in respect of these proceedings by reason of the first named defendant's inability to give instructions as he now suffers from Alzheimer's.

History of these Proceedings

The plenary summons herein was issued on the 23 rd April, 2001. It was served on the State defendants on the 22 nd August, 2001. An appearance was entered on their behalf on the 29 th August, 2001. A statement of claim was delivered on the 18 th November, 2002. A notice for particulars was raised by the State defendants on the 27 th March, 2003, and replies were received dated the 11 th October, 2004. A notice of intention to proceed was served on behalf of the plaintiff on the 20 th April, 2006, and a defence was delivered on the 26 th April, 2006. A notice of indemnity and/or contribution was served on behalf of the State defendants on the first named defendant on the 26 th May, 2006. A reply to the defence of the State defendants was delivered, but it is not entirely clear when that occurred. Finally, this notice of motion was issued on the 22 nd May, 2008, returnable for the 30 th June, 2008, and subsequent to that a notice of motion dated the 24 th June, 2008, returnable for the 21 st October, 2008, was issued on behalf of the plaintiff herein, seeking discovery from the State defendants.

Delay and Prejudice

The grounding affidavit of Rachel Joyce sets out certain matters relevant to the issue of delay and prejudice. The claim against the State defendants relates only to the period after the garda investigation took place sometime in 1961/1962. Therefore, some 39/40 years had elapsed before the commencement of these proceedings. It is now 8 years on from the commencement of the proceedings and therefore, any trial is likely to take place between 40 to 50 years approximately after the events complained of. Indeed, the complaints in respect of the first named defendant bring the events complained of back to a period in excess of 50 years. Ms. Joyce deposed to the fact that the lapse of time from the date of the matters complained of to the expected date of trial is so great that the State defendants could not reasonably be expected to defend such an action.


She also deposed to the fact that the garda investigation which took place in 1961/1962 in relation to the wrongdoing by the first named defendant herein was apparently led by Detective Sergeant Nolan. Detective Sergeant Nolan died in January 1990. The fact that such a garda investigation took place in the early 1960s came to light as a result of the complaints made by the plaintiff to the gardaí at Carlow garda station in July 1998. Detective Garda Canny made a statement in the course of the criminal proceedings. Garda Canny referred to the fact that he was a retired member of An Garda Síochána. He was stationed in Kilkenny from 1965 until he retired. He was attached to the Detective Branch during that time. He stated that he remembered an investigation being carried out into allegations of indecency and possession of pornographic photographs by the first named defendant herein and recalled that his house was searched by Detective Sergeant Nolan and that pornographic photographs were located. It was his recollection that these investigations took place during the late 1960s or early 1970s. He added:-

"To the best of my knowledge, Detective Sergeant Nolan prepared an investigation file, but I do not know what the outcome was. I am not aware if he was prosecuted or not. I do not remember any reference to rape during that inquiry and I did not meet or know the injured parties."


It seems that the investigation took place before Garda Canny arrived in Kilkenny. That appears to be the extent of the information available to the State defendants. Ms. Joyce in her affidavit goes on to set out the fact that unfortunately it now appears that no documentation whatsoever exists in relation to the handling of the complaint to Kilkenny garda station by the Detective Sergeant Nolan. Thus, the State relies on the lapse of time since the matters complained of, the death of Detective Sergeant Nolan, the complete absence of any records in relation to the garda inquiry of the early 1960s into the matters complained of, as well as the retirement of Detective Garda Canny, as matters which have to served to prejudice the State Defendants' capacity to defend the action. I should say at this point that I cannot see how the retirement of a member of the gardaí could in any way prejudice the State defendants, but aside from that aspect of the matter there is no doubt that the State defendants face significant hurdles in relation to these proceedings.


Complaint is also made as to delays that have occurred in the course of these proceedings. In particular, reference is made to the difficulty in relation to the arrangement of a medical appointment for the plaintiff.


In a supplemental affidavit, sworn on behalf of the State defendants by Frederique Duchene, it is noted that the plaintiff herein through her...

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