MacH (J.) v M. (J.) and Others

JudgeMr Justice Michael Peart
Judgment Date03 March 2004
Neutral Citation[2004] IEHC 32
CourtHigh Court
Date03 March 2004

[2004] IEHC 32


Record No. 9153P/2001
MACH (J.) v. M. (J.) & ORS


J MacH


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






KELLY V O'LEARY 2001 2 IR 526

LISTER V HESLEY HALL LTD 2001 AC 215 2001 2 WLR 1311 2001 2 AER 769




- [2004] 3 IR 385


Dismissal of proceedings

Inordinate and inexcusable delay - Want of particularity in pleadings - Allegations going back 57 years prior to commencement of proceedings - Whether plaintiff's claim should be dismissed - Balance of justice - Whether applicant's defence matter of law rather than fact (2001/9153p - Peart J - 3/3/2004)

MacH (J) v M (J)

Facts: The third respondent (the applicant) applied to have the plaintiff’s claim against the applicant dismissed on grounds of inordinate and inexcusable delay and in relation to a claim of fraudulent concealment, a want of particularity. The plaintiff claimed damages for personal injuries suffered while a pupil at a national school. The applicant was sued as the representative of the school. The plaintiff’s claim went back 57 years prior to the commencement of the proceedings and the applicant stated that he was prejudiced in defending the action.

Held by Peart J. in refusing to dismiss the proceedings that the balance of justice lay in favour of the plaintiff proceeding with her action. In spite of the passage of time, it would still be necessary for the plaintiff to prove her case on the balance of probabilities. The applicant’s principal and real defence was a matter of law rather than fact and the prejudice to the applicant in dealing with the question certainly could not outweigh the prejudice to the plaintiff in the event of her claim being dismissed. The plaintiff had failed to particularise the claim of fraudulent concealment and that part of the plaintiff’s claim should be dismissed.

Reporter: R.W.


Mr Justice Michael Peart delivered the 3rd day of March 2004:


The third named defendant, T F (hereinafter called "the applicant") brings this application on foot of a Notice of Motion dated 16 th May 2003, grounded upon his grounding affidavit sworn the 8 th May 2003. To that affidavit the plaintiff has sworn a replying affidavit on the 10 th 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 the 18 th September 2003, and one (undated) by John F. Connolly, Consultant Psychiatrist.


The said Notice of Motion seeks the following substantive reliefs:


1. An order dismissing the plaintiff's claim against the third named 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 named 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 named defendant, for want of particularity and/or as an abuse of process of the Court.


Counsel for the applicant, Michael Cush SC has informed the Court that the relief sought at (2) above is not being pursued or argued at the present time. Submissions are made only in respect of paragraphs (1) and (3) thereof.


The plaintiff issued these proceedings on the 28 th 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 named 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.


The applicant 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 named Defendants, and/or each of them."


It is alleged, inter alia, in the Statement of Claim, that the defendants, including the applicant, are responsible for the alleged failures in supervision, control and management of the school at the material time. The basis on which the applicant has been sued is described in the Replies to Particulars dated 9 th January 2002 at paragraph 1 as follows:

"There is no allegation made against the third named defendant personally. Mr F is sued in a representative capacity and this is clear from paragraph 4 of the Statement of Claim. However, as such the applicant's predecessors in title would have been responsible for the appointment of the first named defendant to the Primary School."


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


I have been informed on this application that as far as the applicant's involvement in the appointment of the first named defendant is concerned, the position is that the applicant's predecessor for the time being in that area would have appointed the parish priest in the village where the National School is 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 named defendant.


The applicant also refers to the claim against him of fraudulent concealment made at paragraph 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 applicant, 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 paragraph 2 of his Notice for Particulars, the plaintiff replied simply that it was a matter for evidence.


I should perhaps note at this stage that Defences have been delivered by each Defendant, including the applicant. 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.


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


The Defence of the Third named defendant, the applicant herein, 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.


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, Vincent Foley SC, expressed their view that while they are supporting the application now being brought by the applicant, in a general way, they are of the view that it is preferable that the application to dismiss the plaintiff's claim against the applicant should be dealt with at the time of trial of this case, when all such applications can be dealt with. Mr Foley also drew the court's attention to the fact that as between the various defendants Notices Claiming Contribution and/or Indemnity have been served, and he submits that in such circumstances, even if this court was to accede to the applicant's application, the third named defendant would still be in the action on foot of such Notices, and nothing would be gained.


The applicant deals with the delay in this case, starting at paragraph 10 of his grounding affidavit. He states that the claim made by the plaintiff goes back some 57 years prior to the commencement of these proceedings. He states that during the decades following the alleged abuse, the plaintiff appears to have made little or no attempt to complain to anybody about what happened to her. In Replies to Particulars, the plaintiff has stated that she first complained about these matters to her mother at the age of " 14 or 15 years of age". She has also stated therein that she went to the Gardaí about these matters only after she had seen a news item in July 2000 which showed the first named defendant having been convicted of sexual abuse of young children after a period of 36 years. Having located the Garda dealing with, that case, she made a complaint in or around November 2000. She also consulted her solicitor for the first time in June 2001. In addition to these occasions, the Replies to Particulars refer to an occasion in 1993 when the plaintiff states that she revealed to a neighbour of hers that she had been abused...

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