McDonagh v O'Shea


[2016] IEHC 428


Twomey J.

[2001 No. 9393P]




Tort – Damages & Restitution – Allegation of sexual offence – Substantial risk of unfair trial – Delay in institution of proceedings – Grossest imaginable prejudice – Identity of the alleged accused – Dispute over crucial details – Discontinuance of the proceedings

JUDGMENT of Mr. Justice Twomey delivered on the 25th day of July, 2016

This is a case in which the first named defendant is being sued, as a nominee of the Brothers of Charity, for, inter alia, damages for the alleged sexual abuse of the plaintiff by one of its members. The Brothers of Charity are seeking to have the plaintiff's proceedings struck out on the grounds that they are unable to get a fair trial by reason of the lapse of time between the date of the alleged events, the subject matter of the proceedings, and the date that these proceedings shall come to trial, and by reason of the death of a critical witness, Brother Jim, the member of the Brothers of Charity alleged to have physically and sexually abused the plaintiff.


This Court finds that the proceedings should be struck out on the grounds of the 36 year period since the alleged sexual abuse took place, the death of the perpetrator and the delay of almost seven years on the part of the plaintiff in prosecuting his claim, once it had been instituted, when not even a solicitor's letter was written to progress the claim.


Mr. McDonagh was a pupil, during the years 1974 to 1980, at the Holy Family School at Renmore, Galway when he was between of eight or nine years of age and 12 years of age. Mr. McDonagh alleges that between 36 and 40 years ago, he was physically and sexual abused by a member of staff whom he identifies simply as “Brother Jim”, as this is how he would have known him. The Brothers of Charity have identified the specific individual who they believe is the subject of these allegations. For the purposes of these proceedings, this Court will refer to that person as Brother Jim G, who worked in the Holy Family School from 1977. Brother Jim G died on the 2nd September, 2011. The plaintiff also alleges that he was physically abused by another member of staff, the principal of the school, after reporting his complaint regarding Brother Jim to that person. The principal of the school at that time was a Mr. Carey.


It is relevant to note that, while a claim has also been made against Mr. Carey, the essence of the plaintiff's case for damages against the Brothers of Charity is the claim against Brother Jim since it relates to very serious allegations of rape and sexual assault. The complaints against Mr. Carey, who is still alive, relate to the fact that the plaintiff complained about Brother Jim's conduct to Mr. Carey, and the plaintiff alleges that Mr. Carey did not give credence to the complaints and instead subjected the plaintiff to physical abuse on this and other occasions, using his fists and a bamboo stick.


On the 18th June, 2001, when Mr. McDonagh was 35 years of age, he issued a plenary summons which instituted the proceedings now before this Court. This was some 21 to 25 years after the alleged events. He claimed damages against the first named defendant as nominee of the Brothers of Charity who ran the Holy Family School in Renmore at the relevant time. The plaintiff delivered the statement of claim to the Brothers of Charity on the 23rd July, 2001. A defence was filed on behalf of the Brothers of Charity on the 7th April, 2004, over 2 ½ years from the date of the delivery of the statement of claim. A notice for particulars was delivered by the Brothers of Charity on 5th April, 2004, and replied to by Mr. McDonagh on the 20th April, 2004. Then, on the 12th December, 2007, Mr. McDonagh filed a notice of discontinuance against the third named defendant, the Western Health Board.


There followed then an almost seven year gap during which time absolutely nothing happened. The case came to life again on the 3rd September, 2013, when the plaintiff sent a voluntary letter of discovery to the Brothers of Charity. There does not appear to have even been a solicitor's letter issued in the case during this seven year period. Indeed, it could be argued that, vis-à-vis the Brothers of Charity, nothing happened in this case for a period of almost 10 years after the proceedings had been issued by the plaintiff, since the only step taken by the plaintiff between April 2004 and September 2013, was the issue of a notice of discontinuance against the third named defendant.


The plaintiff has accepted that the delay is inordinate in this case. The plaintiff is mildly mentally handicapped and has been in prison since 2008 and is due for release in 2017. He has argued that his delay is excusable, as he says that it was caused by his illiteracy, his incarceration, his psychological injuries and addiction problems which he says were caused, or seriously contributed to, by the acts of sexual and physical abuse, which acts are the responsibility of the Brothers of Charity. The plaintiff thus attributes his delay in progressing these proceedings in part to his imprisonment, which he says is excusable as it was caused, or contributed to, by the alleged abuse he received as a school boy.


For the plaintiff to have received a 12 year sentence, it seems clear that the he must have been guilty of a most serious assault, which assault resulted in his being charged with endangering the life of another person. This Court rejects the suggestion that his alleged abuse by the Brothers of Charity was in some way partly responsible for this assault of an individual unconnected to the alleged abuse. Accordingly, this Court rejects the suggestion that the plaintiff's resulting imprisonment excuses his delay in progressing these proceedings.


However, as is noted hereunder, whether the delay by the plaintiff is excusable or not does not have to be considered by this Court in determining whether to dismiss the proceedings on the grounds of delay.

Test to be applied: should delay result in dismissal of proceedings?

This Court can decide the case on the principles set down in the case of O'Domhnaill v. Merrick [1984] IR 151, which sets out the test to be applied in cases where there is an application for the proceedings to be dismissed on the grounds of delay. The O'Domhnaill principles, as they apply to a case such as this one, were recently considered by the Court of Appeal in Cassidy v The Provincialate [2015] IECA 74.

Cassidy v The Provincialate [2015] IECA 74 .


The Cassidy case was a case in which the Court of Appeal held that the claim for damages against a religious order should be dismissed on the grounds of the inordinate delay and because of the death of the alleged perpetrator of abuse. It is particularly relevant to the case before this Court because of the similarity in the facts between this case and the facts in that case. It too involved claims of rape and sexual abuse which were made against a man, referred to as PD, between 1977 and 1980, which is almost the exact same time period as the alleged abuse took place in the present case. Accordingly, the Cassidy case involved a similar period of delay in bringing the case to hearing. The application to dismiss the proceedings in the Cassidy case was heard in the High Court in January 2014. Accordingly, the delay in this case is over two years longer than the delay in the Cassidy case. On the other hand, in the Cassidy case the only person who was alleged to have committed the sexual abuse had died, while in this case the only person who is alleged to have committed the sexual abuse appears to be dead, but it is the case that a person who is alleged to have committed physical abuse is still alive. There was also absolute certainty in the Cassidy case about the identity of PD as the alleged abuser, whereas in this case, the plaintiff has not accepted that it is beyond dispute that Brother Jim is Brother Jim G.


It is also relevant that in Cassidy, there was a claim against the Religious Sisters of Charity on the grounds of their vicarious liability as an employer of PD and their direct liability for allowing PD have unsupervised contact with the plaintiff, who was between 12 and 16 at the time. That is similar to the plaintiff's case, where there is alleged to be vicarious liability on the part of the Brothers of Charity as an employer of Brother Jim and Mr. Carey and also direct liability as a result of the failure of the Brothers of Charity to ensure proper supervision and control.

The test in O'Domhnaill v. Merrick [1984] IR 151


In the Court of Appeal judgment in the Cassidy case, Irvine J. gave a succinct analysis of the O'Domhnaill test for deciding whether a trial should be stopped on the grounds of delay. At para. 32, Irvine J. states:-

‘[…] the O'Domhnaill jurisdiction is most usually employed where, at the time the application to dismiss is brought, such a significant length of time has elapsed between the events giving rise to the claim and the likely trial date that the defendants can maintain that, regardless of the absence of blame of the part of the plaintiff for that delay, it would be unjust...

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