McDonagh v O'Shea
 IEHC 428
THE HIGH COURT
[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
Facts: Following the claim of damages filed against the first named defendant as the nominee of a charity group whose member had alleged to have sexually abused the plaintiff, the concerned group had sought to strike out the plaintiff's proceedings on the ground of unfair trial by reason of an inordinate delay, death of the alleged accused as critical witness, etc. The plaintiff professed to have been physical abused by a member of the school staff on making complaint of sexual abuse. The plaintiff alleged that the delay caused in institution of the proceedings was excusable owing to the facts of the plaintiff's illiteracy, incarceration, psychological injuries and addiction problems, and that the offence alleged was of a serious nature.
Mr. Justice Twomey dismissed the proceedings brought by the plaintiff. The Court, in line with the decision in and applying the test laid down therein, held that there was substantial risk of unfair trial and unjust result due to the very length of the delay and also due to the fact that the person identified as the alleged abuser by the first named defendant was dead. The Court also considered the similar case of wherein the Court of Appeal dismissed the appeal brought against the accused after a long delay. The Court held that there was substantial risk of unfair trial if the case were to proceed after such a long delay, as it would lead to confusion regarding the most important details, such as the identity of the alleged abuser. The Court held that continuance of the proceedings would cause grossest imaginable prejudice and reputational damage to the opposite party as the case pertained to matter of serious sexual abuse where even the basic facts were disputed, such as confusion regarding the identity of the alleged abuser and the abuser being dead or alive. The Court held that there was a primary duty of the plaintiff to progress the trial, which the plaintiff did not do, and the delay on the part of defendants was so minute to induce the Court to allow the continuance of proceedings where there was clear risk of unfair trial to the defendants. The Court held that when the proceedings could not be allowed to be constituted against the concerned group, it could not be allowed to be continued against the physical abuser as it did not constitute the essence of the plaintiff's claim against the concerned group.
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.
This Court can decide the case on the principles set down in the case of , 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 principles, as they apply to a case such as this one, were recently considered by the Court of Appeal in .
The 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 case involved a similar period of delay in bringing the case to hearing. The application...
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