McDonald v Conroy

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins
• Judgment Date: 06 August 2020
• Neutral Citation: [2020] IECA 239
• Docket Number: Court of Appeal Record Nos 2018/93 & 2018/110
• Court: Court of Appeal (Ireland)
• Date: 06 August 2020

BETWEEN

NIAMH McDONALD

Plaintiff/Respondent

AND

TOMMY CONROY

First Defendant/Appellant

GOREY COMMUNITY SCHOOL

Second Defendant/Appellant

[2020] IECA 239

Kennedy J.

Ní Raifeartaigh J.

Collins J.

Court of Appeal Record Nos 2018/93 & 2018/110

THE COURT OF APPEAL

CIVIL

Limitation – Findings of fact – Cause of action – Appellants appealing from a High Court order directing that the respondent recover damages against the appellants – Whether there were errors in the Judge’s engagement with the evidence and in the findings of fact made by him

Facts: The defendants/appellants, Fr Conroy and Gorey Community School, appealed to the Court of Appeal from an order of the High Court (Eager J) made on 19 January 2018 directing that the plaintiff/respondent, Ms McDonald, recover damages in the sum of €210,000 (inclusive of aggravated damages of €10,000) against the appellants. Certain orders for costs were also made in favour of Ms McDonald. All disputed issues of fact were resolved by the Judge in favour of Ms McDonald. The manner in which these disputes of fact were resolved by the Judge was the subject of significant criticism by the appellants in the appeals. The appellants asked the Court to conclude that Ms McDonald could and did consent to the sexual acts which the Judge found to have occurred and that, accordingly, no cause of action properly arose against them, even on the basis of the Judge’s findings of fact as to what had occurred between Ms McDonald and Fr Conroy. The appellants pleaded that all or a significant part of the claims against them were statute-barred. In response, Ms McDonald relied on the provisions of s. 48A of the Statute of Limitations 1957. This issue was resolved in favour of Ms McDonald the manner in which the Judge reached and explained that determination was criticised by the appellants. In the course of the proceedings the Judge made certain remarks concerning clerical sex abuse in the Diocese of Ferns which prompted the appellants to apply to the Judge to recuse himself. The Judge refused to do so and the action proceeded to a conclusion. The appellants challenged the Judge’s refusal before the Court.

Held by Collins J that there were significant and material errors in the Judge’s engagement with the evidence and in the findings of fact made (or omitted to be made) by him. Collins J held that no clear factual findings on the issue of consent were before the Court and it was not for the Court to make findings of fact as if it were the court of trial. She held that the claim raised significant legal issues which appeared not to have been considered in Ireland’s jurisdiction. She held that these issues merited proper consideration and adjudication. She held that the proper course was to remit the proceedings to the High Court for re-hearing. She held that s. 48A applies only to acts committed against a person before they reach “full age”. Ms McDonald reached full age on her 18th birthday on 22 April 2006. Collins J held that it follows that s. 48A had no relevance to any part of Ms McDonald’s claim as related to events occurring after that date. Accordingly, insofar as Ms McDonald’s claim was based on events that took place after 22 April 2006 (and her claim was based on events that took place up to the point where she left the School in Summer 2007) the claim was statute-barred and the Judge erred in failing to make such a finding.

Collins J held that she would set aside the Judgment and Order of the High Court and direct a rehearing of the proceedings.

Rehearing directed.

JUDGMENT of Mr Justice Maurice Collins delivered on 6 August 2020

1 This is a lengthy judgment and it may therefore be helpful to set out an index to its contents.

SECTION/HEADING	PARAGRAPH NUMBER
Introduction	2
The Issues on Appeal	11
Discussion	15
Issue 1 - The Challenge to the Judge's Factual Findings and Conclusions	15
The Framework for Assessment	15
Assessment	36
The Trip to the Gambia and the night spent by Ms McDonald in Fr Convoy's bedroom	46
The Trip to Cologne and the Evidence of Esther Kavanagh	63
Ms McDonald's Alleged Visits to Fr Conroy's House and the Evidence of Elizabeth Kenny	75
The Psychiatric Evidence	80
Conclusions on Issue 1	96
Issue 2 - Consent/Cause of Action	100
The Case made by the Appellants in the High Court	102
The Judgment of the High Court	112
Should Ms McDonald's Claim be Dismissed rather than Remitted?	119
Conclusions on Issue 2	161
Issue 3 - A Tort of Grooming?	162
Walsh v Byrne	165
The High Court Judgment	172
Submissions and Conclusion on Issue 3	174
Issue 4 - Limitation	177
Preliminary	177
The Judge's Findings on the Limitation Issue	193
Discussion and Conclusion on Issue 4	195
Other Issues	211
The Recusal Issue-	211
Dam ages/Aggravated Damages	228
Decision	229

INTRODUCTION

2 Before the Court are two appeals from an Order of the High Court (Eager J) made on 19 January 2018 directing that the Plaintiff (“Ms McDonald”) recover damages in the sum of €210,000 (inclusive of aggravated damages of €10,000) against the First Defendant (“Fr Conroy”) and the Second Defèndant (“the School”). Certain orders for costs were also made in favour of Ms McDonald.

3 The Order of 19 January 2018 followed from the reserved judgment of Eager J given on 9 October 2017 (“the Judgment ^“) which in turn followed from a very lengthy hearing before him The action was heard over a total of 30 hearing days, commencing in late November 2016 and concluding in June 2017. More than 20 witnesses gave evidence, including Ms McDonald and Fr Conroy, as well as the principal of the School. Mr Finn.

4 In her Statement of Claim, Ms McDonald claims that, between 2004 and 2007, while she was a pupil in the School she was physically and sexually assaulted, falsely imprisoned and sexually abused by Fr Conroy, who was a religion teacher in the School and was also its Chaplain. 1 The Judge upheld these claims. Though it was not part of Ms McDonald's pleaded claim, the Judge also held that Fr Conroy was guilty of the tort of “grooming”. As against the School, Ms McDonald claimed that it was vicariously liable for the wrongful actions of Fr Conroy and the Judge upheld that claim also. A claim against a third defendant, sued as representative of the Catholic church failed. The Judge's decision to dismiss the claim against the third defendant has not been appealed.

5 The proceedings before the High Court had a number of important features. First, Fr Conroy at all times denied that he ever had any form of sexual relations with Ms McDonald, Indeed, he did not merely deny the allegations against him in his defence but in fact counterclaimed against Ms McDonald, alleging {inter alia) that she was guilty of abuse of process and malicious falsehood. While professing itself a “stranger” to the veracity of the allegations, the School nonetheless also challenged the credibility of Ms McDonald to a significant extent. A large part of the High Court hearing was therefore directed to the determination of what occurred between Ms McDonald and Fr Conroy or, as the Judge put it. “who in this case has told the truth”. Ultimately, all disputed issues of fact were resolved by the Judge in favour of Ms McDonald. However, the manner in which these disputes of fact were resolved by the Judge has been the subject of significant criticism by Fr Conroy and the School in these appeals.

6 The second important aspect of the proceedings before the High Court arose from Ms McDonald's age. She was born on 22 April 1988 and thus turned 17 on 22 April 2005 (and 18 on 22 April 2006). While at all times denying that the sexual acts complained of by Ms McDonald had occurred, Fr Conroy argued in the alternative that such acts (as described by Ms McDonald in her evidence) were in any event consensual and uncoerced. On that basis it was urged on the High Court that all such acts as occurred after 22 April 2005 (and, it was said, all of the sexual acts alleged by Ms McDonald took place after that date) were acts to which Ms McDonald could consent as a matter of law and to which - so the High Court Judge was invited to conclude from the evidence - she had in fact consented. Submissions to the same effect were made by the School. This issue was not addressed by the Judge in his Judgment and, unsurprisingly, this omission was the subject of sharp criticism in the submissions of Fr Conroy and of the School on these appeals. Each of the Appellants asks the Court to conclude that Ms McDonald could and did consent to the sexual acts which the Judge found to have occurred and that, accordingly, no cause of action properly arises against them, even on the basis of the Judge's findings of feet as to what had occurred between Ms McDonald and Fr Conroy.

7 There was, thirdly, a significant limitation issue in the case. Ms McDonald turned 18 on 22 April 2006. These proceedings commenced on 29 January 2013. Fr Conroy and the School both pleaded that all or a significant part of the claims against them were statute-barred. In response, Ms McDonald relied on the provisions of the section 48A of the Statute of Limitations 1957 (inserted by the Statute of Limitations (Amendment) Act 2000). Again, this issue was resolved in favour of Ms McDonald and, again, the manner in which the Judge reached and explained that determination is trenchantly criticised by both Appellants.

8 Finally, in the course of the proceedings the Judge made certain remarks concerning clerical sex abuse in the Diocese of Feins which prompted both Fr Conroy and the School to apply to the Judge to recuse himself The Judge refused to do so and the action proceeded to a conclusion. However, both Fr Conroy and the School challenge the Judge's refusal before this Court.

9 The two appeals were heard together over two days....