McDonald v Conroy and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cian Ferriter
• Judgment Date: 12 February 2024
• Neutral Citation: [2024] IEHC 69
• Court: High Court
• Docket Number: RECORD NO. 2013/858P

Between:

Niamh McDonald

Plaintiff

and

Tommy Conroy

First Named Defendant

and

Gorey Community School

Second Named Defendant

and

Denis Brennan

Third Named Defendant

[2024] IEHC 69

RECORD NO. 2013/858P

THE HIGH COURT

Judgment delivered byMr. Justice Cian Ferriteron 12 ^th February 2024

Introduction

1 This is the plaintiff's application to amend her plenary summons and statement of claim pursuant to Order 28 rule 1 Rules of the Superior Courts. The application is made in somewhat unusual circumstances: the proceedings have already been the subject of a 34 day trial in the High Court which resulted in a judgment granting substantial damages to the plaintiff. The High Court judgment was overturned by the Court of Appeal who ordered a re-trial. This amendment application is brought in advance of that re-trial. The application is less straightforward than it might otherwise have been given the history of the proceedings and the relative novelty of a number of the issues arising in the case which, at its core, involves an allegation of a sexual relationship between the plaintiff, when she was 17, and the first defendant teacher and school chaplain, while the plaintiff was still in school.

Background

2 The proceedings involve a claim for damages by the plaintiff, who is now 35 years old, arising from an alleged sexual relationship she had, while still a schoolgirl in the second defendant's school, with the first defendant, a teacher, school chaplain and then-Catholic priest in that school. While certain alleged events relevant to her claims occurred on a school trip abroad in February/March 2005 when she was still 16, she alleges that a sexual relationship between herself and the first defendant commenced when she was 17 (her 17 ^th birthday occurred on 22 April 2005) and continued until after she was 18 (but still in school). In light of the Court of Appeal's judgment, the relevant allegations are now confined to the period before she became 18 (i.e. pre-22 April 2006), the claims relating to events after her 18 ^th birthday being statute-barred.

3 In her statement of claim as originally pleaded, the plaintiff alleged physical and sexual assault, false imprisonment and sex abuse as against the first defendant. She alleged negligence and breach of duty as against all defendants, and claimed that the second and third defendants were vicariously liable for the first defendant's wrongs. The defendants put in full defences and each relied on the Statute of Limitations as a defence to the plaintiff's claims. The third defendant was sued in a representative capacity as an agreed nominee of the Catholic Church. The claims against the third defendant were dismissed by the High Court and that dismissal was not appealed to the Court of Appeal. Accordingly, the remaining claims which will be the subject of the re-trial are only made against the first and second defendants. It is important to record that the first defendant vigorously denies that there was any sexual relationship with the plaintiff at all as alleged by her.

4 The plaintiff now seeks to amend her statement of claim to include a formal plea in answer to the Statute defences to the effect that she had a disability within the meaning of s.48A Statute of Limitations 1957 as amended which prevented her from issuing court proceedings within the limitation period (“the s.48A issue”); to plead that any consent to the alleged sexual relationship was vitiated by her age and the nature of the student—teacher relationship in question (“the consent issue”) and to allege an additional civil wrong, being the tort of grooming (“the grooming issue”). All of these matters arose in some shape or form in the original High Court trial and all of them were the subject of discussion in the Court of Appeal's judgment (which was given by Collins J. on 6 August 2020) (“the Court of Appeal judgment”).

5 The plaintiff in her grounding affidavit (and, indeed, at the opening of the application before me) presented her application for amendment of the pleadings as a form of tidy up application necessarily following from the terms of the Court of Appeal judgment and on the basis that all of the matters addressed by the proposed amendments had been the subject of evidence and submissions in the original trial, and the subject of submissions in the Court of Appeal, such that the proposed amendments are necessary for determination of the real issues in controversy between the parties and could not in truth cause the defendants any real prejudice.

6 The defendants oppose the application on the basis that it is brought too late in the day; that the amendments are vague and not properly particularized and that the plaintiff's conduct (particularly as regards the attempt to introduce an entirely new head of claim in relation to the tort of grooming despite not having sought to amend her pleadings when she raised this issue at the original trial) are such as to disentitle her to the amendment relief. The defendants also claim that they will be prejudiced by the amendments at this very lengthy remove given that the events the subject matter of the proceedings occurred in 2005 and up to the plaintiff's 18 ^th birthday in April 2006.

The claims in the proceedings as issued

7 In order to put the issues arising on this amendment application in context, it is necessary to summarise the salient aspects of the original pleadings in the case.

8 The plaintiff issued these proceedings by plenary summons dated 29 January 2013 and delivered a statement of claim on 14 February 2013. In her statement of claim, the plaintiff pleaded that “ between 2004 and 2007, the plaintiff was repeatedly and wrongfully physically and sexually assaulted, falsely imprisoned and sexually abused and subjected to sexualised behaviour by the first named defendant” (para 5). She further claimed that she sustained severe emotional suffering “ caused by the intentional and/ or negligent acts and omissions of the defendants, their servants or agents” (para 6). She alleged that these wrongs were caused by the negligence, breach of duty including breach of statutory duty and fiduciary duty on the part of the second and third defendants (para 7). She pleaded severe personal injuries, loss and damage as a result of these matters. She then provided particulars of “assault, false imprisonment, sexual abuse, sexualized behavior and emotional suffering” and set out over ten paragraphs particulars of matters alleged to support these claims.

9 Those particulars (provided from paragraphs 10 to 20 of the statement of claim) commenced with a plea, at paragraph 10, that the first defendant “ was highly regarded and popular with students, he was central to many school activities and he was perceived by the students to have influence and executive power in relation to school trips and mentors. He was popular in the school and he also provided counselling to pupils and teachers”. There followed nine further paragraphs in the statement of claim which detailed alleged events relating to interaction between the plaintiff and the first defendant commencing with an allegation that the first defendant invited the plaintiff and another student to sleep in his bed with him during a transition year school trip to The Gambia (it appears that this trip took place over 10 days from end February to early March 2005, when the plaintiff was still 16). Further matters pleaded included allegations that after that trip the first defendant started to send the plaintiff private text messages which became increasingly personal and sexual in nature. It is alleged that the plaintiff was told by the first defendant that he wanted to develop the relationship and bought a mobile phone for this purpose; that he organised a social night at his home following the Gambia trip and that she found herself alone with him at one point in the evening and felt uncomfortable by the attention he gave her; and that he advised her that they would wait until she was 17 before taking the relationship further.

10 The plaintiff reached her 17 ^th birthday on 22 April 2005. The plaintiff in the subsequent paragraphs of this section of her statement of claim alleges that the relationship after her 17 ^th birthday developed into a sexual one which she was unable to discuss with anyone and which led to her feeling increasingly distressed. She alleges that she felt pressurised by the first defendant to have sexual intercourse with him and felt unable to extricate herself from her situation with him. She alleged that by the time she was in 6 ^th year she was having sexual contact with the first defendant approximately once a week and that the relationship was ended by the first defendant in February of her 6 ^th year at school i.e. February 2007 when she was 18 and not long before her 19 ^th birthday.

11 The plaintiff pleaded particulars of injuries caused by the alleged wrongs including recurrent depression and anxiety and delayed post-traumatic stress disorder. She pleaded that, at the time of the statement of claim (being February 2013) she continued to suffer from depressive disorder and ongoing post traumatic stress disorder.

12 A case in vicarious liability was made against the second and third defendants. Particulars of negligence and breach of duty and intentional infliction of emotional suffering were separately pleaded as against the second defendant (“the school”) with separate particulars of such claims also set out as against the third defendant.

The original defences

13 Each of the three defendants put in full defences and each of them pleaded that the plaintiff's claim was statute barred having regard to the provisions of the Statute of Limitations (the proceedings being issued almost 7 years after the plaintiff became 18).

14 The first defendant in his defence pointed out that, in her replies to particulars, the...