McNamee v Boyce
| Jurisdiction | Ireland |
| Judge | Denham C.J. |
| Judgment Date | 18 May 2017 |
| Neutral Citation | [2017] IESC 24 |
| Court | Supreme Court |
| Docket Number | Record No. S:AP:IE:2016:000027 |
| Date | 18 May 2017 |
[2017] IESC 24
Denham C.J.
Denham C.J.
O'Donnell Donal J.
Clarke J.
MacMenamin J.
Dunne J.
Record No. S:AP:IE:2016:000027
THE SUPREME COURT
Delay – Sexual assault – Prejudice – Plaintiff seeking to appeal against Court of Appeal decision – Whether delay was excessive, inordinate and inexcusable
Facts: In the High Court, following a six day trial, the following questions were put to the Jury: (i) Was the plaintiff, Ms McNamee, sexually assaulted by the defendant, Mr Boyce, during the period 1979 to 1985? (ii) If the answer is yes, has the plaintiff suffered psychological and psychiatric injury as a result? (iii) If the answer is yes, what compensation do you award the plaintiff? The Jury found that the respondent had sexually assaulted the plaintiff during the period 1979 – 1985, that she had suffered psychological and psychiatric injury, and awarded her €493,037.47. The order of the High Court was made on the 18th November, 2014. The defendant appealed to the Court of Appeal, seeking to set aside the decision of the High Court. The Court of Appeal allowed the defendant’s appeal and set aside the order of the High Court. The plaintiff applied to the Supreme Court for leave to appeal. On the 10th June, 2016, the Court granted leave to appeal on the following grounds: (i) The issue as to whether it is appropriate to describe a decision by a court of first instance on the question of whether to dismiss proceedings for delay as being one in which involves the exercise of a discretion properly so called; (ii) The issue of the extent to which it is appropriate for an appellate court to review and/or accord deference to any balancing exercise (as carried out by a judge of first instance) involved in assessing whether it is appropriate or not to dismiss proceedings for delay; and (iii) The appropriate weight to be attached, in such an exercise, to any failure on the part of a defendant to implement such procedures as may have been available to reduce delay.
Held by Denham CJ that, having noted that the plenary summons in the case was issued in June 2001, nearly nine years after the last assault alleged, and 22 years after the first, as of 2001 there was no obvious reason why the proceedings once issued could not have been prosecuted, and indeed given the lapse of time from the events complained of, there was every reason to prosecute them with diligence; instead nearly 18 months elapsed before the plenary summons was even served, and a further eight and a half years elapsed before the basic step of serving a statement of claim was taken. Denham CJ held that this delay was excessive and inordinate, but, particularly in the light of the time that had elapsed since the matters alleged, it was on any view inexcusable. Denham CJ noted that the defendant’s case was significantly prejudiced by this want of prosecution on the part of the plaintiff. Denham CJ held that, in the circumstances, neither the fact that the defendant did not enter an appearance initially, nor the plaintiff’s willingness to permit the admission into evidence of the statement made by the defendant’s deceased wife in the criminal trial, were sufficient in this case to alter the conclusion that there was clear evidence of serious and inexcusable failure to prosecute a case which required to be prosecuted with speed, and which want of prosecution was the source of real and serious prejudice to the defendant.
Denham CJ held that the Court would dismiss the appeal by the plaintiff from the Court of Appeal.
Appeal dismissed.
Once again the issue of delay in proceedings relating to child sexual abuse, alleged to have occurred many years ago, comes before this Court.
Caroline McNamee, the plaintiff/appellant, is referred to as ‘the plaintiff’. Michael Boyce, the defendant/respondent, is referred to as ‘the defendant’.
The plaintiff has brought these civil proceedings against the defendant.
In 1995 the plaintiff made a complaint to An Garda Síochána.
In February, 1996, the plaintiff made a formal statement to An Garda Síochána, and a number of other statements were made by family and friends.
The defendant was tried in the Circuit Criminal Court on six counts of sexual assault relating to the plaintiff. He was convicted in 1999, on one count, which was affirmed on appeal. He was sentenced to three years imprisonment.
The plaintiff, the defendant and the defendant's wife gave evidence at the trial. The High Court in these proceedings ruled that the assault the subject matter of the said criminal conviction, was statute barred.
A plenary summons was issued on behalf of the plaintiff on the 20th June, 2001, but was not served on the defendant by the 20th June, 2002.
An application was made to the High Court to renew the plenary summons for a period of six months. The application was grounded on the affidavit of Eugene Kelly, solicitor of the Law Centre, Longford, and solicitor for the plaintiff. Inter alia, he deposed that owing to an administrative oversight in the office, the plenary summons was not served on the defendant by the 20th June, 2002.
On the 8th July, 2002, the High Court extended time for applying for renewal of the plenary summons, and ordered that the summons be renewed for a period of six months, from the 8th July, 2002.
On the 16th December, 2002, the plenary summons was served.
On the 7th July, 2005, the defendant's wife died.
On the 5th July, 2011, notice of intention to proceed was served on behalf of the plaintiff.
On the 15th September, 2011, a notice of motion seeking judgment in default of appearance was served.
On the 22nd November, 2011, the defendant entered an appearance.
On the 2nd August, 2011, a statement of claim was served. It was stated that the defendant was a relative of the plaintiff, who at all material times was in a position of trust with the plaintiff and her family. Further, it was stated that the plaintiff was born on the 4th April, 1975, and that between 1979 and 1988, when the plaintiff was aged between 4 and 13, the defendant regularly and repeatedly, intentionally, and wrongfully, subjected the plaintiff to assaults, sexual assaults, batteries, false imprisonment, and deliberate infliction of emotional suffering, at a variety of locations. Particulars were given, and damages for personal injury were claimed.
On the 13th March, 2012, an amended statement of claim was delivered, which gave particulars of more serious sexual offences of rape, buggery, and oral rape.
The defendant brought a motion, dated the 8th May, 2012, seeking an order that the plaintiff's proceedings be dismissed for want of prosecution on the basis of gross, inordinate and inexcusable delay.
The motion was grounded on the affidavit of the defendant. He denied the claims made in the statement of claim. He deposed that he was wrongly convicted in Mullingar Circuit Court in 1999. (His appeal was subsequently dismissed). He deposed that there had been long delays, first from the date of the alleged incidents to the date on which the plenary summons was issued, and secondly the gross delay between the issuing of the summons and the progress of the proceedings by delivery of a statement of claim. He deposed that he was released from prison in 2005, and heard nothing further of these proceedings until 2011. He deposed that he would suffer prejudice as his wife had died on the 7th July, 2005. She had been a witness for him in the criminal trial and would have been a witness in the civil trial. Also, he deposed that he believed Garda Mick Burke would have been in a position to give evidence to assist him, but that Garda Burke died in June, 2010. He deposed also that he was then 67 years old, and that it was difficult to remember what he was doing in the years 1979 – 1988.
Margaret O'Shea-Grewcock, solicitor in the Law Centre (Montague Court) Medical Negligence Unit, solicitor for the plaintiff, deposed on affidavit on behalf of the plaintiff. She concluded that in all the circumstances that the defendant was not prejudiced, and that it would not be unfair to permit the plaintiff's claim to proceed.
On the 9th July, 2012, the High Court (O'Neill J.) refused the motion which sought to dismiss the plaintiff's proceedings. The learned High Court judge found that there was inordinate and inexcusable delay. He then considered the issue of the balance of justice. The specific prejudice raised was the death of the defendant's wife and Garda Burke. The High Court did not consider that this would seriously prejudice the defendant in his defence as the transcript of the evidence of these persons in the Circuit Court would be available. It was noted that there were a variety of witnesses available, and that the defendant could give evidence. It was pointed out that the trial judge will see that a fair trial takes place, and, were it to transpire at the trial that there was a gross disadvantage to the defendant because of the delay of the plaintiff in bringing the proceedings, then an application could be made at the trial where a judge would have a clear view as to whether a fair trial could take place in light of the passage of time. The application was refused.
This decision of the High Court (O'Neill J.) was not appealed.
On the 4th, 5th, 6th, 7th, 12th and 13th November, 2014, the civil proceedings were heard in the High Court before O'Malley J., sitting with a jury.
The plaintiff was born on the 4th April, 1975. 1979 to 1992 was the period of the alleged sexual assaults. The High Court ruled that the claims relating to assaults post dating the 4th...
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