McNamee v Boyce

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 04 February 2016
• Neutral Citation: [2016] IECA 19
• Docket Number: [2015 No. 35]
• Court: Court of Appeal (Ireland)
• Date: 04 February 2016

Finlay Geoghegan J.

Peart J.

Irvine J.

BETWEEN

CAROLINE McNAMEE

PLAINTIFF/RESPONDENT

AND

MICHAEL BOYCE

DEFENDANT/APPELLANT

[2016] IECA 19

Irvine J.

[2015 No. 35]

THE COURT OF APPEAL

Tort ? Damages ? Sexual assault ? Claim for damages as a result of assaults alleged to have been carried out by defendant ? Whether plaintiff had been guilty of inordinate delay in bringing claim

Facts: The defendant had been convicted in respect of a sexual assault on the plaintiff. The plaintiff brought a claim seeking damages in respect of sexual assault and had been awarded damages by the High Court. The defendant now appealed against that award arguing that the High Court had incorrectly failed to dismiss the claim on the basis of inordinate delay.

Held by Ms Justice Irvine, the other Justices concurring, that the appeal would be allowed. Notwithstanding the serious nature of the alleged assaults, the plaintiff had been guilty of inordinate delay in bringing the claim. As a result, the defendant?s wife had died and was not longer available to offer evidence as she had done in the criminal trial previously. In permitting the matter to proceed, the Court was satisfied the High Court had allowed the defendant to be unduly prejudiced.

JUDGMENT of Ms. Justice Irvine delivered on the 4th day of February 2016

1 This is the defendant's appeal against an order of the High Court (O'Malley J.) made on 18th November, 2014, following the conclusion of proceedings brought by the plaintiff wherein she claimed damages for sexual assault. The action was heard before a jury who found in her favour and proceeded to award her damages in the sum of ?493,037.47. The Court further ordered that the defendant discharge the plaintiff's costs of the proceedings, the same to be taxed in default of agreement.

2 It is the defendant's contention that the trial judge erred in law in refusing two applications made on his behalf to have the proceedings dismissed on the grounds of the plaintiff's inordinate and inexcusable delay in the manner in which she pursued her claim. The first such application was made at the outset of the proceedings before any evidence was called. The latter was made at the conclusion of the plaintiff's evidence in chief. Accordingly, the defendant maintains that this Court should set aside the award and order of the Court made in the plaintiff's favour on 18th November, 2014.

Factual Background

3 The plaintiff was born on 4th April, 1975. In these proceedings, which she instituted on 20th June, 2001, she alleged that she was sexually assaulted by the defendant on many occasions between 1979 and 1992. She claimed damages for assault, sexual assault, battery, false imprisonment and the deliberate infliction of emotional suffering.

4 Relevant to the within appeal is the fact that in 1999 the defendant was tried in the Circuit Criminal Court in respect of six counts of sexual assault pertaining to the plaintiff. The plaintiff, the defendant and the defendant's wife gave evidence at the trial. The defendant was convicted on one count of sexual assault and was acquitted in respect of the other five counts. The assault the subject matter of the conviction was amongst certain claims which the High Court in this action later ruled to be statute-barred.

5 As appears from the detailed chronology set out below, the defendant's wife, Mrs. Helen Boyce, died on 7th July, 2005. Her death occurred during a period when there had been no activity in the current proceedings for several years. The plenary summons had been served in December, 2002 but no further step was taken until the plaintiff served a notice of intention to proceed on 5th July, 2011.

6 The sexual assaults pleaded in the statement of claim delivered on 20th December, 2011, principally concern the alleged digital penetration of the plaintiff's vagina by the defendant. These assaults were alleged to have taken place at the plaintiff's own home, at the defendant's home and on occasion when the defendant had taken her for a drive. The plaintiff maintained that all of the assaults occurred between 1979 and 1988.

7 In March, 2012 the plaintiff was granted liberty to deliver an amended statement of claim. In her amended pleadings the plaintiff made much more serious allegations against the defendant than had previously been advanced in the original statement of claim. She now included a claim for damages for rape, buggery and forced oral sex. Further, she maintained that the assaults had continued until 1992.

8 By notice of motion dated 8th May, 2012, the defendant brought an application seeking an order dismissing the plaintiff's proceedings for want of prosecution and on the grounds of inordinate and inexcusable delay. That application was advanced principally on the basis that his wife had died in 2005 and that she had been in a position to give evidence to assist with his defence in the criminal proceedings. Thus he maintained that he would have been better placed to defend the within proceedings if she was still alive and that it had been the plaintiff's delay in pursuing her claim that had denied him the benefit of her evidence. In response, the plaintiff maintained that any prejudice to the defendant arising from his wife's death could be overcome by the plaintiff agreeing that the transcript of Mrs. Boyce's testimony in the criminal proceedings could be admitted into evidence in the current proceedings.

9 At the time of the defendant's application, O'Neill J., who was the presiding judge, did not have sight of the transcript of the evidence that had been given by Mrs. Boyce in the criminal proceedings. However, in light of the plaintiff's submission, he agreed that any potential prejudice to the defendant arising from her death could likely be overcome by the trial judge permitting the defendant to rely upon the transcript of her evidence in the criminal proceedings. While not so specified in his order of the 9th July, 2012, the parties are agreed that O'Neill J. was satisfied that the trial judge would be best placed to decide the extent to which the defendant might be prejudiced as a result of Mrs. Boyce's unavailability as a witness and that accordingly he should be entitled to renew his application to dismiss the proceedings based upon such circumstances as might arise at any future point in the proceedings.

10 Before moving to consider the submissions of the parties and my conclusions, I will set out a chronology of the events which I consider material to the appeal:-

Chronology of the Plaintiff

4 th April 1975: The plaintiff's date of birth

1979 ? 1992: Period of alleged sexual assaults. The High Court ruled that the claims relating to assaults post dating 4th April, 1985, were statue-barred

4 th April 1993: The plaintiff attains her majority

1995 The plaintiff makes her first complaint to An Garda Síochána.

27 th February 1996: The plaintiff makes a formal statement to An Garda Síochána.

4 th April 1996: The plaintiff turns twenty one.

1999 The defendant was tried in the Circuit Criminal Court on six counts of sexual assault. He was convicted on one count which was affirmed on appeal and was sentenced to three years imprisonment.

20 th June 2001: Plenary summons issued but not served.

8 th July 2002: Plenary summons was renewed for six months on foot of an order following an ex parte application.

16 th December 2002: Plenary summons served

7 th July 2005: The defendant's wife, Mrs. Boyce, died.

5 th July 2011: The plaintiff serves a notice of intention to proceed.

15 th September 2011: Notice of motion seeking judgment in default of appearance.

22 nd November 2011: The defendant enters an appearance.

20 th December 2011: Statement of claim was delivered.

13 th March 2012: An amended statement of claim was delivered.

9 th July 2012: O'Neill J. refuses defendant's application to dismiss the proceedings for inordinate and inexcusable delay.

4 th, 5th, 6th, 7th, 12th and 13th November 2014: The civil proceedings were heard before O'Malley J. sitting with a jury

Applications made to O'Malley J.

11 At the commencement of this action, counsel for the defendant made two applications to the learned trial judge. The first of these was based upon the plea in his defence that certain claims maintained by the plaintiff in her amended statement of claim were statute barred. The other was the first of his two applications made in the course of the hearing to have the proceedings dismissed on the grounds that there had been inordinate and inexcusable delay on the part of the plaintiff in the manner in which she had pursued her claim. In respect of the later application, the principal argument advanced on his behalf was that the transcript of Mrs. Boyce's evidence from the criminal proceedings, which had become available since the hearing of his earlier application to O'Neill J., was insufficient to counter the prejudice to which he would be exposed as a result of her being unavailable to give viva voce evidence on his behalf in relation to the claims likely to be made against him. Her evidence would have been critical to the credibility of the evidence that the plaintiff was likely to give concerning the assaults alleged against him and in particular as to whether or not an outdoor flush toilet existed at the defendant's premises, as to whether he had bought clothing for her and as to whether she overnighted regularly at his home.

12 Having considered the submissions of the parties overnight and having read the transcript of Mrs. Boyce's evidence in the criminal proceedings, the High Court judge gave two rulings the following morning. She first ruled that insofar as the plaintiff's complaints of sexual assault post-dated 1985, those claims were statute-barred. In relation to the latter application, which is to the forefront...