P.K. v Deignan

JurisdictionIreland
JudgeMs. Justice Dunne
Judgment Date02 December 2008
Neutral Citation[2008] IEHC 407
CourtHigh Court
Docket Number[2003 No.
Date02 December 2008

[2008] IEHC 407

THE HIGH COURT

4074/2003
K (P) v Deignan & Ors

BETWEEN

P.K.
PLAINTIFF

AND

STEPHEN DEIGNAN, MATHEW GAFFNEY AND
THE MINISTER FOR EDUCATION
DEFENDANTS

O DOMHNAILL v MERRICK 1984 IR 151 1985 ILRM 40

TOAL v DUIGNAN & ORS (NO 1) 1991 ILRM 135

TOAL v DUIGNAN & ORS (NO 2) 1991 ILRM 140

PRIMOR PLC (FORMERLY PMPA INSURANCE PLC) v FREANEY & CO & STOKES KENNEDY CROWLEY 1996 2 IR 459 1995/20/5287

KELLY v O'LEARY 2001 2 IR 526 2001/13/3651

MCH (J) v M (J) & ORS 2004 3 IR 385 2004/35/8084

MANNING v BENSON & HEDGES LTD 2004 3 IR 556 2005 1 ILRM 190 2004/29/6876

KEARNEY v MCQUILLAN & NORTH EASTERN HEALTH BOARD UNREP DUNNE 31.5.2006 2006/31/6601 2006 IEHC 186

STEPHENS v PAUL FLYNN LTD UNREP CLARKE 28.4.2005 2005/56/11682 2005 IEHC 148

GILROY v FLYNN 2005 1 ILRM 290

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

BIRKETT v JAMES 1978 AC 297

RAINSFORD v LIMERICK CORP 1995 2 ILRM 561 1981/7/1121

STATUTE OF LIMITATIONS (AMDT) ACT 2000 S3

O'C (J) v DPP 2000 3 IR 478

PRACTICE AND PROCEDURE

Delay

Pre-commencement of proceedings - Dismissal of action - Inordinate and inexcusable delay prior to commencement of proceedings - Principles to be applied - Whether defendant unable to properly defend proceedings by reason of lapse of time - Whether real and serious risk of unfair trial - Manning v Benson and Hedges Ltd. [2004] IEHC 316, [2004] 3 IR 556, McH v M [2004] IEHC 112, [2004] 3 IR 385, Toal v Duignan (No 1) [1991] ILRM 135 and Toal v Duignan (No 2) [1991] ILRM 140 applied;Birkett v James [1978] AC 297 and Ó Domhnaill v. Merrick [1984] IR 151 approved; Kelly v O'Leary [2001] 2 IR 526 considered; Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 distinguished - Statute of Limitations (Amendment) Act 2000 (No 13), s 3 - Claim dismissed (2003/4074P - Dunne J - 2/12/2008) [2008] IEHC 407

K(P) v Deignan

1

JUDGMENT delivered by Ms. Justice Dunne on the 2nd day of December, 2008

2

This is an application on behalf of the first named defendant herein to have these proceedings dismissed against the first named defendant on the grounds of inordinate and inexcusable delay in instituting and prosecuting these proceedings. The first named defendant herein is sued in a representative capacity, on behalf of the De la Salle Order of Brothers, (the Order).

3

The plaintiff attended a national school run by the Order between 1953-1960. It is alleged that during that period, he was subjected to systematic and frequent physical, psychological and sexual assaults by the Brothers of the Order. As a result, it is alleged that the plaintiff suffered severe personal injuries, loss, damage, psychological trauma and distress.

4

The proceedings herein were commenced by plenary summons issued on the 31 st March, 2003. A statement of claim was delivered on the 9 th March, 2005. A notice for particulars was raised on behalf of the first named defendant on the 16 th May, 2005. Replies to particulars were furnished in response dated 26 th July, 2006. A defence was delivered on the 28 th May, 2007. The notice of motion in respect of this application is dated the 7 th August, 2007, and is grounded upon an affidavit of Brother Pius McCarthy and a replying affidavit was sworn herein by the plaintiff on the 29 th November, 2007.

5

The particulars of assault and sexual assault set out in the statement of claim in respect of the order were in general terms. It was alleged:-

6

1. The plaintiff was regularly psychologically demeaned by the Brothers of the Order by instilling in him a feeling of worthlessness and inadequacy;

7

2. He was frequently slapped and strapped. On one occasion, his hands were strapped so severely he believed he was about to pass out. His hand became numb and swollen;

8

3. He was sexually assaulted on a regular basis by touching and interfering with the plaintiff's genitals.

9

No detail was given in the statement of claim as to the identity of the perpetrator or perpetrators of these acts.

10

In the replies to particulars, the plaintiff gave more detail as to the nature of the assaults and named the individuals alleged to have carried them out.

11

Brother V. is alleged to have physically assaulted the plaintiff.

12

Brother J. is alleged to have denigrated his intelligence.

13

Brother M. is alleged to have subjected the plaintiff to psychological assaults.

14

Brother F. is alleged to have neglected him.

15

Finally Brother C. is alleged to have sexually assaulted the plaintiff during class by inappropriately touching him.

16

At the time of the matters complained of by the plaintiff, he was aged between six and twelve years approximately. It appears from the affidavit of Brother Pius McCarthy that the first complaint received by the Order from the plaintiff as to these matters was by way of a solicitor's letter in June 2002.

17

The first named defendant has in the defence delivered herein, pleaded, inter alia, as follows:-

"Consequent upon the inordinate and inexcusable delay in the intuition of the within proceedings the first named defendant has been prejudiced in connection with its defence of same. The first named defendant reserves the right to apply at or before the hearing hereof to strike out the within proceedings consequent upon the said delay."

18

In the affidavit grounding this application Brother Pius McCarthy deals with the issue of inordinate and inexcusable and the issue of prejudice. I now want to refer to the matters relied on in the grounding affidavit in the context of delay. It should be noted that this is a case in which the first name defendant relies on pre-commencement delay and delay since the issue of the proceedings.

Pre-commencement delay
19

The plaintiff apparently commenced school in 1953. In the plenary summons it was stated that abuse commenced in the years 1957-1959. In the statement of claim it is alleged that the abuse occurred between the years 1953-1959. In replies to particulars it is clear that the abuse is alleged to have continued up to the year 1960. Accordingly, the earliest date of which complaint is made appears to be in 1953, some 50 years prior to the issue of the plenary summons herein and the latest complaint appears to be related to the final school year of the plaintiff with the Order commencing in August 1959 and presumably concluding in July 1960, some 43 years prior to the commencement of these proceedings.

20

One other aspect of pre-commencement delay referred to in the grounding affidavit relates to the period after the receipt of the letter from the plaintiff's solicitors of the 27 th June, 2002, in which complaint was first made. That letter was in very general terms and did not identify the nature of the abuse alleged or the alleged perpetrators of that abuse. The first named defendant's solicitors responded asking:-

"With regard to the allegations contained in your letter we would be obliged to receive full and detailed particulars of the serious physical and sexual abuse of which your client complains and also to learn the identity of the person who committed such acts."

21

By way of reply, the first named defendant's solicitors were informed that papers had been sent to counsel to draft a plenary summons and statement of claim and that full details would be set out in the statement of claim.

Post-commencement delay
22

The plenary summons as mentioned before was issued on the 31 st March, 2003. The first named defendant's solicitors had sought details of the allegations being made by the plaintiff in letters both before and after the issue of proceedings. (7 th August, 2002, 24 th February, 2003 and 16 th March, 2004.) No details were forthcoming. Delay in the delivery of a statement of claim led the solicitors for the first named defendant to write by letter dated the 29 th July, 2004, advising of the intention to bring an application to strike out for want of prosecution. A further reminder was sent by letter dated the 18 th February, 2005. Ultimately the statement of claim was delivered in March 2005.

23

Particulars were raised on the 16 th May, 2005 to which replies were furnished by replies to particulars dated the 26 th July, 2006. The defence herein was delivered on the 28 th May, 2007. This notice of motion was issued and a replying affidavit of the plaintiff was filed in March 2008. Thus, complaint is made of the delay in delivering a statement of claim and in furnishing particulars of the plaintiff's claim.

Prejudice
24

Three of the Brothers named by the plaintiff as having been responsible for the alleged physical and sexual abuse complained of, were dead by June 2002, when complaint was first made by the plaintiff. They were not in any event named until 2006. One of the Brothers, Brother V. was still alive in 2006 but was unfit to give instructions. He died in April 2007. When the allegations were first made and while the perpetrators remained unidentified, he was approached with regard to the plaintiff's allegations. He did not recall the plaintiff and denied ever having abused any boy or having heard of any allegations of abuse by any Brother or teacher in the school. By the time he was identified as one of those alleged to have abused the plaintiff, his health had deteriorated and he was unable to give instructions in respect of those allegations.

25

Only one of those alleged to have been involved is alive, Brother M., and he is now 76 years of age approximately and is unwell. He was shocked at being named as one of those who abused the plaintiff.

26

The contention on the part of the first named defendant is that as a result of the delay in making any complaint, it has not been possible to conduct any proper investigation into the complaint. Three of those concerned were dead prior to the making of the complaint, one had died...

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