S.T. v Clifford

• Jurisdiction: Ireland
• Judge: Mr. Justice Alexander Owens
• Judgment Date: 06 July 2023
• Neutral Citation: [2023] IEHC 458
• Court: High Court
• Docket Number: [2008 NO. 6467P]

Between:

S.T.

Plaintiff

and

Dermot Clifford

Defendant

[2023] IEHC 458

[2008 NO. 6467P]

THE HIGH COURT

JUDGMENT of The Hon. Mr. Justice Alexander Owens delivered on the 6th day of JULY 2023.

1 This is a defendant's application to dismiss proceedings claiming damages for assault on the ground that adverse effects of passage of time since alleged occurrence of the matters giving rise to the plaintiff's cause of action are such as to preclude a fair trial, and therefore, it would be unjust to require this defendant to meet the claim. Courts enjoy inherent jurisdiction to dismiss a civil action where evidence demonstrates that effects of passage of time will be deprive a defendant of the constitutional right to a fair trial.

2 The material which the defendant relies on as precluding the prospect of a fair trial is not sufficient to persuade this Court to determine this application in his favour. This Court is not satisfied that passage of time has resulted in a situation where the defendant cannot get a fair trial.

3 The plaintiff was born in February 1973. The defendant is the retired Roman Catholic Archbishop of Cashel and Emily. The plaintiff initially claimed that between 1982 and 1989 he was sexually abused by a curate attached to a parish in this Diocese. The alleged abuse relates to a period when the plaintiff served in that parish as an altar boy. He makes a definitive allegation that he was being abused when he was captain of an under 12s GAA team in the local town. His case is that this abuse was reported to a local GP and Gardaí at the time and that the curate then moved from the area.

4 Investigation of records relating to priests assigned to the parish revealed that a priest with the surname provided by the Plaintiff was assigned to the parish as a curate between 1974 and September 1988. The plaintiff initially attributed an incorrect Christian name to this curate.

5 The defendant is sued as a representative of the Diocese. The plaintiff claims that those in control of the Diocese were vicariously responsible for these assaults and that he should be compensated by them out of diocesan funds. He also alleges that those who exercised authority and control over priests in the Diocese at the time of the alleged abuse failed to properly supervise those priests in a way which would have protected him. This is a recent feature of this claim which arises from an amendment to his statement of claim in 2020.

6 The curate moved to another parish in 1988. He died in January 1996. His parish priest at the time died in 1995. Another curate who served in the parish from 1987 died in 2009. The archbishop of the Diocese died in 1997. Other priests who served with the curate in his new parish are dead. Others have no recollection of any issue relating to him. Some of his clerical friends are also now dead.

7 This action was commenced in 2008. It relates to events which occurred some 22 to 25 years earlier. A further period of 15 years has now passed.

8 A preliminary letter from the defendant's solicitors in August 2008 sought information on the allegations. This was replied to in September 2010. It then emerged that the plenary summons had not been served. An order was obtained for renewal of this summons in February 2011. A letter seeking particulars in 2011 was replied to in February 2015. These replies provided little information.

9 The courts have repeatedly emphasised that those who bring legal actions long after date of accrual of their cause of action have a self-serving duty to proceed to trial with expedition. Procedural delay may prejudice either party.

10 This point applies both to exercise of inherent jurisdiction to dismiss proceedings where the prospect of a fair trial has been compromised by effects of passage of time and to exercise of jurisdiction to dismiss an action on grounds of inordinate and inexcusable delay in the manner in which it has been prosecuted.

11 This application to dismiss the action was initiated in 2018. It was adjourned pending an application by the plaintiff to amend the proceedings and subsequently re-entered by the defendant. Many details of the plaintiff's allegations were first provided to the defendant's solicitors in 2020, 2021 and 2022.

12 A plaintiff who wishes to see off an application to have a case withdrawn must advance any available material which demonstrates that a defendant will not suffer the alleged prejudice. This material may demonstrate the strength of that plaintiff's case or that there are there are areas of inquiry which are still available to that defendant. If a plaintiff is aware that admissible material remains available which supports the allegations or rebuts defences of fabrication, then that material should be disclosed, and the content set out in full. If a plaintiff is aware of material such as names and addresses of potential witnesses to surrounding circumstances, then this information should be provided.

13 Documentation accompanying this application indicates that the plaintiff has sought and obtained discovery of diocesan records. It is not clear whether the defendant has the advantage of discovery of the plaintiff's medical records. Information disclosed to the defendant in late 2021 and in 2022 shows that the plaintiff has an extensive medical and psychiatric history. Over the years since 1994 he has attended mental health facilities in Clonmel, Nenagh, Ennis and Limerick. Many of these attendances were in-patient admissions.

14 This defendant is relying solely on the inherent jurisdiction of courts to dismiss an action because passage of time has precluded a fair trial of the issues. He does not rely on the inherent jurisdiction of courts to dismiss legal proceedings where a plaintiff has engaged in inordinate and inexcusable delay in prosecuting a claim.

15 He asserts that it is no longer possible to engage in a meaningful challenge to the plaintiff's claim. He asserts that back in 2008 when this action was initiated it was already impossible to conduct a fair trial because the alleged abuser, his parish priest and his bishop at the time were all long dead. There is nothing in diocesan records to indicate that the curate had any proclivity to sexual impropriety.

16 Any claim made by a litigant, whether plaintiff or defendant, must be supported by convincing admissible evidence. Lapse of time may make it impossible to investigate a claim and present evidence. This difficulty for a defendant may be greater where the basis on which liability is sought to be imposed is vicarious responsibility.

17 Vicarious liability is a common feature of tort claims. Employers and others exercising authority are regularly sued on the basis that they are responsible at law for the torts of their employees or those under their control. The merits of their defences to such claims are only as good or bad as that of an employee or other vicar who may turn out to be an unsatisfactory witness with no good answer to a claim.

18 The plaintiff relied on the following extract from the judgment of Henchy J. in n O'Domhnaill v. Merrick [1984] I.R. 151 at page 158 of the report: “Consequently, in my opinion, the defendant, who has not in any material or substantial way contributed to the delay, should be freed from the palpable unfairness of such a trial.” The plaintiff submitted that he was not to blame for any lapse of time which resulted in obstacles to proof for the defendant.

19 One of the features of O'Domhnaill v. Merrick and later authorities is that courts, in considering whether to exercise this jurisdiction, have regard to whether a defendant's behaviour contributed to lapse of time. Courts also have regard to a plaintiff's behaviour. For example, could a plaintiff who has come of age have decided to bring an action on an earlier date that that when proceedings were eventually commenced? Conduct of parties to litigation may contribute to a situation where it becomes impossible to conduct a fair trial. However, this jurisdiction extends to cases where a plaintiff has not engaged in culpable delay in commencing or prosecuting proceedings.

20 Fault or culpable delay by either side which results in want of admissible evidence or other disadvantage caused by lapse of time may be relevant to exercise of inherent jurisdiction to dismiss an action on grounds relating to the effect of lapse of time for reasons explained in the judgment of Clarke J. in Nash v. Director of Public Prosecutions [2015] IESC 32. Culpability may relate to conduct prior to the institution of proceedings and conduct during the course of those proceedings.

21 Clarke J. summarised fundamental principles at para 2.19 of this judgment as follows:

“Thus, it seems to me, in summary, the fundamental principles can be expressed in the following way:-

• a) There is a significant constitutional imperative in favour of all issues of rights, liabilities or obligation, whether criminal or civil, being determined on the merits as a result of a trial at which all admissible and relevant evidence is analysed and the law properly applied to the facts which thereby emerge;

• b) In order that such a trial on the merits not proceed it is necessary that there be a sufficiently weighty countervailing factor involving important constitutional rights which, in the circumstances of the case, outweigh the constitutional imperative for a trial on the merits;

• c) In the context of lapse of time the countervailing factor may, if sufficiently weighty in the circumstances of the case, be one of:-

  • i. culpable delay, which is such that it would, having regard to the period of time over which the proceedings or potential proceedings have been left hanging over the relevant party, be a sufficient breach of constitutional fairness so as to make it proportionate to prevent the proceedings from going ahead;

  • ii. a lapse of time...