W (F) v W (J)

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 18 December 2009
• Neutral Citation: [2009] IEHC 542
• Court: High Court
• Date: 18 December 2009

[2009] IEHC 542

THE HIGH COURT

7644 P/2008

W (F) v W (J)

[2009] IEHC 542

BETWEEN

F. W.

PLAINTIFF

AND

J. W.

DEFENDANT

ROYAL DUBLIN SOCIETY v YATES UNREP SHANLEY 31.7.1997 1998/37/14041

DPP v HANNON 2009 2 ILRM 235 2009 IECCA 43

H (S) v DPP 2006 3 IR 575 2007 1 ILRM 401 2006/27/5802 2006 IESC 55

MURPHY v DPP & ORS UNREP SUPREME 14.7.2009 2009 IESC 53

DPP, PEOPLE v QUILLIGAN & O'REILLY (NO 3) 1993 2 IR 305 1992 DULJ 105 1992/6/1833

MCBREARTY v NORTH WESTERN HEALTH BOARD & ORS UNREP MACMENAMIN 14.12.2007 2007/35/7212 2007 IEHC 431

O'S (M) (ORSE G (M)) v O'S (W) & ORS UNREP DUNNE 2.4.2009 2009 IEHC 161

O DOMHNAILL v MERRICK 1984 IR 151 1985 ILRM 40 1984/5/1593

TOAL v DUIGNAN & ORS (NO 1) 1991 ILRM 135 1987/8/2248

STATUTE OF LIMITATIONS 1957 S48

STATUTE OF LIMITATIONS 1957 S48A

STATUTE OF LIMITATIONS (AMDT) ACT 2000

STATUTE OF LIMITATIONS 1957 S48A(3)

O'C (J) v DPP 2000 3 IR 478 2000/13/5164

PRACTICE & PROCEDURE

Delay

Sexual assault - Inordinate and excusable delay - Delay prior to commencement - Whether real or serious risk of unfair trial - Whether fair procedures - Whether high probability of fair result - Relevance of prejudice - Difference between pre commencement and post commencement delay - Relevant date - Death of central witness - Assessment of witness evidence - Relevance of witness evidence - Conduct of the defendant - Whether acquiescence by defendant - Royal Dublin Society v Yates (Unrep, Shanley J, 31/7/1997) and People (DPP) v Hannon [2009] IECCA 43 [2009] 4 IR 147, SH v DPP [2006] 3 IR 575, DPP v Quilligan (No. 3) [1993] 2 IR 305, McBreary v Northwestern Health Board [2007] IEHC 431 (Unrep, MacMenamin J, 14/12/2007), OS v OS [2009] IEHC 161 (Unrep, Dunne J, 02/04/2009), O'Domhnaill v Merrick [1984] IR 151, Toal v Duignan (No 1) [1991] ILRM 135, H v DPP [2006] 3 IR 575, OC v DPP [2000] 3 IR 478 considered - Statute of Limitations Act 1957 (No 6), s 48(a) - Statute of Limitations (Amendment) Act 2000 (No 13), s 3 - Proceedings dismissed (2008/7644P - Charleton J - 18/12/2009) [2009] IEHC 542

W(F) v W(J)

Facts the plaintiff brought civil proceedings seeking damages against the defendant for alleged sexual abuse by him some twenty to seventeen years previously and some five years after she had attained majority. The defendant brought a motion seeking to have the proceedings dismissed on the grounds of inordinate and inexcusable delay. The defendant's wife, who was alleged to have been present on the relevant occasions, had since deceased.

Held by Mr. Justice Charleton in dismissing the proceedings that the difference in approach to pre-commencement and post-commencement delay is that in pre-commencement delay, the proposed defendant could rarely do anything to affect the running of the case beyond the harm he may originally have done, whereas in adjudicating upon post-commencement delay, the Rules of the Superior Courts entitling a defendant to set a case down for trial, etc. could and should be sued by defendants making out a case of unfairness due to delay.

The date on which the issue of unfairness in proceeding with a pre-commencement delay case was to be judged and the date upon which a post-commencement delay case was to be judged was that of the notice of motion seeking a dismiss.

That, where there was a clear and patent unfairness in asking a defendant to defend a case after a very long lapse of time between the act complained of and the trial, then if the defendant has not himself contributed to the delay, irrespective of whether the plaintiff had contributed to it or not, the court, may as a matter of justice have to dismiss the action. Toal v. Duignan (No. 1) [1991] ILRM 135 applied.

That an action for sexual abuse, even commenced within the limit of the Statute of Limitations, must still be dismissed for unfairness if that ground was proven.

That the unavailability of a crucial witness had been caused by the delay in instituting the proceedings and irredeemably prejudiced the right of the defendant to a fair trial.

Reporter: P.C.

1 JUDGMENT of Mr. Justice Charleton delivered on 18th day of December, 2009

2 1.The defendant is a 91 year old Dublin man. The plaintiff is his granddaughter. She is now aged twenty-four. In these civil proceedings she claims that her childhood was ruined, and her adult life diverted in alcoholism, depression and chaos because the defendant sexually abused her when she was small girl of between four and seven years of age. He denies it. This all happened, she claims, between twenty and seventeen years ago. The defendant has brought this motion for the proceedings to be dismissed on the grounds of inordinate and inexcusable delay, or on the grounds that there cannot now be a fair procedure by reason of the elapse of time. In referring to the allegations and counter allegations of the parties, I have had only affidavit evidence. Nothing in this judgment decides any of those facts or is to be interpreted as favouring one side or the other.

3 2.There are a multitude of decisions on this issue. Some of these speak of a discretion inherent in the court to control its own procedure. While there is undoubtedly a duty on the court to ensure that the trial process is fair, the decision in this type of case depends upon an evaluation of the facts, what is known about the respective conduct of the plaintiff and the defendant and, most importantly, where the court now adjudges the parties to be from the point of view of a fair disposal of the allegations.

Chronology

4 3.In order to attempt to come terms with position of the parties, I now propose to set out in concise form a chronology of the relevant events:-

5 · 2 July 1985: the plaintiff is born. The defendant was then aged 67 years.

6 · 1989-1992: the plaintiff alleges that she was continually touched in a grossly inappropriate sexual manner by her grandfather while visiting them and their handicapped son at their home in Dublin.

7 · 1993: members of the extended family go on a trip to New Zealand. On their return it has emerged that a young man has been exposing himself to the plaintiff. She reported that to her mother, who then asked her about any other matter that might be on her mind. The alleged abuse by her grandfather is reported. Her mother rings him up and warns him off. He denies that. She is not again allowed to be alone with him. This is likely to be contested by him. In consequence of the allegations, and possibly for other reasons as well, a severe family rift opens up. She and her mother moved back to the West of Ireland but her father goes to live with his father, the defendant, in Dublin.

8 · 2000: the plaintiff entered into a relationship with a man in his mid-twenties, became pregnant and came to the attention of the probation service. They referred her to Ruth MacNeeley, a counsellor in sexual abuse matters. To the probation officer and to Ms. MacNeeley the plaintiff discloses that she was sexually abused by her grandfather. This arose she says on affidavit, because on being arrested by the Gardaí, she endured a flashback to the abuse by her grandfather and she felt that, again, she was under abusive male authority.

9 · 2003: a formal complaint was made by the plaintiff about the sexual abuse she endured at the hands of the defendant to the Gardaí in Mayo. They dealt properly with it. Disgracefully, the matter is not followed up when the file is transferred to the appropriate station in Dublin.

10 · May 2004: the plaintiff, having had a second child, was provided with a house in a town in the West of Ireland.

11 · February 2008: the plaintiff goes to a firm of solicitors in relation to this case. A complaint made to the Garda Ombudsman Commission about the handling by Dublin gardaí of criminal conduct against her grandfather and is adjudged to have been negligently handled. The relevant Garda officer is fined the very small sum of €150.

12 · 15 ^th April 2008: a warning letter is sent by the plaintiff's solicitors to the defendant making the allegations later contained in these proceedings and seeking damages.

13 · June 2008: the wife of the defendant, and therefore the plaintiff's grandmother, dies in the West of Ireland.

14 · 7 ^th September 2008: the plenary summons is issued.

15 · 25 ^th September 2008: a statement of claim is delivered.

16 · 7 ^th October 2008: a notice for particular is issued by the defendant seeking details on the statement of claim already delivered.

17 · December 2008: the defendant has a small stroke, but no medical report was exhibited in the affidavits on behalf of the defendant.

18 · 21 ^st April 2009: the plaintiff replies to the notice for particulars.

19 · 8 ^th July 2009: the defendant files a defence to the claim.

20 · 24 ^th August 2009: this notice of motion is issued seeking to dismiss the plaintiff's action on the grounds already set out.

21 · 30 ^th October 2009: notice of trial is served.

22 · 14/15 ^th December 2009: this motion is heard.

23 4.To that I might add that the trial of this matter can be expected to take place, barring unforeseen circumstances, some time before July 2010. On the basic facts alluded to above, some expansion is necessary.

Some details

24 5.The Garda officer in the West of Ireland to whom the plaintiff first made a complaint of a criminal offence treated her with respect and handled the case efficiently. The nature of the claim that she can make against the defendant is perhaps best stated by quoting that statement in full, less certain appropriate redactions:-

"I reside at [redacted] with [redacted]. I was born in Dublin and lived at [redacted]. I moved with my family to [redacted]. My grandfather J. W. lived at [redacted] and I visited him regularly with my family, nearly every Sunday and at holiday...