W (M) v W (S)

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 06 May 2011
• Neutral Citation: [2011] IEHC 201
• Court: High Court
• Date: 06 May 2011

[2011] IEHC 201

THE HIGH COURT

[No. 5753P/2006]

W (M) v W (S)

BETWEEN

M. W.

PLAINTIFF

AND

S.W.

DEFENDANT

STATUTE OF LIMITATIONS 1957 S48A(1)

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

PRIMOR PLC v STOKES KENNEDY CROWLEY & OLIVER FREANEY & CO 1996 2 IR 459 1995/20/5287

CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

GILROY v FLYNN 2005 1 ILRM 290 2004/19/4269 2004 IESC 98

DESMOND v MGN LTD 2009 1 IR 737 2008/12/2410 2008 IESC 56

MCFARLANE v IRELAND 2011 52 EHRR 20 2010 ECHR 1272

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

PRACTICE & PROCEDURE

Limitation of actions

Dismissal of proceedings - Delay - Want of prosecution - Allegations of sexual abuse, assault and battery - Failure to prosecute claim - Entitlement to hearing within reasonable time - Prejudice - Need to achieve finality - Balance of justice - Plaintiff's medical difficulties - Arnold-Chiari malformation - Whether claim statute barred - Whether inordinate and inexcusable delay - Whether defendant prejudiced by delay - Whether unfair to defendant to allow action to proceed - Whether plaintiff suffered from psychological injury - Whether defendant acquiesced in delay - Rainsford v Mayor, Aldermen and Burgesses of the City of Limerick [1995] 2 ILRM 561; Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459; Gilroy v Flynn [2004] IESC 98, (Unrep, SC, 3/12/2004); Desmond v MGN Ltd [2008] IESC 56, [2009] 1 IR 737 and McFarlane v DPP [2010] ECHR 1272 considered - Statute of Limitations Act 1957 (No 6), s 48A(1) - Statute of Limitations (Amendment) Act 2000 (No 13), s 2 - European Convention on Human Rights Act 2003 (No 20), s 4 - European Convention on Human Rights, art 6(1) - Claim dismissed (2006/5753P - Kearns P - 6/5/2011) [2011] IEHC 201

W(M) v W(S)

1 JUDGMENT of Kearns P. delivered the 6th day of May, 2011

2 The plaintiff is the defendant's sister and she was born on the 3 ^rd August, 1957. The plaintiff alleges that between the 1 ^st January, 1969 and the 31 ^st December, 1972 the defendant sexually abused, assaulted and battered her at their family home in County Limerick. The proceedings herein were commenced by Plenary Summons dated 23 ^rd November, 2006. In those proceedings the plaintiff claims damages for assault (including sexual assault), battery, trespass to the person, false imprisonment, negligence and breach of duty. The defendant denies the allegations and has applied inter alia for a declaration that the plaintiff's action is statute barred, or in the alternative an order dismissing the plaintiff's claim for want of prosecution, and, in the event that either or both reliefs are refused, an order providing for security for costs.

3 On the 3 ^rd of October, 2006, the defendant was charged with indecent assault of the plaintiff on dates unknown between 1969 and 1972.

4 The defendant was tried by judge and jury for the alleged indecent assault on the 20 ^th, 21 ^st and 22 ^nd of February, 2008 and the jury failed to reach a verdict. The case was re-tried on the 10 ^th and 11 ^th of February, 2009 and the jury acquitted the defendant by unanimous verdict on the 12 ^th of February, 2009.

5 A Statement of Claim was delivered in the civil proceedings on the 11 ^th November, 2008. A Defence dated the 9 ^th April, 2009 was delivered thereto. The case appeared in the Dublin civil jury list to fix dates on the 13 ^th January, 2010 and the matter was set down for trial on the 11 ^th February, 2010. The plaintiff's solicitors contacted the defendant's solicitors on the 25 ^th of January, 2010, in advance of the call-over list, and asked the defendant to consent to the matter being adjourned to the next list to fix dates in circumstances where the plaintiff was unable to travel from Germany to Ireland due to health problems. This request for adjournment was granted.

6 The plaintiff's solicitor wrote to the defendant on the 13 ^th April, 2010, informing the defendant that the plaintiff remained unable to travel to Ireland for the trial because of ongoing health problems. The letter also stated that the plaintiff would be making an application at the call-over list for Dublin civil jury cases on the 14 ^th April, 2010 to adjourn the case to the following list to fix dates. The plaintiff's solicitor enclosed a copy of a medical report from Dr. Gerhild Kroder, dated the 12 ^th April, 2010. The defendant's solicitor replied that he would be resisting any application to further adjourn the matter.

7 At the list to fix dates on the 14 ^th April, 2010, the case was not reached by the Court and therefore was automatically put back to the following list to fix dates to be dealt with on the 17 ^th June, 2010.

8 On the 16 ^th June, 2010, the plaintiff's solicitor again wrote to the defendant by faxed letter, indicating their intention to apply to adjourn the case because of the plaintiff's continuing health problems and her inability to travel to Ireland for the trial from her place of residence in Germany. The plaintiff's solicitor enclosed an updated medical report from Dr. Kroder, dated the 15 ^th June, 2010, which stated that the plaintiff was neither currently, nor in the future, able to travel to Ireland to attend court sittings because of her physical and psychological condition. The report also suggests the possibility of re-evaluating the plaintiff's condition at the end of the year. No application to take her evidence on commission or by television link was made either then or at any other time.

9 On the 17 ^th June, 2010, the plaintiff's legal advisors made an application to the Court to adjourn the case and handed into court a copy of Dr. Kroder's medical report of the 15 ^th June, 2010. The defendant resisted the application on the grounds that he was being prevented from defending the action, that he could not reach finality in the case and that he was prejudiced by the undue, inordinate and inexcusable delay on the part of the plaintiff in calling this case on for hearing. The Court indicated to the defendant that the present motion could be brought in the event that the plaintiff's advisors did not confirm at the next call-over sessions of the High Court jury cases that the case was ready to proceed.

10 The defendant's solicitors wrote to the plaintiff's solicitors on the 9 ^th August, 2010, calling on them to indicate their intention to have the case listed for hearing at the forthcoming list to fix dates failing which a motion to dismiss the plaintiff's action would issue. The plaintiff's solicitors replied to that letter on the 11 ^th August, 2010 stating that de Valera J. had clearly indicated his intentions in terms of how he would deal with matters at the next call-over should the plaintiff not seek a hearing date and that that there was no need for the defendant to consider issuing motion papers.

11 The plaintiff's solicitors wrote to the defendant's solicitors again on the 2 ^nd September, 2010 confirming that their instructions were to apply to the Court at the call-over of civil jury sessions to have the case stayed. This letter stated that the plaintiff continued to be medically unfit to travel to Ireland but that the matter would be reviewed in advance of the call-over for the following jury sessions which would be held in February 2011.

12 The call-over of the jury list for the February 2011 sitting took place before de Valera J. on the 19 ^th January, 2011. The solicitor responsible for progressing this matter on behalf of the plaintiff had taken maternity leave in November 2010, and, due to an oversight on behalf of the plaintiff's solicitors' office, there was no representation on behalf of the plaintiff before the court. Consequently, the Notice of Trial dated the 6 ^th October, 2009 was struck out at the said call-over.

Statute of Limitations

13 The defendant claims in the first instance that the plaintiff's action is statute barred by virtue of the Statute of Limitations Act, 1957 (hereafter 'the 1957 Act') as amended. Given that the acts complained of are alleged to have occurred as far back as the period between 1969 - 1972, the claim of the plaintiff would in the ordinary course have long since been statute barred.

14 However, section 48A(1) of the 1957 Act, as inserted by the Statute of Limitations (Amendment) Act 2000, provides inter alia as follows:

15 2 " (1) A person shall, for the purpose of bringing an action-

16 (a) founded on tort in respect of an act of sexual abuse committed against him or her at a time when he or she had not yet reached full age…

17 …

18 be under a disability while he or she is suffering from any psychological injury that-

19 (i) is caused, in whole or in part, by that act, or any other act, of the person who committed the first-mentioned act, and

20 (ii) is of such significance that his or her will, or his or her ability to make a reasoned decision, to bring such action is substantially impaired."

21 The effect of the Amendment Act of 2000 was thus to extend the period within which a person might bring a claim in tort arising out of child sexual abuse. In essence, time does not begin to run against a plaintiff until he or she has overcome any psychological injury that is shown to have been caused wholly or partially by sexual abuse where such injury is significant enough to substantially impair the will, or ability to make a reasoned decision, of the plaintiff. Section 48A(1) applies regardless of whether the cause of action accrued prior to or subsequent to the passing of the 2000 Amendment Act.

22 The misconduct complained of in the case at hand clearly alleges behaviour which would constitute "sexual abuse" within the meaning of section 48A(1) of the 1957 Act, as amended, and the plaintiff...