COURT OF APPEAL
Neutral Citation Number:  IECA 74
Appeal No.: 2014/1232
[Article 64 transfer]
- V -
JUDGMENT of Ms. Justice Irvine delivered on the 16th day of April 2015
3. The plaintiff claims that PD was an employee of the Religious Sisters of Charity, the defendant to this action, who owned certain premises at Donnybrook in Dublin consisting of a convent, a private nursing home and a laundry.
4. As appears from the personal injuries summons, the plaintiff maintains that the majority of the abuse alleged took place while she was visiting a friend who lived in a gate lodge at one of the entrances to the defendant’s premises. The abuse is alleged to have been carried out in a hut and sometimes in a somewhat larger shed within the grounds. At other times it is maintained that the abuse occurred at locations well removed from the defendant’s premises.
5. The plaintiff maintains that the unlawful conduct on the part of PD occurred as a result of the negligence and breach of duty on the part of the defendant in, inter alia, allowing him to have ongoing unsupervised contact with young children such as herself, and she maintains that the defendant, as his employer, is vicariously liable in respect of all of the wrongdoing alleged.
6. The plaintiff asserts that the events in question had a devastating effect on her childhood. Her academic performance, self esteem and ability to enjoy normal relationships were all allegedly adversely affected. She maintains that she has suffered from recurring depression, alcoholism, feelings of guilt and suicidal ideation. The plaintiff claims that she developed post-traumatic stress disorder, that this is ongoing, and that her psychological condition has adversely impacted on her ability to act in relation to the abuse. By affidavit of verification dated 21st May, 2012, the plaintiff deposed to the truth of all of the allegations referred to in her personal injuries summons.
7. An appearance was entered by the defendant on 11th May, 2012, and a notice for particulars delivered on 21st May, 2012. In her replies to particulars of 10th August, 2012, the plaintiff advised that she first disclosed her abuse to her A.A. sponsor in or around 20th November, 2009, and approximately six months later to her husband. She first reported the events in question to the gardaí in December 2011.
8. In its defence delivered on 17th January, 2013, the defendant maintained that the plaintiff’s claim was statute barred by reason of the Statute of Limitations 1957, as amended, but reserved its right to bring an interlocutory application to have the proceedings dismissed on the grounds of inordinate and inexcusable delay. It denied that it ever employed PD and further denied all allegations of wrongdoing, negligence and/or vicarious liability. The personal injuries pleaded were also denied in full.
9. The defendant’s motion to dismiss the claim on the grounds of delay was issued on 6th November, 2013. For the purposes of that application Sr. Phyllis Behan, the defendant’s Provincial Leader, swore an affidavit on 1st November, 2013, wherein she, in summary, advised of the following facts:-
(ii) that having gone through the records of the Sisters of Charity she could find no record of PD ever having been in the defendant’s employment;
(iii) that two long term caretakers who had been employed at St. Mary’s at the time of the plaintiffs alleged complaints had retired in 1982 and 1985 respectively and were both dead;
(iv) that of the five men who had worked in the laundry at the relevant time three were dead and the whereabouts of the other two was unknown;
(v) that of the nineteen Sisters who had lived as part of the community at St. Mary’s between 1975 and 1979, thirteen were deceased, three had left the congregation and three had survived. Of the three members of the community still alive, one is mentally unwell and the other two have no recollection of a PD having worked for the defendant.
(vi) that one former staff member had been located who had some recollection of a man by the name of PD who she thought may have worked as a general handyman in Maryville, the private nursing home. She believes that he was there when she arrived in 1977 and left in or around 1979/1980.
11. For the purposes of resisting the defendant’s application to dismiss the proceedings, the Plaintiff chose to rely upon the pleadings as verified by her affidavit of verification and did not seek to introduce any additional evidence to explain why so many years had been allowed to lapse before she issued her proceedings.
The Judgment of High Court
13. The High Court judge went on to conclude that there was no real or serious risk that, if the claim was allowed to proceed, the defendant would be at risk of an unfair trial. He was satisfied that the death of PD did not offer a solid basis for reaching such a conclusion. Further, he was satisfied that the defendant was in a position to call in aid of its defence evidence from a former staff member who had worked in the defendant’s private nursing over the period 1977 to 1980.
14. While written submissions were furnished by both parties to this appeal, I will nonetheless briefly refer, in a somewhat skeletal form, to the principal arguments advanced in the course of the hearing.
Submissions on behalf of the defendant/appellant
(ii) that the plaintiff’s abuser continued to have dominion over her during any or all of the period of delay;
(iii) that the many social, physical and psychological difficulties described by the plaintiff in her pleadings had impacted on her ability to pursue the present litigation.
17. Regardless of the findings of the High Court Judge, counsel submitted that this Court was entitled to exercise its own discretion and reverse the decision of the High Court judge if satisfied that the justice of the case required such an approach. He submitted that it was manifestly clear that the plaintiff’s delay in instituting the proceedings was inexcusable, that the balance of justice favoured the dismissal of the proceedings and that the defendant was at a real risk of an unfair trial.
18. Counsel relied upon the decision of Henchy J. in O’Domhnaill v. Merrick  I.R. 151, Kelly J. in Kelly v. O’Leary  2 I.R. 256, and Hardiman J. in Whelan v. Bridget Lawn, Legal Personal Representative of James Whelan Deceased  IESC 75.
Submissions on behalf of the plaintiff/respondent
20. Counsel submitted that this Court should be slow to interfere with the decision of the trial judge given that the defendant had failed to identify any error of principle in his judgment.
21. He also maintained that the defendant had not discharged the burden of proof which rests with the moving party on an application to dismiss proceedings based upon prejudicial delay and that the evidence it had advanced fell well short of that required to justify the dismissal of a claim concerning such grave allegations.
22. Counsel supported the findings of the trial judge to the effect that the defendant was not prejudiced by virtue of the death of PD particularly as there were several witnesses named in Sr. Behan’s affidavit who might in fact be in a position to give evidence on the defendant’s behalf. He submitted that the burden of proof required the defendant to make real efforts to trace any potential witness and that it was insufficient merely to state that their whereabouts was unknown. He instanced the fact that the defendant had sought to maintain that it was prejudiced because the whereabouts of two former employees who had worked in the laundry at the relevant time was unknown, yet it had not advised as to what, if any, efforts had been made to trace these two potential witnesses.
23. Counsel submitted that the defendant, at a minimum, should have placed advertisements in newspapers seeking to ascertain their whereabouts. Without knowing the totality of the evidence that might be available at trial, the defendant could not, he maintained, demonstrate sufficient prejudice to justify the proceedings being dismissed on the basis that it was at risk of an unfair trial.
The Jurisdiction of the Court of Appeal
25. Following a consideration of a long line of authority in which somewhat divergent views had been expressed, this Court concluded that the judgment of McMenamin J. in Lismore Builders (in receivership) v. Bank of Ireland Finance Limited  IESC 6 correctly described the circumstances in which an appellate court may review an order made by a High Court judge in the exercise of his/her discretion. At p. 5 para.4 of his judgment he stated as follows:-
28. For the aforementioned reasons, I am satisfied that, while this Court must give due consideration to the conclusions of the High Court judge, it is nonetheless free to exercise its own discretion as to whether or not the claim should be dismissed, if satisfied that the interests of justice dictate such an approach.
Principles to be applied
(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;
(b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;
(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgement on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;
(d) in considering this latter obligation the court is entitled to take into consideration and have regard to:
(ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff’s action,
(iii) any delay on the part of the defendant - because litigation is a two party operation, the conduct of both parties should be looked at,
(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff’s delay,
(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,
(vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,
(vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to defendant’s reputation and business.”
31. In addition to its right to dismiss a claim on the grounds of inordinate and inexcusable delay, the court also retains a jurisdiction to dismiss a claim, in the absence of culpable delay on the part of the plaintiff, if satisfied that the interests of justice require such an approach, as was explained by Geoghegan J. in McBrearty v. North Western Health Board  IESC 27. This latter jurisdiction was first considered in detail by the Supreme Court in O’Domhnaill v. Merrick  I.R. 151 where Henchy J. expressed himself satisfied that a court might dismiss an action if it was satisfied that to ask the defendant to defend the action would place that defendant under an inexcusable and unfair burden. He explained the potential consequences for justice in cases which were substantially delayed in the following manner at p. 158 of his judgment:-
The difference between the Primor and O’Domhnaill Tests
34. It is clear from the relevant case law that a defendant may be able to rely upon the O’Domhnaill jurisprudence where it might otherwise fail the Primor test due to its inability to establish culpable delay on the part of the plaintiff. For example, in a case of alleged sex abuse where for all of the period of delay a plaintiff may maintain that they lived under the dominion of their abuser, the defendant would be unlikely to succeed in a Primor application, particularly if the plaintiff had evidential support for the allegation regarding dominion. However, that defendant could nonetheless maintain that, regardless of the absence of any culpable delay on the plaintiff’s behalf, they should not be required to defend the claim because the period of delay since the events complained was such that it was at real risk of an unfair trial or an unjust result.
35. Having reflected upon many of the authorities in relation to the “delay” jurisprudence, I am satisfied that the third leg of the Primor test, which obliges the defendant to prove that the balance of justice favours the dismissal of the claim, does not carry the same burden of proof in terms of the degree of prejudice that must be established in order to have the claim dismissed as that which falls to be discharged by the defendant seeking to engage the O’Domhnaill test.
36. While the O’Domhnaill test, i.e. is there a real risk of an unfair trial or an unjust result, is one of the factors which may be relied upon by a defendant in seeking to prove the third leg of the Primor test, the defendant relying on that test does not have to establish prejudice to the point that it faces a significant risk of an unfair trial. Once a defendant establishes inordinate and inexcusable delay, it can urge the court to dismiss the proceedings having regard to a whole range of factors, including relatively modest prejudice arising from that delay. That this is so seems clear from the decision of Kearns J. in Stephens v. Flynn  4 IR 31 where he accepted that the defendant need only establish moderate prejudice arising from delay as justification for dismissing the proceedings on the third leg of the Primor test. In the following brief passage at p.38 para.22 he summarised the findings that that been made by Clarke J. in the court below:-
38. Considering its jurisdiction having regard to the test in O’Domhnaill , a court should exercise significant caution before granting an application which has the effect of revoking that plaintiff’s constitutional right of access to the court. It should only grant such relief after a fulsome investigation of all of the relevant circumstances and if fully satisfied that the defendant has discharged the burden of proving that if the action were to proceed that it would be placed at risk of an unfair trial or an unjust result.
European convention Article 6
40. Further, the Courts own obligations, stemming from Ireland’s obligations under Article 6.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, have been deemed to be material to a decision as to whether or not proceeding should be dismissed on the grounds of delay. In a number of recent decisions, including those in Gilroy v. Flynn  1 ILRM 290 (Hardiman J.), Michael McGrath v. Irish ISPAT Limited  IESC 43 (Denham J.), and Rodenhuiz and Verloopb v. The HDS Energy Limited  1 IR 611 (Clarke J.), the court has considered in some detail whether a recalibration or tightening up of the criteria relevant to delay applications is warranted. The upshot of such discussion, which it is not necessary to recite in the context of this judgment, is that the court, when dealing with an application to dismiss a claim on the grounds of delay, should factor into its considerations Ireland’s obligations under Article 6 of the Convention.
Was the delay excusable?
(ii) he believed that she did not come from the type of background where she might be expected to commence court proceedings lightly or swiftly and;
(ii) he believed that she continued to suffer from a myriad of miseries which appeared on their face to be connected to the abuse.
45. Secondly, as to the conclusion of the trial judge that the delay in the commencement of the proceeding could be excused by reason of the plaintiff’s apparently disadvantaged upbringing, I regret to say that I am not satisfied that there was evidence to support that finding. Indeed, most of the evidence was to the contrary. The endorsement of claim states that the plaintiff attended St. Mary’s National School in Donnybrook and later St. Anne’s Secondary School in Milltown. These facts would imply that she came from a relatively normal middle class background. Further, from her replies to particulars it is clear that she later worked as a currency clerk and assembly worker, and that she did a number of FAS courses in relation to retail sales and computers. There are no facts pleaded which would radically distinguish her from other litigants who day in day out pursue their rights or seek redress by the institution of court proceedings.
46. I am also satisfied that the facts pleaded are not remotely of the type considered by Costello J. in Guerin v. Guerin  2 I.R. 287, the decision relied upon by the trial judge in support of his conclusion that the delay could be excused by reference to the plaintiff’s upbringing. In that case a boy who had suffered a serious brain injury in a car accident at four years of age instituted proceedings many years later following a chance meeting with a solicitor. The first named defendant sought to have the claim dismissed on the grounds of delay and Costello J., having heard extensive evidence from the plaintiff, his mother, two of his brothers amongst others over several days concluded at p.293 as follows:-
47. As to the conclusion of the trial judge that the “myriad of miseries” which the plaintiff had allegedly experienced in her lifetime could excuse the delay, there was again next to no evidence to support such a finding. Unlike most cases were a plaintiff will seek to excuse delay of the type involved in these proceedings, no psychological or psychiatric evidence was put before the court to support what is otherwise a bald assertion on her part, namely that she suffers/suffered from the many difficulties referred to in the personal injuries summons. Further, there was no evidence to support the assertion at para. 18 of the summons that these had affected her ability to advance her proceedings. Indeed, insofar as the plaintiff relied upon a psychological condition to excuse her delay, there were no facts pleaded to show for what part, or parts, of the thirty year period of delay she was under such a disability. When asked by the defendant, in its notice for particulars dated 21st May, 2012, to state when she developed the post-traumatic stress disorder upon which she relied to contend that she had been disabled in her ability to advance the proceedings, she said in her reply of 10th August, 2012, that this “was a matter for evidence”.
48. Having reviewed all of the evidence that was before the learned High Court judge, I am satisfied that there was insufficient evidence to excuse the plaintiff’s delay in the issuing of these proceedings. This is particularly so in circumstances, where, during that period of delay, she married, reared a family and held down a number of positions of employment.
49. In all of these circumstances, I am quite satisfied that the plaintiff has been guilty of inordinate and inexcusable delay within the meaning of the Primor test.
Balance of justice
51. The first matter to be noted in relation to this issue is that the defendant has not been guilty of any culpable delay in its conduct in these proceedings, a factor that often adversely affects the right of a defendant to assert that the proceedings should be dismissed. It neither acquiesced in any delay on the part of the plaintiff nor induced her to incur any expense in pursuing a claim which it now maintains ought to be dismissed.
52. Of great significance to determining where the balance of justice lies, is the specific prejudice which the defendant maintains has arisen by reason of the plaintiff’s inexcusable delay in pursuing these proceedings. In this regard I am satisfied that it would be hard for a defendant to demonstrate greater prejudice than that which arises for the defendant in this case, by reason of the fact that PD is believed to be dead.
53. In Whelan v. Bridget Lawn and others  IESC 75 Hardiman J., in the context of an application to dismiss the plaintiff’s claim on the grounds of delay in a sexual assault action, stated that the “grossest imaginable prejudice” in a case where the basic facts are disputed by one person against another is the death of the defendant.
54. In Whelan, proceedings had been instituted in December 2008, within the relevant limitation period, by the plaintiff who alleged that between the years of 1989 and 1992 she had been abused by her grandfather, who was still living at the time. The proceedings were commenced when he was ninety one years of age, and he was still alive at the time the defendant moved to dismiss the claim on the grounds of delay. The principal prejudice alleged was the death of the plaintiff’s grandmother who had lived with her husband, the alleged abuser, in the house where the plaintiff maintained the various assaults had taken place.
55. Charlton J., in the High Court, dismissed the proceedings on the basis that the defendant was at a real risk of an unfair trial, and this decision was upheld by the Supreme Court. By the time the appeal was heard, the defendant himself had died, and it was in this context that Hardiman J. stated at para.12 that the “grossest imaginable prejudice is the death of the defendant himself in a case where the basic facts are disputed by one persons word against another’s.”
56. Having discussed earlier in this judgment the differences between the Primor and O’Domhnaill jurisprudence, it is worth noting that in Whelan the court did not consider whether or not the plaintiff had been guilty of inordinate and inexcusable delay, as the proceedings had been issued within the limitation period, but choose to dispose of the application to dismiss the proceedings on the basis of the O’Domhnaill principles.
57. In the present proceedings, for the purposes of considering the third leg of the Primor test, namely, where the balance of justice lies, I am satisfied that the death of PD has visited the grossest imaginable prejudice upon the defendant. In this regard I fundamentally disagree with the conclusion of the learned High Court judge on the issue. It must be remembered that the defendant is sued on the grounds that it is vicariously liable for the wrongdoing of PD. Had PD been alive he might well have denied the allegations made against him, and the defendant would have had the benefit of his evidence in that regard. Even on a straight swearing battle as between the plaintiff and PD, PD’s evidence may have been preferred to that of the plaintiff for any number of reasons. He may have been in a position, from facts only known to him, to challenge and undermine her evidence. He may have been able to call other witnesses such as work colleagues, friends or family capable of supporting his testimony or undermining that of the plaintiff. Accordingly, the defendant has not only lost the benefit of PD’s own evidence but also the evidence of witnesses who might otherwise have been in a position to defend the allegations made by the plaintiff.
58. In cases where, by reason of the passage of time, the evidence available has become eroded to the point that a jury is left to choose between two different narratives advanced by plaintiff and defendant, there is a real risk that justice will be put to the hazard, as was advised by Hogan J. in I.I. v. J.J.  IEHC 327. However, the situation becomes much more perilous from a defendant’s perspective in a scenario, such as would emerge in this claim, where the jury would not have the benefit of any evidence or narrative from the person against whom the fundamental allegations are made. An action in which the defendant can call no evidence at all on the central issue, as would occur if this case were allowed to proceed to trial, would clearly lack the concepts of mutuality and fairness which are essential for the administration of justice.
59. In the absence of PD, the defendant is not in a position to challenge or counter the allegations of abuse which the plaintiff makes. The only possibility it would have of undermining the plaintiff’s claim would be by reference to factual statements made by the plaintiff in the course of her evidence. However, in circumstances where, almost to a man or woman, those who were alive at the time of the alleged abuse are dead or incapable of giving evidence, the defendant is once again left in a hopelessly vulnerable situation. Further, those witnesses that might have been able to assist in giving evidence referable to the issue as to whether or not the defendant ought to be deemed vicariously liable for the actions of PD, should findings of abuse be made against him, are effectively non existent.
60. I am quite satisfied that the death of PD alone is of such prejudicial magnitude that it warrants the court determining the balance of justice issue against the plaintiff. However, the death of all of the other witnesses referred to by Sr. Behan in her affidavit puts the issue beyond doubt. As already stated by Kearns J. in Stephens, even moderate prejudice against a backdrop of inordinate inexcusable delay may be deemed sufficient to tip the scales of justice in favour of dismissing the proceedings. It would be patently unfair and unjust to ask this defendant to defend this action after the lapse of time involved in the light of the prejudice that has been visited upon it due to the plaintiff’s inexcusable delay. Accordingly, I am satisfied that the defendant has established on the evidence adduced that the balance of justice warrants the dismissal of the proceedings.
61. Lest there be some doubt as to the test that ought to be employed on an application such as the present one, it is worthwhile considering whether the defendant’s application should also succeed on an application of the O’Domhnaill principles. In other words, is there a real or serious risk of an unfair trial or an unjust result if this action were to be permitted to proceed to trial?
62. As I have already dealt to some extent with the manner in which the defendant is likely to be prejudiced by reason of the plaintiff’s delay in prosecuting her claim when considering the third leg of the Primor test, it is unnecessary to revisit these facts when considering whether the defendant is at risk of an unfair trial or an unjust result. However, in addition to what has been already stated, the defendant’s ability to obtain a fair trial has been made all the more precarious by the following facts:-
(ii) the plaintiff herself was not a resident or in the care of the defendant at the time of the alleged abuse and therefore, presumably, would not have been known to members of the community or to those who worked there in the same way as a child who was so resident might be remembered. For the same reason, the defendant does not have any documents or records concerning the plaintiff’s health or welfare as might be the case if she had been in the defendant’s care at the relevant time.
(iii) the plaintiff never reported the abuse of which she now complains to anybody until November of 2009. The accuracy of her account of events cannot be tested against any even remotely contemporaneously account of what is now alleged to have occurred.
64. I reject the submission made by counsel on behalf of the plaintiff that the defendant’s application should fail because it has taken insufficient steps to establish the whereabouts of four of the potential twenty nine witnesses that might have been available to the defendant in these proceedings. That type of criticism might be valid in a case where it is alleged that something occurred in the presence of a particular individual and the defendant had not sought to track that person down. However, the witnesses whom the plaintiff complains the defendant should have more hotly pursued are so peripheral in the content of the enormous prejudice caused by the death of PD that such an argument is unsustainable.
65. Having considered the evidence that was before the High Court, I am quite satisfied that to allow this action proceed would, to use the words of Henchy J., “put justice to the hazard”, given that I am fully convinced that the issues between the parties are now long “beyond the reach of fair litigation”. The defendant would not only be at risk of an unfair trial but to my mind would enjoy no prospect whatsoever of a fair hearing or a just result. Any trial as might take place would, as Kelly J. stated in Kelly v. O’Leary  2 I.R. 526 at p.544, “be far removed from the form of forensic enquiry which is envisaged in the notion of a fair trial in accordance with the law of this State” and would amount to what was described in O’Keeffe v. Commissioners of Public Works (Unreported, Supreme Court, 24th March, 1980) as a “parody of justice”. Further, the Court itself would be unable in the circumstances to fulfil its constitutional mandate under Article 34 of the Constitution, given that this can only be met by the provision of a fair trial based on procedures which are fair and just for both parties.
In the aforementioned circumstances, I have come to the conclusion that the defendant is also entitled to have this action dismissed in the exercise by the Court of its jurisdiction as per the O’Domhnaill test.