High Court of Ireland Decisions

Judgment Title: W. -v- W.

Neutral Citation: [2009] IEHC 542


High Court Record Number: [2008] 7644 P

Date of Delivery: 18 December 2009

Court: High Court

“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 time. Between the time I moved to [redacted] and when I was eight years old I can recall to my grandfather’s house and he used to ask me out to the kitchen to get sweets for me and I remember he’d give me sweets and as I’d be walking out of the kitchen he’d grab me from behind and he’d put his hands either inside my trousers or under my dress and feel my vaginal area. I don’t think he ever inserted his finger into my vagina, not that I can remember and used to put his other hand up under my top feeling my breasts and he used to also nibble on my ear all the time. Other times when I was on his knees and he’d be teaching me time or how to read the newspaper, he’d put his hands down inside my trousers or under my dress again feeling my vagina, there would have been other people in the sitting room at the time. I cannot pinpoint times or dates when these things happened. I know these incidents as outlined by me happened on a regular basis and only stopped when I told my mother about them. I was about eight years then. The assaults were always the same. The one time I can recall J. W. assaulting me was when I cycled over to him and it was Halloween time, that was my first bicycle but I can’t remember what year I got that. My grandmother also lived at that address and was always in the house when these assaults took place. I have now decided to make a statement as these things have been on my mind a lot over the last few weeks. I also attended the Rape Crisis Centre in [redacted] when I was fifteen years old. Sometimes it happened while my mother was in the sitting room and my grandfather would bring me into the kitchen. I cannot remember him saying anything to me about what he was doing or saying not to tell any one. I’ve heard this statement read over and it is correct and I’ve made the necessary alterations and additions”.

“This is a matter for evidence. Without prejudice to the foregoing, the plaintiff was abused and assaulted by her paternal grandfather regularly on diverse date from 1989 to on or about 1993… the plaintiff’s grandfather, grandmother and cousin [redacted] would have been present in the same room on some of the occasions when the abuse herein occurred.”

“… the court’s experience extends to a broader set of issues and it has been found that there is a range of circumstances extending beyond dominion or psychological consequences flowing directly from the abuse which militate or inhibit victims from bringing complaints of sexual abuse to the notice of other persons, in particular those outside their family and even more particularly the Gardaí with a view to a possible trial.

Over the last decade the courts have had extensive experience of cases where complaints are made of alleged sexual abuse which is stated to have taken place many, many years ago. It is an unfortunate truth that such cases are routinely part of the list in criminal courts today”.

“… there is judicial knowledge of this aspect of offending. Reasons for such delay are well established, they are no longer “new factors”.

Therefore, I am satisfied that it is no longer necessary to establish such reasons for the delay. The issue for the court is whether the delay has resulted in prejudice to an accused so as to give rise to a real or serious risk of an unfair trial. Countervailing factors can exist, such as the existence of multiple complaints from several different alleged victims. There, the case is stronger and the possibility of obtaining a fair trial is buttressed. The court would thus restate the test as:-

The test is whether there is a real or serious risk that the applicant, by reason of the delay, would not obtain a fair trial, or that a trial would be unfair as of the consequence of delay. The test is to be applied in the light of the circumstances of the case”.

“In considering the question of fairness and justice, I find it very difficult to understand how it could be fair or just to allow somebody to embark on difficult, complicated and costly litigation and to continue that litigation for a period of some seven years without regard to the effect on the plaintiff in terms of the stress and strain of running such litigation when an application that could have been made at an early stage to dismiss the proceedings by reason of delay is not in fact made for a period of some seven years. It is quite clear that the plaintiff has been put to considerable expense, time and effort, which might have been avoided had such an application been brought promptly. It is very difficult to see the fairness and justice in dismissing these proceedings on the grounds of delay when there has been such delay on the part of the State defendants in seeking the first of the reliefs sought herein on the motion before this Court. That was an application that could have been brought promptly following the delivery of the Statement of Claim or even, one might say, following the receipt of the Plenary Summons. There was no need to wait for seven years. Accordingly, I am satisfied that the State defendants are not entitled to the relief claimed by reason of the lapse of time between the events complained of and the trial of the action.

The second limb of the State defendant’s application relates to dismissal for want of prosecution. Looking at the chronology of events in this case, I accept that there has been delay on the part of the plaintiff in the prosecution of her claim. I have already referred to her personal difficulties which are dealt with at length in Ms. Downey’s affidavit. The delay could be described as inordinate but I would hesitate to describe it as inexcusable. Even if I am wrong in reaching that conclusion, I am of the view that the balance of justice favours the plaintiff. This is a case where there has also been delay on the part of the State defendants in relation to some of the procedural steps herein. Overall, given the facts and circumstances of this case, I am satisfied that the prejudice to the plaintiff in these proceedings in the event of a dismissal for want of prosecution outweighs the prejudice to the State defendants in allowing the case to proceed”.

“Whether delay should be treated as barring the prosecution of a claim must inevitably depend on the particular circumstances of a case. However, where, as in this case, the delay has been inordinate and inexcusable, such delay is not likely to be overlooked unless there are countervailing circumstances, such as conduct akin to acquiescence on the part of the defendant, or inability on the part of an infant plaintiff to control or terminate the delay of his or her agent. In all cases the problem of the court would seem to be to strike a balance between a plaintiff’s need to carry on his or her claim against a defendant and the defendant’s basic right not to be subjected to a claim which he or she could not reasonably be expected to defend.
As to the circumstances of the present case, there can be no doubt that no part of the blame for the first sixteen years of delay can be laid at the defendant’s door, for it took that length of time before even a plenary summons was served on her. The plaintiff was then twenty years of age. Technically she was still an infant but, having regard to the wide range of legal capacity which the law attributes nowadays to persons of eighteen years and upwards, she would not be entitled to separate herself from the delay as she might possibly have done if she had been a younger person. There was at least an onus on her to show that she took steps to prosecute her claim as could reasonably be expected from a person of her age or, failing such steps, to give an explanation for her inactivity. Unfortunately, no explanation has been given by or on behalf of the plaintiff for the failure to prosecute her claim with reasonable expedition, either during the past six years since the present proceedings were instituted or during the earlier period.

After due regard to all the relevant factors, I am driven to the conclusion that not only was the delay in this case inordinate and inexcusable but there were no countervailing circumstances which would justify a disregard of that delay. I consider that it would be contrary to natural justice and an abuse of the process of the courts if the defendant had to face a trial in which she would have to try to defeat an allegation of negligence on her part in an accident that would have taken place twenty years before the trial, and a claim for damages of which she first learned sixteen years after the accident. Apart from personal unfairness that such a trial would thrust on the defendant, I consider that a trial after such a remove in time from the cause of action would be essentially unfair as being incompatible with the contingencies which insurers of motor vehicles could reasonably be expected to provide against.

While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this, it puts justice to the hazard to such an extent that it would be an abrogation of basic fairness to allow the case to proceed to trial. For a variety of reasons, a trial in 1985 or a claim for damages for personal injuries sustained in a road accident in 1961 would be apt to give an unjust or wrong result, in terms of the issue for liability or the issue of damages, or both. 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.”

“In the High Court it was held by Keane J. that the case was governed by the decision of this Court in ÓDomhnaill v. Merrick [1984] I.R. 151. I am in agreement with that view of the law. It is unnecessary for me to repeat here the principles laid down by this Court in that case, but they may be summarised in their application to the present appeal as being that where there is 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 that defendant has not himself contributed to the delay, irrespective of whether the plaintiff has contributed to it or not, the court may as a matter of justice have to dismiss the action.”

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

“(3) An action referred to in subsection (1), that but for this subsection could not, by virtue of this Act, be brought, may be brought not later than one year after the passing of the Statute of Limitations (Amendment) Act, 2000, provided that, after the expiration of the period within which such action could by virtue of this Act have been brought, but prior to 30 March, 2000—

Nothing in s.48A of the Statutes of Limitations, 1957 (inserted by s. 2 of this Act), shall be construed as affecting any power of a court to dismiss an action on the ground of their being such delay between the accrual of the cause of action and the bringing of the action as, in the interests of justice, would warrant dismissal”.