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Cite as: [2011] IEHC 530
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Judgment Title: Hayes -v- Mc Donnell & Ors Neutral Citation: [2011] IEHC 530 High Court Record Number: 1999 9063 P Date of Delivery: 15/12/2011 Court: High Court Composition of Court: Judgment by: Hanna J. Status of Judgment: Approved |
Neutral Citation Number: [2011] IEHC 530 THE HIGH COURT 1999 9063 P BETWEEN TOM HAYES PLAINTIFF AND
ANTHONY MCDONNELL, COLLETTE CULLINANE, THE MINISTER FOR EDUCATION AND SCIENCE, THE MINISTER FOR HEALTH AND CHILDREN, IRELAND AND THE ATTORNEY GENERAL DEFENDANTS JUDGMENT of Mr. Justice Hanna delivered the 15th day of December, 2011 This application is moved by the defendants by way of notice of motion. They seek the following reliefs by way of preliminary application:-
2. An Order pursuant to the inherent jurisdiction of the Court dismissing the plaintiff’s claim due to the lapse of time, in the interests of justice and / or otherwise dismissing the claim of the plaintiff in accordance with Article 6 of the European Convention on Human Rights and Fundamental Freedoms and the European Convention on Human Rights Act, 2003. 3. Such further and other relief as is deemed just and appropriate on foot of the delay and want of prosecution on the part of the plaintiff, including in circumstances where the plenary summons is dated the 9th September, 1999, and the statement of claim was purported to be delivered on the 20th April, 2009, and/or where the matters in respect of which the plaintiff makes complaint are alleged to have occurred between in or about 1949 and 1962. The Parties The first named defendant is sued in his capacity as representative of a religious order. It is alleged that the first named defendant, his predecessors in title, their servants or agents, were the owners, occupiers and in control of an industrial school for boys in the southwest of the country and as such they owed a duty of care to the plaintiff whilst resident there from 1954 to 1962. The second named defendant is sued in her capacity as representative of another religious order. It is alleged that the second named defendant, her predecessors in title, their servants or agents, were the owners, occupiers and in control of a convent in the southwest and as such they owed a duty of care to the plaintiff whilst resident there from 13th May, 1949, to 1st September, 1954. The third, fourth, fifth and sixth named defendants join in this application. Paragraph 7 of the statement of claim sets the context of their purported liability to the plaintiff. It alleges that “…the second, third, fourth, and fifth, named defendants and each or either of them, their respective servants or agents, had statutory responsibility for the management, inspection, and certification of schools (including industrial schools) and orphanages and the plaintiff was in the care, custody and control of them at all material times hereto and as such they owed him a duty of care.” Background Facts Thus, any recitation of facts alleged by either party or any observation therein is not intended to offer a definitive view of the substantive issues between the parties. It was agreed by counsel at the hearing that the applicant must take the applicant’s case as set forth in the statement of claim and replying affidavits at its’ height. Cross-examination at the substantive hearing, if such might materialise, would, in ordinary circumstances, provide the appropriate anvil upon which to forge the sword of probability. At a tender age- two or three and a half years- it is not entirely clear - the plaintiff was placed into care at the convent school in 1949. At that time it was under the control and management of a religious order of nuns. The plaintiff alleges that on numerous dates between 1949 and 1954 whilst he was a resident at the convent school, he was subjected to severe physical and psychological abuse by the second named defendant, her servants and agents. Particulars of the alleged physical and mental abuse, negligence and breach of duty (including statutory duty) in that regard are set out in the statement of claim. In 1954, the plaintiff was transferred at the age of eight years to the industrial school, which at that time was under the control and management of another religious order of brothers. The plaintiff alleges that on numerous dates during 1954 and 1962 whilst he was a resident at the industrial school, the defendants, their servants or agents subjected him to sexual, physical and psychological abuse. Particulars of this abuse, torture, negligence and breach of duty (including statutory duty) in that regard are set out in the statement of claim. The particulars of personal injuries are also detailed in the statement of claim. A Consultant Psychiatrist examined the plaintiff and submitted three reports dated 12th February, 2003, 18th August, 2004, and 18th March, 2009 which were exhibited in the plaintiff’s replying affidavit sworn on 3rd March, 2010. She has diagnosed the plaintiff with post traumatic stress disorder as a result of the alleged abuse. She reported also that he experiences depression and anxiety and finds it very distressing to recall the alleged events. When the plaintiff left the industrial school, the religious order secured work for him as a farm labourer. He was extremely unhappy in this placement. He then secured work for himself in a hotel in the south of Ireland. After this he worked with a family in a neighbouring county. During this time he had all of his teeth removed because they were decayed which he alleges was due to malnutrition and poor dental hygiene over many years while at the convent and in the industrial school. The plaintiff then spent some time homeless. In 1964, he joined the British Army, serving for 22 years. He married in his late twenties. He enjoyed being in the army because he served overseas on many occasions and was able to maintain emotional distance from his wife and children. He left the British Army in 1986. He obtained work in Northern Ireland as a civil servant and is now retired. He is a founding member of a victim support group organised for and on behalf of survivors of institutional abuse and he was involved in the consultation process with respect to the setting up of the Residential Institutions Redress Board (“the Board”) and also the Commission to Inquire into Child Abuse (“the Commission”). Pleadings and Proceedings Initially three separate appearances were entered. On 29th September, 1999, the Chief State Solicitor’s Office entered an appearance on behalf of the third, fourth, fifth and sixth named defendants. On 16th December, 1999, a solicitors firm entered an appearance on behalf of the second named defendant. On 22nd December, 1999, a solicitors firm entered an appearance on behalf of the first named defendant. On 4th April, 2007, the Chief State Solicitor’s Office filed a notice of change of solicitor on behalf of the first named defendant. On 13th July, 2009, another solicitors firm filed a notice of change of solicitors on behalf of the second named defendant. On the 24th July, 2009, the Chief State Solicitor’s Office filed a notice of change of solicitors on behalf of the second named defendant. Consequently, the Chief State Solicitor’s Office is now on record for all of the defendants. Initially, a named Solicitors were on record for the plaintiff. A notice of change of solicitor was filed on 30th April, 2007 and a further notice of change of solicitor was filed on 22nd July, 2009. Following the enactment of the Residential Institutions Redress Act, 2002, the plaintiff submitted an application to the Board in 2005 but subsequently withdrew his application in November, 2008. He averred in his replying affidavit of 3rd March, 2010, that he submitted his application in 2005 when all of his proofs were available and had an opportunity to finalise his application with his solicitor. His application was pending before the Board between 17th November, 2005, and 3rd November, 2008, and he states that he was proceeding with his claim in an expeditious manner during this period. On 27th October, 2008, he signed a consent authorising his solicitors to notify the Board of his intention to withdraw his application as he did not feel that the Board provided him with a remedy in respect of his detention at the industrial school. This consent was posted to the Board on the 3rd November, 2008, as exhibited in the plaintiff’s replying affidavit. The plaintiff explains that he had lost faith in the “non court jurisdictions” and he became disillusioned and disenchanted with the manner in which the Board operated and the awards that were being made. He states that the main reason for his decision to proceed by way of court proceedings as opposed to continuing with his application with the Board was to have a “public airing of the systematic abuse and neglect that occurred” to him at the industrial school. He was also dissatisfied with the fact that the Commission did not invite any former resident of the industrial school to appear before it and he said that the evidence given by the religious order of brothers was very much at variance with his own experience at the industrial school. The plaintiff refers to correspondence in his replying affidavit which he submits shows that his solicitors kept the Chief State Solicitor’s Office and the State Claims Agency informed of the status of his application before the Board. A notice of intention to proceed was filed by the plaintiff’s solicitors on 19th September, 2008. A statement of claim was delivered on the 20th April, 2009, along with further particulars of personal injury. On this application, the defendants have highlighted the fact that the statement of claim was delivered outside the time provided for by the Rules of the Superior Courts 1986 in accordance with Order 20, r.2 which provides that: -
No defence has been delivered on behalf of the defendants to date and a motion seeking judgment in default of defence was issued on the 4th of November, 2009 returnable for 18th January, 2010. That motion was adjourned generally. This application was initiated by way of notice of motion dated the 22nd December, 2009. It is grounded on the affidavit of a legal executive from the Chief State Solicitors’ Office, which sets out the defendants’ reasons as to why they believe the delay is inordinate, inexcusable and would justify a dismissal of the action at this juncture. The affidavit states that there are persons who are untraced or deceased who would have been potential witnesses for the defendants. Among the deceased is the school inspector for both schools during the relevant period. Memories of people that are still alive will have dimmed since the period between 1949 and 1962. The defendants submit that they will suffer a prejudice if this case is allowed to proceed. The plaintiff’s replying affidavit refers to the fact that he has been diagnosed with psychological and psychiatric problems including post traumatic stress disorder, which he states is an excusable explanation for the delay. He addresses other matters raised by the grounding affidavit, including his involvement with the victim support group and consultation processes. A supplemental affidavit was sworn on the 23rd April, 2010, in response to the plaintiff’s replying affidavit. In it she argues that the plaintiff’s asserted psychological and psychiatric problems do not excuse his delay given his involvement with the consultation processes and his campaigning and that having application which was pending with the Board does not excuse the delay either. The plaintiff’s solicitors served a notice to cross examine on the 18th January, 2011, in relation to the two affidavits (dated the 22nd December, 2009, and 23rd April, 2010) but this was not pursued. A second supplementary affidavit was sworn on 22nd March, 2011. In it, the deponent states that a former cook at the industrial school was located and if she is the individual against whom the plaintiff makes a complaint, she is suffering from Alzheimer’s disease. The deponent exhibited a report from a private investigator stating that the cook suffers from Alzheimer’s disease. The deponent concludes that it therefore seems that she will not be in a position to give evidence at the trial of this action. The deponent respectfully concludes in her affidavit that this Court “cannot fulfil its constitutional mandate of administering justice in this case particularly, in light of the insurmountable prejudice faced by the defendants at this juncture.” I take the view that such an assertion in an affidavit is inappropriate. While evidence provided by the defendants as to the availability, or otherwise, of relevant witnesses for them in order to defend the claim and not be prejudiced is important, the Court will draw its own conclusion on whether or not it can fulfil its mandate based on this and other factors. Further affidavits were sworn on behalf of the defendants as follows: An affidavit of an individual from the Department of Education and Skills, sworn on the 21st March, 2011, gives an account of people who may still be alive who worked at the Department at the time. Only two people who worked in the Department are confirmed as still alive from that time and they are aged 87 and 97 years, others are deceased or were not traced. He also refers to the inspector of both schools at the relevant time who is now deceased. An affidavit of an individual from the Department of Health and Children, sworn on the 23rd March, 2011, confirms that to the best of his knowledge a file relating to the plaintiff was opened in the context of the provision by the Department of personal counselling services to victims of abuse but the file has been mislaid. However, the deponent states that to the best of his belief the file does not contain any record of any contemporaneous complaint from the plaintiff or his family relating to the matters at issue in these proceedings. Counsel for the defendants told the Court that he understood that the file would not contain any investigative material in terms of either statements or any attempts or inquiries in relation to the truth or accuracy of any of the complaints that the plaintiff makes. The affidavit of a convent nun on behalf of the second defendants confirms that some potential relevant witnesses are now deceased (death certificates were exhibited), and confirms that others are unwell due to old age. The affidavit on behalf of the first defendant states that the three Brothers who the plaintiff has made allegations against are now deceased. It is claimed by the plaintiff that after he complained to the local priest he was ostracised and lost all of his privileges. No allegation is made against the priest but his traceability was at issue. The deponent states that the priest could not be traced and he would now be in his nineties. As regards the assertion in affidavits of the 19th January, 2011, and 9th February, 2011, that the Brothers have access to significant evidence, both oral and documentary, the deponent states that the Brothers do not have access to any documentary evidence nor do they have access to any material witnesses as to fact which would enable them to mount any type of meaningful defence to the allegations being made by the plaintiff at this remove. The plaintiff swore a further affidavit on the 8th April, 2011, in reply to all of the issues raised in the above affidavits. The plaintiff’s solicitor swore an affidavit on the 18th April, 2011, and this responds to the averment that the Brothers do not have any documentary evidence nor access to any material witness as to fact regarding the plaintiff’s experience, by stating that the congregation of the Brothers was given information about complaints since the establishment of the Commission and the Board. The Relevant Law I now must decide whether or not this inordinate delay has been proven by the defendants to be inexcusable, and if so, whether nevertheless the balance of justice should allow the claim to go to hearing or be dismissed. The balance of justice involves generally an examination of issues of prejudice, both to the plaintiff and to the defendant. The principles of Rainsford v. Limerick Corporation [1995] 2 ILRM 561 (Finlay P.) were upheld and applied by Hamilton C.J. in the Supreme Court in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 who set out a number of principles as follows, at p. 475: -
(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 judgment 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 a defendant's reputation and business.”
The defendants submit that the test set down by Henchy J. in O’Domhnaill v Merrick [1984] IR 151, Toal v Duignan (No. 1) [1991] ILRM 135 and Toal v Duignan (No. 2) [1991] ILRM 140 represents a “second strand” of jurisprudence in relation to such applications, this being that even where there has been no inexcusable delay on the part of the plaintiff, the court has an inherent jurisdiction to hold that in certain cases it would be unfair in all the circumstances to force a defendant to defend a case where there is prejudice by reason of the lapse of time. In Toal v Duignan (No. 2) it was held by Finlay P. that the Courts have an inherent jurisdiction to dismiss a claim in the interests of justice where the length of time which has elapsed between the events out of which it arises and the time when it comes on for hearing is in all the circumstances so great that it would be unjust to call upon a particular defendant to defend himself. Geoghegan J. in McBrearty v North Western Health Board [2010] IESC 27, (Unreported, Supreme Court, 10th May, 2010) noted there to be an “important and partly overlapping jurisprudence deriving, in the main, from decisions” in those cases and said that the importance of this jurisprudence is that “even in a case where there has been no fault on the part of the plaintiff, the court, in certain circumstances, in the interest of justice may accede to a defendants’ application to have the proceedings struck out.” Hogan J. in Donnellan v. Westport Textiles Limited (In Voluntary Liquidation) & Ors stated: -
‘I now turn to the other line of authorities to which I have referred starting with O’Domhnaill v. Merrick ….. The first observation I would make is that it is clear from this line of authorities and indeed from other cases that the inherent jurisdiction to strike out a case for delay in certain circumstances in the interests of a defendant may be exercised taking into account delay in the institution of proceedings. Notwithstanding that that is not a particular issue in this case, I mention it to emphasise the paramount inherent jurisdiction derived from the Constitution. ….Later cases would seem to indicate that even though it can form part of an application to dismiss for want of prosecution as indicated by Hamilton C.J. in Primor, the inherent jurisdiction can be exercised independently of the Rainsford principles.’ (emphasis applied)
Even if one assumes in the plaintiff’s favour that no specific prejudice has been caused to the State defendants by this delay, the lapse of time between the events complained of and the present day is so enormous that the courts simply cannot fulfil their constitutional mandate of administering justice in a case such as this.”
Recent Developments Kearns J. in the Supreme Court in Stephens v Paul Flynn Ltd. [2008] 4 IR 31 referred to the significant amendments to the Rules of the Superior Courts (i.e. the amendment to Order 27 by the Rules of the Superior Courts (Order 27 (Amendment) Rules), 2004 S.I. No. 63 of 2004). In addition, Hardiman J. in Gilroy v Flynn made reference to European Convention on Human Rights Act, 2003, stating that the courts, quite independently of the action or inaction of the parties, have an obligation to ensure that rights and liabilities, civil or criminal, are determined within a reasonable time. Counsel for the plaintiff agreed that the Supreme Court has made it clear in a number of recent cases that delays in procedural matters which may have been tolerable in previous times may no longer be tolerated, referring to the cases of Gilroy v Flynn, Stephens v Paul Flynn Ltd. and Desmond v MGN Limited [2009] 1 IR 737 all of which demonstrate an ever increasing reluctance on the part of the courts to condone delays in procedural matters. As Hogan J. in Quinn -v- Faulkner t/a Faulkner's Garage & Anor [2011] IEHC 103, (Unreported, High Court, Hogan J., 14th March, 2011) stated: -
The defendants submitted that there is a heavy onus on the plaintiff to proceed with extra diligence in progressing proceedings having regard to the delay prior to the issuing of the proceedings. While delay prior to the commencement of proceedings will not of itself be considered inordinate delay in the context of an application to dismiss for want of prosecution, may be a factor to be taken into account when considering where the balance of justice lies. In Stephens v Paul Flynn Ltd [2005] 1.E.H.C. 148, (Unreported, High Court, Clarke J., 28th April, 2005) Clarke J. quoted Murphy J. in Hogan v Jones, who referred to Rainsford and quoted Lord Diplock in Birkett v James [1977] 2 All E.R. 801 as follows: -
‘Secondly, the courts have become ever more conscious of the unfairness and increased possibility of injustice which attached to allowing an action which depends on witness testimony to proceed a considerable time after the cause of action accrued. Thirdly, following such cases as McMullen v. Ireland (ECHR 42297/98, 29th July, 2004) and the European Convention on Human Rights Act 2003 the courts, quite independently of the action or inaction of the parties, have an obligation to ensure that rights and liabilities, civil or criminal, are determined within a reasonable time.’ These changes, and others, mean that comfortable assumptions on the part of a minority of litigants of almost endless indulgence must end. Cases such as those mentioned above will fall to be interpreted and applied in light of the countervailing considerations also mentioned above and others and may not prove as easy an escape from the consequences of dilatoriness as the dilatory may hope.” The defendants submit that the replying affidavits of the plaintiff of 3rd March, 2010, and 8th April, 2011, do not establish facts that excuse the extent of the delay in or about the commencement of the proceedings and the further inexcusable delay and/or want of prosecution in or about the prosecution of the case. They submit that the contents of the medical reports do not display evidence of the plaintiff being medically unfit to bring the proceedings or pursue the proceedings. Counsel for the defendant urged the Court to consider “what [the psychiatrist] doesn’t say”, and said that the psychiatrist does not say that the plaintiff is incapable of dealing with his affairs. The plaintiff argues that the failure on his part to bring proceedings against the defendants at a much earlier point in time is directly related to the abuse perpetrated by the defendants and the effects of that abuse on him and that the delay is excusable having regard to the medical evidence adduced on behalf of the plaintiff. The alleged effects of this abuse on the plaintiff are set out in the reports of the consultant psychiatrist’s medical dated respectively the 12th February, 2003, 18th August, 2004, and 18th March, 2009. The reports state, inter alia, that he suffers from post traumatic stress disorder, depression and that he is traumatised by his experiences. He dislikes discussing his own abuse and gets extremely upset when he does. Albeit untempered by the fire of cross-examination, there is substance in the plaintiff’s assertion of impairment of his faculties to the extent of of shying confrontation with his alleged abusers in the white heat of litigious conflict. A monstrous injustice could ensue were an alleged wrongdoer to find shelter and succour in the impediment spawned by its’ alleged malefaction in order to ward off consequential proceedings. I find sufficient material, gleaned from the plaintiff’s evidence, including the plaintiff’s medical reports, to excuse the inordinate delay in relation to the period of time pre-commencement and post-commencement of the proceedings. Given the particular nature of the claim in this case, and the plaintiff’s disillusionment with the Board and subsequent withdrawal of his application from the Board, I find that the delay has been explained and is excused. It is unfortunate that the plaintiff became disillusioned with the Board, but I have no reason to believe, given the exercise in which I am presently engaged, that this disillusionment is anything other than genuine. If I am wrong on my finding that the delay is excusable, in any event I find later that the balance of justice favours the trial of the action proceeding based on an evaluation of any prejudices faced by both parties on the balance of justice test. Campaigning / Engaging in Consultation Processes The plaintiff submitted that the delay is excusable in the circumstances as he was a founding member of a group which campaigns on behalf of victims of institutional abuse. The plaintiff was also involved in the consultation process surrounding the Board and also the Commission and met with various ministers for Education and Science and civil servants between 1999 and 2010 to discuss the rights and needs of survivors of institutional child abuse. Letters were exhibited in his replying affidavit which clearly show that he took an active role in the consultation processes and was well respected because of his significant input. Counsel for the plaintiff submitted that the plaintiff distracted himself by immersing himself in this work, and this is referred to by the psychiatrist in her reports. It is understandable that a person who is suffering from what the plaintiff is diagnosed of might be capable of taking care of certain affairs in their life but not of others for whatever reason. Therefore, the plaintiff’s activities outlined above have no bearing, in my view, on how he proceeded or failed to proceed expeditiously with his High Court action, but what is reported by the psychiatrist that the plaintiff immersed himself in other work to avoid dealing with the past would appear to explain the plaintiff engaging in these activities yet neglecting his own action. Withdrawal from the Board and s. 13(10) of the Residential Institutions Redress Act, 2002 The plaintiff submits that pursuant to the provisions of s. 13(10) of the Residential Institutions Redress Act, 2002, the court is obliged to disregard the period of time that the application of the plaintiff was before the Board for the purposes of the Statute of Limitations. In light of the wording of that subsection, the plaintiff submitted that it is appropriate in the circumstances for the Court to disregard the period during which the plaintiff’s application was pending before the Board when considering whether the post commencement delay of the plaintiff is inexcusable in all the circumstances of the case. Section 13(10) states: -
(a) the date of the application to the Board by that applicant, and (b) the date on which the applicant—
(ii) was adjudged not entitled to an award under this Act, (iii) rejected an award in accordance with subsection (4)(a) or subsection (5), or (iv) rejected a decision of the Review Committee in accordance with section 15 (7) or section 15 (8), The defendants further argue that the plaintiff’s reliance on s. 13(10) of the Residential Institutions Redress Act, 2002 to excuse the delay relating to the period of time between 2005 and 2008 is misguided because this provision relates to any plea under the Statutes of Limitations and it therefore does not provide any protection in the context of the application before this Court. In a supplemental affidavit sworn on the 23rd April, 2010, it is stated that this application is in respect of the delay and want of prosecution and is not pursuant to the Statutes of Limitations. She also says that, in any event, s. 13(10) is not a bar to the defence raising the statute of limitations or more particularly, pleading (inordinate and) inexcusable delay and the resultant prejudice suffered as a result thereof. The defendants further submit that the limited amount of time, between 2005 and 2008, when the plaintiff had his application pending before the Board does not excuse the extent of the delay particularly where the actions complained of date back to the period from 1949 to 1962. Counsel for the defendant in his submissions stated that the only explanation the plaintiff gives at its height from the plenary summons in 1999 to 2005 is just a statement that he was waiting on all of his proofs until 2005. Counsel submitted that the Court should have regard to the obligation on a plaintiff to prosecute proceedings with expedition where there has already been a long delay prior to the inception of proceedings. S. 13(10) applies to a claim that might be barred under the Statutes of Limitations. It therefore does not provide for the disregarding of the period between 2005 and 2008 when assessing the delay and whether or not it is inexcusable. I therefore look at the time post-commencement of the proceedings as a whole, and as stated above, I find that the contents of the medical reports excuse the delay. Prejudice suffered by the defendants A presumed prejudice exists, it is argued, because of the nature of the allegations made out in the statement of claim and the alleged vicarious liability and particularly because the nature of the claims made mean that the case will be presented on the basis of oral testimony and would be defended on the basis of oral testimony if it were available. Counsel for the defendants submitted that being sued under the doctrine of vicarious liability rather than in terms of a specific act of an inappropriate kind or an inappropriate omission on their part is significant in terms of assessing the delay that has occurred in this case. He said that it would be different if the specific allegations were made against specific defendants cited in the proceedings and they were still alive. The relevant Department of Education inspector for both the industrial school and the convent during the relevant period of time is deceased and counsel for the defendant called this a “joint prejudice.” Only two people who worked in the Department are still alive from that time and they are aged 87 and 97. The defendants state that because of this they face a significant level of specific prejudice in defending the within proceedings and that this prejudice is of the kind that establishes a clear and patent unfairness in expecting the defendants to defend the claim after such a substantial time lapse. They therefore submit that the court should exercise its inherent jurisdiction to dismiss the proceedings herein by reason of the want of prosecution on the part of the plaintiff and or alternatively in the interests of justice by reason of the lapse of time and the resultant insurmountable prejudice suffered by the defendants. Prejudice: The Industrial School, 1949 - 1954 Prejudice: The Convent School, 1954 – 1962 The resident managers and superiors of the industrial school during the period 1954 - 1962 are deceased. There are two brothers who are alive from that time. They are both now elderly, one resides in a nursing home and the other in a care facility. The defendants submit that their relevance to the proceedings is questionable in circumstances where no allegations are made against them. The plaintiff addressed the issue of prejudice to the defendants caused by the alleged delays. The plaintiff submits that the defendants bear the onus of proof in establishing that there is a “clear and patent unfairness” in asking them to defend the action at this point. As outlined above, the defendants filed numerous affidavits referring to the lack of relevant witnesses due to death, illness or infirmity, stating that they do not have access to sufficient or any documentation and/ or any material witnesses as to fact which would enable them to deal with the allegations made. In response to this, the plaintiff submits that there are some witnesses available. He states that there are a number of witnesses, albeit in poor health, who can confirm his experiences in the convent. He is also of the view that individuals who were working in the industrial school, while he was there are alive and would be of assistance to the defendants in defending the plaintiff’s claim. The plaintiff further submits that former pupils and residents could be traced from school records and from documentary evidence disclosed to the congregation by the Board as outlined above. Counsel for the plaintiff submitted that the complaint in relation to sexual abuse at the industrial school in the main, relates to older boys who abused younger boys and the failure of the relevant defendants to stop this – the argument being that former residents who were witnesses to this abuse may still be available. Prejudice to the defendants – the availability of documents In a supplemental affidavit filed on behalf of the defendants by the Chief State Solicitor’s Office, the deponent states she is unclear what the plaintiff means in his replying affidavit when he states that the State Claims Agency have access to copious amounts of material. She states that certain records and documentation were obtained on foot of investigations undertaken by the Department of Education and Science and the Department of Health and Children in the context of the within proceedings, but this material does not alter the defendants’ position in terms of the very real and significant prejudice faced by the defendants in dealing with the within proceedings. Counsel for the defendants reiterated this point in submissions, saying that it is still not clear, notwithstanding the exchange of affidavits, what the “copious material” referred to by the plaintiff is. Counsel for the defendants submitted that the plaintiff has not said that there is anything in chapter 11 of the Commission’s report referable to his case. The defendants state that a number of written records from the industrial school have not survived. The register for the industrial school is the only document that the first named defendant has in its possession. The only document that the first named defendant has is an entry on the register dated 14th May, 1961, stating that the plaintiff received a very good primary certificate in 1960. Therefore, the defendants submit that they do not have access to any documentary evidence or material witnesses that would enable them to mount any type of meaningful defence to the allegations. It is a fact that some potential witnesses for the defendants are deceased or are elderly. However, as the plaintiff submits, there are some witnesses available. The plaintiff also submits that the nature of the abuse that he suffered generally did not take place behind “closed doors”, and former residents could give evidence on this. I find that given the circumstances of the case, the nature of prejudice suffered by the defendants does not outweigh the prejudice that might be suffered by the plaintiff if this claim were not allowed to proceed at this juncture. The question of public interest The defendants submit that the Court can strike out a claim on the grounds of inordinate and inexcusable delay in the absence of established prejudice so far as the defendants are concerned, because of the prejudice to the public interest. They cited the cases of Donnellan v. Westport Textiles Limited (In Voluntary Liquidation) & Ors [2011] IEHC 11, (Unreported, High Court, Hogan J., 18th January, 2011) and Byrne v Minister for Defence [2005] 1 IR 577 (Peart J.). The defendants state that in this case the Court should have regard to the plaintiff’s unilateral decision to withdraw his application from the Board. The plaintiff submits that the court may take into account the particular circumstances of the case when considering whether there has been inexcusable delay coupled with the balance of justice test to find that if the delay was excusable and that it may be in the public interest to permit such a case to hearing, given that it relates to a plaintiff’s right to bodily integrity as a child. In Donnellan, Hogan J. stated:
Alleged delay on the part of the defendants
This application was brought on the 22nd of December, 2009. However, given that the plenary summons was delivered on the 9th September, 1999, but the statement of claim was purportedly delivered on the 20th April, 2009, (and the Chief State Solicitor’s Office came on record for the second named defendant in July, 2009), it was only then that the defendants were possessed of information they needed in order to investigate how to defend the action. A second affidavit at para. 10 states that certain investigations were undertaken on behalf of the defendants prior to issuing the within application and that the defendants cannot be criticised for taking a relatively short period of time to do this. It is stated in a supplemental affidavit at para. 18 that “it was not until receipt of the statement of claim that the defendants could undertake any meaningful enquiry in respect of the allegations being made by the plaintiff”, and that the lack of detail contained in the plenary summons precluded any meaningful enquiries. Enquiries after service of the statement of claim and after the plaintiff’s replying affidavit were conducted and persons mentioned in the medical reports have been identified as being alive. The period of eight months between the service of the statement of claim and the making of this application should not be seen as excessive. I accept that the investigations which had to be undertaken by the defendants took some months and this was not a delay on their part. Summary of various findings Conclusion |