[2025] IEHC 302
THE HIGH COURT
BETWEEN:
KARL MULLEN
PLAINTIFF
AND
TIM O'BRIEN AND SCOUTING IRELAND SERVICES
DEFENDANTS
JUDGMENT of Mr. Justice Barry O'Donnell delivered on the 28th day of May, 2025
INTRODUCTION
1. This judgment concerns a motion issued by the first defendant on the 1 February 2024, in which orders are sought striking out the plaintiff's claim for want of prosecution and / or delay. Alternatively, the motion seeks the trial of a preliminary issue on whether the plaintiff's claim is statute barred. A second motion travelled with that first motion in which the plaintiff seeks to compel the first defendant to deliver replies to a notice for particulars dated the 24 April 2020.
2. Sequentially, the court will address first the question of whether the proceedings should be struck out for want of prosecution, as if this is resolved in favour of the first defendant the remaining issues will be redundant.
3. It can be noted that (a) the defence of the first named defendant raised a preliminary objection to the effect that pre-commencement delay has prejudiced the ability of the first defendant to have a fair trial of the issues; (b) the motion before the court appeared principally focussed delay in the prosecution of the proceedings i.e. post-commencement delay; while, (c) the emphasis in oral argument placed primary emphasis on pre-commencement delay. As such, while the motion as drafted was framed as addressing what could be described as the Primor test, the motion as it was run also was strongly focussed on the O'Domhnaill line of authority.
THE PLEADINGS
4. The proceedings were commenced by a plenary summons dated the 15 February 2018, approximately 6 years prior to the motion issuing. The claims are for damages for assault and battery, trespass to the person and sexual assault as against the first defendant, and damages for negligence and breach of duty as against the second defendant. There are other claims set out in the indorsement of claim, but these are the primary allegations. An appearance was entered on behalf of the first defendant on the 22 March 2018.
5. The claims are set out in more detail in a statement of claim dated the 24 May 2018. It must be noted at the outset that the claims made by the plaintiff are heavily contested by the first defendant. Insofar as the claims are described for the purposes of this judgment it is no more than a description, and nothing in this judgment can or should be taken as a finding of fact in relation to the matters pleaded by the plaintiff.
6. The first defendant is a retired member of An Garda Síochána and was a scout leader with the Catholic Scouts of Ireland. The plaintiff was born in 1969, and he claims that the first defendant sexually abused him between 1982 and 1985, while the plaintiff was a member of the scouts. In the statement of claim, the plaintiff claims that he was groomed by the first defendant over a number of years before the first incident of sexual abuse. The abuse is alleged to have occurred over the period in question in a variety of locations, including the home of the first defendant, in tents at scout camps, a derelict building, in the first defendant's car and a minibus.
7. The plaintiff reached his majority in 1987. The plaintiff claims that one of the effects of the abuse was that his psychological injuries impaired his ability to make a reasoned decision to bring proceedings. In that regard, he claims that until April 2017 – when he was aged 47 - he was labouring under a disability for the purposes of the Statute of Limitations.
8. In terms of his personal injury, the plaintiff pleads that he suffered a series of mental and psychological problems as a consequence of the alleged abuse. Among other matters he claims that he developed Emotionally Unstable Personality Disorder.
9. The plaintiff elaborated on his claims in response to a searching notice for particulars that was served on behalf of the first defendant on the 21 March 2019 and replied to on the 23 April 2019.
10. Of note for the purposes of matters raised in connection with this application, the plaintiff claims that the abuse that occurred in the home of the first defendant happened at times when the first defendant's wife was out of the house. He claims that the abuse ended when he was aged 16 years. The plaintiff claims that the occurrences of abuse were so frequent that it was not possible to give full details; however, in his replies to particulars he notes that the abuse occurred on every scouting trip he attended between 1981 and 1986. In that respect he identified, albeit with some lack of specificity as to precise dates, a number of locations and dates and specific scouting events. He provided some details of the vehicles in which he claims the abuse occurred.
11. The plaintiff provided particulars of attending two identified therapists in the UK for a period in 2004, and a psychiatrist in Ireland in March 2017. The plaintiff also stated that he made a complaint to An Garda Síochána in August 2004.
12. The plaintiff issued a motion seeking a defence from the first defendant in September 2019, and on the 2 December 2019 by consent the High Court ordered the first defendant to deliver a defence within 6 weeks of that date.
13. The first defendant's defence was delivered on the 6 January 2020. The defence makes the preliminary objections that the claims are statute barred and that the plaintiff has been guilty of delay in commencing the proceedings such as to prejudice a fair trial of the issues. Subject to those preliminary objections the defence denies the claims made seriatim and puts the plaintiff on proof of all his claims.
14. The plaintiff sought particulars in respect of the preliminary objections by notice dated the 24 April 2020. These have not been replied to. On the 19 May 2020, the plaintiff delivered a reply to the first defendant's defence.
15. The second defendant delivered its defence on the 9 January 2020. The second defendant's defence also raises preliminary issues of delay and limitation issues. It would not be unfair to summarise that defence as predominantly amounting to denials and claims that the second defendant is a stranger to the allegations against the first defendant. On the 16 January 2020, the second named defendant also issued a notice of indemnity and contribution directed to the first defendant pursuant to section 27 of the Civil Liability Act, 1961.
16. The plaintiff served a notice of intention to proceed on the 20 October 2023. Reminder letters regarding the outstanding particulars were sent in October and December 2023. A separate motion is before the court which was issued by the plaintiff on the 11 March 2024 seeking to compel the first defendant to provide replies.
17. As I will explain below, certain matters arose on affidavit regarding discovery issues that had arisen.
THE EVIDENCE
18. The first defendant's motion issued on the 1 February 2024, and it was grounded on an affidavit sworn by the first defendant on the same date. In addition to an assertion that the plaintiff has been guilty of inordinate inexcusable delay in the prosecution of the case - which is grounded on the chronology of post commencement events above - the first defendant addresses what he says are the effects of the delay in commencing the proceedings.
19. The first defendant notes that the plaintiff asserts that he was suffering from a disability caused by the alleged abuse until 2017 and therefore not in a position to commence the proceedings. However, the first defendant also points to the plea by the plaintiff that he made a complaint to An Garda Síochána. There is confusion around the date when the complaint was made. The plaintiff pleads that the complaint was made in 2004, while the first defendant believed that the complaint was made in 2006. In either event, the point made by the first defendant is that there is something of a disconnect between the plaintiff relying on a disability to prevent the statute from running until 2017 and making a complaint to the Gardai in 2004 or 2006. The first defendant also states that he was arrested and questioned by An Garda Síochána on foot of that complaint, and that the DPP declined to prosecute.
20. The most comprehensive argument made by the first defendant related to the prejudicial effect of the pre-commencement delay, and his claim that he has been frustrated in his ability to defend the proceedings.
21. The first defendant notes that the claims made by the plaintiff are of a nature that will require and centrally depend on witness testimony. This is a function of the nature of the allegations and the claim that multiple events occurred in a variety of locations over the years between 1982 and 1985. The first defendant claims that the natural fragility of human memory means that a trial is prejudiced where witnesses will be required to address matters of that antiquity. The first defendant also identifies certain specific matters that compound the difficulties he faces.
a. First, he claims that a roll book was maintained which contained the names of all persons present at scout meetings. The first defendant states that this book was taken by An Garda Síochána when he was arrested and was not returned to him.
b. Second, the first defendant highlights that his wife died in June 2021. The implications for the fair trial of the case were said to be that his wife would have been in a position to address certain "islands of fact" in the case. He asserts (a) that his wife accompanied him on scout trips; (b) that his wife would have been able to confirm matters such as the type of car driven by the first defendant at various points - this is said to be important because the plaintiff stated in replies to particulars that some of the incidents of abuse occurred in a brown Leyland mini, among other identified vehicles; (c) his late wife would have been able to confirm that she was present when the plaintiff called to the first defendant's home; and (d) where the plaintiff claimed that he was assaulted in the first defendant's home when the first defendant's wife was working night shifts, his late wife would have been able to confirm that she only ever worked day shifts.
22. The replying affidavit on behalf of the plaintiff was sworn by his solicitor Mr. Spicer. There was no explanation as to why the plaintiff himself did not swear an affidavit, and this was unsatisfactory given the serious nature of the motion and the fact that, particularly in relation to the pre-commencement delay issues, the plaintiff was the person best placed to give evidence.
23. In respect of the pre-commencement delay and statute of limitations issues, Mr. Spicer commenced from the proposition that he was instructed that the plaintiff suffered psychological injuries as a result of the sexual assaults which constituted a disability for the purpose of limitations issues, and which persisted until April 2017. He notes that the proceedings were then commenced in February 2018. There is a specific averment, albeit terse, that the delay in attributable to the injuries that the plaintiff alleged were caused by the first defendant. Mr. Spicer does not engage with the issue of the complaint made to An Garda Síochána by the plaintiff in 2004/2006, which he says is a matter for psychiatric experts.
24. Mr. Spicer notes that while the first defendant comments on the effects of the passage of time on memory there is no specific claim by the first defendant that his own or any other witness's memories have been impaired. He observes that while the first defendant notes that the roll book was not returned to him no details are given as to any efforts made by the first defendant to retrieve that book. Finally, in relation to the effects of the death of the first defendant's late wife, Mr. Spicer refers to the details that the plaintiff gave in his replies to particulars where he states that the assaults occurred in places and at times when the first defendant's wife was not present.
25. In relation to the prosecution of the case, Mr. Spicer takes issue with the contention that no steps were taken in the action as between the plaintiff and the first defendant in the period from May 2020 (when the reply to the first defendant's defence was delivered) to October 2023. Mr Spicer notes (a) the plaintiff was addressing a request from the second defendant for voluntary discovery which in turn involved liaison with counsellors/ therapists and An Garda Síochána; (b) the plaintiff had sought voluntary discovery from the second defendant on the 23 April 2020, and follow up correspondence was sent in October 2023 and December 2023; and (c) the first defendant had failed to respond the notice for particulars sent on the 24 April 2020, despite reminders on the 18 October 2023 and the 21 December 2023.
26. It is immediately apparent from Mr. Spicer's account that there was a period between circa April 2020 and October 2023 when very little occurred. Mr. Spicer exhibited what he considered to be the relevant correspondence. That sheds light on the delay issue by showing the following:
9 January 2020 The second defendant sought voluntary discovery of four categories of documents including medical records and documents evidencing disclosure to therapists and An Garda Síochána.
21 January 2020 The request was acknowledged by the plaintiff's solicitors.
22 January 2020 The plaintiff's solicitors indicate that they are awaiting counsel's opinion and will revert.
10 March 2020 The plaintiff's solicitors agree to make discovery of the categories sought and seek a period of 16 weeks to do so.
11 March 2020 The solicitors for the second defendant agree to the proposal.
20 May 2020 The solicitors for the plaintiff write to Wendy Lister a therapist / counsellor in the UK seeking the plaintiff's file.
23 July 2020 The second defendant's solicitors note that the voluntary discovery has not been made.
6 August 2020 The solicitors for the plaintiff indicate that they are awaiting medical records.
19 August 2020 The solicitors for the plaintiff send a reminder to Ms Lister.
20 August 2020 The solicitors for the plaintiff write to another counsellor, Michael Heap. This notes that the plaintiff had made contact with Mr. Heap and understood that the notes and records from 2004 had been destroyed. Confirmation is sought that the records were destroyed (which is a necessary part of complying with discovery requests) and also whether Mr. Heap had any recollection of his interactions with the plaintiff.
23 August 2020 Mr. Heap sends an acknowledgement email, indicating that he was recovering from a health issue.
7 October 2020 The solicitors for the second defendant send a further reminder letter.
14 October 2020 The solicitors for the plaintiff wrote to CURA at their Cork office seeking medical records.
14 October 2020 The solicitors for the plaintiff write to An Garda Síochána with a subject request under data protection legislation.
15 October 2020 An Garda Síochána acknowledge the request.
23 November 2020 An Garda Síochána indicate that more time is required to deal with the request.
14 December 2020 A letter is sent to CURA at their national office in Kildare.
15 February 2021 The plaintiff's solicitors write seeking an update from An Garda Síochána.
19 April 2021 An Garda Síochána revert noting that due to the passage of time the data sought are no longer held by that body.
29 October 2021 A further reminder is sent to the CURA national office.
27. There is no indication in the papers that the plaintiff ultimately swore an affidavit of discovery in response to the request issued by the second defendant. All told, from the papers put before the court it appears that while the plaintiff sought a variety of records from a variety of sources between May 2020 and October 2021 - albeit that within that timescale there were significant periods of inactivity. What therefore appears incontestable is that no steps appear to have been taken between October 2021 and October 2023. It appears reasonable to conclude that having received a notice of intention to proceed on the 20 October 2023 and a letter about the outstanding replies to particulars on the 21 December 2023, the first defendant took steps to prepare the motion to dismiss that issued on the 1 February 2024.
28. It is clear from the caselaw that pre-commencement and post-commencement delay issues fall to be addressed separately, and I will do so below. Before doing so it is important that the analysis under each test must be framed by the general proposition is that a full trial of an action is the preferable method to resolve cases brought by a litigant, and the caselaw makes provision for cases to be dismissed on an application such as this as an exception to that general proposition. As noted by Clarke J. in Nash v. DPP [2015] IESC 32 at para. 2.19:
"(a) There is a significant constitutional imperative in favour of all issues of rights, liabilities or obligation, whether criminal or civil, being determined on the merits as a result of a trial at which all the admissible and relevant evidence is analysed and the law properly applied to the facts which thereby emerge."
POST COMMENCEMENT DELAY
29. The law in relation to dismissing a case on the basis of post-commencement delay is well settled, and as noted by the Court of Appeal in Padden v McDarby [2024] IECA 207 (Padden), applications such as this are among the most common dealt with by the courts. The line of authority from Primor Plc v. Stokes Kennedy Crowley [1996] 2 IR 459 (Primor) is extensive, but the critical issues to be addressed by the court are:
a. Whether the delay is inordinate;
b. Whether the delay is inexcusable;
c. Whether the balance of justice favours allowing the proceedings to continue.
30. In Padden, the Court of Appeal reiterated that pre-commencement delay generally is a matter that has been addressed by the Oireachtas in the Statute of Limitations and, as such, where proceedings ostensibly are commenced within the relevant limitation period, a plaintiff cannot be considered to have been guilty of culpable delay for the purposes of a Primor type analysis. However, even if there is no culpable pre-commencement delay, a delay in commencing proceedings may have a bearing on the question of whether post-commencement delay can be treated as excusable.
31. In addition, in Padden the Court of Appeal, drawing on Cave Projects Limited v Gilhooly & Ors [2022] IECA 245, confirmed that the onus is on the applicant - here the first defendant - to prove each limb of the Primor test.
32. In that regard, the balance of justice test is concerned with the prejudicial effects of the delays caused by the plaintiff. This is connected to the view, summarised by Collins J. in Cave Projects, that a defendant cannot rely on matters that do not result from the plaintiff's delay, and, as put by Collins J. at page 29 of his judgment, that "the authorities increasingly emphasise that defendants also bear a responsibility in terms of ensuring the timely progress of litigation ...". Hence, the task is to consider the level of prejudice suffered by the defendant as a result of the plaintiff's delay in determining whether it has become unfair to call upon the defendant to meet the case. In that regard, Noonan J. in Padden reiterated what had been said by the Court of Appeal in Beggan v. Deegan [2024] IECA 4, at para 18:
"This case is concerned with the [Primor] line of jurisprudence as distinct from that arising under [O'Domhnaill]. To succeed under the latter, a defendant must demonstrate that there is a real risk that a fair trial can no longer be had. Under Primor however, it has been said repeatedly that moderate prejudice short of that may suffice. It seems clear therefore, that under Primor, a case may be dismissed even though a fair trial is still possible. One would have thought that for a plaintiff to suffer the draconian remedy of having their case dismissed, notwithstanding that a fair trial is still available, the level of prejudice suffered by the defendant as a result of delay, even if described as 'moderate', must be significant enough to make it unfair to the defendant for a trial to proceed."
33. In Padden, Noonan J. summarised the required analysis in the following way:
"24. It seems to me that a fundamental consideration in the calibration of the balance of justice is a determination of whether the prejudice alleged, assuming it to be sufficient to warrant dismissal, is prejudice solely caused by culpable delay on the part of the plaintiff. It is axiomatic that if the prejudice of which the defendants complain is of their own making, they can hardly be heard to rely upon it irrespective of what delay has occurred."
34. Turning to the application of the limbs of the Primor test, the first question is whether the delay in this case should be categorised as inordinate.
35. The starting point is that on the plaintiff's case he ceased to be suffering from the disability that prevented him from commencing the proceedings in April 2017. Thereafter the plenary summons issued on the 15 February 2018. The first defendant entered an appearance promptly, and the statement of claim was delivered on the 24 May 2018. Hence, within 13 months of the plaintiff ceasing to suffer from a disability the first defendant was in possession of the plaintiff's statement of claim. I consider that this amounts to a reasonably prompt approach, involving the delivery of a reasonably comprehensive statement of claim within just over 12 of the plaintiff ceasing to suffer from his disability.
36. What emerges from the chronology is that the first defendant then took approximately 10 months to deliver a notice for particulars, which was dated the 21 March 2019. I cannot see how the addition of that 10 months to the timescale of the proceedings can be attributed to the plaintiff. The plaintiff delivered comprehensive and detailed replies to the notice for particulars on the 21 April 2019. In light of the contents of the replies this must be treated as prompt and certainly gave the impression of a plaintiff that was anxious to progress his case expeditiously. Strikingly the first defendant then allowed a further period of just over 9 months to deliver his defence. The defence principally comprised legal points about pre-commencement delay / limitations, issues and denials of the material facts pleaded by the plaintiff. I do not consider that there is a justification for a 9-month period to prepare a defence of this type, particularly where the first defendant accepts that he had been aware - at the very least in some sense - of the plaintiff's allegations since 2006.
37. The plaintiff raised a notice for particulars on the first defendant's defence on the 20 April 2020 and delivered a reply to the defence on the 19 May 2020. Again, this demonstrated a reasonably prompt approach by the plaintiff to that point. It can be noted that the first defendant did not provide any reply to the plaintiff's notice for particulars.
38. All things considered, I cannot conclude that there was any inordinate delay on the plaintiff's part in prosecuting the case in the period up to May 2020. Insofar as there were delays in the proceedings between February 2018 and May 2020 these mainly are attributable to the actions of the first defendant. However, there are issues in relation to delay from that point on, and these cannot be attributed to the first defendant.
39. As noted above, the plaintiff chose not to swear an affidavit seeking to explain the delays between May 2020 and October 2023. His solicitor sought to rely on the issues relating to the second defendant's discovery request. As a general proposition the court accepts that the process of agreeing voluntary discovery or alternatively obtaining an adjudication on disputed discovery requests together with the time required to prepare an affidavit of discovery can be time consuming. However, it cannot be avoided that matters at this point proceeded very slowly indeed.
40. The process of agreeing to the second defendant's request took in the region of 3 months. There was no indication of a process of negotiation or any explanation as to why this took so long. Having agreed in principle to make voluntary discovery in March 2020, the first communication to Ms. Lister was in May 2020, two months later, and that inquiry was not followed up until August 2020, an additional period of three months. There is no evidence of any follow up inquiries with Ms Lister after the August 2020 letter. The first inquiry made of Mr. Heap was not until August 2020, five months after the plaintiff agreed to make discovery. There is no evidence of any further inquiries with Mr Heap after that date.
41. It took circa seven months for the first inquiries - as far as any exhibited correspondence is concerned - to be made with CURA and An Garda Síochána. While a final response was received from An Garda Síochána in April 2021, a reminder was only sent to CURA in October 2021, a period of twelve months after the initial request for assistance was sent. No steps at all appear to have been taken in the period between October 2021 and October 2023 and there is no explanation for that state of affairs. Moreover, throughout that period, there was no attempt to chase the first defendant for replies to particulars or to inform his lawyers of what was happening within the litigation.
42. In those premises, while I am satisfied that the plaintiff progressed his litigation with reasonable expedition up to May 2020, I consider that matters slowed down appreciably and without any proper explanation from December 2020, and, giving the plaintiff some considerable benefit of the doubt, for the second half of 2020. In reality with the exception of the letter to CURA in October 2021 nothing was done to progress the litigation between April 2021 (when the letter from An Garda Síochána was received) and October 2023.
43. I do not consider that part responsibility for this delay can be attributed to the first defendant. While the first defendant did not reply to the notice for particulars that had been sent in April 2020, there was no suggestion that this was the reason why matters were not progressed. Clearly it was open to the plaintiff to bring a motion to compel replies to particulars and this was not done until the case appears to have been reactivated in October 2023. In the premises, I am satisfied that the delay in the litigation between April 2021 and October 2023 was inordinate.
44. There is no explanation for the delays that occurred from April 2021 to 2023, and therefore no evidence that would allow the court to find that the delay was excusable. The best that Mr. Spicer can say is that the plaintiff was focussed on the discovery issues with the second defendant, but the exhibited material shows that this work slowed considerably in the second half of 2020 and effectively stopped in April 2021. In the premises I am satisfied that the delay was inexcusable.
45. The balance of justice issue is less clear. The first defendant asserts that the trial of this action will depend largely on witness testimony. I agree, this is not a case that will depend on the construction of contemporaneous documentary evidence but instead a case that bears all the hallmarks of one that will largely be dependent on witness testimony. The first defendant makes the general point that memories fade over time and that there is a general prejudice in that regard. He does not, however, suggest that his own memory has been affected, and, with the exception of his late wife, does not point to any specific difficulty that has identified in connection with the presentation of any evidence that he may wish to present. It is significant in this regard that the first defendant knew of the allegations through the Garda investigation in 2004 or 2006.
46. I accept that, from the point of view of the balance of justice, the first defendant is disadvantaged because of the death of his wife. This occurred in June 2021. However, as reflected in the authorities referred to above, the question of prejudice here is not freestanding. The question is whether some prejudice flowed from the delays caused by the plaintiff after the commencement of the proceedings. I have already found that the initial delays effectively were contributed to in large part by the first defendant. I do not consider that there is any realistic suggestion that the plaintiff could have moved from receipt of the defence in April 2020 to a full trial in a way that would have allowed matters to have been heard before June 2021. Even if the discovery issues with the second defendant were progressed with more expedition, a trial in the first half of 2021 did not seem to be achievable.
47. I accept that the caselaw demonstrates that for the Primor test, moderate prejudice can be enough to affect the balance of justice and that a general fading of memories could be a basis for a finding of that moderate prejudice. In this application, and on the basis of the evidence that was put before the court, I am not satisfied that the first defendant has proved that the balance of justice requires that the case does not proceed to trial. There is a draconian element to an application such as this. The plaintiff has an entitlement to bring a case and to seek to have it adjudicated by the court. While there was delay in the prosecution of this case, the first defendant has not adduced sufficiently strong evidence to justify halting the trial in the interests of justice, and I have not been satisfied, in the sense required by the application of the Primor test, that the first defendant's right to a fair trial has been prejudiced to the extent that the case should be dismissed.
PRE COMMENCEMENT DELAY
48. Accordingly, it is necessary to turn to the arguments made regarding pre-commencement delay and the assertion by the first defendant by reference to the line of authority stemming from O'Domhnaill v. Merrick [1984] IR 151 (O'Domhnaill).
49. While there is a volume of caselaw dealing with applications under this heading, the court has the benefit of the recent and binding analysis conducted by the Court of Appeal in Beatty v Beatty [2025] IECA 64. While each case must be determined on its own facts, it is significant that the application in Beatty was one in which, inter alia, a defendant sought to have a case arising from allegations of sexual abuse dismissed for delay. As noted by Woulfe J. in his concurring judgment, the application before the Court of Appeal addressed an issue that had not been addressed directly before: can a defendant succeed in having a case dismissed for delay where the delay complained of has allegedly been caused by the wrongdoing of that defendant. That issue was framed in the context of a recognition by the Court of Appeal that a feature of sexual abuse is that it can take decades for a victim to come forward. Those delays mean that the landscape will frequently have changed significantly by the time a matter comes on for trial. The court thus may have to strike a difficult balance between the right of the victim to be heard and the right of the alleged perpetrator to a fair trial.
50. Clearly the Beatty decision is of considerable importance to the resolution of this application. The core elements in this application are (i) that the events in issue are claimed to have occurred between 1982 and 1985; (ii) the plaintiff contends that prior to April 2017 he was suffering from a disability that prevented the limitation period from running; (iii) that the disability was caused by the alleged actions of the first defendant which are themselves the subject matter of the proceedings, and (iv) the first defendant contends that due to the passage of time he will be unable to obtain a fair hearing.
51. It is not necessary for the purposes of this application to set out in detail the facts that were in issue in Beatty. There, the proceedings were commenced in September 2022 and the plaintiff complained that he was sexually assaulted by his father in 1981. The application to dismiss was brought in March 2023 and was granted by the High Court. In Beatty, the proceedings focused on a single primary incident and it is clear that there was a far more extensive volume of potentially relevant evidence available to the Court than is available in this case. These included statements made to An Garda Síochána by a number of potential witnesses, and a psychiatric report that included a clear expression of opinion that the plaintiff had been unable to report the alleged abuse because of PTSD symptoms that were caused by the alleged acts of the defendant. On the other hand, there was also a good deal of evidence relating to the prejudice that the defendant claims flowed from the delay in commencing the proceedings. Those matters included, at the time, the defendant's own cognitive impairment and the death of two likely witnesses.
52. Having addressed a number of initial issues, the Court of Appeal determined that the application fell to be addressed by reference to the O'Domhnaill test. The Court noted that in O'Domhnaill the Supreme Court had considered whether there were countervailing circumstances that might prevent a defendant from relying on the delay. These could include the ability of the plaintiff to control or terminate the delay and, considering the defendant's position, acquiescence or whether the defendant contributed to the delay in a material or substantial way. The Court then traced how the conduct of the defendant as a potentially countervailing factor had been a feature of subsequent Superior Court judgments. This led the Court to find that:
"95. ... it cannot be correct in principle to hold that where the wrongdoing of the defendant has resulted in a delay by the plaintiff in bringing a claim, the defendant is then entitled to rely on that delay to have the claim dismissed."
53. The Court went on to observe that the death or incapacity of witnesses does not necessarily mean that a fair trial can no longer be held. The Court referred to the decision of the Supreme Court in IBRC v. Fingleton [2024] IESC 59, in which it was made clear that the defendant must show that a fair trial of the action or the avoidance of serious unfairness to the defendant is not possible.
54. Finally, the Court of Appeal in Beatty reiterated that in an application of this nature the court must take the plaintiff's case at its height. In that application it can be recalled that there was psychiatric evidence available to the court to the effect that the plaintiff there suffered from PTSD due to the alleged abuse and this prevented him taking steps to initiate the litigation.
DISCUSSION
55. The parties addressed the decision of the Court of Appeal in Beatty at the hearing of this application. The first defendant directed a high degree of scepticism and criticism to the manner in which the plaintiff had engaged with the application and the relative paucity of evidence that had been adduced. There was some merit in that criticism. In considering whether there is evidence to support the view that the plaintiff was in fact suffering from a disability caused by the first defendant's alleged actions such that he was prevented from commencing proceedings until after April 2017, the evidence is indeed sparse.
56. The plaintiff expressly pleads, and this is repeated in the affidavit of Mr. Spicer, that he was under a disability for the purposes of the Statute of Limitations until April 2017, and clearly the matters that he complains of occurred when he was a minor. The plaintiff also pleads that as a result of the alleged abuse, he suffered a "series of mental and psychological problems caused by the abuse". As noted above, in his replies to particulars the plaintiff provides a reasonably extensive information about the alleged abuse. In terms of treatment or counselling, the plaintiff pleads that he attended for counselling in 2004 with Ms. Lister and Mr. Heap, and that he attended a consultant psychiatrist in March 2017. The plaintiff did not put a report from a psychiatrist before the court, but there is a reference in the email from his solicitor to Mr. Heap in August 2020 which refers to an opinion from the psychiatrist identified in the replies to particulars to the effect that the psychological effect of the abuse impaired the plaintiff's ability to take a case against the first defendant.
57. I agree with the first defendant that this evidence or potential evidence is not extensive. However, as the Court of Appeal makes clear in Beatty, the court is required to take the plaintiff's case at its height for the purposes of an application of this type. Using that metric, I am satisfied that there is evidence or potential evidence to the effect that - for the purposes of this application - the plaintiff was unable to commence the proceedings until 2017 and that this disability was the result of the alleged wrongdoing of the first defendant.
58. Clearly this must be treated as a significant countervailing factor in considering questions of the prejudicial effect of the delay in this case.
59. Turning to the first defendant's evidence of prejudice and its effects on his ability to have a fair trial, as noted above, the level of potential prejudice is limited. That is not to say that the death of the first defendant's wife and the general effects of the passage of time are not weighty matters. My conclusion is that they are not sufficiently weighty to alter the balance so that the court could find that a fair trial is not possible. As the authorities make clear a difficult trial is not the same as an unfair trial. The disadvantages that the first defendant faces do not outweigh the imperative in favour of a trial on the merits. It will be a matter for the court dealing with the full trial to ensure that there is a fair trial, and the trial judge will be able to revisit this issue if required by the circumstances that obtain at that point.
60. In those premises, I am not satisfied that the court should accede to the application to strike out these proceedings on grounds of delay. In a similar way to the approach adopted by Owens J. in S.T. v Clifford [2023] IEHC 458, I consider that instead of simply striking out the application regarding pre-commencement delay the application should be adjourned to the trial of the action when it can be reactivated if appropriate and considered by the trial judge.
THE APPLICATION FOR THE TRIAL OF A PRELIMINARY ISSUE
61. There was some confusion in relation to this aspect of the application. The relief sought in the notice of motion was for:
"3. An Order directing the trial of a Preliminary Issue and Point of Law and (sic) whether the Plaintiff's claim is statute barred by the provisions of Section 11, Sub-Section 2 of the Statute of Limitations 1957 pursuant to Order 25 of the Superiors Court Rules."
62. The usual process in an application of this type is to seek to persuade the court to direct a preliminary trial, and, if successful, for the court to then set down the issue for a preliminary trial with the necessary directions. In the application before the court, the first defendant effectively argued that the court ought to be able to determine the substantive preliminary issue on the basis of the application as it stood. I consider that to take that course would be unfair to the plaintiff, who essentially (and understandably) responded to the motion by addressing the evidence and arguments to the question of whether there should be a preliminary trial in the first place rather than to the substance of any preliminary trial that may be directed. The plaintiff's position on the issue of principle was that this was not a suitable issue for the trial of a preliminary issue, that the first defendant had delayed considerably in bringing the application, and that the issue should be adjourned to the trial of the action.
63. In the written submissions on behalf of the first defendant, the application was made referrable to both Order 25, rule 1 and Order 34, rule 2 of the RSC. The first defendant properly noted that the relevant case-law, in very brief summary, makes clear that a trial of a preliminary issue must occur in the context of agreed facts - which may be agreed for the purposes of the preliminary trial and without prejudice to a right to contest those facts if the matter proceeds to full trial; see, McCabe v Ireland [1999] 4 IR 151. If the facts cannot be agreed, the moving party must accept for the purposes of the preliminary trial the facts alleged by the other party.
64. The first defendant in the written submissions suggested that the issue of the application of the Statute of Limitations was a straightforward matter. The events that gave rise to the claim were pleaded to have occurred between the period of 1983 to 1985. The plaintiff pleads that he was under a disability such that he was not in a position to commence the proceedings within the normal limitation period, and that the disability ceased to have effect in April 2017. The first defendant then asserts that because the plaintiff has not exhibited medical evidence to support his assertions it follows that the preliminary issue should be resolved in his favour.
65. I consider that the approach adopted by the first defendant is misplaced. In the first instance, it conflates the application for the trial of a preliminary issue with the actual trial of a preliminary issue. There was no agreement to that approach, and the plaintiff clearly engaged with the process on the basis that he was only required to respond to the question of whether a preliminary trial should be directed. As such, I consider that it would be an unfair process to accede to the first defendant's application to determine the preliminary issue itself.
66. Second, with regard to the question of whether the court should direct a hearing on the preliminary issue, I accept that at the level of principle such a trial could indeed substantially resolve the overall issues in the trial if it was determined in favour of the first defendant. However, the difficulty in this regard is that on the application of the established authorities, as there is no agreement on the evidence to be applied for the purposes of the preliminary trial, the first defendant must take the plaintiff's facts as pleaded. In that regard, the situation clearly is that the plaintiff alleges as a matter of fact that he was suffering from a disability up to April 2017 such that he was not in a position to commence proceedings until that point.
67. Accordingly, there being no facility to interrogate the plaintiff's evidence in the event that a preliminary trial was directed, I consider that such a trial inevitably could not assist in narrowing issues. On the other hand, this is a case in which the imperative for a unitary trial would allow those issues to be challenged fully by the first defendant, including by interrogating the apparent disconnect between the plea that the plaintiff was suffering from a disability and the fact that he made a complaint to An Garda Síochána in 2004 or 2006.
68. In the premises, I am not satisfied that it would be appropriate to direct a preliminary trial, and that the question of whether the first defendant has a defence under the Statute of Limitations is a matter that should be left to the full trial, where the trial judge will be able to adopt whatever approach to the determination of that issue appears just and appropriate in the context of the overall trial.
THE NOTICE FOR PARTICULARS
69. As noted above, there is also a motion brought by the plaintiff seeking to have the first defendant reply to a notice for particulars. Notwithstanding the delay on the part of the plaintiff in taking steps to bring about compliance with that notice I consider that in light of the disposal of the first defendant's motion there is no good reason for the first defendant not to comply with the notice. I will hear from the parties regarding the timescale within which the replies should be furnished.
CONCLUSION
70. In the circumstances, the first defendant's applications seeking the trial of a preliminary issue and to have the proceedings dismissed on the Primor grounds will be refused, and the application in relation to pre-commencement delay will be adjourned to the trial of the action. For the avoidance of doubt, nothing in this judgment should be taken as preventing the trial judge from deciding in the exercise of their discretion how best to address any issues of pre-commencement delay or matters relating to the limitations issues. I will direct the first defendant to furnish replies to the plaintiff's notice for particulars and I will hear from the parties regarding the timescale for that process.
71. I will direct that the matter be adjourned for further directions in the Non-Jury / Judicial Review list, so that matters can be progressed to a trial without further unnecessary delay. As this judgment is being delivered electronically my preliminary view is that the plaintiff has succeeded in resisting the applications brought by the first defendant and therefore ought to be entitled to the costs of that application. I will list the matter for final orders and to finalise matters regarding the plaintiff's motion before me at 10.30am on Wednesday, the 4 June 2025.