SUPREME COURT
Denham C.J.
O’Donnell J.
MacMenamin J.
Laffoy J.
O’Malley J.
[Supreme Court No. 2015/ 000082]
Mario Cafolla
Plaintiff/Respondent
AND
Leo O’Reilly
Defendant/Respondent
Defendant
AND
[Supreme Court No. 2015/000084]
Marie Cafolla
Plaintiff/Respondent
Defendant/Respondent
Defendant
[Supreme Court No. 2015/000083]
Ciara Fusco
Plaintiff/Appellant
Defendant/Respondent
Defendant
Judgment of O’Donnell J. delivered the 23rd of March 2017
1 These cases arise out of facts that are part of a dark chapter in modern Irish history. The name of Father Brendan Smyth is so well known in the Republic of Ireland that it comes as a surprise to recall that he came to prominence because of the delay in processing an extradition warrant seeking his return for trial to Northern Ireland, because it was in that jurisdiction where he carried out most of the abuse of innocent children with which his name is now permanently linked.
2 The plaintiffs in these proceedings are a brother and sister, Mario and Marie Cafolla, and their cousin Ciara Fusco, who all grew up in devout families in the strongly Catholic area of West Belfast and who claim that they were sexually abused by Fr. Brendan Smyth over a period from 1969 to 1976 in the case of Mario Cafolla, from the mid-1970s to 1985/86 in the case of Marie Cafolla, and between 1978 and 1988 in the case of Ciara Fusco.
3 Proceedings were issued in the courts of Northern Ireland by each plaintiff. In the case of Mario Cafolla and Ciara Fusco, the four defendants were, (1) Cardinal Cathal Daly, the then Primate of All-Ireland, who was sued on behalf of the Roman Catholic Church in Ireland, and which it was alleged was responsible for the acts of Fr. Smyth, (2) Marcel Van De Ven the Provincial of the Norbertine order, to which Fr. Smyth belonged,(3) the Rev. Gerard Cusack, the Administrator of the Norbertine Abbey at Kilnacrott in Ballyjamesduff, Co. Cavan which was Fr. Brendan Smyth’s Community, and (4) Fr. Brendan Smyth himself. It is important to note at the outset however that in the case of Marie Cafolla, proceedings were issued against only two defendants, Fr. Smyth and the Rev. Gerard Cusack.
4 On 30th March, 1988, Mario Cafolla entered into a settlement of the Northern Ireland proceedings. The terms of the settlement are it appears to be found in a release executed by him:-
“The High Court of Justice in Northern Ireland, Queen’s Bench Division,
1996 No. 1841.
Mario Cafolla
Plaintiff:
AND
His Eminence Cardinal Cathal Daly, Archbishop of Armagh, Primate of All- Ireland on behalf of the Roman Catholic Church in Ireland and the Council of Bishops
First Named Defendant:
Marcel Van De Ven on behalf of the Norbertine Canons
Second Named Defendant:
Rev. Gerard Cusack Administrator of the Norbertine Abbey at Kilnacrott
Third Named Defendant,
Fr. John Gerard Brendan Smith (sic)
Fourth Named Defendant:
I, Mario Cafolla of 10 Gransha Parade in the City of Belfast hereby acknowledge receipt of the sum of Twenty Five Thousand Pounds (£25,000.00) together with a sum of money in respect of my legal costs from Rev. Gerard Cusack, Administrator of Holy Trinity Abbey, Kilnacrott, Ballyjamesdfuff, Co. Cavan which sum was paid by the said Rev. Gerard Cusack without any admission of liability and accepted by me in full and final settlement in discharge of each and every claim on demand of whatsoever nature or kind and howsoever arising against the defendants herein and each of them and/or against any third party in connection with each and everyone of the complaints made by me in relation to which Rev. John Gerard Brendan Smith (sic) deceased. I hereby confirm and agree that each and every one of my complaints in respect of the said Rev. John Gerard Brendan Smith (sic), and in respect of each and every one of the alleged acts or matters by him concerning me are now fully and finally disposed of and will not be reopened by me or anyone on my behalf at any time in the future either against the within named defendants or by any of them or against any third party. Dated 30th March, 1998.”
The release was signed by Mario Cafolla and witnessed by his then solicitor, but was not signed by any other party. No other settlement document has been produced and no evidence has been given as to any other terms.
It will be noted that the settlement was made without admission of liability, and the only payment is made by the Rev. Gerard Cusack. However, the settlement is expressed to be in full and final settlement of each and every claim, and is in very broad terms. It purports to be in settlement of any claim against the defendants (plural) or any third party. On 9th April, 1998, Ciara Fusco entered in a settlement in identical terms.
5 In the following year on 5th October, 1999, Marie Cafolla settled her proceedings. It will be recalled that she had only sued Fr. Smyth and the Abbott of Kilnacrot Abbey. The terms of the settlement were also different from those involving Mario Cafolla and Ciara Fusco. They were as follows:-
“In the High Court of Justice in Northern Ireland, Queen’s Bench Division, 1998, No. 3479.
Between:
Marie Cafolla
Plaintiff
-and-
Rev. Gerard Cusack, Abbott and Administrator of the Norbertine Abbey
of Kilnacrott
Defendant
I, Marie Cafolla, of 10, Gransha Parade, Belfast hereby acknowledge receipt of the sum of Sixteen thousand pounds (£16,000.00) together with the sum of money in respect of my legal costs which sum is paid without any admission of liability and accepted by me in full and final settlement and discharge of each and every claim or demand of whatsoever nature or kind and howsoever arising against complaints made by me in relation to Rev. Brendan Smyth. I hereby confirm and agree that each of the alleged acts or matters by Rev. Brendan Smyth concerning me are now fully and finally disposed of and will not be reopened by me or anyone on my behalf at any time in the future. Dated 5th October, 1999.”
Again the settlement is in broad terms. Once again there is no suggestion that there is any other document evidencing the settlement. The document records receipt of monies upon certain terms. It was signed by the plaintiff and witnessed. In this case however, the settlement is only made with the Rev. Gerard Cusack and does not purport to specifically settle the proceedings brought against the other defendant Fr. Smyth (who by this stage was dead). More importantly for present purposes, the terms while referring to a final settlement of all claims made by the plaintiff in relation to Brendan Smyth makes no explicit reference to any potential liability of the Catholic Church more generally, and do not refer to any claims against third parties.
6 The immediate catalyst for the present proceedings was the emergence of information in 2012 about meetings held in March and April 1975 in Dundalk, allegedly at the behest of Bishop Francis McKiernan, the then Bishop of Kilmore which is the diocese in which the Abbey at Kilnacrott, Ballyjamesduff, is located. The meeting arose from the fact that a young boy in Dundalk confided in a priest there that he had been abused by Fr. Smyth. Questions were put to the boy at the interview by one priest Fr. Donnelly, and recorded by another, who is the second named defendant, Seán Brady, and who later became the Archbishop of Armagh and Cardinal. At the end of the interview, the witness Brendan Boland, swore to maintain confidentiality, and not to discuss the contents of the interview except other than with authorised priests. It appears that nothing occurred as a direct result of the interview and no report was made to the authorities North or South. For present purposes, however, the most striking feature of the interview was that Brendan Boland gave the names of other children who he believed were being abused by Fr. Smyth at the time, and specifically named Mario Cafolla from Belfast and gave his full address including the postal code.
7 The plaintiffs now contend that they suffered a serious recurrence of trauma as a result of publication of the information, and with it the realisation that if any steps had been taken in 1975 at the time of the interview, then it was probable that the abuse of Mario Cafolla might have ended, and that the abuse of Marie Cafolla and Ciara Fusco might not even have begun.
8 The proceedings were commenced in this jurisdiction. The defendants named, were the first named defendant (as the Bishop of Kilmore and the successor to Dr. McKiernan,) and Cardinal Seán Brady. The proceedings insomuch as they relate to Cardinal Brady, do not depend upon his position as a Cardinal, but rather relate to his attendance at the meeting. The proceedings were framed in very general terms, and did not specify the precise claims made. Significantly, and perhaps surprisingly, the proceedings did not mention the settlements . Accordingly, the proceedings as framed did not address in any way the Northern Ireland proceedings , the settlements ,or the legal issues that necessarily arose .
9 Requests for particulars were issued and responded to. Among those requests was one relating to the question of whether previous proceedings had been issued. This produced disclosure of the fact of the settlements. Thereafter, full defences were delivered, which put the plaintiffs on proof of the fact of abuse, denied liability, and moreover raised a number of preliminary objections. Firstly, it was pleaded that the claims had been the subject of prior accord and satisfaction, or in the alternative were an abuse of the process, or barred by the rule in Henderson v. Henderson (1843) 3 Hare 100. In the alternative, it was claimed that the proceedings were barred by the provisions of s.16 of the Civil Liability Act. It was also contended that the proceedings were statute barred and that in any event there was inordinate and inexcusable delay in the commencement of the prosecution of the proceedings and the defendant as the first named defendant reserved the right to bring an interlocutory application or to make application to the trial in relation to these matters. A reply was delivered on 16th October, 2013. It admitted that the Northern Ireland proceedings and the present proceedings arose principally out of abuse suffered by the plaintiff at the hands of the late Fr. Brendan Smyth but denied that the two proceedings were the same. In particular it contended that the proceedings related to different causes of action arising out of different wrongs. Accordingly, it was denied that the matter had been subject to accord and satisfaction. In relation to the receipt and discharge signed on 30th March, 1998, it was contended that it did not indicate an intention to discharge the defendants from the claim made in the present proceedings. In particular, it was pleaded that the plaintiffs had been advised that they had no case against Cardinal Daly, and informed that neither the Norbertine order nor Brendan Smyth had funds. It was asserted that the amount of the settlement did not represent the full monetary value and that the defendants (or the predecessor of the first named defendant) had concealed or failed to disclose the wrongs to the plaintiff and as a consequence the plaintiff was unaware of the wrongs of the defendants when signing the discharge.
10 The first named defendant duly issued a notice of motion on 1st May, 2013, seeking orders directing the trial of preliminary issues on the following four questions:-
“(a) Whether the Plaintiff’s claim has been the subject of prior accord and satisfaction;
(b) Whether the Plaintiff’s claim was barred by reason of it being an abuse of process, contrary to public policy or by reason of the rule in Henderson v. Henderson;
(c) Whether the Plaintiff’s claim is barred by reason of the provisions of the Statute of Limitations 1957 (as amended);
(d) Whether the Plaintiff’s claim ought to be struck out on the basis of inordinate and inexcusable delay in the commencement of the within proceedings.”
The motion was grounded on an affidavit of the first named defendant’s solicitor who exhibited a copy of the settlement agreement in each case. Strictly speaking this was hearsay evidence. Clearly the first named defendant’s solicitor had no personal knowledge of the circumstances in which the Northern Ireland proceedings were compromised. The affidavit did not explain how the first named defendant came into possession of the releases in each case. There was a replying affidavit from the plaintiff’s solicitors. In that affidavit it was stated that while the fact of meetings in March and April 1975 had been revealed in media reports and/or statements made by the second defendant in or around March 2010, it was not until January 2012 that the plaintiff became aware that Mario Cafolla had been identified in the meetings and in the note of the meetings, as a victim of Fr. Brendan Smyth.
11 On 21st October, 2013, the President of the High Court made an order that a single preliminary issue be tried and that the question at such trial be “whether the plaintiff’s claim has been the subject of a prior accord and satisfaction”. Liberty to apply was granted in respect of the other subheads of the defendants notice of motion namely, s.16 of the Civil Liability Act, the Statute of Limitations and any questions of delay. No directions were given as to the mode of trial of the preliminary issue. When the case came on for hearing on the trial of the preliminary issue, the parties had only the pleadings, and the notice of motion, the grounding affidavit and the replying affidavit of the plaintiff’s solicitor. The plaintiffs attended with a number of witnesses including the psychiatrist who was treating the plaintiffs, a Queen’s Counsel from Northern Ireland whose evidence it appears was directed towards the question of whether the settlements entered into represented full value at the time or a discount, and the man, who as a young boy, had been the witness interviewed at the meetings in March and April 1975.
12 At the trial of the preliminary issue, the learned President ruled that no oral evidence would be given. The issue proceeded on the evidence submitted on the motion seeking that a preliminary should be directed. During the hearing, however, the first named defendant handed in newspaper articles from 1995 and 1997 which they said showed that the fact of the meeting in Dundalk had been reported on at that time and was therefore at least capable of being known at the time of the settlements. For clarity it should be said that the reports recorded that there had been a meeting but did not make any reference to Mario Cafolla or either of the other plaintiffs. However, inasmuch as the plaintiffs contended that there was a separate cause of action arising from the failure of the participants in the meeting, or the Catholic Church more generally, to take steps on foot of the information disclosed about Brendan Smyth, the suggestion was made that this information at least, was not new in 2012.
13 In the judgment delivered on 28th February, 2014, the learned President determined that the preliminary issue in favour of the first named defendant and held that the proceedings were subject to accord and satisfaction. Accordingly, he dismissed the plaintiffs’ claims against the first named defendant but made no order as to costs. In his judgment, the President considered that there were only slight differences between the three cases, and therefore it was appropriate to deal with on the basis of the claim made by Mario Cafolla. He held that the first named defendant Bishop O’Reilly was sued in the same capacity as Cardinal Daly had been sued in Northern Ireland. Furthermore, he noted that in the settlement in Mario Cafolla’s case, the plaintiff discharged “any third party in relation to each and every one of the complaints” being complaints made in respect of the actions of Fr. Brendan Smyth. He considered that the revelation that there had been meetings in Dundalk in 1975 did not constitute a separate cause of action. He relied on the newspaper reports and also determined that the damages claim was the same damage and therefore the settlement with one wrongdoer discharged any other concurrent wrongdoer pursuant to s.17 of the Civil Liability Act 1961.
14 In a judgment delivered on 12th November, 2015, the Court of Appeal (Peart J., Irvine and Hogan JJ. concurring) ([2015] IECA 361) dismissed the appellants’ appeal and upheld the learned President’s order. The Court of Appeal deprecated the reliance on newspaper articles which had merely been handed in, but considered that the decision could be upheld without reference to that material. Like the High Court, the Court of Appeal considered that the settlements were essentially similar and agreed with the conclusion of the High Court that the claims advanced were the subject of prior accord and satisfaction.
15 This Court granted leave to appeal in each of the three cases on the same three grounds namely:
(i) Should the issue, of whether the applicant’s claim against the respondent was subject of a prior accord and satisfaction, have been determined by way of preliminary issue without oral evidence?
(ii) If the answer to question (i) is that the issue should not have been determined by way of preliminary issue without oral evidence, should the matter be remitted to the High Court?
(iii) If the answer to (i) is that the High Court was entitled to determine the issue by way of preliminary issue without oral evidence, whether the Court of Appeal was correct in upholding the decision of the High Court that the applicant was bound by the accord and satisfaction and, accordingly, that the proceedings should be struck out.
Discussion
16 This case was dealt with considerable expedition. That is of course desirable, and active case management of cases by the High Court is certainly to be encouraged. In some cases it will be apparent that there is one issue which if determined in the defendant’s favour will bring an end to the litigation. If it is clear that there will be a significant saving in time and resources, then that will be a sensible and useful course. If the court can clearly see that there is an issue which is clear-cut and likely to be determinative, then it is normally beneficial that steps should be taken to bring the parties to the resolution of that issue as speedily and cheaply as possible. It would also be unrealistic not to recognise that some parties may not wish an early end to proceedings. Some litigants become enamoured of the minutiae of a case and their status as a litigant whose contentions must be taken seriously as long as the case is live. Others have a more pragmatic view. They will resist an early determination of legal issues precisely because they understand that the more diffuse and potentially costly a claim, and the more publicity that can be garnered, the more pressure will be brought to bear upon a defendant to compromise a claim, whether well founded or not. Case management by a judge may thus require a high degree of practicality and astuteness in fixing the sequence in which issues should be addressed and determined. Appellate courts are slow to interfere with decisions made by trial courts in relation to the efficient management of a case. The trial of a preliminary issue can be a useful tool, especially when there is a reasonable chance that the determination of the issue will bring the proceedings to an end. Coincidentally one good example of the trial of a preliminary issue bringing proceedings to an end arose from the same circumstances giving rise to this case. In W v. Ireland (No.2) [1997] 2 IR 141, it was held that the Attorney General did not owe a private law duty of care to alleged victims of Fr Brendan Smyth when processing a request for extradition. There remains an important distinction however between the determination of a single identified issue which is capable of bringing a conclusion to the claim and predicting at an early stage in proceedings, even with a high degree of confidence, the likely outcome of a case.
17 Without wishing to be wise in hindsight, it is doubtful if this case was ever a suitable candidate for the isolation of a single legal issue, at least the one which was determined in the High Court. It is also doubtful, for example, there was much saving in terms of time or cost in the avoidance of the evidence in this case. It is difficult to see that if the case proceeded, that discovery would have been particularly extensive or the evidence lengthy. For reasons I will set out, I have concluded it would have been necessary to canvass a number of legal issues to determine this case, some of which required evidence, and almost all of which would have benefitted from an exploration of the evidence established in the background against which such legal issues were to be addressed.
18 First, the position of the second named defendant has to be taken into account. He had not brought a similar motion to determine any preliminary issue. The claim against him was still live when the High Court heard and determined the preliminary issue, and is still live now. This is not a decisive consideration since if the High Court and Court of Appeal are correct, then the determination would cover the claim made against the second named defendant and that party would be entitled to bring his own motion, or to raise this issue at the outset of any trial. Nevertheless it is and was relevant in fixing a trial of an issue, that technically it could not have determined the entire proceedings.
19 Second, the mode of trial ought to have been fixed. The fact that this was not done meant that there was a fluidity about the argument and the relevance of evidence, that was unsatisfactory. If the issue was merely whether the claims had been subject to a prior accord and satisfaction, then it may have been possible to limit the evidence although it was hard to see that some evidence was not admissible even on that narrow issue. In fairness, the evidence which the plaintiffs informed this Court that they wished to bring on the preliminary issue, does not appear itself directly relevant to the issues sought to be tried, and that may have influenced the President’s approach. However the plaintiffs may have been left with an understandable sense of grievance that they were precluded from adducing any evidence on the issue before their claims were determined. This could have been avoided if the mode of trial had been fixed in advance.
20 Third, if the issue to be determined was a question of construction of the settlement agreement, then the newspapers were not relevant. In any event, they should not have been introduced informally, or once introduced relied upon. They may have been relevant to a number of issues in the case more broadly, but they were of little relevance to the issue of whether there had been an accord and satisfaction. In any event, if the defendant was to rely upon them, then if the motion was to be determined on affidavit evidence, they should have been properly proved which would have given notice to the plaintiffs and also time to respond. Counsel has explained to us the manner in which oral argument proceeded, and it is easy to see how in an attempt to resolve all possible issues in dispute, this course was taken. But, again, it is easy to see how the plaintiffs could feel both puzzled and aggrieved that, as they might see it, their case was determined in part by material handed into court and relied on, while they were precluded from adducing oral evidence.
21 These matters, while undesirable, might not have been fatal if indeed it was self-evident that the determination of the President, as upheld by the Court of Appeal, was correct and unavoidable. If it was obvious that the proceedings were bound to be determined by the plea of accord and satisfaction, then the procedural shortcuts might not be fatal. In particular the tendency to have diffuse pleadings designed it appears sometimes, to avoid committing the party to any fixed position may mean that judges have to take a robust approach to a case, and if necessary penalise parties who plead claims unnecessarily broadly or vaguely. In my view however this was a complex case, and the issue of accord and satisfaction was, in particular, anything but clear-cut. It is perhaps easiest to approach this issue from the perspective of Marie Cafolla. As discussed above, there were significant and material differences between both the case commenced on her behalf in Northern Ireland, and the terms of the settlement relied upon. In particular, she did not sue Cardinal Daly or any other body or person, whether on their own behalf, or on behalf of bishops and priests more generally, and the settlement signed by her did not make any reference to claims against third parties. On that basis alone the conclusion that that particular plaintiff was bound by the settlement terms not to bring these proceedings must be doubtful. Undoubtedly, the proceedings issued by Mario Cafolla and Ciara Fusco included more parties and the settlement was in more comprehensive terms. A key, and arguable essentially component in addressing the plea of accord and satisfaction, was the ruling made at the outset of the case by the learned President, that there was an identity between Cardinal Daly in the Northern Ireland proceedings, and both the defendants in this case, namely the present Bishop of Kilmore and Cardinal Brady (who it must be remembered is sued in these proceedings for his actions as a priest and not as successor to Cardinal Daly) so that the defendants in these proceedings could claim the benefit of the settlement of the Northern Ireland proceedings. The question of whether the proceedings in Northern Ireland against Cardinal Daly necessarily impleaded the two defendants in this case, Leo O’Reilly and Seán Brady, is something which must be doubtful, but in any event is dependent on evidence first, of Canon law which is a matter of fact as far as these Courts are concerned, and second of the law of Northern Ireland in relation to the capacity in which Cardinal Daly could be sued, and assuming both those questions in favour of the defendants whether he had been sued in the Northern Ireland proceedings in such a fashion as to allow these defendants to rely on the settlement.
22 These considerations lead to a question that seems to have been addressed fleetingly, if at all, in the courts below. Normally only parties to an agreement (or persons in privity with them) can enforce such an agreement. Even if the settlement of the Northern Ireland proceedings can be treated as an agreement not to sue anyone else, or even specifically these defendants, it would be a matter in the first place for the party to the agreement to seek to enforce any such covenant. In the absence of any such action on the part of that party, the position of third parties who sought to assert the benefit of the agreement would at a minimum require careful consideration. Again, this may be understood more clearly in the case of Marie Cafolla. It is certainly far from clear-cut that Leo O’Reilly and Seán Brady are entitled to enforce any agreement made between other parties, even if it could be said that such an agreement provided that Marie Cafolla would not sue any other party, which it did not.
23 Recognising these difficulties, counsel suggested that he could fall back upon the Civil Liability Act provisions and in particular s.16 and s.17 thereof in relation to the discharge of one concurrent wrongdoer by settlement with another. It would be easy to reject that claim on the simple basis that these issues were not the subject of the preliminary issue ordered to be tried and indeed determined in the High Court. Indeed s.17 although relied upon in the judgment was not mentioned in the motion seeking a preliminary issue. However, if either section of the Civil Liability Act provided a clear and conclusive answer to the plaintiffs’ claim, then it might be wrong to avoid that issue simply because the Act was not mentioned in the preliminary issue sought to be determined if the only consequence was a further hearing leading to an inevitable dismissal of the plaintiffs’ claim. However, it is clear to me that there are substantial difficulties in relation to the claim under the Civil Liability Act.
24 The provisions of the Civil Liability Act 1961 in relation to concurrent wrongdoers are a mystery whose secrets have been revealed to only a few, and s.16 and s.17 and the relationship between the two provisions is particularly delphic. However, if a case is capable of being determined decisively, then it would be wrong to avoid even a difficult legal issue if resolution of it would involve a substantial saving in court time and in the parties’ resources. I doubt however that it is possible to isolate such an issue here on the diffuse state of the pleadings in this case.
25 It is important to analyse the claims made in both proceedings. The Northern Ireland proceedings are a claim for direct tortious wrongdoing against Fr. Brendan Smyth (in the nature of assault) which is alleged to have occurred between 1969 and 1988, and the other defendants in the proceedings are contended to be vicariously liable for those acts. The claim in this jurisdiction is different. It relies on the 1975 meetings and it is contended that the parties to those meetings owed a duty of care to the plaintiffs to report the wrongdoing of Fr. Brendan Smyth to the appropriate authorities North and South, and/or the plaintiffs’ parents. In any event, it appears to be contended that if the information of the meeting had not been treated as confidential, that its revelation would, or at least could, have brought the abuse to an end. It is also contended that the revelation of the existence of those meetings, or perhaps more precisely, that Mario Cafolla was identified by name, address and postal code as a victim of Fr. Smyth, led to a recurrence of trauma on the part of each plaintiff.
26 It is no part of this application, at least as formulated, to make any observation on the nature of such a claim, whether it can be maintained as a matter of law, and if so, whether damage recovered can include the trauma alleged to have been suffered when the facts in relation to the identification of Mario Cafolla were disclosed, and in any event, whether such injury was caused in fact. Those questions were certainly not the subject of any preliminary issue. For present purposes however it is important to recognise that as formulated this is a separate cause of action alleging direct liability in negligence, rather than the assault and vicarious liability asserted in the Northern Ireland proceedings, and furthermore is focussed upon a distinct event, the meeting in 1975, which formed no part of the Northern Ireland proceedings.
27 The fact that the plaintiffs make separate claims against different defendants in respect of different conduct and alleging different legal liability, does not mean that the defendants in the two sets of proceedings cannot be concurrent wrongdoers for the purposes of the Civil Liability Act 1961. As the learned President observed in the course of his judgment, that question depends upon whether it can be said that the defendants are alleged to have caused the “same damage”. However whether this is so is itself a complex issue. It is open to question whether the damage suffered by the plaintiffs (which must be assumed for present purposes) caused by the abuse perpetrated by Fr. Brendan Smyth, (and for which it was alleged the other defendants in the Northern Ireland proceedings were vicariously liable) extended up to and included the recurrence of trauma in 2012 when publicity was given to the fact that Mario Cafolla had been named in the meeting. On the other hand, while it is clear that the defendants in these proceedings cannot be liable for any damage done prior to 1975, an issue does arise as to whether they are to be regarded as potentially liable for damage and injury suffered by the plaintiffs after the naming of Mario Cafolla in circumstances where the Northern Ireland defendants were also liable, or whether the revelation in 2012, (which the plaintiffs contend was the subject of wrongful concealment in 1975) is an intervening event such that the damages claims can be considered to substantially overlap, but cannot be considered the same damage for the purposes of the Civil Liability Act 1961.
28 This is not merely a question however of analysing very general and diffuse pleadings in which the plaintiffs’ case did not even address the fact of the Northern Ireland settlements, but it also involves evidence: first from psychiatrists, as to the nature of the injury and in particular the impact of the 2012 revelation, and second, from other parties as to the factual background of the Northern Ireland settlement and in particular the law applicable at that time. Was there an equivalent to s.16 and s.17 of the Civil Liability Act 1961? Could a settlement discharge concurrent wrongdoers? Did the settlement do so? In any event, a conflict of law issue, and a question of the interpretation of the Civil Liability Act would also arise. The defendants relied heavily on the parol evidence rule, but while that rule excludes evidence as to the subjective intention of a party to an agreement it permits evidence to be given of all background facts and circumstances against which any agreement was made. In any event, it is not clear that that rule precludes evidence on the question as to whether any settlement in Northern Ireland discharged concurrent wrongdoers pursuant to s.16 of the Civil Liability Act 1961 in this jurisdiction. Again, these matters can be said to be anything but clear-cut and therefore, the conclusion of the High Court and the Court of Appeal that the proceedings were the subject of prior accord and satisfaction cannot be retrospectively supported by reliance on s.16 and s.17 of the Civil Liability Act, even if such a course were possible procedurally.
29 Speed of thought and action and a proactive approach by trial judges are much to be commended in litigation which is too often meandering, diffuse, and costly. It is easy to see why when faced with broadly pleaded proceedings which appear to be heavily dependent on the proposition that the emergence of the information in 2012 was either a wrong or damage or both, (and which made no reference to the settlements whatsoever), that the apparently broad terms of the Northern Ireland settlements might provide a clear and decisive answer to this case. The process by which the case has been addressed in the courts below, has allowed some refinement of the issues involved , and as importantly, the opportunity for review. I am satisfied that once these matters are even tentatively explored, it is apparent that the legal issues here are not readily disposed of by a single preliminary hearing on the question of accord and satisfaction, but rather are best dealt with at a hearing in which all the evidence can be adduced. Some of the legal issues may fall away in the light of the evidence given and others will be more focused in the light of the facts. It may well be that the plaintiffs’ claim may fail and if so, that the settlements in Northern Ireland may play a significant part in the outcome of the case. The plaintiffs certainly face formidable difficulties, but in my view the conclusion that the plaintiffs’ claims must be dismissed at this stage because they were clearly the subject of prior accord and satisfaction, cannot be upheld. That issue and the other issues in the case should be addressed at a full hearing. The judge hearing the case has full power to isolate issues of law or fact and proceed sequentially if that appears appropriate. It may also be desirable to require much greater precision in the pleading of the plaintiffs’ cases so that a court hearing the case can identify clearly the issues of fact and law that arise and decide upon the best way of dealing with them. However the only issue before this court is the question of the preliminary issue directed to be tried. I would allow the plaintiffs’ appeal from the decision of the Court of Appeal that the claims were the subject of accord and satisfaction. I would address the issues raised on the leave to appeal to this Court as follows:
(i) The question of prior accord and satisfaction, is in principle capable of being dealt with by way of a preliminary issue, and in some cases may be capable of being dealt with without oral evidence. In this case however, evidence and indeed further argument was necessary before the Court could conclude that each of these claims was precluded by prior accord and satisfaction.
(ii) The issue should not be remitted to the High Court for trial of the preliminary issue. Instead the case should proceed to a full hearing.
(iii) This issue (whether the Court of Appeal was correct in upholding the decision of the High Court that the applicant was bound by the accord and satisfaction and, accordingly, that the proceedings should be struck out) does not arise in the light of the answers given to issues (i) and (ii). While certain observations have been made about the plea of accord and satisfaction, that issue and the other issues raised in these cases are matters to be addressed at a trial.
