THE SUPREME COURT
Record No. S:AP:IE:2016:000027
Denham C.J.
O’Donnell J.
Clarke J.
MacMenamin J.
Dunne J.
Caroline McNamee
Plaintiff
and
Michael Boyce
Judgment delivered the 18th day of May, 2017 by Denham C.J.
1. Once again the issue of delay in proceedings relating to child sexual abuse, alleged to have occurred many years ago, comes before this Court.
2. Caroline McNamee, the plaintiff/appellant, is referred to as “the plaintiff”. Michael Boyce, the defendant/respondent, is referred to as “the defendant”.
3. The plaintiff has brought these civil proceedings against the defendant.
Criminal Proceedings
4. In 1995 the plaintiff made a complaint to An Garda Síochána.
5. In February, 1996, the plaintiff made a formal statement to An Garda Síochána, and a number of other statements were made by family and friends.
6. The defendant was tried in the Circuit Criminal Court on six counts of sexual assault relating to the plaintiff. He was convicted in 1999, on one count, which was affirmed on appeal. He was sentenced to three years imprisonment.
7. The plaintiff, the defendant and the defendant’s wife gave evidence at the trial. The High Court in these proceedings ruled that the assault the subject matter of the said criminal conviction, was statute barred.
Civil proceedings
8. A plenary summons was issued on behalf of the plaintiff on the 20th June, 2001, but was not served on the defendant by the 20th June, 2002.
9. An application was made to the High Court to renew the plenary summons for a period of six months. The application was grounded on the affidavit of Eugene Kelly, solicitor of the Law Centre, Longford, and solicitor for the plaintiff. Inter alia, he deposed that owing to an administrative oversight in the office, the plenary summons was not served on the defendant by the 20th June, 2002.
10. On the 8th July, 2002, the High Court extended time for applying for renewal of the plenary summons, and ordered that the summons be renewed for a period of six months, from the 8th July, 2002.
11. On the 16th December, 2002, the plenary summons was served.
12. On the 7th July, 2005, the defendant’s wife died.
13. On the 5th July, 2011, notice of intention to proceed was served on behalf of the plaintiff.
14. On the 15th September, 2011, a notice of motion seeking judgment in default of appearance was served.
15. On the 22nd November, 2011, the defendant entered an appearance.
16. On the 2nd August, 2011, a statement of claim was served. It was stated that the defendant was a relative of the plaintiff, who at all material times was in a position of trust with the plaintiff and her family. Further, it was stated that the plaintiff was born on the 4th April, 1975, and that between 1979 and 1988, when the plaintiff was aged between 4 and 13, the defendant regularly and repeatedly, intentionally, and wrongfully, subjected the plaintiff to assaults, sexual assaults, batteries, false imprisonment, and deliberate infliction of emotional suffering, at a variety of locations. Particulars were given, and damages for personal injury were claimed.
17. On the 13th March, 2012, an amended statement of claim was delivered, which gave particulars of more serious sexual offences of rape, buggery, and oral rape.
Motion to dismiss
18. The defendant brought a motion, dated the 8th May, 2012, seeking an order that the plaintiff’s proceedings be dismissed for want of prosecution on the basis of gross, inordinate and inexcusable delay.
19. The motion was grounded on the affidavit of the defendant. He denied the claims made in the statement of claim. He deposed that he was wrongly convicted in Mullingar Circuit Court in 1999. (His appeal was subsequently dismissed). He deposed that there had been long delays, first from the date of the alleged incidents to the date on which the plenary summons was issued, and secondly the gross delay between the issuing of the summons and the progress of the proceedings by delivery of a statement of claim. He deposed that he was released from prison in 2005, and heard nothing further of these proceedings until 2011. He deposed that he would suffer prejudice as his wife had died on the 7th July, 2005. She had been a witness for him in the criminal trial and would have been a witness in the civil trial. Also, he deposed that he believed Garda Mick Burke would have been in a position to give evidence to assist him, but that Garda Burke died in June, 2010. He deposed also that he was then 67 years old, and that it was difficult to remember what he was doing in the years 1979 - 1988.
20. Margaret O’Shea-Grewcock, solicitor in the Law Centre (Montague Court) Medical Negligence Unit, solicitor for the plaintiff, deposed on affidavit on behalf of the plaintiff. She concluded that in all the circumstances that the defendant was not prejudiced, and that it would not be unfair to permit the plaintiff’s claim to proceed.
21. On the 9th July, 2012, the High Court (O’Neill J.) refused the motion which sought to dismiss the plaintiff’s proceedings. The learned High Court judge found that there was inordinate and inexcusable delay. He then considered the issue of the balance of justice. The specific prejudice raised was the death of the defendant’s wife and Garda Burke. The High Court did not consider that this would seriously prejudice the defendant in his defence as the transcript of the evidence of these persons in the Circuit Court would be available. It was noted that there were a variety of witnesses available, and that the defendant could give evidence. It was pointed out that the trial judge will see that a fair trial takes place, and, were it to transpire at the trial that there was a gross disadvantage to the defendant because of the delay of the plaintiff in bringing the proceedings, then an application could be made at the trial where a judge would have a clear view as to whether a fair trial could take place in light of the passage of time. The application was refused.
22. This decision of the High Court (O’Neill J.) was not appealed.
23. On the 4th, 5th, 6th, 7th, 12th and 13th November, 2014, the civil proceedings were heard in the High Court before O’Malley J., sitting with a jury.
24. The plaintiff was born on the 4th April, 1975. 1979 to 1992 was the period of the alleged sexual assaults. The High Court ruled that the claims relating to assaults post dating the 4th July, 1985, were statute barred.
Applications during the trial which related to the issue of delay
25. The High Court (O’Malley J.) heard renewed applications to dismiss the proceedings.
26. There were several applications:-
26(i) An application was brought on behalf of the defendant at the commencement of the trial, in the absence of the jury. The learned trial judge considered the application overnight, and had the transcript of the defendant’s wife’s evidence during his criminal trial, as his wife was deceased at the time of this trial. Reference was made to the prior decision of O’Neill J. on the issue of delay.
Ruling 5th November, 2014
On the 5th November, 2014, the learned trial judge, having found that there was inordinate and inexcusable delay, held:-
“The final question is whether the balance of justice requires the Court to dismiss the action and the Court finds that the answer to that question is no. The factor to which I give most weight in the circumstances of this case is the fact that the defendant didn’t enter an appearance for 10 years. Judgment against him could have been entered any time during that period and the only conclusion to be drawn from failure to enter an appearance is that he didn’t intend at that time to defend the proceedings. I find that prejudice is not established in the case, given that although he cannot now call his wife to give evidence, her truthfulness does not appear to have been put in issue in the criminal trial, and he has available to him the transcript to use on the same basis as sworn oral evidence (at) this trial.”
Ruling 12th November, 2014
26.(ii) Later there was a non-suit application on behalf of the defendant. Counsel raised a number of matters as to inconsistencies in the plaintiff’s evidence, and other evidence. He stated:-
“So, in that context there is an issue of delay, memories fading, memories being superimposed upon each other possibly. It is a danger that the Court has to be alive to, in my respectful submission, in this case.”
…
The Court ruled:
“… prima facie case, there is a preponderance of evidence here sufficient to go to the jury, that test is met and as to the delay point, that has been dealt with on three if not four occasions previously. We can proceed and should do so.”
[12th November, 2014 (Day 4)]
26.(iii) On 12th November, 2014 (Day 4) the Court ruled:-
“Well in the first instance the test to be applied on an application of this sort is whether or not the plaintiff has made out a prima facie case. The nature of the allegations in a case of this sort mean that the outcome will depend pretty well entirely on the credibility of oral evidence, there being no question of eyewitnesss or [sic] than the plaintiff herself and no question of any forensic evidence or indeed any real relevant circumstantial evidence pointing to the culpability of the defendant. However, it's an overriding principle that a judge should not usurp the functions of a jury in deciding the credibility of witnesses.
Now, there would be circumstances, I imagine, in a civil context where something akin to the Galbraith test applies and Mr Justice Clarke discuss it to some extent in Mooreview in the context of expert evidence. If the plaintiff’s evidence is not capable of belief or is so poor that it should not go to the jury then I think a judge would be entitled and obliged to withdraw it but where, primarily, the question is the credibility of the evidence given, that is a matter within the jury's domain.
Mr Keane has correctly pointed out that there are inconsistencies as between the different witnesses who've given evidence for the plaintiff and also as between the oral evidence and the contents of the written reports. I should perhaps utter a word of caution as to the tendency to assume that those parts of medical reports that suit the defendant's purpose are true and those part that don't -- those parts that don't are necessarily untrue and similarly with her sworn evidence. It is all of the material in the reports is obviously hearsay and has been admitted for the purpose of showing that the witness has given different accounts at different times, but that doesn't necessarily prove either the truth of those reports or the truth of the oral evidence where it conflicts with them. Again, these are matters that go to the credibility of the witness but are not for me to determine.
The issue of the record and the GP's notes again would -- it is something that the jury might possibly come to a view on but the reference to Michelle and her mother, the assumption that this is about Michelle Boyce and her mother Helen Boyce doesn't appear to me to be borne out in evidence. The defendant submits that I should combine those inconsistencies in the plaintiffs evidence with the factors of delay as previously argued, both at the start of this trial and indeed in the motion dealt with by Mr Justice O'Neill and says that now that the evidence has been heard the question of prejudice should be reassessed. There is some reliance on the judgments in Gilroy and Flynn and the judgment of Mr Justice Hogan in Dunne v. Westport Textiles. It is worth noting that in those instances Mr Justice Hardiman and Mr. Justice Hogan were suggesting that the courts were developing a line of jurisprudence away from the standard tests in Rainsford and Primor and that stricter standards were to be applied in the context of applications to dismiss civil actions for want of prosecution on grounds of delay. It should also be noted that the Supreme Court last year, I think it was last year, in a case -- the Comcast case, the majority stressed that they saw no reason to depart from the principles laid down in Primor and Rainsford.
[Emphasis added.]
POC I think needs to be treated with caution in this context, in that it applies to the right and indeed obligation of a trial judge in a criminal case to ensure that the constitutional rights of an accused person are protected and that a fair trial is had. However, in that context, of course there is the all important presumption of innocence which has no application in these particular proceedings. As far, as the references to the previous trial are concerned, it was envisaged from an early stage of this case that the jury would be told about the previous proceedings in order to put the evidence of Mrs Helen Boyce before them as it related -- on the basis that she obviously had unfortunately died in the intervening period and would not be available to the jury in this instance. It remains the case that even though certain evidence has been given which was never -- in this case which was never put to Mrs Boyce in the trial, that that is something that the jury will be -- can be told and I am awaiting -- I'm hoping someone has done some work on this, I'm awaiting suggestions as to how precisely Mrs Boyce's evidence is to be put before the jury. I don't think it appropriate simply to give them the entirety of the transcript of that evidence and whether it is to be done by way of a redacted transcript to or an agreed summary of her evidence, there will certainly be nothing to prevent counsel for the defence from telling the jury that certain issues were not raised and therefore she never had an opportunity to comment on them.
In particular, Mr Keane didn't mention it, but it's something that struck me' earlier in the trial, the suggestion that when the plaintiff came back from the outside toilet that Mrs Boyce had noticed that she was upset and commented on it and that doesn't seem to have been something that arose in the criminal trial and the jury can be told that. I don't believe that what Professor Casey said amounted to telling the jury that there was a criminal conviction which they can’t put out of their mind. I didn’t get the impression, as I instructed them, that they were in any way unaccepting of the instruction that whatever happened before does not decide the question as to what they are to do in this one. I do believe I told them at the start that they were to make their decision based only on the evidence they heard in this Court and for that reason they shouldn't discuss it with anybody else and there was all application to discharge the jury on foot of what happened with Professor Casey, I've already dealt with that and refused it and I'm not going to revisit it at this stage. So, therefore, in my view the application should be refused.”
26.(iv) In the charge to the jury the High Court stated:
“Now, this is an unusual, case for a civil action in that it deals with events from a long time ago. There's no denying that and I agree with Mr Keane to some extent that that poses difficulties for the defence. However, I would just make this comment, it happens frequently in the criminal Courts, pretty well any day of the week you might open a newspaper or turn on the news and see that somebody has been convicted of sexual assaults from a long time ago. So, the law says yes, it's difficult, and it's something that you; the jury, should bear in mind but it's not impossible to give a fair trial in a criminal case and it's not impossible to give a fair hearing in a civil case because you are the 12 objective people coming off the street to treat these people as fairly as you can and you will do that, I'm quite sure.”
The High Court decision
27. The order of the High Court was made on the 18th November, 2014. In the High Court, following a six day trial, the following questions were put to the Jury:-
(i) Was the plaintiff sexually assaulted by the defendant during the period 1979 to 1985?
(ii) If the answer is yes, has the plaintiff suffered psychological and psychiatric injury as a result?
(iii) If the answer is yes, what compensation do you award the plaintiff?
The Jury found that the respondent had sexually assaulted the plaintiff during the period 1979 - 1985, that she had suffered psychological and psychiatric injury, and awarded her €493,037.47.
Court of Appeal
28. The defendant appealed to the Court of Appeal, the notice of appeal stated that the decision which was sought to be appealed was the judgment of the 18th November, 2014. It was sought to set aside the decision of the High Court.
29. The first seven grounds of appeal related to the application, made to the High Court at the start of the trial, to dismiss the plaintiff’s claim, submitting that there were errors made by the learned trial judge. Further grounds were submitted that the trial judge erred in refusing to permit the defendant introduce evidence of his acquittal on all counts arising out of the complaints in the proceedings; that the trial judge erred in refusing to discharge the jury after certain specific evidence given by Professor Casey; that the trial judge erred in permitting the introduction into evidence of the defendant’s conviction in 1999; that the trial judge erred in refusing to dismiss the proceedings at the conclusion of the plaintiff’s case; that the trial judge erred in permitting the plaintiff to introduce into evidence the defendant’s conviction in 1999 pursuant to s. 6 of the Criminal Procedure Act, 1865; that s. 6 of the Criminal Procedure Act is unconstitutional and did not survive the enactment of the Constitution; that the trial judge erred in permitting the introduction of the conviction of 1999; that the trial judge failed to charge the jury properly regarding the inconsistencies in the plaintiff’s case, the plaintiff’s delay, and other matters, and failed to recharge properly the jury on foot of counsel’s requisitions; that in all the circumstances the conduct of the trial was unsatisfactory and did not afford a fair trial in due course of law; and that the sum awarded by the jury was excessive and disproportionate and/or lacking any rational basis in law or on the evidence.
30. The plaintiff filed grounds opposing the appeal in the Court of Appeal.
31. The Court of Appeal allowed the defendant’s appeal and set aside the order of the High Court: McNamee v. Boyce [2016] IECA 19.
32. The Court of Appeal accepted that the High Court had found correctly that there was both inordinate and inexcusable delay on the part of the plaintiff. Thus, meeting the first two considerations set out in Primor v. Stokes Kennedy Crowley [1996] 2 I.R. 459.
33. On the issue as to whether the plaintiff had been guilty of inordinate and inexcusable delay, the Court of Appeal stated that, on the evidence, the learned High Court judge had expressed herself satisfied, as O’Neill J. had done two years previously, that the plaintiff had indeed been guilty of inordinate and inexcusable delay. The Court of Appeal held that this finding of the High Court was inevitable regarding the chronology of events.
34. On the issue as to whether, in light of the findings of inordinate and inexcusable delay, the balance of justice lay in favour of or against dismissal of the claim, the Court of Appeal held that the trial judge fell into error in a number of respects, and that she ought to have ruled that the balance of justice favoured the dismissal of the proceedings.
35. The judgment of the Court of Appeal was delivered by Irvine J., with whom Finlay Geoghegan J. and Peart J. agreed.
Court of Appeal judgment
36. At the outset the Court of Appeal set out the defendant’s contention, as follows:-
“2. It is the defendant’s contention that the trial judge erred in law in refusing two applications made on his behalf to have the proceedings dismissed on the grounds of the plaintiff’s inordinate and inexcusable delay in the manner in which she pursued her claim. The first such application was made at the outset of the proceedings before any evidence was called. The latter was made at the conclusion of the plaintiff’s evidence in chief. Accordingly, the defendant maintains that this Court should set aside the award and order of the Court made in the plaintiff’s favour on 18th November, 2014.”
37. Having reviewed the facts and the law, the Court of Appeal (Irvine J.) held:-
“64. In the foregoing circumstances, I am of the opinion that, properly considered, the High Court judge ought to have concluded that the balance of justice favoured the dismissal of the proceedings in light of the plaintiff’s inordinate and inexcusable delay and should have dismissed her claim at the outset of the proceedings. That being so, it is not necessary to deal in any great detail with the defendant’s renewed application to dismiss the proceedings at the end of the plaintiff’s evidence in chief. However, what emerged in the course of her evidence, I believe, supports, albeit retrospectively, my view that the trial judge erred in failing to dismiss the proceedings in advance of the plaintiff giving evidence.
65. In the course of the plaintiff’s evidence, she referred to the fact that she was first assaulted by the defendant, as already mentioned, when standing on a toilet bowl of an outdoor toilet at the defendant’s home. She went on to give evidence that in the aftermath of this assault, she went into the defendant’s house where, allegedly, Mrs. Boyce asked her husband why she, the plaintiff, was in a distressed state. The plaintiff maintained that Mr. Boyce’s response was to the effect that she was acting up and that he was about to take her home. The plaintiff had never before recounted this statement, which in the course of her evidence, she had attributed to Mrs. Boyce. Hence, Mrs. Boyce had never been afforded the opportunity of dealing with the allegation. If she had, she might have denied ever having seen the plaintiff distressed or having made any such statement, in which case the plaintiff’s credibility would have been substantially challenged on the issue not only by the defendant himself but also by his wife. The potential prejudice to Mr. Boyce as a result of not having his wife available to give evidence concerning this incident, which was alleged to have taken place in the immediate aftermath of a heinous sexual assault, could not to my mind, have been overcome or counterbalanced by the fact that the defendant was in a position to question the plaintiff as to why, on no prior occasion, she had mentioned this alleged verbal exchange.
66. This is just one example of why I believe the trial judge ought to have ruled that the balance of justice favoured the dismissal of the proceedings before the proceedings ever commenced.
67. This is indeed a tragic claim in which the plaintiff has advanced extremely serious allegations of sexual abuse against the defendant.
68. It is an enormous sanction to dismiss a claim of such a nature on the grounds of delay, having regard to the very significant consequences of doing so from the plaintiff’s perspective, and particularly so on appeal after she has been awarded substantial damages by a judge sitting with a jury.
69. However, there are clear principles which must be applied so as to ensure the effective administration of justice and basic fairness of procedures. These require that proceedings be conducted within a timeframe such that a defendant will not be unduly prejudiced by inordinate or inexcusable delay. The court must endeavour to ensure that proceedings are conducted in a manner which will reduce the risk of an unjust result or an unfair trial. Delay must not allow justice be put to the hazard.”
38. The Court of Appeal concluded:-
“70. In the present case, the plaintiff was guilty of inordinate and inexcusable delay in the manner in which she pursued her claim. Her default in this regard occurred against a backdrop of a significant period of pre-commencement delay thus further elongating the period between the events in dispute and the trial date. I am satisfied that her delay exposed the defendant to a significant risk of prejudice in terms of his ability to defend the very serious allegations made against him. That prejudice stemmed principally from the death of his wife in 2005. Had the plaintiff not been guilty of inordinate and inexcusable delay and had she pursued her claim in the manner required of her having regard to the pre-commencement delay, it is likely that her claim would have been heard at a time when Mrs. Boyce was alive and in a position to give evidence supportive of her husband’s defence, as indeed she had done in the criminal proceedings on a number of key issues, Her unavailability to give such evidence was undoubtedly prejudicial to the extent that the trial judge ought to have dismissed the action on the grounds that the balance of justice mandated such an approach.”
Application for leave to appeal to Supreme Court
39. The plaintiff applied to the Supreme Court for leave to appeal.
40. On the 10th June, 2016: McNamee v. Boyce [2016] IESCDET 76, this Court granted leave to appeal on the following grounds:-
(i) The issue as to whether it is appropriate to describe a decision by a court of first instance on the question of whether to dismiss proceedings for delay as being one in which involves the exercise of a discretion properly so called;
(ii) The issue of the extent to which it is appropriate for an appellate court to review and/or accord deference to any balancing exercise (as carried out by a judge of first instance) involved in assessing whether it is appropriate or not to dismiss proceedings for delay; and
(iii) The appropriate weight to be attached, in such an exercise, to any failure on the part of a defendant to implement such procedures as may have been available to reduce delay.
Law
41. The law in relation to the issues raised is well settled: Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 set out the principles relevant to an application to dismiss an action for want of prosecution.
42. In Primor Hamilton C.J. described the test as:-
(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
(i) the implied constitutional principles of basic fairness of procedures,
(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 expenses 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.
I agreed with Hamilton C.J. when he delivered the judgment on the 19th December, 1995, and I continue to hold that view.
43. In Comcast International Holdings Inc & Ors. V. Minister for Enterprise & Ors: Persona Digital Telephony Ltd & anor v. Minister for Public Enterprise & Ors [2012] IESC 50. I stated that the primary relevant law is that as set out in Primor.
44. In Comcast I referred to the principles stated in Primor, and pointed out that the factors of each case require to be analysed. I added:-
“In addition, in recent times there has been an acknowledgement that cases may not be let lie, in a laissez faire attitude, for the parties to move. There is a requirement to ensure that cases are progressed reasonably. This approach has been the subject of litigation in Ireland and has also been addressed by the European Court on Human Rights. For example, in Price and Lowe v. The United Kingdom 43185/98, there was an application alleging a violation of Article 6 of the Convention in connection with the length of the proceedings at issue. Article 6 provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time...”
The ECtHR reiterated that the reasonableness of the length of the proceedings must be addressed in the light of the circumstances of the case, and having regard to the criteria laid down in the Court's case law, in particular:
• The complexity of the case,
• The conduct of the applicant,
• The conduct of the relevant authorities, and
• The importance of what is at stake for the applicant in the litigation.
The Court held that the manner in which a State provides for mechanisms to comply with this requirement - whether by way of increasing the number of judges, or by automatic time-limits and directions, or by some other method - is for the State to decide. In this case the domestic law is that stated in Primor, where the factors identified by Hamilton C.J., as set out previously, are not dissimilar to the criteria set out in Price.”
Balance of Justice
45. In this case it is not in issue that there was inordinate and inexcusable delay. Thus, the test to be addressed is whether, in the Court’s discretion, on the facts the balance of justice is in favour of or against the proceeding of the case.
“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 proceedings in the case.”
Decision
46. It is more usual for applications to prohibit a trial to be brought in advance of a trial, and to be decided on affidavit evidence. This was done in relation to this case and the application was refused by O’Neill J. on the 9th July, 2012.
47. There have been discussions in other cases as to whether it is more appropriate to bring an application in advance of a trial, or to wait until the trial. In this case both were done; an application in advance of the trial, and an application at the commencement of the trial.
48. The principle behind the jurisprudence which permits proceedings to be struck out because of delay is that a party should not be put to the hazard of a trial if the delay has been inordinate and inexcusable and the balance of justice is against the proceedings continuing. Thus, there is merit in proceeding by way of an application in advance of a trial. However, even if such an application permits a trial to proceed, the trial judge remains in control and will not allow an unfair trial proceed, and thus there may be applications to a trial judge. It has also been suggested that it may be more appropriate to bring such an application at the beginning of a trial, as was done here. However, there may be cases where a trial judge could take the view properly that a decision on an application should be postponed until the trial judge has a better appreciation of the real factual issues in the case, and the materiality of any asserted prejudice.
49. In this case the High Court (O’Neill J.) refused an application to dismiss proceedings on grounds of delay, in 2012, on foot of affidavit evidence. As is the norm, reference was made to the trial judge having control of the trial.
50. It should be observed that renewing the application to dismiss the action for want of prosecution at the commencement of the trial placed the learned trial judge in an impossible position in circumstances where there had been no appeal from the order of O’Neill J., and where O’Neill J. had left the issue as to prejudice by reason of delay to the hearing of the action, given that there had been no change in the circumstances. The purpose of leaving the issue to the trial judge was to enable the trial judge to assess the issue having heard some or all of the evidence and to reach a conclusion as to whether there had been prejudice to the defendant by reason of delay. It may be appropriate to mention the possibility of such an application being made in the course of the trial at the outset of the trial, but an application made at the commencement of the trial, in the absence of a change of circumstances, is simply like an appeal of the earlier decision. If there was a change of circumstance, then such an application could and should be made. So, for example, if another witness had died in the meantime or if a defendant had been diagnosed with Alzheimer’s disease, one could see how such an application could be appropriate at the commencement of a trial, Absent such a change of circumstances, it is hard to see how the trial judge in this case could have come to a different conclusion than O’Neill J. without hearing any evidence.
51. When the application was renewed before the trial judge in 2014, at the commencement of the trial, this first application was made prior to any evidence being heard. Consequently, it was in essence the same application as had been made and refused in 2012, by a judge of the same jurisdiction.
52. Counsel raised the issue of the timing of such an application at the beginning of a trial, and to some difficulties which may arise. Does the trial judge swear-in a jury and then tell them to leave the court for a time, possibly days, while an application to dismiss the proceedings on the grounds of delay is made on oral evidence in a voir dire? Or does the trial judge hear the application in advance of a jury being sworn? Or does the trial judge hear the application without the benefit of oral evidence? There is no easy answer. In this case two High Court judges refused the application to dismiss the proceedings in advance of the trial.
Application to Trial Judge
53. The first application to dismiss the proceedings on the grounds of delay made to the trial judge was made at the commencement of the trial. It is this application which was the primary basis for the decision of the Court of Appeal, and it is the primary consideration in relation to this appeal also.
54. It being accepted by the parties that there was inordinate and inexcusable delay the focus was, and is, on the third limb of Primor, i.e. the balance of justice.
55. The application of the third aspect of Primor was described by Laffoy J. in Dunne v. ESB [1999] IEHC 199, at 16:-
“Essentially, in applying the criteria identified by Hamilton C.J. by reference to which the Court should exercise its discretion, two questions arise in this case, namely, whether the Defendant is prejudiced by the delay and, in particular, whether there is a substantial risk that it is not possible to have a fair trial because of the delay, and whether there was anything in the conduct of the Defendant which militates against granting the relief sought.”
There is, thus, a fact finding exercise, and a mixture of fact and law in the balancing required.
56. The appropriate approach continues to be that as analysed in Primor, and as described in Rainsford. In Rainsford v. Limerick Corporation [1996] 2 ILRM 561, Finlay P. (as he was then) stated:-
“Even where the delay has been both inordinate and inexcusable the court must further proceed to 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. Delay on the part of a defendant seeking a dismiss of the action, and to some extent a failure on his part to exercise his right to apply at any given time for the dismiss of an action for want of prosecution, may be an ingredient in the exercise by the court of its discretion.”
[Emphasis added]
57. When a trial judge makes findings of fact an appellate court should give deference to that court as set out in Hay v. O’Grady [1992] 1 I.R. 210. An appellate Court faces a more serious task than merely showing that there was other evidence adduced by an appellant.
58. In Stephens v. Paul Flynn Ltd [2008] IESC 4, [2008] 4 IR 31, this Court confirmed that where a judge of the High Court makes a discretionary order, this Court should not interfere with such order unless it is clear that the discretion has not been exercised within the parameters of a reasonable exercise of that discretion. The Court approved the views of Lynch J. in Martin v. Moy Contractors (Unreported, Supreme Court, 11th February, 1999), where he held:-
“The High Court has a measure of discretion in these applications to dismiss actions for want of prosecution. Provided that the High Court decision is within the limits of reasonable discretion this court should not interfere with it. In this case the learned President gave a reasoned judgment and his reasoning is clearly valid. His decision naturally follows from such reasoning and is also therefore clearly valid. There is, accordingly, no basis on which this court should interfere with the judgment of the learned President save that I would order that the plaintiffs action against Garlands should be dismissed for want of prosecution and not merely struck out.”
59. In this case the High Court (O’Malley J.) reached the same conclusion as the High Court (O’Neill J.) in 2012.
60. It is an important part in this appeal that there is no issue of the plaintiff, complainant, not being able to face or remember the events the subject of the proceedings. These are civil proceedings, and follow upon criminal proceedings, in which the plaintiff gave evidence, which concluded with a conviction in 1999.
61. In considering the issue of the balance of justice, the High Court gave “most weight” to the fact that the defendant did not enter an appearance for ten years. While the conduct of a defendant is important in considering the balance of justice, it must be done in the context of the circumstances of the case. In this case the plenary summons was issued in 2001, it was renewed in 2002, and served in 2002, and a notice of intention to proceed was not served until July 2011. The defendant then entered an appearance in November, 2011. In light of the facts, including the long delay by the plaintiff, and that the defendant had been in prison for part of this time, while it is a factor, it is not a decisive factor.
62. The High Court also stated that judgment against the defendant could have been entered at any time during that period and that the only conclusion to be drawn from failure to enter an appearance was that he did not intend at that time to defend the proceedings. This ruling by the trial judge I read as stating, in a short form, that judgment could have been entered against him during that time, but not a ruling as to the exact process. Thus, it is a fact that judgment could have been sought in accordance with law during that time. I would not find the ruling to be an error of law. Either in judicial review proceedings, or in an application to dismiss for want of prosecution, or in an appellate court, there is usually more time to consider an aspect of the case; this was a ruling at the commencement of a judge and jury trial.
63. The conclusion of the High Court that the defendant did not intend to defend the proceedings during the ten years is required to be balanced against the ten year delay on behalf of the plaintiff.
64. However, in relation to the issue of prejudice, I would have a concern that there was prejudice. The defendant’s wife had died, and she had been an important witness for him in the criminal proceedings. While the transcript of that trial could be available in the civil proceedings, that would not meet the situation fully. It is the jurisprudence of this Court that if a key witness is not available, then the fairness of a trial requires serious consideration. In this case the defendant also raised the absence of another witness who he believed would have been in a position to give evidence on his behalf.
65. As noted earlier the adjudication by a trial judge on a question such as that which arose in these proceedings involves a broad assessment of all the circumstances of the case to determine where the interests of justice lie. It is in that sense that the trial judge can be regarded as exercising a discretion. It follows that an appellate court (whether the Court of Appeal or this Court) should review the decision of the trial judge to determine whether the conclusion reached was arrived at as a result of applying the appropriate principles and was within the range of conclusions open to the trial judge on the basis of the facts as found.
66. In substance the Court of Appeal in this case determined that, in all the circumstances, the conclusion of the trial judge to allow the trial to go ahead could not be supported. The core issue on this appeal is, therefore, as to whether the Court of Appeal was correct in that regard. In other words this Court must determine whether the trial judge carried out her adjudication by applying the appropriate principles and came to a conclusion which was within the range of conclusions open on the facts as found.
67. First it should be said that it is clear that the trial judge applied the appropriate principles. The real question is as to whether the conclusions can be sustained on the basis of the approach just indicated.
68. Regard must be had to the fact that there was a very considerable delay indeed in progressing these proceedings with very little explanation which could even go some way towards justifying that delay. It is true that many persons who suffer from child abuse find considerable difficulty in making complaint to appropriate authorities or seeking to instigate legal proceedings. However, the delay in progressing these civil proceedings happened after the plaintiff had made complaint to An Garda Síochána and had participated in a criminal trial involving allegations of the type which form the basis of these civil proceedings. In reality nothing happened between the service of the plenary summons in late 2002 and the reactivation of the proceedings in the middle of 2011.
69. While the jurisdiction of any court to dismiss proceedings for want of prosecution requires the Court to be satisfied that there has been inordinate and inexcusable delay, it is also clear that particularly lengthy delay without adequate explanation can also be a factor which can properly be taken into account in assessing where the balance of justice lies. In order for the jurisdiction to arise in the first place there must be an inordinate and inexcusable delay. However, unexplained or excused delay which goes well beyond the minimum threshold for the jurisdiction to arise must be weighed in the balance in determining whether the interests of justice require that the case go ahead or be dismissed. It is absolutely clear that the unexplained delay in this case goes far beyond the minimum level of unexcused delay which would meet the Primor threshold. It is, therefore, a factor which must be weighed in the balance.
70. In addition, as noted earlier, the death of the defendant’s wife in 2005 clearly gave rise to some degree of prejudice. It is also of some importance to note that, had the proceedings been progressed in a reasonably expeditious way, there was a very real possibility that the case could have come to trial prior to the death of the defendant’s wife. The plenary summons in this case was issued more than four years prior to her death.
71. While it is true that it was possible to reduce the prejudice to the defendant by allowing a transcript of the evidence given by his wife at his criminal trial to be introduced, it must remain the case that there was, notwithstanding that measure, a significant element of prejudice. Not all of the incidents which were the subject of these civil proceedings were before the criminal court. In particular, it should be recalled that the statement of claim was amended in March, 2012, to add much more serious allegations of sexual abuse than those that featured originally. Furthermore, there will always be a risk that a jury will, understandably, be placed in a difficulty position where they are able to assess in the same way a witness who gives live evidence before them but not feel able to assess a competing witness whose evidence is simply read out from a transcript. There may, of course, be cases where that is the best that can be done - in appropriate cases evidence may be taken on commission and presented to a jury in that way. A trial is not, in itself, unfair simply because different elements of the evidence may be presented in different ways.
72. However, the problem in this case is that the principal reason why potentially important evidence from the defendant’s perspective had to be presented in that less than satisfactory way was because of the delay on the part of the plaintiff in progressing these proceedings. It is impossible, therefore, to avoid the conclusion that there was at least some material impairment in the ability of the defendant to present his case which was a direct result of delay on the plaintiff’s part.
73. Taking that fact in conjunction with the particularly lengthy delay, largely unexplained, which occurred in this case, can lead only to the conclusion that a decision to allow the case to go to the jury was outside the permissible adjudications open on all the facts of this case.
Conclusion
74. The plenary summons in this case was issued in June 2001, nearly nine years after the last assault alleged, and 22 years after the first. This Court has by now considerable awareness of the difficulties that may be encountered by victims of sexual abuse in making complaints, civil or criminal, about those events. However, by the date of issuance of the plenary summons, the plaintiff had made a complaint to the guards in 1995 and participated in a criminal trial which concluded in 1999. Prima facie therefore, as of 2001 there was no obvious reason why the proceedings once issued could not have been prosecuted, and indeed given the lapse of time from the events complained of, there was every reason to prosecute them with diligence. Instead nearly 18 months elapsed before the plenary summons was even served, and a further eight and a half years elapsed before the basic step of serving a statement of claim was taken.
75. This delay was excessive and inordinate, but, particularly in the light of the time that had elapsed since the matters alleged, it was on any view inexcusable. Indeed no serious excuse or explanation was offered.
76. Nor can it be seriously doubted that the defendant’s case was significantly prejudiced by this want of prosecution on the part of the plaintiff. It could not be denied that the defendant’s wife was an important witness on his behalf since the events complained of were alleged to have occurred on visits to the home she and the defendant shared. Unless, therefore very substantial countervailing considerations could be asserted, this was in truth a very clear case in which there had been want of prosecution, and where the balance of justice favoured, if not indeed required, the dismissal of the case.
77. The plaintiff relies on two countervailing factors as negativing the conclusion that there has been want of prosecution, and any irredeemable prejudice. First, it is suggested that the defendant’s failure to enter an appearance showed that he was prepared to let judgment be entered against him and therefore had not suffered as a result of the plaintiff’s want of prosecution. Second, it was suggested that the statement made by the defendant’s wife and used in the criminal proceedings in 1999 could be admitted into evidence and that this would avoid any prejudice to the defendant which might otherwise arise resulting from the death of the defendant’s wife in 2005. These matters were relied on by the High Court when it rejected the motion to dismiss for want of prosecution in July 2012, holding, however, that the matter could be revisited at the trial. It is indeed arguable that the High Court, on the motion, could have concluded that these matters were not sufficient to displace the want of prosecution on behalf of the plaintiff, and the prejudice which has been suffered by the defendant, but in any event, events at the trial made this conclusion clearer.
78. It is open to doubt that the failure on the part of the defendant to enter an appearance after belated service of the plenary summons in December 2002, could give rise only to the inference that he was prepared to concede the claim and permit judgment to be entered. Certainly by the time of the motion to dismiss, any inference that the defendant did not propose to defend the case, or accepted its merit, was no longer available. In any event, the onus lies on the plaintiff to prosecute his or her claim, an onus which is particularly heavy where there is a significant lapse of time between the events complained of and the initiation of the claim. The failure of the defendant to enter an appearance in 2002 cannot be treated as somehow absolving the plaintiff’s want of prosecution. In truth, by failing to enter an appearance immediately after service of the plenary summons, the defendant put himself at risk that the plaintiff might be able to bring an application, which if not resisted, might result in a judgment being obtained in default. The fact, however, that the plaintiff did not do so, is one more demonstration of the want of prosecution of the plaintiff’s claim.
79. There may be cases, sometime colloquially called documents cases, where the absence of individual witnesses can be remedied by an agreement that documents would be admitted in to evidence. It is not necessary to consider here the precise steps which require to be taken in any such case, and in what circumstances those steps would be sufficient to permit a trial to proceed in the absence of certain witnesses. Each case may present a different set of circumstances . However, the willingness of the plaintiff to admit in evidence the statement of the defendant’s wife was unlikely to, and did not in the event, remove the prejudice caused to the defendant by the fact that his wife was not longer available to give viva voce evidence.
80. First, the plaintiff’s representatives, while accepting that the statement could be proffered, were not prepared to admit the truth of its contents. Indeed, the entire thrust of the plaintiff’s case was to invite the jury to disbelieve what was said in the statement. Given therefore that the credibility of the defendant’s wife was an important issue in the case, the defendant was severely hampered by having that judgment made in the absence of the very person who the jury were necessarily being invited to disbelieve. But this problem was compounded by two other features of this case.
81. The statement made in 1999 was in the context of certain allegations made. However, in 2012 an amended statement of claim was delivered giving particulars of much more serious sexual offences. Plainly the statement delivered in the context of criminal proceedings in 1999 could not address any of those incidents, whereas the defendant’s wife, had she been available, almost certainly would have some evidence to give relevant to those incidents. Thus, even if the admission of the statement on the limited terms proffered by the plaintiff was ever capable of addressing the prejudice suffered by the loss of a witness, this could not have done so in this case. But the discrepancy between the case made at the criminal trial and the more extensive allegation made in the civil case meant that it became inevitable that the jury had to be informed of the existence of the criminal trial and, almost as inevitably , its outcome. In the event the jury were informed of the criminal conviction and moreover that they were entitled to treat it as proof of the fact of an assault on that occasion. Therefore the jury were accordingly being informed that a jury in a criminal trial, and on a higher standard of proof, had rejected the defendant’s denials, and by implication at least discounted the evidence of his wife when given in person. It is not necessary to consider here whether this instruction was correct: it is enough that this was an almost inevitable consequence of the admission in to evidence of the statement made by the defendant’s deceased wife. It is easy to see how it might be thought that this whole process actually strengthened the plaintiff’s case rather than repaired the damage done to the defendant’s case. It is enough however to say that it could not be considered a procedure which somehow compensated the defendant for the inevitable prejudice suffered by his inability to call his wife to give evidence. In the circumstances, neither the fact that the defendant did not enter an appearance initially, nor the plaintiff’s willingness to permit the admission into evidence of the statement made by the deceased’s wife in the criminal trial, are sufficient in this case to alter the conclusion that there was clear evidence of serious and inexcusable failure to prosecute a case which required to be prosecuted with speed, and which want of prosecution was the source of real and serious prejudice to the defendant.
82. In the circumstances, for the reasons given, I would dismiss the appeal by the plaintiff from the Court of Appeal.
