High Court dismisses sexual assault claims against deceased psychiatrist and charity due to inordinate delay and prejudice.

Neutral Citation Number: [2009] IEHC 422

THE HIGH COURT

1998 7983 P, 1998 4484 P, 1998 7984 P,

1998 3185 P, 1998 7982 P, 1998 3184 P,

1998 1449 P, 2000 10188 P

BETWEEN:

J.D., J.F., H.M., M.M., L.N.,

M.O’B., B.T., and M.O’S.

PLAINTIFFS

AND

D.J.L. O’K. and THE BROTHERS OF CHARITY

DEFENDANTS

Judgment of Mr. Justice Hedigan delivered the 6th day of October, 2009

1. The plaintiffs have brought proceedings against the first named defendant in respect of a series of alleged sexual

assaults which are said to have taken place during the course of their medical treatment by him, on a series of dates

between 1976 and 1991.

2. The first named defendant, who died in 2004, was at all material times a consultant psychiatrist at Belmont Hospital,

County Waterford at which all the plaintiffs received treatment. His estate is party to the present proceedings by means

of an authorised representative and is insolvent.

3. The second named defendant is a religious order whom, it is alleged, was the employer of the first named defendant at

all material times.

4. The defendants are seeking the following, by way of a preliminary application to this Court:-

(a) An order pursuant to Order 122, rule 11 of the Rules of the Superior Courts (‘the Rules’), dismissing the plaintiffs’

claim for want of prosecution;

(b) An order pursuant to the inherent jurisdiction of this Court, dismissing the plaintiffs’ claim on grounds of

inordinate and inexcusable delay; and

(c) An order pursuant to the inherent jurisdiction of this Court, dismissing the plaintiffs’ claim on the basis of a

violation of the defendants’ rights to natural and constitutional justice, as well as prejudice arising therefrom.

I. Factual and Procedural Background

5. Each of the plaintiffs received, on various occasions between 1976 and 1991, psychiatric treatment from the first

named defendant at Belmont Hospital, County Waterford. Some of the plaintiffs were treated as outpatients, while others

were in residential care. Each of them has commenced a separate set of proceedings making allegations of, inter alia,

sexual assault, trespass to the person and breach of their constitutional right to bodily integrity.

6. The plaintiffs’ claims lie not only against the first named defendant as the alleged assailant, but also against the

second named defendant in its alleged capacity as the employer of the first named defendant. Specifically, the plaintiffs’

claim against the second named defendant alleges that it failed to provide adequate staff, care or supervision for the

plaintiffs and that its agents knew, or ought to have known, that the first named defendant was engaged in the alleged

conduct.

7. The distinct sets of proceedings brought by each of the plaintiffs have a long and convoluted history, involving various

lengthy periods of delay and inaction. Certain incidents have undoubtedly contributed to the length of time which has

passed. The fourth and sixth named plaintiffs, for example, chose to change their solicitors around six months after the

issue of the plenary summons in each of their cases. Another contributing factor has been the failure by all of the

plaintiffs, apart from the seventh named plaintiff, to deliver replies to particulars. In any event, and for ease of reference,

the parties have created a detailed chronology of events which I set out below:-

Plaintiff J.D. J.F. H.M. M.M.

Date of Alleged Incidents 13th October Before 29th July 1986 - 1985 - 1991

1980 March 1990 January

1991

Plenary Summons Issued 10th July 9th April 10th July 11th March

1998 1998 1998 1998

Appearance Entered 4th N/A 4th N/A

November November

1998 1998

Notice of Change of Solicitor N/A N/A N/A 16th

Filed September

1998

Statement of Claim 3rd February 27th May 3rd February 3rd February

Delivered 1999 1999 1999 1999

Request for Particulars by 11th March 24th June 11th March 11th March

First Named Defendant 1999 1999 1999 1999

First Reminder Letter Sent 31st May 28th 31st May 31st May

1999 February 1999 1999

2000

Second Reminder Letter 28th N/A 28th 28th

Sent February February February

2000 2000 2000

Death of First Named 20th January 20th January 20th January 20th January

Defendant 2002 2002 2002 2002

Reconstitution of 13th May 13th May 13th May 13th May

Proceedings 2004 2004 2004 2004

Plaintiff L.N. B.T. M.O’B. M.O’S.

Date of Alleged Incidents 1986 – 1991 January 1987 1983 – 1988 1976 - 1990

– June 1987

Plenary Summons Issued 10th July 1998 11th March 3rd February 1st

1998 1998 September

2000

Appearance Entered 4th November N/A 4th November 25th October

1998 1998 2001

Notice of Change of Solicitor N/A 16th N/A N/A

Filed September

1998

Statement of 3rd February 3rd February 3rd February None

Claim Delivered 1999 1999 1999 Delivered

Request for Particulars by 11th March 11th March 5th December N/A

First Named Defendant 1999 1999 2003

First Reminder Letter Sent 31st May 1999 31st May 1999 31st May 1999 N/A

Second Reminder Letter 28th February 28th February 28th February N/A

Sent 2000 2000 2000

Death of First Named 20th January 20th January 20th January 20th January

Defendant 2002 2002 2002 2002

Reconstitution of 13th May 2004 13th May 2004 13th May 2004 13th May

Proceedings 2004

8. In relation to the above chronology, submitted by the first named defendant, it must be noted that in the case of the

seventh named plaintiff, replies were furnished to the second defendants in December, 2003. Further particulars were

sought in February, 2004 but replies have not to date been delivered. In relation to all bar the eighth named plaintiff, who

has never served a statement of claim on the second defendant, the notices for particulars were served by the second

defendant on the 15th September, 1999. In light of the delays apparent, the defendants brought motions on the 28th day

of April 2008, seeking to dismiss each of the plaintiffs’ claims for want of prosecution and on grounds of inordinate and

inexcusable delay.

II. The Submissions of the Parties

9. The defendants argue that each of the plaintiffs have been guilty of culpable delay both in the institution of

proceedings (‘pre-commencement delay’) and in the prosecution of those proceedings, once instituted (‘post-

commencement delay’). In respect of the pre-commencement delay, the defendants argue that in all cases the period of

delay has been inordinate and inexcusable. They emphasise that the expanses of time which were allowed to pass,

between the date of the final alleged incident and the institution of proceedings, range from 6 years and 3 months in the

case of the fifth named plaintiff to 17 years and 9 months in the case of the first named plaintiff. These extraordinary

periods warrant, in the defendants’ submission, the exercise of the court’s inherent jurisdiction to dismiss the proceedings.

10. As regards the post-commencement delay, the defendants submit that the passage of time has given rise to serious

prejudice as against them in the making of their defence. They point to specific factors such as the death of the first

named plaintiff in 2002 and also to more general considerations such as the fading of memory in proceedings which are

likely to be heavily reliant on oral testimony.

11. The plaintiffs accept that periods of pre-commencement delay and post-commencement delay have arisen but reject

the suggestion that either period is sufficient jointly or individually to merit the dismissal of their claims. In this regard, the

plaintiffs appeal to the court’s responsibility to uphold justice and vindicate the rights of all citizens. They emphasise the

profound and damaging effect which the alleged heinous acts of the first named defendant have had against them.

12. In terms of pre-commencement delay, the plaintiffs assert that issues relating to the Statute of Limitations are

matters for defence at trial. In any event, they make clear their intention to adduce medical evidence to the effect that

they lacked capacity to bring their claims within time owing to the psychological trauma which was occasioned by the

alleged acts of the first named defendant.

13. With respect to post-commencement delay, the plaintiffs accept that the period which has elapsed in each of their

cases has been inordinate. However, they contend that this delay has been excusable owing to the extreme difficulty

which they feel in confronting the events of the past and thereby providing appropriate instructions to their legal

advisers. Some of the plaintiffs have also suffered from diagnosed mental and physical illness during the relevant period

which they submit has served to further exacerbate the situation.

14. As to the balance of justice in the case, the plaintiffs point to a number of factors which, they submit, weigh in their

favour. They emphasise that at no time have the defendants attempted to deny the allegations made. They also stress

the fact that since the commencement of proceedings, it appears that the second named defendant did not fully

investigate the allegations, review the medical records of the plaintiffs or interview potential witnesses. The plaintiffs

contend that these points, in addition to the seriousness of the claims being made and the harm alleged, should stand in

favour of a full resolution of the issues at plenary hearing.

III. The Decision of the Court

15. It is well-established that where issues arise as to both pre-commencement delay and post-commencement delay,

each of these must be afforded separate treatment by the court. In the decision of McH. v. J.M. [2004] 3 I.R. 385, Peart

J. considered the position and stated the following at page 395:-

“I am of the view that there are two separate and distinct tests, one the test set out in Primor Plc v. Stokes

Kennedy Crowley [1996] 2 I.R. 459 in respect of post-commencement delay, and the other, the Toal v. Duignan

(No. 2) [1991] I.L.R.M. 135 test, if I can so describe it, in respect of pre-commencement delay. First of all, the

distinction reflects the different and respective contexts in which the delay took place in each case. But besides

that, I am of the view that there are sound and logical reasons why the test in each case ought to be different.”

16. In respect of pre-commencement delay, the classic exposition of the principle to be applied was laid down in the

Supreme Court decision of Ó Domhnaill v. Merrick [1984] I.R. 151. In that case, Henchy J. made the following remarks at

page 157:-

“Whether delay should be treated as barring the prosecution of a claim must inevitably depend on the particular

circumstances of a case. However, where, as in this case, the delay has been inordinate and inexcusable, such

delay is not likely to be overlooked unless there are countervailing circumstances, such as conduct akin to

acquiescence on the part of the defendant, or inability on the part of an infant plaintiff to control or terminate the

delay of his or her agent. In all cases the problem of the court would seem to be to strike a balance between a

plaintiff's need to carry on his or her delayed claim against a defendant and the defendant's basic right not to be

subjected to a claim which he or she could not reasonably be expected to defend.”

17. This statement of law was applied and endorsed by Finlay C.J. in the decision of Toal v. Duignan (No. 1) [1991]

I.L.R.M. 135. The learned Chief Justice then went on to say the following, at p. 139, in relation to the test to be applied:-

“In the High Court it was held by Keane J. that the case was governed by the decision of this Court in O’Domnhnaill

v. Merrick [1984] I.R. 151. I am in agreement with that view of the law. […] [T]he principles laid down by this Court

in that case […] may be summarised […] as being that where there is a clear and patent unfairness in asking a

defendant to defend a case after a very long lapse of time between the acts complained of and the trial, then if

that defendant has not himself contributed to the delay, irrespective of whether the plaintiff has contributed to it

or not, the court may as a matter of justice have to dismiss the action.”

18. The court went on to expand upon this general principle, providing examples of the kind of situations in which it might

be unfair to require a defendant to defend an action. Finlay C.J. stated at p. 142:-

“[I]t has consistently been held:-

(a) that a lengthy lapse of time between an event giving rise to litigation, and a trial creates a risk of

injustice: "the chances of the courts being able to find out what really happened are progressively

reduced as time goes on";

(b) that the lapse of time may be so great as to deprive the party against whom an allegation is made

of his "capacity… to be effectively heard";

(c) that such lapse of time may be so great as it would be "contrary to natural justice and an abuse of

the process of the court if the defendant had to face a trial which (he or) she would have to try to

defeat an allegation of negligence on her part in an accident that would taken place 24 years before

the trial …";

(d) that, having regard to the above matters the court may dismiss a claim against a defendant by

reason of the delay in bringing it "whether culpable or not", because a long lapse of time will

"necessarily" create "inequity or injustice", amount to "an absolute and obvious injustice" or even "a

parody of justice";

(e) that the foregoing principles apply with particular force in a case where "disputed facts will have to

be ascertained from oral testimony of witnesses recounting what they then recall of events which

happened in the past …", as opposed presumably cases where there are legal issues only, or at least a

high level of documentation or physical evidence, qualifying the need to rely on oral testimony.”

19. The jurisdiction of the court to dismiss a claim on the basis of post-commencement delay is predicated, by contrast,

not only in the court’s inherent jurisdiction but also in O.122, r.11 of the Rules. That provision states, inter alia, as

follows:-

“In any cause or matter in which there has been no proceeding for two years from the last proceeding had, the

defendant may apply to the Court to dismiss the same for want in prosecution, and on the hearing of such

application the Court may order the cause or matter to be dismissed accordingly or may make such order and on

such terms as to the Court may seem just. […]”

20. The issue of post-commencement delay was afforded considerable treatment by the Supreme Court in the decision of

Primor plc. v. Stokes Kennedy Crowley [1996] 2 I.R. 459. In that case, Hamilton J. set out the following applicable

principles at p. 475:-

“(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the

interests of justice require them to do so;

(b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of

prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;

(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether,

in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;

(d) in considering this latter obligation the court is entitled to take into consideration and have regard to:-

(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 expense in

pursuing the action does not, in law, constitute an absolute bar preventing the defendant from

obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising

his discretion whether or not to strike out the claim, the weight to be attached to such conduct

depending upon all the circumstances of the particular case,

(vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely

to cause or have caused serious prejudice to the defendant,

(vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be

other than that merely caused by the delay, including damage to a defendant's reputation and

business.”

21. It seems to me, therefore, that the key distinction between the test for pre-commencement delay and that of post-

commencement delay is that the former focuses heavily on the position of the defendant, in particular any prejudice

arising as against him, while the latter places greater emphasis on the conduct of the plaintiff and whether he can provide

adequate justification for any period of culpable inaction on his part. I now turn to the application of each of these tests

to the circumstances of the present case.

22. In respect of pre-commencement delay, it is clear from the decision of Henchy J. in Ó Domhnaill that a balance must

be struck between the right of the plaintiffs to have recourse to the courts and the unfairness of allowing a claim of such

vintage to proceed as against the defendants. In the present case and as noted above, the pre-commencement delay

ranges from 6 years and 3 months to 17 years and 9 months from the last alleged incident of abuse. The case is

undoubtedly one in which a heavy reliance will be placed on oral testimony, as envisaged by Finlay C.J. in Toal. The

inevitable fading and diminution of memory which will have arisen throughout the period of pre-commencement delay is

something which weighs in favour of the defendants’ application. As against this, the plaintiffs contend that they were

incapable of taking action owing to the severe effect which the alleged acts of the first named defendant had upon them.

While this argument is essentially one of incapacity, relating more to the issue of whether the plaintiffs’ claim is statute-

barred, I am satisfied that it is nonetheless a factor to be taken into account in considering the appropriate exercise of

the court’s inherent jurisdiction to dismiss proceedings.

23. It seems to me that pre-commencement delay must be assessed in the light of the circumstances which pertained on

the date of initiation of proceedings. I am satisfied that in 1998, in respect of the first to seventh named plaintiffs, and

2000, in respect of the eighth named plaintiff, it would not have been unfair to require the defendant to defend the

claims. At that time, the first named defendant was still alive and capable of meeting the claims against him, as the

majority of the incidents alleged had taken place within the previous decade. The defendants’ capacity to fully defend the

claim would undoubtedly have been impaired to some general extent but I am of the view that this unfairness would have

been superceded by the plaintiffs’ right to seek redress in respect of the alleged heinous conduct a consequence of which

may be taken as at least in part being a cause of the delay in issuing proceedings.

24. As to the post-commencement delay which exists within the case, it is apparent that in the years since the issue of

proceedings, little or no progress has been made in respect of each of the claims. In the majority of cases, no positive

step has been taken for over 11 years. There is evidence before the court to suggest that this effective standstill has

occurred despite sporadic attempts on the part of the plaintiffs’ solicitor to move things along. The affidavits sworn herein

by the solicitor for the plaintiffs makes clear that she was having the greatest difficulty obtaining any response from her

clients. I accept that she was dealing with very vulnerable people. It is clear her clients had the greatest of difficulty in

revisiting memories of the abuse they alleged. It is difficult for the court to avoid the suspicion that the plaintiffs

themselves have little enthusiasm for bringing the present proceedings to a head. I can readily understand their

reluctance. It is only human nature that victims of sexual abuse such as that alleged in the present case would be

reluctant to revisit their memories of such an egregious breach of their trust and confidence.

25. Nonetheless, as the cases cited above indicate, the court has a clear duty to vindicate the rights of all citizens. This

not only requires that individuals such as the plaintiffs should receive their right of access to the courts, but also that the

defendants should have civil proceedings brought against them determined within a reasonable period. The court must

further take account of Ireland’s international obligations with regard to the provision of justice within a reasonable time.

This court in the recent case of Mannion v. Bergin and Others [2009] IEHC 165, stated the following:-

“In my view, to the factors set out [in Primor] for determining where the balance of justice lies must be added the

requirement that the courts secure to the party claiming delay his right provided for in Article 6 of the European

Convention on Human Rights to a trial within a reasonable time. It provides as follows:-

‘In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing

within a reasonable time by an independent and impartial tribunal established by law.’

As has been noted by the European Court of Human Rights, this duty applies in legal systems where the procedural

initiative lies with the parties. In such systems, of which the Irish legal system is one, the courts must maintain a

supervisory jurisdiction to ensure that justice is done as expeditiously as possible. In Price v. United Kingdom and

Lowe v. United Kingdom (Case Number 43186/98, 29th July, 2003), the Court stated as follows:-

‘23. The Court has held on a number of occasions that a principle of domestic law or practice that the

parties to civil proceedings are required to take the initiative with regard to the progress of the

proceedings, does not dispense the State from complying with the requirement to deal with cases in a

reasonable time (see Buchholz v. Germany, judgment of 6th May, 1981, Series No. 42, page 16, para.

50; Guincho v. Portugal, judgment of 10th July, 1984, Series A, No. 81, page 14, para. 32; Capuano v.

Italy, judgment of 25th June, 1987, Series A, No. 119, page 11, para. 25; Mitchell and Holloway v. The

United Kingdom, No. 44808/98, judgment of 17th December, 2002). 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.

If a state let the proceedings continue beyond the “reasonable time” prescribed by Article 6 of the

Convention without doing anything to advance them, it will be responsible for the resultant delay.’

This obligation must be borne in mind by the Courts when considering as in this case where the balance of justice

lies as to whether to dismiss for want of prosecution. The obligation is not merely to advance a case where

necessary but may also be to prevent its continuance where, as here, it has lain dormant for a substantial period of

time.”

IV. Conclusion

26. Very little is offered by the plaintiffs by way of explanation for their extraordinary failure to progress the case since

proceedings issued. I do not believe that the court can accept the assertion that the first defendant was capable of

exercising any power or dominion over the plaintiffs after his death in 2004. Nor can I accept the argument that the

defendants ought to have brought this motion sooner or brought motions to compel replies to particulars. In this regard

the plaintiffs are arguing that the defendants were not sufficiently solicitous in taking them to task for their own delay. It

seems a very unreal approach to take. The real argument advanced by the plaintiffs to explain their post-commencement

delay is that they were simply unable to bring themselves to address questions that obliged them to relive the experience

of which they complain. No evidence is produced to suggest there will be any change in this understandable attitude. The

inevitable conclusion, therefore, must be that it is at least probable that were the court to refuse the relief sought herein

the case would remain pending indefinitely.

27. The defendants have now waited eleven years since proceedings commenced in respect of events that occurred up

to 33 years ago. Save in the seventh named plaintiff’s case, no particulars have been furnished despite the defendants’

demands. Even in that case, a request for further particulars has lain unanswered for over five years, the defendants

having waited four years before that to receive what they considered to be inadequate details of the claim. The failure to

provide these particulars of the claim must have prejudiced the defendants’ ability to seek out evidence to assist in

defending themselves. The particulars sought were not of an especially onerous kind. I accept that they rose to little

more than details of the claim that one would have expected to have been taken when instructions were first given. Even

to date, no attempt has been made to furnish these particulars now outstanding in six cases for ten years, in one case

for over five years and in the remaining case not even a statement of claim has been issued. Whatever the reason for this

extraordinary delay, the defendants have undoubtedly been prejudiced thereby. The primary facts of the case are now

almost certainly beyond their reach. The first named defendant is dead which must be greatly to the prejudice of the

second named defendant, which is alleged to be responsible for his conduct. Those witnesses at the time who have not

passed away are likely to have very impaired recollection. None of the delay can be attributable to the defendants.

28. No court wishes to strike out proceedings of any kind without good cause, much less proceedings where such cruel

and egregious breach of trust is alleged as herein. Nevertheless, as the cases cited above show clearly, the courts have

an obligation under both national and international law to ensure that parties who are sued have a trial of the issue within

a reasonable time. Any trial that would now take place in this matter could not be said to have been within a reasonable

time. Moreover, a trial conducted at such a distance in time from the events alleged could not in my view amount to a fair

trial in the circumstances that I have found to prevail herein. For these reasons, I must grant the relief sought in this

motion and dismiss the proceedings herein in accordance with paragraph 4(a), (b) and (c) of the notice of motion. I am

informed by counsel that no order for costs is sought.