Civil claim dismissed for want of prosecution and statute of limitations due to plaintiff's prolonged delay and health issues.

Neutral Citation Number: [2011] IEHC 201

THE HIGH COURT

2006 5753 P

BETWEEN

M. W.

PLAINTIFF

AND

S. W.

DEFENDANT

JUDGMENT of Kearns P. delivered the 6th day of May, 2011

The plaintiff is the defendant’s sister and she was born on the 3rd August, 1957. The plaintiff alleges that between the 1st January,

1969 and the 31st December, 1972 the defendant sexually abused, assaulted and battered her at their family home in County

Limerick. The proceedings herein were commenced by Plenary Summons dated 23rd November, 2006. In those proceedings the plaintiff

claims damages for assault (including sexual assault), battery, trespass to the person, false imprisonment, negligence and breach of

duty. The defendant denies the allegations and has applied inter alia for a declaration that the plaintiff’s action is statute barred, or in

the alternative an order dismissing the plaintiff’s claim for want of prosecution, and, in the event that either or both reliefs are

refused, an order providing for security for costs.

On the 3rd of October, 2006, the defendant was charged with indecent assault of the plaintiff on dates unknown between 1969 and

1972.

The defendant was tried by judge and jury for the alleged indecent assault on the 20th, 21st and 22nd February, 2008 and the jury

failed to reach a verdict. The case was re-tried on the 10th and 11th February, 2009 and the jury acquitted the defendant by

unanimous verdict on the 12th February, 2009.

A Statement of Claim was delivered in the civil proceedings on the 11th November, 2008. A Defence dated the 9th April, 2009 was

delivered thereto. The case appeared in the Dublin civil jury list to fix dates on the 13th January, 2010 and the matter was set down

for trial on the 11th February, 2010. The plaintiff’s solicitors contacted the defendant’s solicitors on the 25th January, 2010, in

advance of the call-over list, and asked the defendant to consent to the matter being adjourned to the next list to fix dates in

circumstances where the plaintiff was unable to travel from Germany to Ireland due to health problems. This request for adjournment

was granted.

The plaintiff’s solicitor wrote to the defendant on the 13th April, 2010, informing the defendant that the plaintiff remained unable to

travel to Ireland for the trial because of ongoing health problems. The letter also stated that the plaintiff would be making an

application at the call-over list for Dublin civil jury cases on the 14th April, 2010 to adjourn the case to the following list to fix dates.

The plaintiff’s solicitor enclosed a copy of a medical report from Dr. Gerhild Kroder, dated the 12th April, 2010. The defendant’s

solicitor replied that he would be resisting any application to further adjourn the matter.

At the list to fix dates on the 14th April, 2010, the case was not reached by the Court and therefore was automatically put back to

the following list to fix dates to be dealt with on the 17th June, 2010.

On the 16th June, 2010, the plaintiff’s solicitor again wrote to the defendant by faxed letter, indicating their intention to apply to

adjourn the case because of the plaintiff’s continuing health problems and her inability to travel to Ireland for the trial from her place

of residence in Germany. The plaintiff’s solicitor enclosed an updated medical report from Dr. Kroder, dated the 15th June, 2010, which

stated that the plaintiff was neither currently, nor in the future, able to travel to Ireland to attend court sittings because of her

physical and psychological condition. The report also suggests the possibility of re-evaluating the plaintiff’s condition at the end of

the year. No application to take her evidence on commission or by television link was made either then or at any other time.

On the 17th June, 2010, the plaintiff’s legal advisors made an application to the Court to adjourn the case and handed into court a

copy of Dr. Kroder’s medical report of the 15th June, 2010. The defendant resisted the application on the grounds that he was being

prevented from defending the action, that he could not reach finality in the case and that he was prejudiced by the undue, inordinate

and inexcusable delay on the part of the plaintiff in calling this case on for hearing. The Court indicated to the defendant that the

present motion could be brought in the event that the plaintiff’s advisors did not confirm at the next call-over sessions of the High

Court jury cases that the case was ready to proceed.

The defendant’s solicitors wrote to the plaintiff’s solicitors on the 9th August, 2010, calling on them to indicate their intention to have

the case listed for hearing at the forthcoming list to fix dates failing which a motion to dismiss the plaintiff’s action would issue. The

plaintiff’s solicitors replied to that letter on the 11th August, 2010 stating that de Valera J. had clearly indicated his intentions in

terms of how he would deal with matters at the next call-over should the plaintiff not seek a hearing date and that that there was no

need for the defendant to consider issuing motion papers.

The plaintiff’s solicitors wrote to the defendant’s solicitors again on the 2nd September, 2010 confirming that their instructions were

to apply to the Court at the call-over of civil jury sessions to have the case stayed. This letter stated that the plaintiff continued to

be medically unfit to travel to Ireland but that the matter would be reviewed in advance of the call-over for the following jury

sessions which would be held in February 2011.

The call-over of the jury list for the February 2011 sitting took place before de Valera J. on the 19th January, 2011. The solicitor

responsible for progressing this matter on behalf of the plaintiff had taken maternity leave in November 2010, and, due to an oversight

on behalf of the plaintiff’s solicitors’ office, there was no representation on behalf of the plaintiff before the court. Consequently, the

Notice of Trial dated the 6th October, 2009 was struck out at the said call-over.

Statute of Limitations

The defendant claims in the first instance that the plaintiff’s action is statute barred by virtue of the Statute of Limitations Act, 1957

(hereafter ‘the 1957 Act’) as amended. Given that the acts complained of are alleged to have occurred as far back as the period

between 1969 – 1972, the claim of the plaintiff would in the ordinary course have long since been statute barred.

However, section 48A(1) of the 1957 Act, as inserted by the Statute of Limitations (Amendment) Act 2000, provides inter alia as

follows:

“(1) A person shall, for the purpose of bringing an action—

(a) founded on tort in respect of an act of sexual abuse committed against him or her at a time when he or she had not

yet reached full age…

…

be under a disability while he or she is suffering from any psychological injury that—

(i) is caused, in whole or in part, by that act, or any other act, of the person who committed the first-mentioned act, and

(ii) is of such significance that his or her will, or his or her ability to make a reasoned decision, to bring such action is substantially

impaired.”

The effect of the Amendment Act of 2000 was thus to extend the period within which a person might bring a claim in tort arising out

of child sexual abuse. In essence, time does not begin to run against a plaintiff until he or she has overcome any psychological injury

that is shown to have been caused wholly or partially by sexual abuse where such injury is significant enough to substantially impair

the will, or ability to make a reasoned decision, of the plaintiff. Section 48A(1) applies regardless of whether the cause of action

accrued prior to or subsequent to the passing of the 2000 Amendment Act.

The misconduct complained of in the case at hand clearly alleges behaviour which would constitute “sexual abuse” within the meaning

of section 48A(1) of the 1957 Act, as amended, and the plaintiff had not reached “full age” within the meaning of the same provision

at the relevant time. The limitation issue turns, therefore, on whether the plaintiff is, or has been, suffering from a psychological

injury caused wholly or partially by actions of the defendant, and, if so, whether such disability was of such significance as to

“substantially impair” the will or ability to make reasoned decisions, of the plaintiff.

It is obvious that ‘psychological injury’ relates to mental and behavioural conditions, rather than purely physical disorders. There is

evidence before the court, in the form of a medical report from the plaintiff’s doctor in Germany, that the plaintiff suffers from an

Arnold-Chiari Malformation and Chronic Obstructive Pulmonary Disease (COPD).

Arnold-Chiari Malformation is a rare genetic disorder in which parts of the brain are formed abnormally and, in the plaintiff’s case,

although this malformation was present at birth, it did not show any symptoms until adulthood. The symptoms of Arnold-Chiari

Malformation include headaches, dizziness, pain in the neck and upper arm, weakness in the arms, partial paralysis, numbness, visual

problems and difficulties with balance and co-ordination. The plaintiff also suffers from hoarseness, difficulty in swallowing and

breathing problems.

COPD refers to chronic bronchitis and emphysema, co-existing diseases of the lungs which result in a narrowing of the airways and

the limitation of the flow of air to and from the lungs causing shortness of breath. The symptoms associated with this condition as

experienced by the plaintiff are purely physical, and do not ostensibly impact on the behaviour of the plaintiff or constitute a

psychological impediment to the prosecution of proceedings.

In relation to the issue of the causation of these medical conditions, I have no evidence that the defendant caused the medical

difficulties suffered by the plaintiff. The plaintiff’s Arnold-Chiari Malformation was present at birth and COPD, according to the

plaintiff’s own doctor, is caused by noxious particles or gas. The defendant cannot be said to have caused either condition.

Even in relation to the issue as to whether the will or ability to reason of the plaintiff was “substantially impaired”, the evidence would

not support a finding in favour of the plaintiff. There is no evidence before the court of any symptom suffered by the plaintiff that

would constrain the will or ability to reason of the plaintiff to the extent required by section 48A(1) of the 1957 Act, as amended. In

fact no evidence of any sort supporting the existence of a significant psychological injury has been presented to the Court. I am

driven therefore to conclude that the plaintiff cannot invoke the provisions of s. 48A(1) of the Act to prevent her claim from being

statute barred.

Dismissal for Want of Prosecution

In the event that I am mistaken in my views on the application of the Statute of Limitations, I will briefly consider the application to

dismiss these proceedings for want of prosecution. I have already set out the relevant chronology of events for this purpose.

The traditional formulation for the exercise of the court’s discretion whether or not to dismiss an action for want of prosecution was

set out by Finlay P. in Rainsford v. Mayor, Aldermen and Burgesses of the City of Limerick [1995] 2 I.L.R.M. 561 where he stated as

follows:-

“Inquiry should be made as to whether the delay on the part of the person seeking to proceed has been firstly inordinate

and even if inordinate has it been inexcusable. The onus of establishing that delay has been both inordinate and

inexcusable would appear to lie upon the party seeking a dismiss and opposing a continuance of the proceedings.”

Finlay P. went on to state:-

“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.”

These principles were approved and expanded upon by the Supreme Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459

where Hamilton C.J. stated the applicable principles as follows:-

“(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 proceedings 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 cases 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 the parties

should be looked at,

(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the

plaintiff’s delay,

(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the

action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but

is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out

the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case.

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

have caused serious prejudice to the defendant.

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

merely caused by the delay, including damage to a defendant’s reputation and business.”

The Convention for the Protection of Human Rights and Fundamental Freedoms is set firmly against delay in the determination of legal

rights, a right conferred on both sides to civil proceedings. Article 6(1) of the Convention provides that:-

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair

and public hearing within a reasonable time by an independent and impartial tribunal.” (Emphasis added)

Section 4 of the European Convention on Human Rights Act, 2003 (hereafter ‘the ECHR Act 2003’) requires that judicial notice be

taken of the Convention provisions. The Act of 2003 in its preamble states that it is:-

“An Act to enable further effect to be given, subject to the Constitution, to certain provisions of the Convention……”

(Emphasis added)

There have been different views expressed in our recent jurisprudence as to the change, if any, made to our existing Irish

jurisprudence in relation to delay following the enactment of the ECHR Act 2003. In Gilroy v. Flynn, Hardiman J. noted that significant

developments had occurred in this area of law since the decisions in Rainsford and Primor. Hardiman J. stated as follows:-

“[T]he courts have become ever more conscious of the unfairness and increased possibility of injustice which attach to

allowing an action which depends on witness testimony to proceed a considerable time after the cause of action

accrued…

…

…[F]ollowing such cases as McMullen v. Ireland [ECHR 422 97/98, 29 July, 2004] and the European Convention on Human

Rights Act, 2003 the courts, quite independently of the action or inaction of the parties, have an obligation to ensure

that rights and liabilities, civil or criminal, are determined within a reasonable time. These changes, and others, mean that

comfortable assumptions on the part of a minority of litigants of almost endless indulgence must end. Cases such as those

mentioned above will fall to be interpreted and applied in light of the countervailing considerations also mentioned above

and others and may not prove as easy an escape from the consequences of dilatoriness as the dilatory may hope. The

principles they enunciate may themselves be revisited in an appropriate case.”

In Desmond v. M.G.N. Ltd [2009] 1 I.R. 737 I expressed the view, albeit a minority view in that particular case, that the requirement

to move legal proceedings forward with expedition in this jurisdiction has necessarily become more stringent following the coming into

operation of the European Convention on Human Rights Act 2003. Otherwise a strange paradox would arise whereby less weight is

now to be accorded by our courts to the requirements of the Convention following the passing of the Act of 2003 than was the case

prior to its enactment when Convention principles and the case law of the European Court of Human Rights were accorded highly

persuasive status. The recent decision of that Court in the case of McFarlane v. DPP [2010] ECHR 1272 (10th September 2010) to

award damages against this State for delay in processing legal proceedings only reinforces my view in relation to problems of delay

that, as Hardiman J. put it in Gilroy v. Flynn, “comfortable assumptions on the part of a minority of litigants of almost endless

indulgence must end”.

I am of the view that, in addition to the central tests laid down in the Irish cases cited above – first that the court be satisfied that

the delay is inordinate and inexcusable, and second that, where inordinate and inexcusable delay is established, the court must

decide where the balance of justice lies – regard should be had to the requirements of Art. 6 of the ECHR and that consideration of

the ECHR requirements should be added to the non-exhaustive list of factors to which regard should be had by the court in the

exercise of its discretion, as set out in Rainsford and Primor. At present two decisions of the Supreme Court support this view while

one adheres to the view that the traditional Irish jurisprudence, as enunciated in Rainsford and Primor, adequately and

comprehensively state all of the relevant principles.

However, on application of either set of principles to the case at hand, it is clear that the defendant has discharged the burden of

establishing that the plaintiff’s delay has been inordinate. The plaintiff has failed on several occasions to prosecute her claim and has

instead sought adjournment after adjournment from the court.

In relation to the excusability of the delay, it is noted that the plaintiff travelled from Germany to Clonmel, Co. Tipperary on three

different occasions to give evidence in the criminal prosecution of the defendant. The plaintiff suffers from an Arnold-Chiari

Malformation and COPD, and the medical report of Dr. Kroner of the 12th April, 2010 states that it would be unreasonable to expect

the plaintiff to endure longer periods of travel, stressful situations or an interruption of continuous treatment. The report further

states that, in respect of both diseases, it can be expected that the plaintiff’s condition may deteriorate at any time through physical

and psychological stress. In the plaintiff’s medical report of the 21st January, 2011, Dr. Kroner accepts that the plaintiff’s health

condition has not changed greatly, but nevertheless states that she would be fit enough to travel to Ireland in May or June of this

year.

On the 15th June, 2010, the High Court said that the defendant could issue the motion in hand in the event that the plaintiff did not

confirm that she was ready to proceed at the next sessions of the High Court jury cases. On the next call-over of the jury list on the

19th January, 2011, there was no representation on behalf of the plaintiff before the court and the Notice of Trial was struck out. It

was not until after this date that a turnaround in the plaintiff’s condition was reported, and this Court is not satisfied that such a

change occurring after the eleventh hour comes within the ambit of an excuse such as would suggest that the Notice of Trial be

reinstated.

In considering whether the balance of justice lies in favour of or against the dismissal of the action, the Court must take into account

a number of considerations. The defendant claims that he has been “very much prejudiced” by the delay of the plaintiff. Although he

does not point to any specific prejudice, the defendant has been significantly disadvantaged by the lapse of time in this case. The

subject-matter of these proceedings has, by now, allegedly occurred between 39 to 41 years ago. It must be accepted that the

passage of such a period of time has a very real impact on memory and the reliability of evidence. There are immediately obvious

effects, such as the ability to mount an effective cross-examination, with all the ensuing consequences for the basic fairness of

procedures at trial.

There has been no delay in the case on the part of the defendant which would amount to acquiescence in the plaintiff’s delay.

Significant weight must also be given to the damage to the defendant’s reputation which is inevitably produced by such lengthy

delay. Due to the delay on the plaintiff’s part, he has been prevented, notwithstanding his acquittal on any criminal charge, from

defending the action and refuting the very serious allegations therein. The defendant has stressed his urgent need to achieve finality

in the case and was entitled to expect that when the plaintiff’s advisors were put on a strict timetable after years of delay that they

would adhere to it.

These proceedings have been in existence since November 2006, and I believe that to allow the plaintiff to proceed in the matter in

the circumstances outlined above would be unfair to the highest degree.

For these reasons I would grant the application to dismiss the claim on the grounds of both the Statute of Limitations and for want of

prosecution. In the circumstances, it is unnecessary to make a determination in relation to the defendant’s application for security for

costs.