Irish Court of Appeal

 

THE COURT OF APPEAL

UNAPPROVED

 

Neutral Citation Number: [2025] IECA 64

Record Number: 2024/68

High Court Record Number: 4986P/2022

 

Woulfe J.

Noonan J.

Burns J.

 

 

BETWEEN/

 

STEPHEN BEATTY

PLAINTIFF/APPELLANT

 

-AND-

 

WALTER BEATTY (REPRESENTED BY HIS GUARDIAN AD LITEM WALTER BEATTY JUNIOR)

 

DEFENDANT/RESPONDENT

 

 

 

JUDGMENT of Mr. Justice Noonan delivered on the 19th day of March, 2025

1.             As has been observed by this Court on more than one recent occasion, applications to dismiss claims for delay are among the most common that come before the courts.  It is now over four decades since the seminal judgment in O'Domhnaill [1] was delivered and almost three since Primor [2] was decided.  One might have thought that most, if not all, possible issues around delay should by now be well-settled.  Yet, the Superior Courts continue to deliver significant judgments in this area, notably most recently, the judgment of the Supreme Court in Fingleton [3].  Perhaps surprisingly, one issue that arises in this case concerning alleged sex abuse appears not to have been directly considered before.  Can a defendant, who seeks to have a claim dismissed for delay, succeed where the delay complained of has been allegedly caused by the wrongdoing of that defendant?

2.             It is by now well-known and understood that it is a very common feature of sex abuse that it can take a long period of time, often measured in decades, before the victim comes forward with a complaint or claim.  The reasons for such long delays are well documented in the many judgments of our courts on this question.  More often than not, the trauma suffered by the victim, usually in childhood, renders them unable to complain for many years.  The disability thus arising is given statutory recognition in the Statute of Limitations (Amendment) Act, 2000 ("the 2000 Act"). 

3.             The fact that such delays occur inevitably means that by the time a case comes to trial, the landscape will frequently have changed, often very significantly.  The alleged perpetrators may be old and infirm or even deceased and the same may be true of relevant witnesses.  In such cases, the court is called upon to strike the often difficult balance between the right of the victim to have their claim heard and the right of the alleged abuser to have a fair trial.

 

 

Background

4.             The appellant (the plaintiff) is a consultant ophthalmic surgeon, recently retired from clinical practice.   The defendant, who died recently, [4] was his father.  The defendant had eight children with his wife, Mrs. Frances Beatty, also now deceased.  The plaintiff claims that in or about May 1981, when he was fifteen years old, he was on a visit home from boarding school when he was sexually assaulted by his father.  He claims that the abuse occurred on one occasion at night in the bedroom he shared with his brother John.  The plaintiff claims that John, who is also now deceased, was a witness to the abuse.  The plaintiff believes his mother was aware of what had happened as were his siblings.  He describes the abuse as being an "open family secret" but that a family "omerta" developed around the event.  This is disputed by the defence. 

5.             In 2003, the plaintiff wrote a letter to each of his siblings giving a detailed account of the alleged abuse and asking them for their support.  Ultimately, the plaintiff reported the matter to the gardaí in 2017 and an investigation was commenced.  During the course of the investigation, the defendant and a number of siblings and friends of the plaintiff made statements to the gardaí.  The defendant was interviewed under caution and a record of the interview is available together with a prepared statement submitted by the defendant to An Garda Síochána. 

6.             Following the investigation, a file was prepared for the Director of Public Prosecutions and in 2019, the DPP initiated a prosecution against the defendant.  The matter appeared before the District Court on a few occasions, but in December 2019, the defendant suffered a significant stroke which is said to have rendered him unable to engage further with the proceedings.  The plaintiff's brother John, who had made a statement to the gardaí, died on the 24th June, 2020.  Shortly thereafter on the 20^th July, 2020, the DPP entered a nolle prosequi.  The plaintiff's mother Frances died a year later on the 12^th July, 2021. 

7.             These proceedings issued on the 27^th September, 2022.  The guardian ad litem ("the guardian") was appointed on the 28^th November, 2022 and the statement of claim delivered on the 23^rd January, 2023.  The defendant brought the within motion to dismiss the proceedings on the 23^rd March, 2023.  The motion is brought on the basis that there is a real and serious risk of an unfair trial by virtue of the delay in this case. 

Chronology

8.             What follows is a chronology of relevant events drawn from the papers before the Court.  In setting out these matters, I express no view as to the admissibility in evidence of the source of the information.  Rather, this is an attempt to identify possible or potential evidence that may become relevant if this matter were to proceed to trial.

9.             The alleged abuse occurred in May 1981.  The plaintiff says that his brother John was in the other bed in the room, facing away from the plaintiff and apparently asleep.  The plaintiff's evidence is that during the course of the assault, his father told him that he loved him "more than the others".   

10.         The next morning the plaintiff claims to have had a conversation with his mother in which she asked where his father had been the previous night and what he was doing in the plaintiff's bedroom.  Although the plaintiff did not disclose what had happened, he formed the belief that his mother knew what had occurred.

11.         Approximately a month later, the plaintiff says that he was again home from school when his father pulled him aside outside the kitchen and said that what happened shouldn't have happened and that he was sorry. 

12.         A couple of months later, in or around August 1981, the plaintiff says that John repeated back to him that their father had said that he loved the plaintiff more than the others. The plaintiff took this as confirmation that John was not in fact asleep during the assault but was awake and heard what occurred.

13.         The plaintiff's brother, Louis Beatty, made a statement to the gardaí on the 3^rd August, 2018 during the course of the investigation.  In it, he says that he was aware of the incident and there were two main things which brought it to his attention or knowledge.  The first was a discussion with the plaintiff himself which Louis says occurred during the Easter holidays in either 1981 or 1982.  He met the plaintiff at home and he was crying.  He had a discussion with the plaintiff during which the abuse was disclosed.  Louis says that the second thing which brought the incident to light occurred at Christmas 1983.  He was alone in the kitchen with his father when his father admitted an episode of abuse with the plaintiff.  Louis says that all his siblings became aware of the abuse between 1983 and 1989.  In the conversation in the kitchen with the defendant, Louis says the defendant asked him if the plaintiff had disclosed the abuse to him and Louis denied that he had, which was "clearly a lie". 

14.         In his replying affidavit in this application, the plaintiff says that he told his eldest brother, Walter Jnr., the guardian herein, in or around 1984 about the assault.  The plaintiff avers:

"The now guardian ad litem chortled and said that he knew because the defendant had confessed to him.  His words to me were 'Yeah I know.'  I remember this clearly as the now guardian ad litem was smoking a Rothmans cigarette.  We were in the room at Richview House which is known as 'the Green Room' and also as 'the Long Room.'"

15.         The guardian denies that this exchange occurred.  A friend of the plaintiff, Patrick O'Reilly, made a statement to the gardaí on the 5^th September, 2018.  In it, he says that he was a school friend of the plaintiff and the plaintiff stayed with his family in the summer of 1984 during which they received their Leaving Certificate results.  Mr. O'Reilly confirms that the plaintiff told him of the abuse by his father on that occasion. 

16.         In the same affidavit, the plaintiff describes the events of his 21^st birthday which fell on the 26^th December, 1986.  The plaintiff says that he was woken early by the defendant, who appeared not to have slept and was drunk.  The defendant brought him in his car to a number of different Catholic churches in order to find a mass to attend.  The plaintiff alleges that the defendant told him that he had confessed the abuse to a priest several days previously and had not taken communion in the previous five years as a consequence of not confessing until then.  Having confessed, he now wished to take communion and wanted the plaintiff to take communion with him which the plaintiff believes that the defendant saw as a symbolic act.

17.           The plaintiff believes that the defendant told both the guardian and Louis of this event and his satisfaction at having confessed.  The plaintiff says that Louis told him that the defendant had said to Louis words to the effect "in fairness to Stephen he never told anyone."  Some days later, the plaintiff says that Louis had an argument with the defendant concerning the plaintiff in which he said to the defendant "didn't you say Stephen was good not to tell?" and that the defendant shouted at him "I won't have that used against me." The plaintiff claims to have told his brothers Frank and Robert some time after this.  He believes that all his siblings and his mother were aware of the abuse but there was a family "omerta" surrounding it.  This is denied by the defence.

18.         The plaintiff avers further in his affidavit that his 2003 letter was triggered by a dinner he and his wife Michelle attended with his parents at a hotel.  The plaintiff had a heated argument with the defendant over dinner about an unrelated topic and said to the defendant "You know what this is really about" which the defendant denied.  Another friend of the plaintiff, Conor McCarthy, made a statement to the gardaí on the 19^th February, 2019 in which he says he attended at this dinner which he describes as an uncomfortable evening.

19.           He says that after the dinner Stephen was upset and indicated that his father had done something inappropriate to him as a child but there was no detail provided.  The plaintiff says that he told his wife about the abuse that evening for the first time.  The plaintiff avers that his wife and mother spoke by telephone the next day when the plaintiff's wife told Mrs. Beatty about the sexual assault and the plaintiff's mother replied that she would "have to talk to Walter".  The plaintiff says this prompted the writing of the letter to all his siblings which is exhibited in his affidavit and is dated the 8^th April, 2003. 

20.         It would appear that in or around this period in 2003, the plaintiff had a number of counselling sessions and was advised by his therapist not to formally report the abuse as this might re-traumatise him. 

21.         Following writing this letter, the plaintiff says that John and his partner travelled to visit the plaintiff and his family and during that visit, John stated that he could not support the plaintiff because John and his family were financially dependent on the defendant.  However, John "was clear that he remembered the night of the assault."

22.         The garda investigation commenced with the making of a formal statement by the plaintiff on the 15^th December, 2017 detailing many of the matters to which I have already referred.  All the statements made during the course of the garda investigation were disclosed prior to the hearing in the High Court as a result of an order for discovery made by that court on the 11^th December, 2023.  The affidavit of discovery was sworn on the 8^th January, 2024 with the hearing taking place on the 18^th January, 2024.  In addition to the matters already referred to above, the plaintiff's research partner, John Nolan, made a statement on the 18^th February, 2019 in which he says that the plaintiff disclosed the abuse to him in November 2013.   

23.         Mrs. Beatty Snr. made a statement to the gardaí in pre-prepared format.  In essence she denied any knowledge of the alleged assault until she was informed of it by the plaintiff's wife in the telephone call already mentioned.  She specifically denied seeing anything through the crack in the door of the plaintiff's bedroom on the night in question, something about which the plaintiff speculated in the letter to his siblings and his statement to the gardaí.

24.         The plaintiff's sister Lorraine Schaefer provided a statement in which she said that she was unaware of any alleged assault by her father until she received the 2003 letter.  She did not believe that the incident ever took place.  John Beatty made a statement to the gardaí on the 4^th December, 2018 in which he said that the 2003 letter was the first he had heard of any allegation against his father.  He denied that any event of the kind described by the plaintiff had ever occurred.  He further denied saying that he had heard his father say to Stephen that he loved him more than the others. 

25.         The defendant provided a prepared statement dated the 31^st of October, 2018 to the gardaí saying, inter alia, "the allegations Stephen has made in these letters never occurred.  I have never behaved inappropriately with Stephen or any of my children."  The letters referred to are the 2003 letters written to the plaintiff's siblings.

26.         The discovery documents also include a memorandum of an interview conducted by the gardaí under caution with the defendant at Rathmines Garda Station on the same day, the 31^st October 2018.  Beyond giving basic information in relation to himself, the defendant responded to all questions, "No comment".

27.         As already alluded to, the prosecution commenced in 2019 and in December of that year, the defendant suffered a serious stroke which rendered him incapable of further engagement with the proceedings.  John Beatty died on the 24^th June, 2020 and on the 20^th July, 2020, the DPP entered a nolle prosequi.  The plaintiff's mother Frances Beatty died on the 12^th July, 2021.

28.         On the 25^th April, 2022, the plaintiff's solicitors wrote a letter before action to the defendant.  An application was made to the Personal Injuries Assessment Board, as it was then known, on the 19^th May, 2022 and on the 24^th May, PIAB responded with an authorisation on the basis that it was not an appropriate case in which it should make an assessment. 

29.         On the 26^th May, 2022, the plaintiff was assessed by Dr. Alan Murtagh, Consultant General Adult Psychiatrist, who issued a report on the 29^th May, 2022.  In the opinion/conclusion section of his report, Dr. Murtagh expresses the view that the incident complained of by the plaintiff has caused symptoms consistent with Post Traumatic Stress Disorder.  At paragraph (d) of his conclusions, Dr. Murtagh says:

"Impairment and why it took so long to come forward about the abuse.

Since the abuse Mr. Beatty has suffered from symptoms that are consistent with a diagnosis of PTSD. 

As outlined above there is a clear history of flashbacks, unwanted remembering, psychological distress at reminders, and avoidance of reminders including discussing the abuse.

Some of the features such as anger, hypervigilance and an altered view of the world have changed as his children have gotten older and after he disclosed the abuse to the Gardaí.

However, there have been enough symptoms present consistently over the time when Mr. Beatty could have reported the abuse to state that symptoms of PTSD impaired Mr. Beatty to the point where he did not report the abuse until 2017."

In his summary, Dr. Murtagh says:

"Mr. Beatty was the victim of sexual abuse as outlined above.  Mr. Beatty continues to suffer from PTSD as a result of the abuse.  Although some of his symptoms have reduced since 2017, key symptoms were consistently present from after the abuse to the current time.  These symptoms impaired Mr. Beatty to the extent that he was unable to report the abuse until the time he did."     

30.         The within proceedings were issued on the 27^th September, 2022 by way of plenary summons.  The guardian was appointed on the 28^th November, 2022 and an appearance was entered on the 19^th December, 2022.  A statement of claim was delivered on the 23^rd January, 2023 and an amended statement of claim on the 24^th January, 2023.  The essence of the plaintiff's claim in these proceedings is for damages for the sexual assault together with aggravated and punitive damages.  The within motion to dismiss was issued on the 23^rd March, 2023. 

 

 

 

Evidence in the High Court

31.         In the affidavit grounding this application, the guardian avers that the plaintiff's delay in bringing these proceedings has given rise to a real and serious risk of an unfair trial.  The only witnesses as to fact, apart from the plaintiff, are both deceased, namely his brother John and mother Frances.  The defendant, at that time, suffered from significant cognitive impairment as a result of the stroke rendering him unable to instruct lawyers or defend the claim herein.  He disputes the credibility of the plaintiff's complaint and suggests that the allegations are contradicted by and seriously inconsistent with other statements made by the plaintiff and with his actions over the last several decades.  He explicitly denies any knowledge of the alleged abuse until he received the 2003 letter.  He says that Mrs. Beatty denied any awareness of the event at the time it occurred.

32.         The guardian says that the plaintiff has been guilty of inordinate and inexcusable delay in issuing the proceedings and that this delay has prejudiced the defendant's ability to meet the claim.  He avers that the defendant has always denied the allegations.  He also says that the plaintiff's claim is statute barred and bound to fail.

33.         In his replying affidavit, the plaintiff takes issue with all of these claims.  He sets out the factual background in detail as above.  He states his belief that he is not culpable of delay that is either inordinate or inexcusable and that it is common for decades to pass between the occasion of sexual abuse and the reporting thereof.  He suggests that it is rare for such periods of time not to be excused.  He says it is his understanding that civil proceedings are ordinarily not commenced or progressed where criminal proceedings in the same matter have not been concluded.  He describes the circumstances of his estrangement from his siblings, with the exception of Louis, and refers to the family "omerta", as he describes it, concerning the incident. 

34.         In response to this affidavit, the guardian swore a second affidavit in which he reiterates that "justice is put to the hazard" by virtue of the events that have occurred consequent upon the delay in bringing the proceedings, and in particular the death of John Beatty, Frances Beatty and the disability of the defendant.  He instances particular allegations made by the plaintiff which those witnesses would have been able to address.  He disputes the plaintiff's suggestion that he was unable to bring the proceedings due to his PTSD and draws attention to the fact that in his statement to the gardaí, he appeared to base the making of his complaint on the fact that he felt his father was not contrite about his remorse and also expressed concern about his, the plaintiff's, name being in the public domain.  He says that the writing of the 2003 letter is inconsistent with an inability to report the matter until 2017.  Even then, he did not commence proceedings until five years later in 2022.  He points to the fact that the plaintiff appears to have reconciled with his parents in 2009 and socialised with them thereafter.  He denies the plaintiff's suggestion that the guardian coerced his siblings not to corroborate the plaintiff's claims. 

35.         The guardian's second affidavit was replied to by a second affidavit from the plaintiff.  He refers to the relevance of the garda file, also referenced in his first affidavit, which he says is likely to be relevant in circumstances where it was not at that stage disclosed.  He says that despite what the guardian alleges about the plaintiff's delay, the DPP nonetheless saw fit to bring a prosecution.  He suggests that the evidence of his mother and his brother John are not central to the claim and that because of the nature of the proceedings, there are usually no direct third-party witnesses in such claims.  

36.         The plaintiff reiterates his belief that there is sufficient evidence and living witnesses for there to be a fair trial of the action. 

 

Judgment of the High Court

37.         In the introduction to her judgment, the judge said that she had decided to dismiss the proceedings because the "core facts cannot be fairly and properly determined by reason of the unavailability of crucial evidence due to the lapse of time."  The judge then proceeded to set out the background and the reasons for making an order for discovery of the garda file, which is no longer controversial. 

38.         In the "Discussion and Decision" section of the judgment, the court noted that the 2000 Act extended the time limit for taking proceedings for sexual assault which recognised the special circumstances of such cases where, by reason of the wrongdoing of an abuser, the victim has been impaired in pursuing a legal remedy within normal time limits (at section 2).  She went on to say:

"The institution of proceedings following a long period of delay, notwithstanding that it may not be statute barred, throws up problems not least the difficulty, and sometimes the impossibility, of finding evidence with which to rebut a false claim.  Section 3 of the 2000 Act recognises this difficulty by providing:

'Nothing in section 48A of the Statute of Limitations 1957, (inserted by section 2 of this Act) shall be construed as affecting any power of a court to dismiss an action on the ground of there being such delay between the accrual of the cause of action and the bringing of the action as, in the interests of justice, would warrant dismissal.'"

39.         The judge noted that the fact that an historical claim may not be statute barred does not preclude the exercise of this jurisdiction.  She referred to the fact that the application before her was moved both on the basis of the court's inherent jurisdiction to dismiss for want of prosecution in reliance on the three limb test set out in Primor and also the court's jurisdiction to dismiss where, by reason of the passage of time, there is a real and substantial risk of an unfair trial, being the test identified in O'Domhnaill. 

40.         The judge referred to a number of authorities opened by the parties on which particular reliance was placed including IBRC v Fingleton [5], ST v Clifford [6] and Whelan v Lawn [7].  The judge noted that the plaintiff's position in opposing the application was that the Primor principles apply only in the case of post-commencement or "prosecutorial" delay and did not arise in this case.  She noted also the argument on behalf of the plaintiff that his impairment with regard to the commencement of proceedings was occasioned by the alleged abuse and therefore attributable to wrongdoing on the part of the defendant which could not properly be relied upon to defeat the plaintiff's claim, the issue identified at the commencement of this judgment.

41.           The judge noted the plaintiff's further contention that the O'Domhnaill test was not met because the delay was delay for which the defendant was responsible.  She noted the plaintiff's submission that the threshold for dismissal was not reached as evidence was available that the defendant had admitted some form of wrongdoing to some of the plaintiff's siblings and the occurrence of the abuse was an open family secret.

42.         The plaintiff also advanced the contention that the High Court should defer its decision pending the determination by the Supreme Court of the Fingleton case, in which, since the hearing of this appeal, the Supreme Court has now delivered judgment.  The court considered and rejected this application.

43.         In paragraphs 60 to 79 of her judgment, the judge considered the applicable test to be applied to the facts of this case and whether it should be the O'Domhnaill or Primor test.  She noted the argument advanced by the plaintiff that the Primor test is not applicable here because it does not apply in respect of pre-commencement delay.  In respect of this submission, the court said (at para. 60):

"Kelly v O'Leary is, however, authority for the proposition (subsequently confirmed by Irvine J. in Cassidy v The Provincialate [2012] IECA 74) that the Primor test can be applied to pre as well as post-commencement delay, contrary to the submission made on behalf of the Plaintiff."

44.         She referred to the fact that case law since the decision in Kelly v O'Leary [8] demonstrates that there continues to be two strands of jurisprudence (at para. 61):

"Notably, one strand of jurisprudence requires the establishment of patent prejudice arising from delay (e.g. Whelan v Lawn [2014] IESC 75 and S.T. v Clifford [2023] IEHC 458) whereas the other requires merely mild or moderate prejudice in the case of inordinate delay which is not excusable (e.g. Millerick v Minister for Finance [2016] IECA 206; Gibbons v N6 (Construction) Limited [2022] IECA 112, Cave Projects Limited v Kelly [2022] IECA 245 and Nahj Company for Services v Royal College of Surgeons Ireland [2023] IEHC 453).  As noted above, the Plaintiff maintains that the first does not apply where the delay is occasioned by the alleged abuse itself because culpability for same lies with the Defendant whereas the second does not apply where delay is excusable due to the nature of the abuse consequent upon impairment occasioned by the abuse."

45.         The judge considered that a review of the case law disposed of both of those contentions.  The judge analysed the relevant authorities which she considered supported that conclusion.  I will consider these further below.  She found that the authorities showed that it was not necessary to demonstrate culpable delay on the part of the plaintiff to dismiss proceedings where a patent unfairness of the trial is demonstrated.  Importantly, the judge said in this regard (at para. 73):

"Dismissal is a consequence of unfairness in the process resulting from delay, irrespective of where the fault for delay lies." (My emphasis.)

46.         The judge cited the decision of Clarke J. (as he then was) in Nash v DPP [9] and considered that the judgment marries the O'Domhnaill and Primor jurisprudence as representing different types of delay case which each justified dismissal of proceedings.  In a comment on these decisions, the judge said (at para. 75):

"On the one hand real prejudice warrants dismissal even when coupled with no fault or non-culpable delay on the part of the plaintiff and culpability on the part of a defendant, whereas on the other hand general prejudice suffices if culpable delay on the part of a plaintiff is present... It seems to me that the clear dicta in Whelan and in Nash must dispose of the Plaintiff's contention that his proceedings cannot be dismissed on delay grounds if delay is occasioned by an impairment resulting from the Defendant's alleged culpable behaviour." (My emphasis.)

47.         In saying this however, the judge accepted the need for "very exceptional circumstances" to dismiss sex abuse claims on delay grounds alone, saying (at para. 76):

"Refusing to dismiss on delay grounds alone absent very exceptional circumstances in cases of this type is consistent both with legislative policy as seen in s. 48A and the significant constitutional imperative in favour of all issues of rights, liabilities or obligation being determined on the merits in a trial at which all admissible and relevant evidence is analysed and the law properly applied to the facts which thereby emerge."

48.         While as noted above, the judge considered that the Primor test could be applicable to the facts in this case, she went on to apply the O'Domhnaill test because (at para. 77):

"In the absence of any appreciable post-commencement or prosecutorial delay in this case, I have decided that it is more appropriate that I first consider whether it is established by the Defendant that the right to a fair trial is on a real hazard in a manner which cannot be cured (in other words based on O'Domhnaill principles).  I adopt this approach in circumstances where:

i.        it is well established that pre-commencement delay in historic sexual abuse cases may be excusable for reasons which at least over-lap with the considerations under the Statute of Limitations in terms of impairment (a matter for medical evidence) by reason of the abuse complained of;

ii.       medical evidence is relied upon in this case; and

iii.      the level of prejudice caused is claimed to meet both the test in Primor and O'Domhnaill."

49.         The judge went on to say that her starting position was that the proceedings should be permitted to continue to trial despite gross delay which is clearly inordinate unless she was satisfied that there is a real and substantial risk of unfairness in requiring the defendant to meet the case.  She proposed to apply the "no true trial on the merits is capable of being conducted" test featured in Nash v DPP and S.T. v Clifford.  In saying that, however, the judge emphasised that she did not accept the plaintiff's submission that Primor has no application to pre-commencement delay in para. 79:

"In electing to proceed on this basis, I wish to make clear that I do not agree with the submission made on behalf of the Plaintiff that the Primor test has no application in respect of pre-commencement delay.  I am satisfied from the case law (not least Nash v DPP) that the Primor test is capable of, and has been applied, to both pre and post commencement delay and may be relied upon to dismiss proceedings on delay grounds even in a case which might not otherwise be statute barred by reason of pre commencement delay.  Contrary to what was submitted on behalf of the Plaintiff, it does not necessarily follow that the presence of 'substantial impairment', if established, which impeded the earlier institution of the proceedings will always constitute a full excuse for delay to defeat the application of the Primor test.  The test of excuseability as part of the Primor test is fact dependent and is a separate and distinct test to that which normally rests on a finding on medical evidence of 'substantial impairment' within the meaning of s. 48A of the 2000 Act."

50.         The judge then proceeded to apply the O'Domhnaill test to the facts of the case and found that because of the defendant's then disability, a hearing on the core issue in the case, whether the defendant abused the plaintiff, is so prejudiced by his unavailability and the death of central witnesses that the fairness of trial would be placed on hazard.  She noted that the defendant had denied the occurrence of the abuse in his statement to the gardaí but could not now give evidence which Hardiman J. described in Whelan as "the grossest imaginable prejudice". 

51.         The judge pointed to the fact that the delay in bringing the proceedings meant that key allegations made by the plaintiff in relation not just to the defendant but also his brother John and his mother could no longer be answered as those parties are now deceased.  This meant that the issues could no longer be resolved satisfactorily.  In this regard, the judge said (at para. 89):

"... The unavailability of the only three witnesses of fact who were alleged to have direct knowledge of the abuse and who each denied it, represents an irretrievable prejudice in the defence of the proceedings.  I am satisfied that the core issue of fact which requires to be determined, namely whether the abuse occurred or not, can no longer be safely resolved.  No witness to that event itself remains available to be heard in defence to the Plaintiff's evidence that abuse occurred."

52.         While the judge accepted that there was other relevant evidence to be led by the defence in the case, this was not central to the main disputed fact, namely the event of the abuse itself.  This evidence alone would not "maintain the balance of a fair trial."

53.         Having determined that O'Domhnaill type prejudice had been established, the judge went on to consider whether the facts met the Primor test also which required a "lesser level of prejudice".  She held that this must follow.  She recognised that before she could get to a consideration of the balance of justice, she would first have to be satisfied that the plaintiff's delay had not been excused, or was culpable.  While it was not necessary to determine that question, she nonetheless considered it, evidently on an obiter basis.

54.           She expressed the view that the medical evidence went some way to explain the plaintiff's delay but it is an open question as to whether it fully excuses it.  In this regard she referred to the plaintiff's statement to the gardaí as to his reasons for delay including that the defendant was not sufficiently "contrite about his remorse" and because he wished to avoid publicity for professional reasons at that time.  She held that this tended to undermine the justification afforded by the medical evidence.  She also noted that the medical evidence went only as far as 2017 and the delay between 2017 and 2022 was not thereby excused. 

55.         The court noted that the fact that criminal proceedings were in being was not an impediment to the commencement of civil proceedings even if conventionally any criminal proceedings will be determined first in time.  The judge considered that very little by way of justification was advanced for the 2017/2022 delay.  This was a critical period having regard to the defendant's stroke and the subsequent deaths of the plaintiff's brother and mother.  She considered that the post-2017 period of largely unexplained delay tilted the balance of justice in favour of dismissing the proceedings and accordingly the outcome under both the O'Domhnaill and Primor tests would be the same.

56.         The court concluded that as the defendant is not able to call evidence on the issue of whether abuse occurred, any hearing would lack that mutuality and fairness which have been found to be essential for the administration of justice.  She therefore dismissed the claim. 

Motion to admit new evidence

57.         Prior to the hearing of the appeal, the plaintiff brought a motion to admit additional evidence before the Directions Judge, who determined that it should be heard in tandem with the appeal by the same panel.  The evidence which the plaintiff seeks to admit is that of Ms. Vivienne Byrne, the life partner of the late John Beatty.  In support of the motion, the plaintiff swore an affidavit as did Ms. Byrne.  Ms. Byrne avers that subsequent to John Beatty's death, she recently contacted the plaintiff concerning a matter unrelated to these proceedings.  In a telephone conversation, the plaintiff asked Ms. Byrne if she was aware of the within litigation.  She says that she was not so aware but was aware that the circumstances described by the plaintiff had previously been disclosed to her by the late John Beatty.

58.           She says that she was told by John Beatty about an incident that occurred in a bedroom shared by him and the plaintiff corresponding with the plaintiff's evidence about the incident.  Ms. Byrne says that John told her that he was absolutely terrified about the incident which seemed to go on for ever but realistically may have lasted 15 to 20 minutes.  The incident was stopped when the plaintiff's mother, from outside the bedroom, called for the defendant to come out.  Ms. Byrne says that the incident had a deep impact on John over a long number of years.

59.           In addition, John told Ms. Byrne that the defendant addressed the family some time after the incident and said that he had gone to a priest to seek forgiveness.  She says further that John told her that he was pressurised by family members to give a false account of what had happened to An Garda Síochána and to indicate to the gardaí that the incident had never happened.

60.           This application was heard in tandem with the main appeal, with the Court indicating to the parties that it would not rule upon it in advance of the appeal but rather in the course of the substantive judgment.  For the reasons hereinafter appearing, it is not in my view necessary to decide this application in order to dispose of the appeal, while noting that it was fully contested.

The appeal

61.         The plaintiff contends that the judge was wrong to conclude that the core facts could no longer be established by virtue of the absence of any direct witnesses other than the plaintiff, this being, it is said, a common feature in cases involving historical sex abuse.  It is said further that the judge erred in considering that the Primor jurisdiction applied in the absence of post-prosecution delay and this determination by the judge is not supported by either Kelly v O'Leary or Nash v DPP.   The plaintiff says that the judge conflated the Primor and O'Domhnaill tests and in any event applied them incorrectly to the facts.

62.           It is said that the judge misapplied the decision of the Court of Appeal in Fingleton and ought not to have proceeded pending the determination of the appeal to the Supreme Court in the same case.  The judge was also wrong not to attach any weight to the culpability of the defendant with regard to the delay that had occurred in the proceedings.  The judge is said to have failed to sufficiently interrogate the evidence contained in the garda file and have regard to the fact that witness statements in favour of the defendant were in the possession of the guardian before the prepared statements of the defendant and others were given to An Garda Síochána.  The judge failed to have regard to the fact that in the light of the defendant's "no comment" interview with the gardaí, the likelihood was that he would not have given evidence at the trial.  The judge attached undue weight to the position of the defendant as against that of the plaintiff regarding available evidence. 

63.         In oral submissions, counsel for the plaintiff placed particular emphasis on the latter proposition.  He submitted that the judge's focus was entirely on the position of the defendant without any proper consideration of that of the plaintiff.  This was not a case like Whelan v Lawn where the defendant would have nothing to say in response to the allegations.  On the contrary, there was a great deal of evidence that the defendant would be in a position to call.  The plaintiff enjoys a constitutional right to have his case determined on the merits in court and it should be for the trial judge to determine any questions of prejudice of the kind raised by the defendant in this application.

64.           Counsel drew particular attention to the fact that the defendant had never delivered a defence before this motion was heard and it was not known yet what case would be made in that regard.  Counsel urged the court to follow the approach of the High Court in S.T. v Clifford where, notwithstanding the death of the alleged abuser, the case was permitted to proceed to trial.  He instanced the fact that a significant aspect of the plaintiff's claim is that the defendant made admissions of the abuse to third parties and the defence is in a position to call witnesses on this issue.  The High Court failed to consider the evidence of the plaintiff concerning a family omerta and that of Louis Beatty, for example, which corroborates the plaintiff's account. 

65.         The defendant submits that the High Court correctly identified the legal principles and correctly applied them to the facts.  The defendant places particular reliance on the judgment of the Supreme Court in Whelan v Lawn suggesting that this case raises near identical issues.  The defendant submits that the plaintiff's contention that the High Court erred by failing to consider the defendant's alleged culpability (by causing the plaintiff to be impaired) for the delay in these proceedings is not relevant as a matter of law.  The fundamental concern which is at the core of the O'Domhnaill jurisdiction is whether a fair trial is possible or not.  Reliance is placed on the observation of Clarke J. in Nash v DPP (at para. 2.19(c)): -

"... a lapse of time which, irrespective of whether blame can be attached to any person, has rendered it impossible that a true trial on the merits can be conducted and has, therefore, placed whatever controversy might have been the subject of the trial beyond the reach of fair litigation..." (Defendant's emphasis.)

66.         The defendant submits that the High Court was correct to dismiss the claim on the basis of the O'Domhnaill jurisdiction but alternatively, the High Court order to dismiss should be affirmed on the basis of the Primor jurisdiction.  It is contended that the plaintiff's submission that pre-commencement delay cannot be taken into account under the Primor jurisdiction is incorrect as a matter of law. 

 

Does Primor apply to pre-commencement delay?

67.         While the High Court decided this case primarily on the basis of the O'Domhnaill test, it made a number of important findings in the alternative under Primor which should be addressed at the outset.  Primor involved two separate professional negligence claims by the plaintiff against two firms of auditors.  In each case, the defendants brought a motion before the Master of the High Court to dismiss the claim for want of prosecution under the 1986 edition of the Rules of the Superior Courts.  Order 63, rule 1(8) gave the Master jurisdiction to dismiss claims for want of prosecution.  O. 122, r. 11 provided that a defendant may apply to dismiss a claim for want of prosecution where there had been no proceeding for two years from the last proceeding.

68.           The plenary summons in each case was issued in 1984 but not served for a year and ultimately, the statement of claim was served in 1986.  Defences were delivered in 1990 and 1991 respectively and a motion was brought in 1993 with the High Court delivering judgment in 1994.  In the second case judgment was delivered in 1995, now over ten years since the proceedings had commenced.  The proceedings concerned events which occurred between 1967 and 1982 with the proceedings being issued two years after the end of that period. 

69.         The Supreme Court heard both cases together and delivered a single judgment in each from Hamilton C.J. and O'Flaherty J.  It is clear therefore that what the Supreme Court was dealing with was an application under the RSC to dismiss the proceedings for failing to prosecute them post-commencement. 

70.         In the first section of his judgment, Hamilton C.J. considered many of the relevant authorities both here and in England and Wales on the issue of post-commencement delay.  Many of these also concerned circumstances in which there had been a long delay in instituting the proceedings after the accrual of the cause of action.  Such delay is relevant to the court's consideration of post-commencement delay because a late start behoves a plaintiff to proceed with expedition.  In such cases, relatively little post-commencement delay might suffice to dismiss a claim where it would not in other circumstances.

71.           The Chief Justice cited with approval passages from two English judgments, the first Birkett v James [10], where Diplock L.J. stated:

"A late start makes it the more incumbent on the plaintiff to proceed with all due speed and a pace which might have been excusable if the action had been started sooner may be inexcusable in the light of the time that has already passed before the writ was issued."

72.         He also referred to the judgment of Lord Griffiths in Department of Transport v Chris Smaller (Transport) Limited [11]:

"The principles in Allen v Sir Alfred McAlpine and Sons Limited and Birkett v James are now well understood and I have not been persuaded that a case has been made out to abandon the need to show that the post writ delay will either make a fair trial impossible or prejudice the defendant.  Furthermore, it should not be forgotten that long delay before issue of the writ will have the effect of any post writ delay being looked at critically by the court and more readily being regarded as inordinate and inexcusable than would be the case if the action had been commenced soon after the accrual of the cause of action ..."

73.         In analysing the periods of delay by the plaintiff, the Chief Justice deals with each of the periods following the institution of the proceedings, while clearly cognisant of the long delay before that time.  In a passage that is by now extremely well-known, Hamilton C.J. summarised the relevant legal principles (at 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." (My emphasis.)

74.         I think it clear, in particular from the words to which I have attached emphasis, that all of these principles identified by the court arise in the context of an application seeking dismissal arising from post-commencement delay.  As noted above, the trial judge took the view that there were two authorities for the proposition that the Primor test can be applied to pre as well as post-commencement delay.  The first is Kelly v O'Leary [12].

75.           The plaintiff claimed to have suffered abuse at the hands of a religious order between 1934 and 1947.  Over fifty years later, she instituted proceedings in 1998. Kelly J. (as he then was) noted in his judgment that the defendant did not rely upon any delay subsequent to the institution of proceedings so the case was concerned solely with pre-commencement delay.  The court referred to the judgments in both O'Domhnaill and Primor, inter alia, citing the passage from Primor which I have set out above.  The court noted that counsel for the defendant suggested that Primor was principally concerned with delays in the conduct of proceedings instituted within the limitation period.  Counsel submitted that the tests in O'Domhnaill and Primor were different, the former being concerned with delays between the acts complained of and the commencement of proceedings whereas the latter with delays post their institution.

76.           Commenting on this submission, Kelly J. said (at 540):

"I do not propose to answer the interesting question as to whether or not there are two different tests.  Rather I will for the purposes of this case apply the [Primor] test which is the more demanding of the defendant and the more favourable to the plaintiff.  It was the test urged by counsel for the plaintiff and is in ease of her.  The issue of principle, if there is one, will have to be left to another day."

77.         It would appear that the court took this approach, without opposition, on the basis that Primor was more favourable to the plaintiff because the defendant would have to establish that the delay was both inordinate and inexcusable whereas under O'Domhnaill, it was unnecessary to do so.  He found that both criteria were satisfied and turning to the balance of justice, considered that this favoured the defendant in circumstances where virtually all the witnesses who might be available to the defendant had died.  Importantly, in the concluding passages of his judgment, Kelly J. said (at 544):

"I am satisfied that there is here a clear and patent unfairness in asking this defendant to defend this action after the lapse of time involved.  Actual prejudice has occurred to the defendant by reason of the delay.  The defendant has not contributed to this delay. 

There is here a real and serious risk of an unfair trial.  As a matter of probability the trial may amount to an assertion countered by a bare denial.  Indeed even the ability of this defendant to make a denial is doubtful in respect of a number of allegations.  Such an exercise would be far removed from the form of forensic inquiry which is envisaged in the notion of a fair trial in accordance with the law of this State.

Constitutional principles of fairness of procedure require that the action not proceed.  To allow the action to go on would put justice to the hazard." (My emphasis.)

78.         While therefore it is correct to say that the court applied Primor principles in Kelly v O'Leary to pre-commencement delay, it did so on a particular uncontested basis that this was in ease of the plaintiff.  Indeed, the court expressly said that the question of whether or not there are two different tests was an interesting one that would have to await determination in another case.   I think, however, it is by now beyond doubt that there are two different tests and most of the subsequent jurisprudence is consistent with that.

79.         Cassidy v The Provincialate [13] was another historical sex abuse case brought against a religious order where the alleged perpetrator was said to have been an employee of the order.  The abuse was alleged to have occurred between 1977 and 1980 and the proceedings issued in 2012.  The evidence suggested that the abuser was dead, there was no record of his employment and virtually all potential witnesses were either dead or unavailable.  Giving the court's judgment, Irvine J. (as she then was) referred to both O'Domhnaill and Primor, observing (at para. 32):

"While the Primor jurisdiction is usually exercised in proceedings where there has been post-commencement delay or a combination of pre- and post-commencement delay, the O'Domhnaill jurisdiction is most usually employed where, at the time the application to dismiss is brought, such a significant length of time has elapsed between the events giving rise to the claim and the likely trial date that the defendant can maintain that, regardless of the absence of blame of the part of the plaintiff for that delay, it would be unjust to ask to the defendant to defend the claim. The question most commonly considered by the court when exercising its O'Domhnaill jurisdiction is whether, by reason of the passage of time, there is a real or substantial risk of an unfair trial or an unjust result."

80.         The judge went on to observe that the plaintiff did not dispute "that she had been guilty of inordinate delay in instituting these proceedings" although it could not be stated that the action was necessarily statute barred.   The court considered that the plaintiff had been guilty of both inordinate and inexcusable delay and in a consideration of the balance of justice, referred to the fact that the defendant had not been guilty of any culpable delay in its conduct of the proceedings.  The judge considered the judgment of the Supreme Court, discussed below, in Whelan v Lawn saying (at para. 56):

"Having discussed earlier in this judgment the differences between the Primor and O'Domhnaill jurisprudence, it is worth noting that in Whelan the court did not consider whether or not the plaintiff had been guilty of inordinate and inexcusable delay, as the proceedings had been issued within the limitation period, but choose (sic) to dispose of the application to dismiss the proceedings on the basis of the O'Domhnaill principles."

The court went on to dismiss the claim. 

81.         While it is undoubtedly true to say that this Court in Cassidy applied the Primor test to pre-commencement delay, it did so in circumstances where it appears not to have been contested by the plaintiff that the court was entitled to do so.  Irvine J. expressed a somewhat different view subsequently in McNamee v Boyce [14]:

"Culpability is of course irrelevant when it comes to a consideration of pre-commencement delay as the Statute of Limitations permits proceedings be issued up to the very limit of the relevant statutory period. However, the court is entitled to consider the effect of post-commencement delay against the backdrop of the timeframe of events that preceded the issue of the summons, a factor that the trial judge appears to have overlooked."

82.         Other cases appear to support the proposition that the Primor test does not apply to pre-commencement delay.  In Stephens v Flynn [15], Clarke J. (as he then was), said (at para. 10):

"In Hogan v Jones [1994] 1 ILRM 512, Murphy J. having referred to [Rainsfort v Limerick Corporation [1995] 2 ILRM 561] further approved and applied a principle stated by Lord Diplock in Birkett v James [1977] 2 All ER 801 at p. 808 to the following effect:

'It follows a fortiori from what I have already said in relation to the effects of statutes of limitation on the power of the court to dismiss actions for want of prosecution that time elapsed before the issue of a writ within the limitation period cannot of itself constitute inordinate delay however much the defendant may already have been prejudiced by the consequent lack of early notice of the claim against him, the fading recollections of his potential witnesses, their death or their untraceability. To justify dismissal of an action for want of prosecution the delay relied upon must relate to the time which the plaintiff allows to lapse unnecessarily after the writ has been issued. A late start makes it the more incumbent upon the plaintiff to proceed with all due speed and a pace which might have been excusable if the action had been started sooner may be inexcusable in the light of the time that has already passed before the writ was issued.'"

83.         It will have been seen that the same judgment was referenced by Hamilton C.J. in Primor.  Recently in Comcast International Holdings Incorporated & Ors. v Minister for Public Enterprise & Ors. [16], Clarke J. cited both these judgments in the following passage (at para. 5.2):

"In addition it is clear from cases such as Birkett v James [1977] 2 All ER 801 (as adopted in both the High Court and this court in Stephens v Paul Flynn Limited) that a party who starts their proceedings late, while within the relevant period provided for in the Statute of Limitations, bears an added burden of progressing their proceedings with expedition.  The point is that the period within which proceedings have to be commenced is laid down by statute.  It is not for the courts to second guess the choice of period provided for by the Oireachtas."

84.         These passages were cited in the recent judgment of this Court in Padden v McDarby & Ors. [17] in which I said (at para. 18):

"... I think it is important to emphasise, as has been held in many cases, that Primor is primarily concerned with delay in prosecuting proceedings after those proceedings have been initiated.  Pre-commencement delay is, broadly speaking, not relevant for the reason that a plaintiff cannot be considered to have been guilty of culpable delay in instituting proceedings that are brought within the time period provided in that regard by the Statute of Limitations."

85.         Having cited the already mentioned dicta of Clarke J., I went on to say (at para. 21):

"Pre-commencement delay ... cannot be regarded as culpable but, as Birkett v James shows, it may have a bearing [on] a consideration of whether or not post-commencement delay is inexcusable or not.  It follows that if there is no post-commencement delay, pre-commencement delay is irrelevant and is solely governed by the Statute of Limitations."

86.         There is no suggestion of post-commencement delay in the present case on the part of the plaintiff and I am therefore satisfied that, in line with the above authorities, the Primor test is inapplicable on the facts of this case.  I must therefore respectfully disagree with the view of the learned trial judge on this issue.

 

Is blame for delay irrelevant under the O'Domhnaill test?

87.         The starting point obviously is O'Domhnaill itself.  The plaintiff suffered serious injuries in a road traffic accident in 1961 when she was three years of age.  Proceedings were not issued until 1977 and proceeded at a very slow pace thereafter.  Henchy J. noted that it was likely to be some 24 years post the accident before the case could be heard.  Notably, by 1982, the plaintiff had not even served a statement of claim.  Commenting on the delays, Henchy J. said (at 157):

"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."

88.         Notably in that passage, Henchy J. referred to countervailing circumstances which might prevent the defendant from relying on the delay including acquiescence on the defendant's part.  Similarly, a countervailing circumstance identified by the court was inability on the part of the plaintiff to control the delay, in that case by reason of infancy.  The court went on to say that no part of the blame could be laid at the door of the defendant and there were no countervailing circumstances of the kind identified which would justify a disregard of the delay.

89.           In another well-known passage, Henchy J. said (at 158):

"While justice delayed may not always be justice denied, it usually means justice diminished.  In a case such as this, it puts justice to the hazard to such an extent that it would be an abrogation of basic fairness to allow the case to proceed to trial. For a variety of reasons, a trial in 1985 of a claim for damages for personal injuries sustained in a road accident in 1961 would be apt to give an unjust or wrong result, in terms of the issue of liability or the issue of damages, or both. Consequently, in my opinion, the defendant, who has not in any material or substantial way contributed to the delay, should be freed from the palpable unfairness of such a trial." (My emphasis.)

90.         It is clear from these passages that a highly material consideration to the dismissal of the claim was whether the conduct of the defendant contributed to the delay or whether there was an inability on the part of the plaintiff to control or terminate that delay and since neither of these factors were present, it would be unjust to the defendant to allow the case to proceed to trial.

91.         Emphasis was again placed by the Supreme Court on the relevance of the defendant's conduct in Toal v Duignan (No. 1) [18].  That was a medical negligence case in which the plaintiff alleged that there was a failure by the defendant to diagnose and treat a condition present at the time of birth in 1961, the proceedings having been commenced in 1984.  The Supreme Court accepted that the plaintiff was blameless in respect of the delay that had occurred.  Delivering the court's judgment, Finlay C.J. said (at p. 9):

"In the High Court it was held by Keane J. that the case was governed by the decision of this Court in the case of O Domhnaill v. Merrick [1984] I.R. I am in agreement with that view of the law. It is unnecessary for me to repeat here the principles laid down by this Court in that case, but they may be summarised in their application to the present appeal 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." (My emphasis.)

92.         As in O'Domhnaill, the court in Toal v Duignan (No. 1) makes clear that the dismissal of the plaintiff's claim was contingent on the defendant himself not having contributed to the delay.  The decision was affirmed in Toal v Duignan (No. 2) [19] by Finlay C.J. who held that the fact that a claim was commenced within the statutory limitation period could not override the jurisdiction of the court to dismiss a claim for delay which rendered it unjust to call on the defendant to defend it, irrespective of whether the plaintiff was guilty of any culpable delay.

93.         In discussing the O'Domhnaill jurisprudence in Manning v Benson and Hedges Limited [20], Finlay Geoghegan J. again referred to the relevance of the defendant's conduct, observing (at 568-569):

"... if a defendant can on the facts establish that having regard to a lapse of time for which he is not to blame there is a real and serious risk of an unfair trial then he may be entitled to an order to dismiss.

Also, if a defendant can establish that a lapse of time for which he is not to blame is such that there is a clear and patent unfairness in asking him now to defend the claim then he may also be entitled to an order to dismiss." (My emphasis.)

The court went on to itemise a list of factors to be considered in such applications, the first of which she identified as:

            "1.       Has the defendant contributed to the lapse of time;"

94.         It seems to me therefore that the O'Domhnaill jurisprudence is predicated in significant measure on the absence of fault or culpability on the part of the defendant.  Where such culpability exists, the court has to consider whether in such circumstances, it can be said to be unjust to call upon the defendant to defend the case.

95.         In my judgment, it cannot be correct in principle to hold that where the wrongdoing of the defendant has resulted in a delay by the plaintiff in bringing a claim, the defendant is then entitled to rely on that delay to have the claim dismissed.  It is difficult to see how such an approach could be regarded as fair or just.  I therefore find myself unable to agree with the views of the trial judge which I have noted at paras. 45 and 46 above that prejudice to the defendant from delay warrants dismissal, even where the plaintiff is not culpable in relation to that delay, but the defendant is.

96.           In the same passage, the judge took the view that Whelan and Nash are authorities for the proposition that the proceedings can be dismissed for delay even if the delay is occasioned by an impairment resulting from the defendant's alleged culpable behaviour.  It is therefore appropriate to consider those cases.  In Whelan, the plaintiff claimed to have been abused by her grandfather between 1989 and 1992.  The proceedings were issued in 2008, between 16 and 19 years after the alleged abuse.  The abuse was alleged to have occurred at the home of her grandfather and grandmother.

97.           The plaintiff's grandmother died shortly before the proceedings were issued and her grandfather, the alleged abuser, died in 2011 before the case concluded.  The defendant was the personal representative of the plaintiff's grandfather.  The proceedings were issued within the statutory time limit.  Delivering the judgment of the Supreme Court, Hardiman J. referred to the increased consciousness of the need to provide redress for victims of sexual abuse and noted the provisions of the Statute of Limitations (Amendment) Act, 2000 in that regard.

98.           He went on to say (at para. 9):

"The developments, however, can throw up circumstances which are legally problematical.  This arises, in particular, after some very long delays in instituting such proceedings and from the difficulty, and sometimes the impossibility, of finding evidence with which to rebut a false claim of this sort.  Of course, the grossest form of prejudice in civil proceedings is the death of the defendant himself, so that he is not able to deny what is alleged against him in evidence, or of witnesses who might have been available to the defence at an earlier stage."

99.         Hardiman J. went on to observe that the death of the plaintiff's grandfather meant that his personal representative would not be able to call any witnesses whatsoever to contradict the plaintiff's case.  The death of the plaintiff's grandmother was, he considered, "a catastrophic blow to the defence" as she would have been expected to have important evidence to give.  Hardiman J. went on to refer to a number of the authorities I have already considered.  He observed (at para. 24):        

"I am therefore of the opinion that the emphasis, in an application such as the present, has to be on whether the underlying dispute has simply 'passed beyond the reach of fair litigation'.  If it has, then in my view the ensuing trial, if permitted to continue, would scarcely be a forensic exercise at all.  I cannot think of a more radical departure from the requirements of a fair trial, or a more obvious example of a case which has passed beyond the bounds of fair litigation, than a hotly disputed factual issue on which one party will not be able to make any showing whatever."

100.     In similar vein, he observed (at para. 27):

"... An action which the defendant could call no evidence at all on the central issue would totally 'lack that mutuality and fairness which are essential for the administration of justice.'"

101.     There is nothing in the judgment of Hardiman J. that suggests that any case was made by the plaintiff that she was unable to bring the proceedings before she did by virtue of an impairment caused by the defendant's abuse.  I do not see anything in the judgment that supports the trial judge's conclusion in this case that Whelan disposes of the plaintiff's contention that his proceedings cannot be dismissed on delay grounds if delay is occasioned by an impairment resulting from the defendant's alleged culpable behaviour.

102.       There was no suggestion, evident from the judgment, that the delay was caused by the defendant, rather than the plaintiff.  It seems to me from a reading of Hardiman J.'s judgment that the central feature which led the court to dismiss the claim was that the defendant would, in effect, have nothing to say in answer to the claim and would not "be able to make any showing whatever".  Indeed, Hardiman J. placed some emphasis, as did the High Court, on the fact that very old claims could render a defendant unable to rebut a false or concocted claim. 

103.     The trial judge here also placed reliance on Nash in support of the same conclusion.  Although Nash was a criminal case, Clarke J. (as he then was), analysed in some detail the lapse of time jurisprudence in both the criminal and civil context, including many of the cases already discussed.  Nash did not involve sexual abuse but two murders.  In his analysis of the case law, Clarke J. said that there is a high constitutional value in proceedings, whether criminal or civil, being determined after a trial on the merits (at para. 2.3 and 2.5).

104.       He said there was a significant constitutional weight to be placed on the side of credible cases, civil or criminal, going to trial and being determined on the merits in accordance with the law and the evidence.  He said however there may be competing considerations and he identified those.  He referred (at para. 2.9) to Toal v Duignan (No. 2) where "Finlay C.J. stated that the Court has an inherent jurisdiction in the interests of justice to dismiss a claim where the length of time which has elapsed between the events out of which it arises and the time when it comes on for hearing is, in all the circumstances so great that it would be unjust to call on the defendant to defend himself against the claim made.  It seems clear that this inherent jurisdiction to dismiss a claim exists even in the absence of culpable delay on the part of a plaintiff."

105.     He then turned to a consideration of what is meant by an unfair trial.  He noted that even cases heard with expedition may suffer from evidential deficits including the death of witnesses and so forth.  He said (at para. 2.12):

"The starting point has to be to acknowledge that there will very rarely be a perfect trial where all evidence which either side might theoretically wish to have available is before the Court ...  But such lack of perfection does not mean that the trial will be unfair for to require such perfection as a necessary ingredient of a fair trial would automatically lead to the vast majority of cases being incapable of being tried and, thus, to the whole scale denial of the rights and obligations of those parties who had an interest in a proper trial and a proper determination of whatever rights, obligations or liabilities the evidence and the law required.  In that context, it is apposite to note the telling comment of Henchy J. in [O'Domhnaill], to the effect that justice delayed does not always mean justice denied but can often mean justice diminished..."

Clark J. went on to say that, in some cases, delay can "put justice to the hazard of such an extent that it would be an abrogation of basic fairness ..."

106.     He continued (at para. 2.15):

"... To adopt the phrase of Henchy J. in O'Domhnaill, lapse of time will diminish but not deny justice.  Should that, necessarily and of itself, lead to a conclusion that any trial would be unfair? I do not think so.  However, where it is possible for the Court to identify that a party was culpable in respect of the lapse of time (i.e. that a party was guilty of delay) then a different analysis seems to me to arise...

...

2.17     However, there may be other cases where a trial is still possible but where, due to the fault of one side, (the prosecuting authorities in a criminal case or, typically, a plaintiff in civil proceedings), there has been a significant increase in the extent to which the trial falls short of perfection from the perspective of the other side.  In such cases, therefore, justice is diminished through fault.  In those circumstances the party on the receiving end (the accused or the defendant) can, in my view, properly suggest that the constitutional unfairness with which they are faced is not so much that they cannot have a fair trial at all but rather that it is unfair that they should have a significantly impaired or diminished trial where that impairment is as a result of culpable delay on the part of their opponent.  It might well, of course, have been said that, due to happenstance, a less perfect trial might be all that could have been achieved notwithstanding the absence of any culpable delay on the part of the relevant opponent.  In those circumstances, it might be said that there is no constitutional unfairness.  A trial which is still fundamentally fair could be conducted.  Insofar as it might fall short of perfection no-one will be to blame.  However, where there is culpable delay it may become unfair to subject a defendant or accused to a significantly less than perfect trial where the degree of impairment has been materially contributed to by culpable delay on the other side.  Such cases will, necessarily, involve a balance in which the undoubted desirability of rights, obligations and liabilities being properly determined at a full trial, on the basis of a consideration of all relevant and admissible evidence and the application of the law to the facts thus established, must be given significant weight."

107.     At para. 2.19 of his judgment, Clarke J. summarised the principles outlined by him:

"(a)     There is a significant constitutional imperative in favour of all issues of rights, liabilities or obligation, whether criminal or civil, being determined on the merits as a result of a trial at which all admissible and relevant evidence is analysed and the law properly applied to the facts which thereby emerge;

(b)        In order that such a trial on the merits not proceed it is necessary that there be a sufficiently weighty countervailing factor involving important constitutional rights which, in the circumstances of the case, outweigh the constitutional imperative for a trial on the merits;

(c)        In the context of lapse of time the countervailing factor may, if sufficiently weighty in the circumstances of the case, be one of: -

(i)        culpable delay which is such that it would, having regard to the period of time over which the proceedings or potential proceedings have been left hanging over the relevant party, be a sufficient breach of constitutional fairness so as to make it proportionate to prevent the proceedings from going ahead;

(ii)        a lapse of time which irrespective of whether blame can be attached to any person, has rendered it impossible that a true trial on the merits can be conducted and has, therefore, placed whatever controversy might have been the subject of the trial beyond the reach of fair litigation or;

(iii)       culpable delay where a trial on the merits is, nonetheless, still possible but where, in the context of the issues in the case and the evidence which could or might be or have been available, the trial which could ultimately be conducted is, by reason of a lapse of time caused by culpable delay, significantly further from the idea of a perfect trial than would have been the case had no such culpable delay occurred.  Where, therefore, justice is diminished through fault.  A clear balancing exercise arises in such cases.  It will only be appropriate to prevent a final decision on the merits where it is proportionate so to do as a response to any culpable delay established."  (My emphasis.)

108.     It appears likely that the words above to which I have attached emphasis are the source of the trial judge's observations to which I have referred herein at paras. 45 and 46.  However, it seems to me that in discussing culpability in the context of delay, Clarke J. is focusing on culpable delay by the party prosecuting the case, be it civil or criminal.  In using the words referred to at para. (c)(ii), I do not take Clarke J. to be suggesting that where the defendant is responsible for the lapse of time, he is nonetheless entitled to a dismissal.

109.     Nor in my view is Clarke J. saying that culpability is irrelevant in such circumstances, no matter whether it is that of the plaintiff or the defendant.  I think that must be clear from the authorities cited by Clarke J. in Nash on the O'Domhnaill strand which, as I have sought to show, are dependent on an absence of fault for delay on the part of the defendant.  Be that as it may, I certainly see nothing in Nash that could be taken to support the conclusion of the judge herein that it disposes of the plaintiff's contention that his proceedings cannot be dismissed for delay where the delay is occasioned by an impairment caused by the wrong of the defendant. 

110.     I think this interpretation is also consistent with the view recently expressed by this Court in Padden v McDarby (at para. 24):

"It seems to me that a fundamental consideration in the calibration of the balance of justice is a determination of whether the prejudice alleged, assuming it to be sufficient to warrant dismissal, is prejudice solely caused by culpable delay on the part of the plaintiff.  It is axiomatic that if the prejudice of which the defendants complain is of their own making, they can hardly be heard to rely upon it irrespective of what delay has occurred."

111.     While that was a case that concerned the Primor strand, I see no reason in principle why the same considerations should not apply to the O'Domhnaill strand.

 

 

Other relevant cases

112.     In oral submissions, the plaintiff's counsel placed particular reliance on the judgment of the High Court in S.T. v Clifford (op. cit.).  The plaintiff in those proceedings claimed that when he was an altar boy, he was subjected to repeated sexual abuse over a period of years by a Roman Catholic priest in the diocese.  The defendant was the bishop of the diocese and was sued as its representative.  The plaintiff was born in 1973 and said the abuse took place between 1982 and 1989.  The curate who was alleged to have abused him died in 1996.  The relevant parish priest died in 1995 as did other priests who were in the diocese during this period.

113.       The proceedings were issued in 2008 but not served until 2011 after being renewed.  Ultimately a motion to dismiss was brought in 2018 on the O'Domhnaill basis that there was a risk that a fair trial could no longer be had.  Owens J. analysed the facts and the law in some detail, including the judgment in Nash to which I have already referred, citing the same passage at para. 2.19 of the judgment of Clarke J.

114.       At paragraph 22, the court observed:

"Proceedings in cases where a long period of time has elapsed between accrual of a cause of action and commencement of litigation are sometimes pursued in a leisurely fashion. A defendant who is responsible for delay with consequent loss of admissible evidential material may be precluded from relying on the inherent jurisdiction."

115.     In that case, the defendant was sued on the basis of vicarious liability for the wrongdoing of the curate.  Notably in that case, a medical report was exhibited which supported the plaintiff's contention that he was suffering from psychological effects as a result of sexual abuse which prevented him from making a reasoned decision to take legal proceedings until 2008.  On the topic of the disability allegedly arising, Owens J. made the following observation (at para. 36):         

"A defendant's failure to exercise supervision and authority may have contributed to the state of affairs which has produced this psychological difficulty for a plaintiff with resulting long passage of time before institution of proceedings. If this has happened, is it unfair that such a defendant, who may be an institution, or the estate of a deceased defendant can pray in aid effects of that passage of time as precluding a trial on the merits?"

116.     Although the judge does not expressly answer this rhetorical question, it is clear from the views he subsequently expressed that the answer is "yes".  This echoes the views I have already expressed above.  He referred to a number of other sexual abuse cases, including Cassidy v The Provincialate, observing at para. 52:

"The major factor which influenced these decisions not to allow the actions to proceed to trial was absence of available material which would enable defendants to mount a meaningful challenge to the plaintiffs' evidence. Those defendants were considered to be at such a disadvantage that the court did not permit the actions to proceed."

117.     Owens J. was however clearly of the view that such a severe disadvantage did not arise on the facts of the case he was considering.  Of relevance in the context of the facts of this case, Owens J. said:

"62.     ... there may be evidence available from a person to whom a plaintiff made a disclosure of sexual abuse. Such a disclosure, particularly if made by a child within a short period of time after the events complained of, may be significant evidence of consistency and go to rebut any suggestion that a plaintiff has fabricated an account of events, or that alleged abuse is a product of false or recovered memory.

63.       Children may make disclosures of sexual abuse gradually and to different people. Those to whom these disclosures were made may give evidence of both the facts and contents of what was stated to them. Old rules that such disclosures were only admissible in evidence if made at 'at the first available opportunity' have been relaxed in light of modern knowledge of effects of sexual offending. This type of evidence is admissible in criminal proceedings as an exception to the rules against hearsay and narrative. In principle, these rules of evidence also apply to civil actions."

118.     Also relevant to this case is the judge's comment at para. 74:

"Sexual activity generally takes place in private. Sexual abuse of children is conducted in a furtive and opportunistic fashion. The perpetrator knows that others who might interrupt are not present. While there may sometimes be supporting evidence from others who may have noticed inappropriate behaviour, sometimes with benefit of hindsight, absence of independent witnesses who could testify one way or another as to whether incidents of abuse took place is the norm."

119.     Owens J. went on to refuse the application at that point, but adjourned it to the trial of the action where it could be reactivated if appropriate and considered by the trial judge.

120.     While it is true, as noted by Hardiman J. in Whelan v Lawn, that the death of the abuser is the grossest prejudice to the defence, it is unfortunately not an uncommon occurrence in cases of this nature and does not automatically mean that a fair trial can no longer be had, in the sense discussed by Clarke J. in Nash. 

121.     Of particular significance in the context of these proceedings is the recent judgment of the Supreme Court in Fingleton.  Judgment in Fingleton was delivered after the hearing of this appeal.  However, the parties have not been invited to address further submissions to that judgment because the Court felt it was unnecessary to seek same.  The judgment of the Court of Appeal that is considered in Fingleton was raised in argument before this Court and it was upheld by the Supreme Court on similar grounds.  The Court is accordingly satisfied that the parties are not disadvantaged by the Court referring to Fingleton. 

122.     The defendant, Mr. Fingleton, was the head of Irish Nationwide Building Society.  It collapsed following the financial crisis in 2008.  Its assets and liabilities were ultimately transferred to the plaintiff, IBRC, who in 2012 instituted proceedings against Mr. Fingleton claiming damages of some €6bn arising from his alleged mismanagement of INBS.  Although the proceedings followed a protracted course, the case was very complex and involved very substantial discovery.  It was not suggested that either party had unduly delayed in the prosecution of the proceedings. The events complained of by the plaintiff stretched back as far as 1981.

123.       Over the course of the proceedings, Mr. Fingleton's health deteriorated to the point where he was no longer in a position to engage with the case.  He brought a motion to dismiss the claim on O'Domhnaill principles.  He claimed that his illness meant that he was effectively unable to answer the claim in any meaningful way and that it had, accordingly, passed beyond the reach of fair litigation.  The motion failed before the High Court, the Court of Appeal and finally the Supreme Court, in each case for broadly the same reasons.  One significant aspect of the case was that there was a great deal of documentary evidence involved so that, as claimed by the plaintiff, the necessity for Mr. Fingleton to give oral evidence in defence of the claim was very significantly reduced.

124.       Delivering a judgment with which the other members of the court agreed, Woulfe J. analysed in considerable detail the legal principles attendant on the O'Domhnaill jurisdiction, or the "unfairness" jurisdiction as he described it.  He referenced many of the cases to which I have already alluded and also referred to several of the judgments in Comcast.  He cited with approval the observations of Clarke J. in that case including (at para. 4.2 of Comcast):

"For the reasons which I addressed in my judgment in Kennedy v DPP [2012] IESC 34 (although that case was concerned with prohibition in the criminal context), I am concerned to ensure that proceedings should be tried on the merits in all cases where no blame can lie on the party bringing the proceedings (plaintiff or prosecutor) save where there is a high degree of assurance that the relevant defendant will not be able to get a fair trial or will suffer serious unfairness."

125.     Woulfe J. also quoted in extenso from Nash, including the passages I have cited.  It is relevant to note that in its determination of the application for leave to appeal to the Supreme Court, the court had fixed two questions for determination the first of which was:

"Is a person who is no longer able to defend a civil claim - in the sense of being unable to instruct lawyers or give evidence on his or her behalf - because of ill health, entitled, on that basis, to have that case dismissed in limine?"

126.     Having considered all relevant authorities, Woulfe J. provided a very helpful summary of the relevant principles from paras. 75 to 81 of the judgment:

"75.     In the light of the above summary of the relevant principles, I might highlight the following matters which appear to me to be of key importance.  Firstly, where a person brings civil proceedings, there is a strong presumption in favour of a trial on the merits.  That presumption is rooted in the significant constitutional value or weight to be placed on the side of prima facie credible cases going to trial, and being determined in accordance with the admissible evidence and the applicable law.

76.       Secondly, in order to displace that strong presumption, a defendant must clearly establish a sufficiently weighty countervailing factor, such as establishing that it will not be possible to have a fair trial because of the lapse of time, irrespective of whether blame can be attached to any person.  I agree with the Court below that the burden is on the moving party, and that it is an exceptional jurisdiction which must be used rarely.

77.       Thirdly, in considering this inherent jurisdiction, it is necessary to distinguish between an imperfect trial/litigation disadvantage and an unfair trial, as per Clarke J. in Nash.  There may be many trials which are imperfect or which involve litigation disadvantage in the sense of potential evidence being unavailable, but such lack of perfection or litigation disadvantage does not necessarily mean that the trial will be unfair.  This distinction may be easier to state than to apply in certain cases, and much depends on the specific circumstances of an individual case, but at some point the absence of evidence, coupled with the effect of lapse of time on the ability of the Court to assess other evidence, may lead to a stage being reached where the case has gone beyond the reach of fair litigation.

78.       Fourthly, a Court called upon to exercise this inherent jurisdiction should consider the factors identified by Finlay Geoghegan J. in Manning...  These include (but are not limited to) the nature of the claims and the defences raised; the nature of the evidence to be adduced in the context of the issues to be determined; the role of documents and whether such documents exist; the extent to which oral evidence from a particular witness is likely to be required; the prejudice which the defendant asserts, and the evidence he or she adduces to support that assertion.

79.       Fifthly, it will normally be preferable, except in very clear cases, that any exercise of this exceptional jurisdiction be left to the trial judge.  While the comments of Clarke J. in Nash were expressly made in the context of an application for a stay or dismissal for inordinate and inexcusable delay, it seems to me that the underlying reasoning applies equally to this separate strand of inherent jurisdiction.  A motion judge is often, if not invariably, faced with somewhat generic claims of prejudice arising from a lapse of time, involving some degree of speculation.  An assessment of the true extent of any such prejudice will more easily be made by a trial judge.  As per Clarke J. in Nash, such a judge will be better able to assess, in the light of the evidence which is actually tendered and in the light of having a much better ability to assess the kind of arguments which might have been tendered were it not for the lapse of time (and the relevance and importance of such evidence in practice), and whether the extent of departure from the ideal of a perfect trial is sufficiently significant to warrant interfering with the constitutional imperative that proceedings should be tried on their merits.

80.       Sixthly, the precise scope of this inherent jurisdiction to dismiss a claim in the interests of justice may be subject to consideration in future cases.  However, it must be stressed that this is an exceptional jurisdiction which will only arise in rare cases, and the exact parameters of this jurisdiction are best left over to a case in which it may be necessary to consider those parameters for the resolution of that particular case."

127.     Woulfe J. then turned to answer the first question, as set out above, as follows:

"82.     In my opinion inability to defend a civil claim, in the sense used above, because of ill-health does not, in itself, ground an entitlement to have that case dismissed in limine.  A defendant has to satisfy the more demanding test as required by this strand of inherent jurisdiction, i.e. that a fair trial of the action, or the avoidance of serious unfairness to the defendant, is not possible having regard to all of the circumstances, as per the line of authority summarised above.

83.       As a matter of first principles, if ill-health, in itself, grounded an entitlement for a defendant to have a case dismissed in limine, then it would appear logical that death would have to ground a similar entitlement.  However, the general rule laid down by the Oireachtas (in the Civil Liability Act, 1961, as amended) is that all causes of action (other than 'excepted causes of action') subsisting against a deceased person survive against the deceased person's estate."

Summary and conclusions

128.     I am satisfied that Primor is inapplicable and this case falls solely to be decided on O'Domhnaill principles.  The defendant says that because of delay, it is no longer possible to have a fair trial. 

129.     In an application of this nature, as with other applications for summary dismissal, it seems to me that the court must take the plaintiff's case at its height.  The plaintiff has provided medical evidence to say that he was unable to pursue this claim before 2017 because of the impairment caused by the abuse complained of.  At this juncture, the Court must proceed on the basis that this is correct and, if it is, it follows that the delay up to then is the responsibility of the defendant.

130.       That being so, it appears to me that the defendant cannot pray in aid the delay until 2017 to seek dismissal of the plaintiff's claim.  While it might be said that the primary prejudicial events occurred after 2017, it must be borne in mind that, absent this disability, the plaintiff would have been in a position to pursue this claim many years ago and certainly at a time when all relevant witnesses were alive. 

131.     Even if it is the case that the plaintiff may not have been under a disability post 2017, it seems to me that he was justified in awaiting the outcome of the garda investigation and subsequent prosecution.  Had he commenced proceedings shortly after 2017, it seems highly likely that those proceedings would have been stayed until the criminal matter was disposed of.  While therefore the plaintiff cannot claim to have been under a disability in the period 2017 to 2020, he was in effect precluded from proceeding, again arguably, by matters arising from the alleged wrongdoing of the defendant.  In that event, the pre-commencement delay about which the defendant may legitimately complain is represented by the period between the 20^th July, 2020, when the DPP entered a nolle, and the issue of the summons hearing on the 27^th September, 2022.

132.     However, by July 2020, the defendant had suffered a stroke and John Beatty had died so that any prejudice arising as a result was already incurred prior to when the plaintiff could reasonably be said to have been in a position to either commence or progress his case.  Even had he done so with expedition in 2020, it is difficult to conceive that the matter could have been brought to trial before his mother died in 2021.

133.     In any event, the plaintiff's evidence concerning his mother's knowledge of the incident, in itself of doubtful relevance, is entirely speculative and of at least questionable admissibility.  It never amounted to more than a suspicion on the part of the plaintiff that his mother knew what occurred.  As such, it is difficult to see how a significant prejudice to the defendant arises in circumstances where she has since died. 

134.     I am therefore satisfied that no substantial prejudice has been occasioned to the defendant by any delay on the plaintiff's part between 2020 and 2022.  Even in the absence of those factors, the defendant has not to my mind established prejudice at a level which means that a fair trial of the issues can no longer take place.  As Owens J. put it in S.T., in most cases where a dismissal was granted, the defendant had virtually nothing to say in answer to the plaintiff's claims.  Kelly v O'Leary and Whelan v Lawn were certainly such cases.  In Kelly, the court was of the view that the trial may amount to an assertion countered by a bare denial, and the defendant might not even in a position to advance that.

135.     Similarly in Whelan, the personal representative defendant would not be able to make any showing whatever and could call no evidence.  This case on its facts does not come close to the stark position in which the defendants found themselves in Kelly and Whelan. 

136.     True it is that the defendant can no longer refute the allegation, and that is an important prejudice, but not an uncommon one as the cases show.  Fingleton establishes clearly that disability and even death of a defendant cannot suffice without more to warrant dismissal.  There is, however, a substantial body of evidence available to the defence on the core issues around the reporting of the abuse and whether the plaintiff was in truth labouring under a disability until 2017.

137.       It must be remembered also that there is no certainty that the defendant, had he been in a position to give evidence, would have done so.  It is one thing to offer a prepared statement of denial, but quite another to give evidence under oath and be subjected to cross-examination.  That is not to question the veracity of the defendant's statement, but simply to suggest that it cannot be automatically assumed that he, or any other witness who made a statement, would have given evidence.

138.     It is clear that a significant challenge to the plaintiff's credibility will be mounted based on the evidence available to the defence concerning reporting and disability which, if successful, will inevitably affect his credibility also on the central question of whether the abuse occurred, and will also potentially be relevant to the Statute of Limitations issue, if it is pleaded.

139.     It must be accepted that the matters relied upon by the defendant in moving this application will put the defence at some litigious disadvantage, although the plaintiff will certainly not have a free run.  It may even be a case of justice diminished as a result of a trial that is less than perfect.  That is not enough.

140.     I am not persuaded that this litigious disadvantage suffices to override the strong constitutional imperative in favour of a trial on the merits, or that it is clear that the case is within the exceptional and rare category where justice can only be done by dismissing it now. 

141.     This is, in my view, a case where the exercise of this exceptional jurisdiction is best left to the trial judge. 

142.     For all these reasons, I would allow this appeal, set aside the order of the High Court and dismiss the defendant's motion.  Given the delays that have occurred to date, I would remit the case to the High Court with a direction that it should be reconstituted at the earliest available opportunity and subject to case management by the High Court with a view to ensuring the earliest possible trial.  I would propose making no order on the plaintiff's motion to admit additional evidence. 

143.     As the plaintiff has been entirely successful in this appeal, my provisional view is that he should be entitled to his costs both in this Court and the High Court.  As regards the motion to admit additional evidence, I would make no order as to costs.  If the defendant wishes to contend for a different costs order, he will have liberty to deliver a written submission not exceeding 1,000 words within 14 days of the date of this judgment, and the plaintiff will have 14 days to respond likewise. 

144.     As this judgment is delivered electronically, Burns J. has authorised me to record her agreement with it.  I have had the opportunity of reading the judgment of Woulfe J. and I agree with it. 

Result:     Appeal Allowed