NC [APUM] -v- McG & Ors
High Court
Judgment was given by Mr Justice Patrick McCarthy on September 18th, 2009.
Judgment
An application to strike out a civil action against a number of defendants for damages arising out of allegations of abuse of people suffering from an intellectual disability, on the grounds that the claim had not been prosecuted, was refused.
Background
This case was one of a number of related actions in which the parents of children with a mental handicap were taking cases against named individuals, the Mid-Western Health Board, Ireland and the Attorney General and the Minister for Health and Children, arising out of allegations of abuse suffered at a school and training centre known as St Vincent’s, Lisnagry, Co Limerick, in 1997 and 1998.
The first-named individual sought to have the case struck out for want of prosecution.
The plaintiff alleged, through her mother, that during her time at the school she was “unlawfully subjected to episodes of assault and/or battery and to episodes of physical and physiological abuse and of a sort in the nature of sexual abuse” on the part of the first two named individuals.
The third and fourth defendants are the nominees of the religious order which owned and managed the school.
The first defendant denied the allegations and her entitlement to the reliefs sought.
The plenary summons was issued in August 2000 and a number of motions were taken by the defendants seeking notice of particulars.
Further motions were taken by the plaintiff seeking defences from the defendants and a number of motions for discovery were also brought.
Due to the degree of intellectual disability on the part of the plaintiff, her solicitor had to have the assistance of parents and trained child psychologists in taking instructions.
In relation to the delays, he said there were “frustrating delays” in the procurement of defences and a long process of discovery against the school and the Mid-Western Health Board.
He also said it was appropriate to await the conclusion of criminal proceedings, which were disposed of in November 2002.
The solicitor for the first- named defendant said he was prejudiced in having to meet allegations made in 1997 and 1998.
Decision
“I do not think that this is one of those cases where this is so, inasmuch as the first defendant has been aware since the outset, so to speak, and certainly at least before March 1998, of the matter and it appears proper to infer that Garda investigations were ongoing over a period of time thereafter, culminating in a charge, ultimately disposed in November 2002,” Mr Justice McCarthy said.
He added that there was no “long period of silence” from the plaintiffs’ parents that could have lulled him into a false sense of security.
The defendant said that the proceedings meant he was suspended from his job. However, the plaintiff’s solicitor said that he was suspended because the Health Service Executive concluded he “represents an ongoing risk to vulnerable children”.
Mr Justice McCarthy reviewed the case-law on dismissing actions for want of prosecution. “Whether or not inordinate delay arises is a mixed a question of fact and law dependent on the circumstances of each case,” he said.
In Stevens -v- Paul Flynn Ltd (2005)Mr Justice Frank Clarke said: "The court should therefore: (1) ascertain whether the delay in question is inordinate and inexcusable; and (2), if it is so established the court must decide where the balance of justice lies."
This case was complex, in that the present plaintiff was “of unsound mind”, she and the other plaintiffs were minors at the time of the alleged incidents, the allegations were of a sexual import classically associated with inhibitions in speaking about them, discovery was necessary and there was difficulty in obtaining it and procuring defences.
It was also necessary to await the outcome of a criminal trial.
It was a marginal case, where the plaintiff had fallen into the category of being somewhat dilatory to the point of inordinate delay.
However, Mr Justice McCarthy said he had not doubt but that the delay was excusable and, if he was wrong in that, the balance of justice favoured allowing the plaintiff to proceed.
There was no risk that the first defendant would not obtain a fair trial. In all the circumstances, he had failed to discharge the burden of proof needed for his application.
The full judgment is available on www.courts.ie
Michael McMahon SC, Dolores Keane BL and Suzanne Boylan BL, instructed by Dundon Callanan, Limerick, represented the plaintiff; Peter Finlay SC and Michael Maloney BL, instructed by John Devane, Limerick, represented the first-named defendant.