Can a defendant reasonably be expected to defend proceedings which relate to an event that occurred over thirty years ago and where many of the potential witnesses have since died? In a recent case, Cassidy v The Provincialate, the High Court thought there would be no real or serious risk of an unfair trial in such circumstances. The Court of Appeal, however, took a different view.
The plaintiff claimed damages against the Religious Sisters of Charity for abuse she allegedly suffered between 1977 and 1980 at the hands of a man she claimed was employed by the Sisters. The alleged abuse was first reported to An Garda Síochána in December 2011 and the proceedings were instituted in May 2012. The Sisters sought to have the proceedings dismissed on the ground that their ability to defend the claim had been severely prejudiced. They were unable to find any record of ever having employed the alleged abuser and it seemed likely he was dead. Further, a number of other potential witnesses had also passed away. The High Court refused to dismiss the proceedings, taking the view that there was no risk of an unfair trial. The Sisters successfully appealed this finding to the Court of Appeal.
The Court of Appeal confirmed that while it was obliged to give due consideration to the decision of the High Court judge, it was nonetheless free to exercise its own discretion as to whether or not the claim should be dismissed. It assessed the claim by reference to the two well-established lines of jurisprudence on delay: (i) the Primor test; and (ii) the O'Domhnaill test. The Court was satisfied that, irrespective of which test was applied, the proceedings should be dismissed.
JURISPRUDENCE ON DELAY
Under the Primor test, which derives from the Supreme Court's decision in Primor plc v Stokes Kennedy Crowley (1996), the Court must consider (i) whether there has been inordinate delay on the part of the plaintiff in bringing the proceedings; (ii) if so, whether this delay can be excused; and (iii) whether the balance of justice favours the continuance or the dismissal of the proceedings. When assessing where the balance of justice lies, the Court may have regard to a number of factors, including whether the delay gives rise to a risk that it is not possible to have a fair trial.
Under the O'Domhnaill test, established by the Supreme Court in O'Domhnaill v Merrick (1984), proceedings may be dismissed even where there is no culpable delay on the part of the plaintiff. The question for the Court is whether, by reason of the passage of time, there is a real or substantial risk of an unfair trial or an unjust result.
The difference between the two tests lies in the degree of prejudice that must be established to justify a dismissal of the proceedings. A defendant who invokes Primor does not have to show that he faces a significant risk of an unfair trial. Once he can establish inordinate and inexcusable delay on the part of the plaintiff, he can urge the Court to dismiss the proceedings by reference to a whole range of factors, including relatively modest prejudice arising from the delay. Under O'Domhnaill, however, nothing short of establishing prejudice likely to lead to a real risk of an unfair trial or an unjust result will suffice.
A defendant may invoke both tests. If he fails under the Primor test, because the delay is excusable, he can seek the dismissal of the proceedings under O'Domhnaill on the grounds that there is a real risk of an unfair trial. However, in that event, the standard of proof will be higher than that imposed by the third leg of the Primor test.
APPLICATION OF THE PRIMOR TEST
There was no question but that the delay on the part of plaintiff in bringing the proceedings was inordinate. The High Court thought it was excusable, though this finding was reversed on appeal as lacking any evidential basis. As regards the balance of justice, the Court of Appeal stated that the likely death of the alleged abuser "visited the grossest imaginable prejudice" upon the Sisters who were not in a position to challenge or counter the allegations of abuse made by the plaintiff. The Court was satisfied that taken on its own, this factor was "of such prejudicial magnitude" that it tipped the balance of justice in favour of the Sisters. When one also factored in the death of a number of other witnesses, the issue was beyond doubt.
APPLICATION OF THE O'DOMHNAILL TEST
In addition to the likely death of the alleged abuser and the death of a number of other potential witnesses, the Court noted that:
- many of the alleged acts of abuse took place at locations well removed from the Sisters' premises;
- the plaintiff had never been in the care of the Sisters and they had no documents or records concerning her health or safety; and
- the plaintiff did not tell anybody about the abuse until November 2009. The accuracy of her account of events could not be tested against any contemporaneous account of what was now alleged to have occurred.
The Sisters had located one former staff member who had some recollection of a man with the same name as the alleged abuser working as a general handyman in the nursing home at the relevant time. However, the Court said that this could not negate the risk of an unfair trial or an unjust result.
Accordingly, the Court was satisfied that under both the Primor and the O'Domhnaill tests, the proceedings should be dismissed.
DELAY IN PROSECUTING PROCEEDINGS
In another recent case, McLoughlin v Garvey, the Court of Appeal overturned a decision of the High Court striking out a claim of historic sex abuse. Though the alleged abuse in this case is said to have taken place over 28 years ago, the Court was concerned with a four year delay in the prosecution of, as distinct from the commencement of, the proceedings. While the Court accepted that the four year delay was inordinate, it found that it was excusable in circumstances where the plaintiff was preoccupied with caring for her son who was seriously ill, and the four year period of inactivity coincided with a significant deterioration in his condition. The Court had regard to a medical report submitted on behalf of the plaintiff which stated that it was "beyond the realm of possibility" that the plaintiff would have been able to partake, either physically or psychologically, in any court proceedings in that time.
The Court indicated that even if it had found that the delay was inexcusable, it would have found that the balance of justice favoured the continuance of the proceedings. The Court noted that even if the proceedings had been prosecuted with reasonable haste after their commencement in 2006, there would still have been a gap of close to 30 years between the occurrence of the alleged abuse and a trial of the action. Fading memories were always going to be a feature in the case - the four year period of inactivity after the commencement of the proceedings was not the reason for this. The defendant claimed that he was prejudiced by the death, during the four year period of inactivity, of one of his sisters and a cousin, both of whom could potentially have given evidence. However, the Court noted that there were other family members who could still give evidence.
The Courts are generally slow to make an order for dismissal. However, where a plaintiff has delayed significantly in bringing proceedings, the Courts will be cognisant of the likely prejudice a defendant may face, particularly where essential witnesses have died and memories have faded. A defendant facing historic allegations of wrongdoing should carefully review the claims being made to determine whether there are grounds to dismiss the proceedings. All potential witnesses should be identified and efforts should be made to locate such witnesses and these efforts should be fully documented. If essential witnesses are dead or cannot be located, the defendant should consider bringing an application to dismiss. To avoid any suggestion of acquiescence in the plaintiff's delay, an application to dismiss proceedings should be brought as soon as possible (read a related article here).
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.