Ireland: Recent Decision Of The Court Of Appeal On Delay In Historic Child Abuse Claims

The new Court of Appeal delivered its judgment in the case of Cassidy v. The Provincialate on 16 April, 2015. The unanimous judgment of the Court was delivered by Ms Justice Irvine and is to be welcomed, as it brings a measure of clarity to the jurisprudence in the area concerning delay in initiating legal proceedings in respect of childhood abuse.

In a pre-trial preliminary application brought by the defendant, the Court of Appeal dismissed the plaintiff's claim by reason of the fact that there had been delay of over 30 years by the plaintiff in bringing a claim for damages for child abuse, which was inexcusable on the facts and in particular the Court held that the defendant's ability to obtain a fair trial was severely prejudiced due to the fact that the alleged perpetrator was dead.

The decision of the Court of Appeal overturned the earlier decision of the High Court in this case which had deemed that the plaintiff could proceed with her action despite the delay.

Background to the Case

The plaintiff commenced her proceedings in May, 2012, claiming damages for personal injuries allegedly suffered by her by reason of abuse, by a man between the years 1977 and 1980, when she would have been aged between 12 and 16 years. The plaintiff also claimed that the accused man was an employee of the defendant, a religious congregation. As part of her action, she maintained that the unlawful conduct of the accused was, as a result of the negligence and breach of duty of the defendant, and that the defendant, as the employer of this individual, was vicariously liable in respect of his wrongdoing.

The defendant, who was represented by us, brought a pre-trial application in the High Court to dismiss the plaintiff's claim on the basis of inordinate and inexcusable delay, of more than 30 years, as a result of which, the defendant was severely prejudiced in obtaining a fair trial of the action. The defendant relied on the following factors to show the inherent difficulties in defending the claim: (a) the accused was believed to be dead, although that fact had not been established with certainty, but it was clear that there was no trace of this individual; (b) there were no records which showed that the accused had in fact been an employee of the defendant and (c) the defendant had identified a number of potential witnesses who were either dead or their whereabouts were unknown, except for one former staff member who had a recollection of the accused having worked as a general handyman in the defendant's premises.

High Court

The pre-trial application was heard by High Court Judge, Mr Justice Barrett, who delivered a judgment on 28 February, 2014, in which he dismissed the defendant's application. He concluded that whilst the plaintiff's delay in instituting proceedings had been inordinate, it was excusable by reference to three factors: (1) her upbringing, (2) the fact that her abuser had dominion over her and (3) by reason of the fact that she had been subjected to a "myriad of miseries", which had impeded her ability to bring proceedings sooner than she had done.

In particular, Judge Barrett concluded that there was no real or serious risk if the claim was allowed to proceed, that the defendant would be at risk of an unfair trial. He was satisfied that the death of the accused was not a solid basis on which to base the risk of a fair trial to the defendant. Instead, he placed particular emphasis on the fact that evidence could be obtained from the former staff member who had worked for the defendant and who had a recollection of the accused.

The defendant appealed the decision of the High Court judge to the Court of Appeal

Court of Appeal

The unanimous decision of the Court of Appeal was delivered by Ms Justice Irvine with whom the other two judges, Judge Peart and Judge Mahon, agreed.

In reaching her decision, Ms Justice Irvine, looked at three factors:

  1. Was the delay inordinate?
  2. If the delay was inordinate, was it excusable?
  3. If there was both inordinate and inexcusable delay, was there a real risk of an unfair trial for a defendant or, on balance, could justice be best served by allowing the case to proceed?

Based on the facts of this case, Judge Irvine, decided firstly, that there had been inordinate delay of 30 years by the plaintiff in instituting legal proceedings - this was a fact not in dispute by the plaintiff. Secondly, the Court decided that this delay was inexcusable. In reaching this decision, the Court noted that the plaintiff had not produced any evidence, including psychological or psychiatric evidence which could have explained the delay. On this basis, Ms Justice Irvine found that there was no "sound evidential basis" for the findings made by the High Court in excusing the delay by the plaintiff. In particular, the Court of Appeal found, unlike the High Court, that (1) the alleged abuser had no power over the plaintiff after the alleged abuse ceased in 1980, (2) that she did not have a disadvantaged upbringing as the facts "imply that she came from a relatively normal middle class background" and (3) there was no evidence to support the conclusion of the High Court that the plaintiff had experienced a "myriad of miseries" which could excuse the delay.

Thirdly, as the delay was both inordinate and inexcusable, the Court decided that the balance of justice warranted the dismissal of the proceedings, as there was a real risk of an unfair trial for the defendant. 

In reaching this conclusion, Ms Justice Irvine placed great weight on the fact that the accused was believed to be dead and concluded that the death of the accused "visited the grossest imaginable prejudice upon the defendant". This was of particular significance as the defendant was sued for being vicariously liable for the alleged actions of the accused. Ms Justice Irvine also added that the death of all other witnesses which would have been available to the defendant put the issue beyond all doubt. On the basis of all the evidence, Judge Irvine was satisfied that to allow the action to proceed would "put justice to the hazard" and the defendant would not only be at risk of an unfair trial but would have no prospect whatsoever of a fair hearing or just result. 

For a more detailed analysis of the judgment, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.