Ireland: Delay & The Risk Of An Unfair Trial

Last Updated: 11 May 2015
Article by Nicholas G. Moore and Joanelle O’Cleirigh

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 FACTS

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.

COMMENTARY

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.

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

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

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (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 www.mondaq.com

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 Mondaq.com’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.

Disclaimer

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.

Registration

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 unsubscribe@mondaq.com 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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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 webmaster@mondaq.com.

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 EditorialAdvisor@mondaq.com.

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 enquiries@mondaq.com.

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