Ellen Kelly (plaintiff) v Marie O'Leary (defendant).

Practice and Procedure - Negligence - Delay of 50 years between acts alleged and commencement of proceedings - Whether delay inordinate and inexcusable - Whether balance of justice in favour of or against the trial proceeding - Whether claim be dismissed - Prejudice - Constitutional principles of fairness of procedure - Statute of Limitations 1957 - Statute of Limitations (Amendment) Act 2000.

The High Court (before Mr Justice Kelly); judgment delivered 22 June 2001.

The courts had an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice required them to do so even in circumstances where proceedings had been instituted within the relevant limitation period. In all the circumstances of the case a delay of 50 years was inordinate and no evidence had been adduced seeking to explain or excuse the delay. Actual prejudice had occurred to the defendant by reason of the delay. There was a real and serious risk of an unfair trial and constitutional principles of fairness of procedure required that the action not proceed. Mr Justice Kelly so held in granting the defendant's motion and dismissing the plaintiff's action.

David McGrath SC and Jacinta Heslin BL for the plaintiff; Paul Gallagher SC, Shane Murphy SC and Maurice Collins BL for the defendant.

Mr Justice Kelly said that the plaintiff had been born in 1931, had married 50 years ago and had nine children. She brought these proceedings seeking damages in respect of events alleged to have occurred between 1934 and 1947. This action had begun in March 1998 over 50 years from the last wrongful act alleged. Given the remove in time between the acts alleged and the proceedings the defendant sought to invoke the inherent jurisdiction of the court to dismiss this action at this stage. Both sides agreed that the case was unprecedented as never before had a court in this jurisdiction been asked to deal with an application of this type in circumstances of such a remove in time between the acts alleged and the commencement of proceedings. The plaintiff alleged that she was placed in Goldenbridge Orphanage which was run by the Sisters of Mercy in 1934 and remained there until 1947. The defendant was sued in a representative capacity in respect of the Goldenbridge convent. The plaintiff alleged that throughout that period the defendant failed grossly in its duty to care for and protect the plaintiff in that it, its servants and agents, inflicted serious physical and mental injuries on the plaintiff and as a consequence she had suffered personal injuries.

The principal affidavit grounding the application was sworn by a solicitor representing the defendant. He said that the plaintiff had not furnished any medical reports and that it would not be possible for the defendant to have a fair trial of these allegations and that grave prejudice had ensued as a result of what was described as a "quite unique delay" in the institution of the proceedings. He said that, of those against whom allegations were made, one had died, another was in old age and one was untraceable. In addition, a very important if not an essential witness had also died. The plaintiff swore the sole replying affidavit to this application and exhibited letters seeking various hospital records. The plaintiff said that her allegations against the sister who had died was an error but that she reiterated her complaints against the sister still alive and that there was no suggestion that that witness was unfit or unable to attend the court hearing. The plaintiff said that one medical witness was alive and had prepared a medical report for the purposes of the hearing of the proceedings.

In a replying affidavit the defendant contended that the absence of the relevant medical records had deprived the defendant of examining and testing the plaintiff's claim. He referred to a number of persons all of whom were potentially significant witnesses for the defence in this action and were now not available and he said that the defendants might be subjected to a trial in relation to grave allegations and circumstances where they would not be in a position to call any independent evidence to support their defence. He said that the sister still alive had difficulty in recalling particular instances more then 50 years later and that during her time at the orphanage approximately one thousand children would have gone through it but nonetheless she was absolutely satisfied that the allegations made by the plaintiff were untrue.

A consultant psychiatrist swore an affidavit saying that in the absence of any medical records relating to the period he could not see how it would be possible to come to a proper assessment of the nature, extent and cause of the plaintiff's problems and therefore had declined to make an assessment of the plaintiff because the exercise would be meaningless.

Mr Justice Kelly said that the courts had an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice required them to do so. Indeed that jurisdiction could be exercised even in circumstances where proceedings had been instituted within the relevant limitation period.

Mr Justice Kelly said that the legislature had expressly recognised the existence of this jurisdiction in the Statute of Limitations (Amendment) Act 2000. That Act amended the Statute of Limitations 1957 so as to provide that certain persons were to be treated as under a disability for the purpose of bringing actions relating to acts of sexual abuse committed against them prior to their reaching full age. He said that notwithstanding the extension of the limitation period for such persons section 3 of the Act provided as follows: "Nothing in section 48(A) 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 its dismissal."

Mr Justice Kelly said that he had been referred to all of the decisions where the courts had to consider the exercise of this undoubted jurisdiction. He said that the sole complaint in this case related to the delay between the events giving rise to this action and the commencement of proceedings.

He referred to the decisions of O'Domhnaill v Merrick[1984] IR 151, Toal v Duignan (No. 1) [1991] ILRM 135 and Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459. Counsel for the defendant had submitted that there were in fact two quite separate tests; one was that suggested in O'Domhnaill v Merrick and Toal v Duignan which dealt with delays between the acts complained of and the commencement of proceedings. The other was the Primor test which deals with delays after the institution of proceedings. Mr Justice Kelly said that he did not propose to answer the interesting question as to whether or not there were two different tests but that he would apply the Primor test which is the more demanding of the defendant and the more favourable to the plaintiff.

Mr Justice Kelly said that in all the circumstances an inordinate time did elapse before these proceedings were commenced. Little or no evidence had been placed before the court as to the presence of excusing circumstances concerning the delay in question. The plaintiff had been free of the dominion, if dominion there was, of the Sisters of Mercy for well over fifty years. During that time she had married and had a large family. No medical or psychological evidence had been given in her support by way of affidavit although ample time had been afforded to enable such an affidavit or affidavits to be sworn.

Mr Justice Kelly said that heavy reliance had been placed by the plaintiff's counsel on the decision of Guerin v Guerin [1992] 2 IR 287. In that case, Mr Justice Costello had formed the view that an inordinate delay by the plaintiffs parents and by the plaintiff in instituting proceedings should be excused by the court in view of their failure to appreciate that they had a cause of action coming as they did from a socially deprived background. In that case, the plaintiff, a 32 year old unemployed man, had suffered severe head injuries in a road traffic accident in 1964 at four years of age. Because of their disadvantaged social background neither the plaintiff's parents nor the plaintiff realised that they had a cause of action until 1984 when the plaintiff had a fortuitous meeting with a solicitor. In finding that the delay could be excused, Mr Justice Costello concluded that no great injustice would be done to the defendants if the claim were allowed to proceed because it had not caused any significant prejudice either on the issue of liability or on the issue of damages. Mr Justice Kelly said he could not accept that the plaintiff here was in much the same situation as was the plaintiff in the Guerin case and that there was no evidence put before the court which would suggest that such was the case.

He said that neither was there any suggestion of a type which had now become familiar particularly on applications on the judicial review side to stay criminal prosecutions in respect of sexual offences committed against minors many years ago of any form of dominion over the complainant. Here such dominion as was exercised by the Sisters of Mercy ceased well over fifty years ago. The plaintiff went on to marry and rear a large family to adulthood. No evidence had been adduced seeking to explain much less excuse the delay in proceedings here. He held that the delay was both inordinate and inexcusable.

Mr Justice Kelly said that he had to consider whether, as a matter of discretion, the balance of justice was in favour of or against the case proceeding. In considering this issue, he said that he had to bear in mind the decision in Primor and the enunciation there of the matters that the court was entitled to take into consideration under this heading.

Mr Justice Kelly said that with discovery issues outstanding there was no realistic prospect of the action coming to trial before 2002. The effect of that would be that the defendant would be required to defend proceedings in respect of incidents which took place between fifty five and sixty eight years ago. Mr Justice Kelly said that the sister against whom the allegations were being made would then be eighty three years of age and it was part of the human condition that memory faded and on occasion distorted over periods of time. He said that normal fading and distortion of memory was presumed where long periods were involved: Sheehan v Almond [1982] IR 235. The sister cared for approximately 1,000 children over the years that she was in Goldenbridge and it was therefore hardly surprising that there was evidence to the effect that she could not remember specific incidents. Virtually all of the witnesses who might have been available to the defendant had died. Non-availability of witnesses was of course a matter that must be taken into account. Mr Justice Kelly said that while this was not a "documents" case, such as the Primor one, nonetheless documents did play an important role in it. On the evidence, the plaintiff's medical records had to be relevant in respect of the issue of causation of her medical complaints. Without them the defendant was unable to properly investigate the cause of the plaintiff's mental distress. Mr Justice Kelly said that there was uncontroverted evidence to that effect before him. Indeed the psychiatrist retained by the defendant had said that it would be meaningless to make an assessment of the plaintiff.

Mr Justice Kelly said he was satisfied that there was a clear and patent unfairness in asking this defendant to defend the action after the lapse of time involved. Actual prejudice had occurred to the defendant by reason of the delay. The defendant had not contributed to this delay. There was here a real and serious risk of an unfair trial. As a matter of probability the trial might amount to an assertion countered by a bare denial. Indeed even the ability of this defendant to make a denial was doubtful in respect of a number of allegations. Such an exercise would be far removed from the form of forensic inquiry which was envisaged in the notion of a fair trial in accordance with the law of this State. Constitutional principles of fairness of procedure required that the action not proceed. To allow the action to go on would put justice to the hazard. Mr Justice Kelly stated that the motion was granted and the action was dismissed.

Solicitors: M. P. Black & Co (Dublin) for the plaintiff; Arthur O'Hagan (Dublin) for the defendant/applicant.