High Court refuses strike-out on delay grounds, allowing trial despite 44-year lapse in sexual assault claims.

THE HIGH COURT

[2025] IEHC 434

[Record No. 2023/668P]

BETWEEN

D

PLAINTIFF

AND

D

DEFENDANT

Judgment of Mr Justice Barr delivered electronically on the 18th day of July 2025.

Introduction.

1. In these proceedings the plaintiff claims damages for assault against the defendant, who is her older brother, in respect of sexual assaults, including rape, which are alleged to have taken place in the period September 1979 to August 1981, when the plaintiff was aged between 11–13 years.

2. The plaintiff issued her plenary summons on 16 February 2023, followed by a statement of claim delivered on 20 March 2023. This was followed by a notice for particulars and replies thereto; after which, a full defence was filed on behalf of the defendant on 26 September 2023. A reply to defence was delivered on behalf of the plaintiff on 9 October 2023.

3. In this application the defendant seeks an order striking out the proceedings against him on the grounds that given the passage of time since the dates of the alleged offences, he cannot now get a fair hearing at the trial of the action.

4. The application rests on an allegation of pre–commencement delay of such magnitude that it is alleged that the defendant can no longer get a fair hearing at the trial of the action. There is no allegation of any post–commencement delay.

Background – The Plaintiff’s Case.

5. As already noted, the plaintiff alleges that she was sexually abused and raped by the defendant, from September 1979 until August 1981, when she was aged between 11 and 13 years.

6. The plaintiff alleges that the abuse started on the night before the papal mass in the Phoenix Park in September 1979. It is alleged to have ended in August 1981, when the plaintiff’s mother caught the defendant abusing the plaintiff in her bed.

7. The plaintiff alleged that the abuse occurred on an almost weekly basis when the defendant came home from boarding school at the weekends. She stated that it was more frequent during the school holidays. She stated that in total the abuse occurred on approximately 120 occasions.

8. The plaintiff has pleaded that after her mother found out about the abuse in August 1981, the defendant was put out of the family home. However, she states that her father pleaded that he should be allowed to return to the home. This was permitted, but her mother used to lock the plaintiff in her bedroom when the defendant was in the house.

9. The plaintiff states that she was also sexually abused by two other men. She states that she was abused between the ages of 11 and 16 years by a neighbour. This abuse took place when she went to the neighbour’s house to babysit their children. If the mother was out shopping or on some other errand, she states that she was abused by the father of the children during these absences. She stated that this abuse came to an end when she obtained a job in a shop in her local area. On that account, she was able to stop babysitting. This man died shortly after the abuse had ended.

10. The plaintiff stated that she was greatly affected by the alleged abuse at the hands of the defendant and this neighbour. She started to abuse alcohol and other substances. Eventually her mental state deteriorated to such an extent that she attempted suicide in 1988. This brought her to the attention of the medical services. When they found out about the abuse, they advised her to go to the Rape Crisis Centre in Dublin (‘RCC’).

11. The plaintiff has stated that a local priest in her area offered to bring her to Dublin for the purpose of these sessions in the RCC. She alleges that over a threemonth period, the priest sexually abused her. She states that on one occasion he brought her into a forest where she was raped by him.

12. In 1988, the plaintiff states that she reported the abuse by the priest to another priest and to her GP. It was not until 2019 that she made a formal complaint about the matter to An Garda Síochána. This occurred when the gardaí approached her in the course of carrying out an investigation into complaints that had been lodged by another individual in relation to allegations of sexual assault at the hands of the priest. On 19 August 2019 and on 20 September 2019, the plaintiff made a detailed statement to the gardaí about the abuse that she alleged she had suffered at the hands of the priest. In that statement, she referred to the abuse that she had suffered in the bedroom in her house in the period 1979–1981. However, she did not identify the defendant at that time. She merely stated that she had been abused by “a person”.

13. She also referred to the abuse that she alleged had occurred while she was babysitting, but she only referred to that person as being “a neighbour”.

14. Arising out of the statement that she made to the gardaí in 2019, a criminal prosecution was brought against the priest. He was convicted of offences relating to the sexual assaults that he had perpetrated on the plaintiff. The plaintiff commenced civil proceedings against him and other parties in 2024.

15. For the purposes of this application, the plaintiff exhibited a medical report from a consultant psychiatrist dated 10 October 2022. In it, he stated that he had been treating the plaintiff as a patient since October 2018. He was satisfied that due to the trauma that she had suffered as a result of the sexual assaults at the hands of the three individuals, she was impaired in her ability to make any formal complaint. He was satisfied that this impairment continued until 2019 when she made her formal complaint to the gardaí.

16. In her statement made to the gardaí in 2019, the plaintiff stated that her sister had witnessed at least one of the assaults perpetrated on her in her bedroom. She stated as follows: “I forgot to mention that when the first person was abusing me, my sister would have been in the room and she woke up one night when it was going on.”

17. In her replies to a notice for particulars that had been raised by the defendant on the statement of claim, the plaintiff had been asked to identify any witnesses to the alleged assaults that she said had occurred in the period 1979–1981; to which she replied that her mother had witnessed the abuse when her mother found the defendant in the plaintiff’s bed. She went on to state: “The plaintiff’s sister shared a bedroom with the plaintiff, however the plaintiff is unaware if she witnessed the abuse”.

18. For the purposes of this application, the defendant had sworn an affidavit in which he pointed out that he could not have committed the assaults as alleged by the plaintiff in her statement of claim due to the fact that he was not in school during the period in question. He stated that he had left school in the summer of 1978. Thereafter, he had worked in two hotels, until he joined the Army in 1980. Accordingly, it was submitted that the plaintiff was clearly incorrect when she stated that the abuse used to occur when her brother would return home from boarding school at weekends and during the school holidays. He further pointed out that given the nature of hotel work, he was very unlikely to have been at home at weekends, as alleged by the plaintiff.

19. In an affidavit sworn on 15 May 2025, the plaintiff stated that when she had given instructions to her solicitor to proceed with the action her memory about the details of the abuse had been “cloudy”. She stated that with the benefit of counselling which she had recently undertaken, “clarity” had been brought to her memory of the events. In this regard she stated as follows: “I initially thought that the defendant was still in boarding school when the abuse first occurred but on reflection, I think in fact he was working in a hotel in [name of town] and returned home sporadically. The abuse continued until my mother caught the defendant sexually assaulting me.”

Background – The Defendant’s Case.

20. The defendant denies that he assaulted the plaintiff in any way.

21. He stated that he was not in school during the period in question. As already noted, he stated that he had worked in two hotels for the two years after he left school in 1978. He joined the Army in 1980. It is not clear for how long he served in the Army, but it is likely that he was in the Army for a number of years. He was resident in the UK from 1986 to 1991.

22. The defendant states that approximately 30 years ago, meaning sometime in 1995, his mother told him that the plaintiff was threatening to tell the defendant’s wife that she had been abused by the defendant as a child. The defendant states that he told his wife of the allegations at that time. The plaintiff did not make any allegation of abuse to the defendant’s wife.

23. The defendant states that he and his wife had encountered the plaintiff at family functions over the years. He states that the plaintiff never made any allegations against him until delivery of the plenary summons and statement of claim herein. The defendant states that given the absence of any specific details by the plaintiff in relation to the abuse that she alleges that she suffered at the hands of the defendant, he cannot say any more than that in denial of her allegations.

The Present Application.

24. The defendant alleges that he cannot get a fair hearing at this remove in time from the date of the alleged events, which are alleged to have occurred between 46 and 44 years ago.

25. He states that he will suffer significant prejudice in the conduct of his defence in that his mother and father are dead, as is his uncle, who may have been in a position to give relevant evidence. In addition, he states that he has been deprived of the ability to obtain relevant documentary records which would show that he was not at home at weekends during the relevant period. In particular, he states that the hotels in which he worked and are no longer in existence. The first hotel has long since shut down and the second hotel no longer operates as a hotel, but is now used as an accommodation centre for asylum seekers. The defendant states that while there may be Army records available which would show whether he was on leave during any specific weekends in the period 1980/1981, he is not certain whether these records still exist. In addition, the defendant states that due to the passage of time, he has been deprived of the opportunity to produce incidental records, such as concert tickets, airline tickets or other documentary evidence which might establish that he was away from the family home on any specific weekends or periods during the relevant years.

26. The defendant submits that in circumstances where the allegations made by the plaintiff are lacking in specifics and in the absence of any other relevant witnesses, this will cause him to have to face at the trial of the action a bare allegation made by the plaintiff against him, to which he will only be able to produce a bare denial in response. It is submitted that at this remove some 46/44 years from the date of the alleged events, he has been prejudiced to such an extent by the delay in the conduct of his defence, that he cannot now get a fair hearing at the trial of the action.

27. In this regard, the defendant relied heavily on the decision of Hogan J (then sitting as a judge of the High Court) in II v JJ [2012] IEHC 327. The facts of that case were similar to those in the present case. It concerned an allegation of rape and sexual abuse between 1976 and 1980 by a brother on a sister. The decision striking out the case was delivered on 5 July 2012.

28. Counsel for the defendant accepted that there were some points of distinction between that case and the present case, in that in the II v JJ case, there was also an allegation of post–commencement delay, which is not made in the present case. A further point of distinction between the cases is that in the II v JJ case, the plaintiff had alleged that she had complained to her father of the abuse during the relevant period. Her father was still available to give evidence as a witness in this regard. While he had not sworn an affidavit for the purposes of that application, the evidence suggested that he would not accept the plaintiff’s version of events.

29. At para. 31 of the judgment, Hogan J noted that the picture which emerged was that the plaintiff’s case would largely rest on bald assertion. He continued as follows:

“If this action were to proceed to trial, one would be faced with the real possibility that the jury would be forced to choose as between two different narratives, so that the party who came across as more appealing, sympathetic and credible was more likely to be believed. However a trial of this kind would “put justice to the hazard” (see O’Domhnaill v. Merrick [1984] I.R. 151, 158 per Henchy J), since it puts a premium on the ability of a party to give a skilful performance as a witness”.

30. The judge continued as follows in giving his conclusion at para. 35:

“All of this is perhaps another way of saying that a claim of this kind which rests completely (or, at best from the plaintiff’s perspective, almost completely) on one person’s word against another in respect of events which occurred between thirty two to thirty six years ago is so fraught with uncertainties that the risk of an unfair trial is in turn so great that the action should not be allowed to proceed.”

31. It was submitted on behalf of the defendant that the facts in this case were similar, if not even more extreme, given that the lapse in time from the date of the alleged events was even greater at 46/44 years.

32. In response, Mr Gavigan SC on behalf of the plaintiff submitted that the case law established that the court should be slow to strike out an action when there is no culpable delay on the part of a plaintiff. In this regard, he referred to the medical report that had been exhibited in the affidavit, in which the consultant psychiatrist had clearly stated that the plaintiff had been unable to make a formal complaint prior to the time that she made her statement to the gardaí in 2019.

33. Relying on the decision of the Court of Appeal in Beatty v Beatty [2025] IECA 64, it was submitted that this case was authority for the proposition that because the plaintiff’s impairment in reporting the abuse arose as a result of the defendant’s actions in abusing the plaintiff, the defendant could not complain of delay up to the point when the impairment ceased in 2019.

34. It was submitted that the death of the plaintiff’s mother, would adversely affect the plaintiff’s case more than the defendant’s case, given that the plaintiff alleged that the abuse had only ceased upon her mother discovering the defendant abusing her in her bed.

35. Counsel stated that it was not correct to say that all relevant witnesses were no longer available. He referred to the replies furnished by the plaintiff wherein she had disclosed that her sister had been in the bedroom on at least some of the occasions when she was allegedly abused by the defendant. She stated that she was not in a position to state whether her sister had actually witnessed the abuse. It was submitted that in these circumstances the sister could be a highly relevant witness. Counsel indicated to the court that his instructions insofar as they went, were to the effect that the plaintiff’s sister may be in a position to give evidence supportive of the plaintiff’s case. However, he stated that he did not have firm instructions in that regard. He accepted that he could not provide any evidence as to what evidence the sister would give at the trial of the action.

36. It was submitted that having regard to the principles set down in the O’Domhnaill v Merrick case, as reiterated by the Supreme Court in IBRC v Fingleton [2024] IESC 59, and having regard to the very high threshold which a defendant must cross in order to have a plaintiff’s action struck out on the grounds of non-culpable delay on the part of the plaintiff; the defendant had not crossed that threshold and therefore the relief sought in the notice of motion should be refused.

The Law.

37. The law in this area was set down in 1984 in O’Domhnaill v Merrick [1984] IR 151. The principles set down in that case are very well known. The principles have been applied in many subsequent cases, such as in Toal v Duignan (No 1) & (No 2) [1991] ILRM 135 & 140; Manning v Benson & Hedges [2004] 3 IR 556; Whelan v Lawn [2014] IESC 75.

38. In IBRC v Fingleton [2024] IESC 59 the Supreme Court set down a comprehensive statement of the principles that had been developed following the O’Domhnaill decision in 1984. Having analysed all the subsequent case law, the court set down the following principles at paragraphs 75 – 80 of the judgement of the court, which was delivered by Woulfe J. I do not propose to set out these paragraphs in extenso, but instead to give a summary of them.

39. Summarising the conclusions that were reached by the Supreme Court, the following would appear to be the principles that govern applications to strike out proceedings on grounds of delay under the O’Domhnaill v Merrick line of authority: First, where a person brings civil proceedings there is a strong presumption in favour of a trial on the merits. Secondly, in order to displace that strong presumption, a defendant must clearly establish a weighty countervailing factor, such as establishing that it will not be possible to have a fair trial because of the lapse of time, irrespective of whether blame can be attached to any person. The burden is on the moving party. It is an exceptional jurisdiction which the court should use rarely.

40. Thirdly, it is necessary to distinguish between an imperfect trial/litigation disadvantage and an unfair trial. Lack of perfection or litigation disadvantage does not necessarily mean that the trial will be unfair. Much will depend on the specific circumstances of an individual case. The court held that at some point the absence of evidence, coupled with the effect of lapse of time on the ability of the court to assess other evidence, may lead to a stage being reached where the case has gone beyond the reach of fair litigation.

41. In exercising its inherent jurisdiction to strike out proceedings on the basis of fairness, the court should have regard to the factors identified by Finlay Geoghegan J in the Manning case. These include, but are not limited to, the following: the nature of the claims and the defences raised; the nature of the evidence to be adduced in the context of the issues to be determined; the role of documents and whether such documents exist; the extent to which oral evidence from a particular witness is likely to be required; the prejudice which the defendant asserts and the evidence he or she adduces to support that assertion.

42. Fifthly, it will normally be preferable, except in very clear cases, that any exercise of this exceptional jurisdiction be left to the trial judge. Sixthly, the precise scope of the inherent jurisdiction to dismiss a claim in the interests of justice may be subject to consideration in future cases. However, the court stressed that it is an exceptional jurisdiction, which will only arise in rare cases.

43. What is set out above is simply my summary of the principles that were set down by the Supreme Court in the Fingleton case. The reader should read the entire judgment of the Supreme Court for its full terms and effect.

Discussion and Conclusions.

44. In the course of their helpful submissions, counsel were agreed on two matters: first, that there was no allegation of post commencement delay; secondly, that the case fell to be decided on the principles applicable to what may be called the O’Domhnaill v Merrick line of authority.

45. In argument at the bar, Mr Gavigan SC laid considerable stress on the decision of the Court of Appeal in Beatty v Beatty [2025] IECA 64. In that case, the court had identified an issue which had not been considered in previous judgments. That issue was whether a defendant can complain of delay and consequential prejudice, if, when taking the plaintiff’s case at its height, part of that delay was due to impairment on the part of the plaintiff in bringing forward her complaint of having been sexually abused by the defendant. The issue was summarised by Noonan J in the following way at para. 1 of his judgment:

“Perhaps surprisingly, one issue that arises in this case concerning alleged sexual abuse appears not to have been directly considered before. Can a defendant, who seeks to have a claim dismissed for delay, succeed where the delay complained of has been allegedly caused by the wrongdoing of that defendant?”

46. To fully consider the impact of this issue, it will be helpful to look at the timeline that was before the court in the Beatty case. The plaintiff, who was a retired medical practitioner, made a statement to the gardaí in 2017 that he had been sexually abused by his father on one occasion when he was 15 years of age, in or about May 1981. This abuse was alleged to have taken place in the plaintiff’s bedroom. His brother was alleged to have been in another bed in the same room at the time of the alleged assault.

47. Following an investigation of the matter by An Garda Síochána, a prosecution was instituted by the DPP in 2019 against the plaintiff’s father. The matter had been before the District Court on a few occasions before the plaintiff’s father suffered what was described by the Court of Appeal as being “a significant stroke which is said to have rendered him unable to engage further with the proceedings”. The defendant died on 28 September 2024 after the hearing of the appeal and before judgment was delivered by the Court of Appeal on 19 March 2025.

48. The plaintiff’s brother, who was alleged to have been in the room at the relevant time, died on 24 June 2020.

49. On 20 July 2020, the DPP entered a nolle prosequi in the criminal proceedings against the defendant. On 12 July 2021, the plaintiff’s mother died. The plaintiff’s civil proceedings issued against his father on 27 September 2022. On 28 November 2022, a guardian ad litem was appointed to represent the defendant’s interests in the action.

50. It was against that timeline that the Court of Appeal had to consider an application on behalf of the defendant to have the proceedings against him struck out on grounds of delay, which it was alleged had rendered it impossible for him to obtain a fair hearing at the trial of the action.

51. The court ruled that the issues raised on the application fell to be considered under the principles set down in the O’Domhnaill v Merrick line of authorities. The court, having carried out a thorough analysis of the relevant case law, adopted the statement of principles set down by the Supreme Court at paras. 75–80 in the judgment of Woulfe J in IBRC v Fingleton [2024] IESC 59; the Court of Appeal noted that there was medical evidence before it which stated that due to the sexual abuse suffered by the plaintiff at the hands of the defendant, the plaintiff had been impaired in his ability to report the abuse until he made his statement to the gardaí in 2017.

52. The court held that in these circumstances, when taking the plaintiff’s case at its height, the defendant had to be regarded as being the cause of the delay that had elapsed from the time of the alleged abuse in May 1981, until when the impairment ceased by the making of a formal complaint to the gardaí by the plaintiff in 2017. It was held that the defendant could not complain of that period of delay of which he had been the cause. The court’s conclusions on this issue were set out as follows at paras. 129 and 130:

“129. In an application of this nature, as with other applications for summary dismissal, it seems to me that the court must take the plaintiff’s case at its height. The plaintiff has provided medical evidence to say that he was unable to pursue this claim before 2017 because of the impairment caused by the abuse complained of. At this juncture, the Court must proceed on the basis that this is correct and, if it is, it follows that the delay up to then is the responsibility of the defendant.

130. That being so, it appears to me that the defendant cannot pray in aid the delay until 2017 to seek dismissal of the plaintiff’s claim. While it might be said that the primary prejudicial events occurred after 2017, it must be borne in mind that, absent this disability, the plaintiff would have been in a position to pursue this claim many years ago and certainly at a time when all relevant witnesses were alive.”

53. The court also went on to note at para. 131 that while the plaintiff may not have been under a disability after 2017, he was justified in awaiting the outcome of the Garda investigation and subsequent prosecution, before instituting his proceedings.

54. The court concluded at para. 134 by stating that it was satisfied that no substantial prejudice had been occasioned to the defendant by any delay on the plaintiff’s part between 2020 and 2022. The court stated that even in the absence of those factors, the defendant had not established prejudice at a level which meant that a fair trial of the issues could no longer take place.

55. The court stated at para. 136 that the decision in the Fingleton case clearly established that disability and even death of a defendant, could not suffice without more to warrant dismissal. The court noted that there was a substantial body of evidence available to the defendant in the case before it on the core issues around the reporting of the abuse and whether the plaintiff was in truth labouring under a disability until 2017. The court went on to state that while it had to be accepted that the matters relied upon by the defendant in moving the application, will put the defence at some litigious disadvantage, the plaintiff would still not have a free run in the matter. The court stated that it may even be a case of justice diminished as a result of a trial that is less than perfect. But that was not enough to warrant a dismissal of the case. The court noted that there was a strong constitutional imperative in favour of a trial on the merits. The court stated at para. 141, that the case before it was one where the exercise of this exceptional jurisdiction was best left to the decision of the trial judge. Accordingly, the court allowed the appeal and refused to strike out the proceedings against the defendant.

56. In a short concurring judgment, Woulfe J (sitting as a judge of the Court of Appeal) explained his dictum in the Fingleton judgment where he had referred to the requirement for a defendant to establish that it will not be possible to have a fair trial because of the lapse of time “irrespective of whether blame can be attached to any person”. He explained that dictum as follows:

“7. In using the words quoted above, I was simply stating that the lapse of time jurisdiction could arise in principle regardless of the absence of any blame attaching to any party, and in particular without any blame attaching to the plaintiff, as was common case in Fingleton itself. I was not suggesting that culpability on the part of the defendant is irrelevant in such circumstances, and any such suggestion would run contrary to the authorities mentioned above, which authorities were also cited in my judgment in Fingleton.

8. Finally, I also agree with the important finding of Noonan J. (at para 129) that, in an application of this nature, as with other applications for summary dismissal, the Court must take the plaintiff’s case at its height. This includes the medical evidence provided by the plaintiff to say that he was unable to pursue this claim before 2017, because of the impairment caused by the abuse complained of.”

57. It could reasonably be argued that the decision of the Court of Appeal in the Beatty case marks a radical addition to the principles which had been applied heretofore to cases such as the present. Based on that decision, the present law would appear to be that when an allegation of sexual abuse has been made against a person and where the plaintiff can produce medical evidence that due to having suffered that sexual abuse they were impaired until a particular date in making a formal complaint about the alleged abuse, the period between the date of the alleged sexual abuse and the date of the first formal reporting of it, will not be reckonable in any application that may be brought by a defendant that due to the lapse of time, he cannot get a fair trial, be that in civil or criminal proceedings.

58. In argument at the bar, the court was informed that the Beatty case is in the list for applications for leave to appeal to the Supreme Court. However, that application has not yet been heard by a panel of the Supreme Court. As the decision of the Court of Appeal represents a radical addition to the test as applied heretofore, and as it will have far-reaching consequences for criminal prosecutions and civil actions in the future, the issue raised may well be one on which the Supreme Court will hold that it is appropriate that an appeal should be permitted to that court.

59. For the purposes of the present application, this Court is bound by the decision of the Court of Appeal in the Beatty case. However, in the very particular circumstances of this case, where the plaintiff has alleged that she was seriously sexually assaulted by three separate individuals in close temporal proximity, it could not be said that any impairment that she suffered in making a formal complaint about the abuse that she suffered, was solely due to the alleged wrongful acts on the part of any one of the alleged wrongdoers.

60. Accordingly, in this case and for the purpose of this application, I cannot find that such impairment as the plaintiff was under in making her complaint against the defendant, was due to the alleged wrongdoing of the defendant alone. Therefore, I do not hold that he was responsible for the delay on the part of the plaintiff in instituting her proceedings. Equally, as there is medical evidence of impairment, I do not find that the plaintiff was guilty of culpable delay in instituting the proceedings herein.

61. For the purposes of this application, and solely on the basis of the particular circumstances in this case, the court will proceed on the basis that the plaintiff’s delay in instituting the proceedings was not due to the fault of either party. The court will look at the issues simply on the basis of whether the defendant has established that at this remove, due to the lapse of time and such intervening events as have occurred, he cannot get a fair hearing at the trial of the action.

62. Applying the principles as established in the O’Domhnaill v Merrick case, as restated by the Supreme Court in Fingleton, it is clear that the defendant must cross a significant threshold to persuade the court that the action must be struck out. He must persuade the court that in all the circumstances it is likely that he will not receive a fair hearing if the matter is permitted to continue to trial. I am not satisfied that the defendant has crossed that threshold.

63. While I accept that it is unlikely that the defendant can obtain any documents from the two hotels in which he worked after leaving school, I am not persuaded that a duty roster would have been retained by the hotel proprietors for any appreciable length of time beyond that covered by the period of the roster itself.

64. A duty roster is only of relevance as a means of ensuring that an adequate number of staff are on the hotel premises at any given time. It may also be used for the purpose of calculating the wages of staff at the end of the month. Once the relevant period has passed, no purpose is served by retaining the roster. I hold that on the balance of probabilities, such rosters as may have existed would probably have been discarded within a short period after conclusion of the relevant roster period. Accordingly, it cannot be said that the loss of these rosters was due to the delay in instituting the proceedings herein.

65. The defendant accepts that there may be documents in the possession of the Army authorities, so he is not at any disadvantage as far as these documents are concerned.

66. Insofar as the defendant complained of the unavailability of incidental documents, such as airline tickets, concert tickets, or other such documents, as may have established that he was likely to have been away from the family home on any particular weekends; I am again satisfied that such documents would, in all probability, have been discarded in one way or another within a relatively short period. Therefore, their loss or unavailability was not due to the delay on the part of the plaintiff in instituting the proceedings herein.

67. I accept that the parents of the plaintiff and the defendant have died. There is no evidence that either of them could have given evidence that was favourable to the defendant. Indeed, it is arguable that the absence of the plaintiff’s mother as a witness, is more detrimental to the plaintiff’s case, as the plaintiff alleges that the abuse stopped when her mother caught the defendant abusing her in her bed. She further alleges that her mother put the defendant out of the house on account of what she had discovered. That evidence is no longer available to the plaintiff. If it is correct that such evidence would have been given by the plaintiff’s mother, that is material evidence that is no longer available to the plaintiff.

68. The evidence given by the defendant in his affidavit, that his mother told him

30 years ago that the plaintiff was going to inform his wife that she had been abused by the defendant, is evidence that is no longer available to him. However, it is evidence which could be construed as supporting the plaintiff’s case, as it would tend to show that her allegations are not of recent invention. Accordingly, the loss of such evidence is not detrimental to the defendant’s defence.

69. Accordingly, I am not persuaded that the loss of the defendant’s mother as a witness constitutes any serious prejudice to the defendant in the conduct of his defence.

70. It was submitted on behalf of the defendant that given the lapse of time since the date of the alleged assaults, the evidential conflict between the parties would come down to a bare assertion by the plaintiff, countered by a bare denial by the defendant, which would constitute the very mischief identified by Hogan J in II v JJ, that the outcome of the action could come down to whichever of the parties was a better actor when giving their evidence at the trial of the action.

71. I am not satisfied that that submission is well-founded because it ignores the availability of the plaintiff’s sister to give evidence. She slept in the same room as the plaintiff which was the locus of the incidents complained of by the plaintiff. It would appear from the replies given by the plaintiff, that the plaintiff’s sister was present for at least some of the assaults allegedly perpetrated against the plaintiff by the defendant.

72. The court was told that this witness is available to give evidence at the trial of the action. There was no evidence before the court that she is unwilling to appear as a witness. There was no evidence before the court as to what evidence she could give.

73. The evidence of this witness could potentially be critical at the trial of the action. If she states that she saw and heard the defendant commit an assault or assaults on the plaintiff, that would be hugely supportive of the plaintiff’s case. If her evidence is that she saw and heard nothing, but that she was present in the room during the weekends in the relevant period, that would be very favourable to the defendant given that the plaintiff has asserted that she was present in the room for at least some of the assaults.

74. It is also of relevance that she has been acknowledged by the plaintiff to have resided in the house for at least part of the relevant period and that she shared the same bedroom with the plaintiff. Where two sisters share a bedroom and where it is alleged that there were approximately 120 assaults committed against the plaintiff in that room in the period September 1979 to August 1981, it could be seen as being unlikely that the plaintiff would have committed such a large number of assaults in that location, given the risk of discovery by the plaintiff’s sister walking into the bedroom.

75. This consideration also applies to other occupants of the house. It is known that the plaintiff’s mother and father resided in the house. It is not stated whether there were other permanent or temporary occupants of the house within the relevant period. While the court does not have evidence as to the size of the family home, the defendant will be able to make a case at the trial of the action as to the plausibility of him carrying out such a large number of assaults on the plaintiff during that period without detection from any members of the family, until he was allegedly “caught in the act” by the plaintiff’s mother in August 1981.

76. In addition, the defendant can make an application for discovery of the plaintiff’s medical records, to include all psychiatric and counselling records, for a considerable period. This may be particularly relevant in relation to the plaintiff achieving “clarity” in her recollection as a result of her recent counselling that the defendant was not home from school when he allegedly abused her. The defendant will be able to argue that such documentation is relevant and necessary to enable him to properly deal with the liability and quantum aspects of the case. In these circumstances, it is not correct to say that the only evidence that will be available at the trial of the action, will be the conflicting accounts given by the plaintiff and the defendant.

77. The defendant is aged in his early 60s. I accept the evidence given by him of his health difficulties. It is not asserted that these are such as to impair his ability to recall events or to give evidence on his own behalf at the trial of the action.

78. Given the ability of the defendant to give evidence on his own behalf; the likely existence of records from the Army for the period 1980/1981; the fact that he can seek discovery of the plaintiff’s medical and psychiatric records; and the existence of a witness whose evidence may be highly probative; I am not satisfied that the defendant cannot get a fair hearing or that there is a real likelihood of an injustice being done at the trial of the action, notwithstanding the passage of between 44 and 46 years since the time of the alleged assaults.

79. For the reasons set out herein, I refuse the reliefs sought by the defendant in his notice of motion dated 29 February 2024.

Proposed Final Order.

80. The court would propose that the final order of the court should be an order refusing the reliefs sought by the defendant in his notice of motion dated 29 February 2024; together with an order for the costs of the application in favour of the plaintiff against the defendant; such costs to be adjudicated in default of agreement; but subject to a stay on execution thereof pending the final determination of the matter. The court would also propose to continue the prohibition on the publication of any details that would tend to identify the plaintiff or the defendant.

81. As this judgment has been delivered electronically the parties shall have 7 days within which to furnish brief written submissions of not more than 1,000 words on the terms of the final order and on costs and on any other matters that may arise.

82. The matter will be listed for mention at 10.45 hours on 29 July 2025 for the purpose of making final orders.