Supreme Court allows appeal dismissing State's motion to dismiss proceedings on delay and record absence grounds.

THE SUPREME COURT

[S.C. No. 385 of 2004]

Murray C.J.

Denham J.

Geoghegan J.

J.R.

PLAINTIFF/APPELLANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND,

THE ATTORNEY GENERAL, AND THE COMMISSIONER OF

AN GARDA SÍOCHÁNA

DEFENDANTS

Judgment delivered the 1st day of February, 2007 by Denham J.

1. The Minister for Justice, Equality and Law Reform, Ireland, the Attorney General and the Commissioner of An Garda Síochána, the

defendants, (hereinafter referred to as 'the State') brought a motion in the High Court seeking an order dismissing the proceedings of

J.R. (hereinafter referred to as 'the plaintiff') on the basis of delay. On 22nd July, 2004 the High Court granted the State's application

and ordered that the plaintiff's proceedings be dismissed on the grounds of inexcusable and inordinate delay. Against that order and

judgment the plaintiff has appealed to this Court.

2. In her statement of claim the plaintiff has claimed that on occasions commencing in or around 1960, when she was approximately 5

years of age, she was repeatedly assaulted, battered indecently and/or sexually assaulted, raped, beaten and intimidated in the

family home by family members, in particular her brother J.B., her father and her mother. Because of this situation the plaintiff claims

that in or around 1967, at approximately the age of 12 years, she visited Raheny Garda Station in the City of Dublin and complained

to members of An Garda Síochána, on at least two occasions, of the abuse. The plaintiff claims that members of An Garda Síochána,

rather than heed or act upon her complaints, stated to the plaintiff that she must have enjoyed the abuse, that she must have got

something out of it, that otherwise she would have reported it sooner. Despite the said alleged complaints the members of An Garda

Síochána took no action save to send her back home, as a result of which she was continually and systematically beaten, intimidated

sexually, and/or indecently and incestually assaulted and raped until in or about 1996. By reason of these matters the plaintiff

maintains that she suffered and sustained severe personal injury, physical and mental distress, loss and damage. By reason of the

failure, refusal and neglect of the members of An Garda Síochána to heed her complaints she claims that the abuse continued until

about 1996. By reason of the manner in which she had been received by members of An Garda Síochána the plaintiff felt she could

not confide in anyone for help. At the age of 19 the plaintiff bore a child by her brother J.B., as a result of an incident of rape. As a

consequence of these events the plaintiff has developed suicidal tendencies.

3. On behalf of the State, Brian Fenton, Inspector in An Garda Síochána, deposed that between 1967 and 1968 there were 34

members of An Garda Síochána serving in Raheny Garda Station, that eight of those persons are now deceased and that three

persons could not be interviewed because of old age and infirmity. He further stated that there are no records available at Raheny

Garda Station which show any reports made there during the period 1967 - 1968 inclusive. He deposed that at this time it is

impossible for the State to negate by evidence the propositions raised by the plaintiff, that if the proceedings had been instituted at

an earlier stage, witnesses or records may have been available which may have assisted in the defence of the action. "Prosecutorial

delay" on behalf of the plaintiff was also alleged, in that the plenary summons was issued on the 6th February, 1998 and the

statement of claim on 10th July, 2001.

4. The High Court, (Kearns J.), in an ex tempore judgment delivered on 22nd July, 2004, on the notice of motion to dismiss the

proceedings, ordered that the plaintiff's proceedings be dismissed. The learned High Court judge held:

"Essentially they allege two grounds for making the application, and the first, and the one on which I propose to resolve

this issue, is that they are unable to defend the proceedings by reason of the fact that as a consequence of the lapse of

time between the date of the alleged wrong and the anticipated date of trial evidence relevant to liability is no longer

available uniquely to defendants to such an extent as to render the trial impossibly unfair if it were to proceed. They

contend that the plaintiff has been guilty of inordinate and inexcusable delay.

...

It appears from this material that thirty-four members of An Garda Síochána were stationed at Raheny Garda Station at

about the time that the complaint was allegedly made and by the time this matter came to be investigated, when the

proceedings commenced, thirteen of those individuals have died, and another twenty two have sworn affidavits in which

they state that no complaint of the type alleged by the plaintiff was made to them personally and no records have been

turned up nor do they exist in respect of which could lend credence to the allegations or enable the matter to be resolved

one way or the other."

The learned trial judge referred to the concession made by counsel on behalf of the plaintiff, that every Garda may be expected to

say that it did not happen on his watch and to deny that any complaint was ever made or received. He held that:

". . . the defendants are in quite an impossible position in trying to defend a case, particularly when the individual Guard

or Guards or Sergeant cannot be named or identified, where there is absolutely no written record of a complaint or

anything of the sort, where numerous individual Gardaí have died, and to my way of thinking the lapse of time, which at

this stage is approaching forty years from the time when the complaint was allegedly made is of such a magnitude as to

render it palpably unfair any trial which might take place were the court to decline to grant the relief sought."

The learned trial judge found that there had been inordinate and inexcusable delay. He accepted that there was an explanation which

explains to a large degree why the plaintiff could not complain but held that it did not resolve the issue. The trial judge held that the

State was left in a hopeless position in trying to defend the case. He pointed out that this was not like a sex abuse case where the

defendants were the alleged oppressors, where there may be dominion. He granted the State's application and ordered that costs

follow the event.

5. Nicole Dillon, Solicitor for the plaintiff, deposed, in an affidavit sworn on 14th March, 2003, as to certain relevant matters. She

stated that by reason of the manner in which the plaintiff had been received by members of An Garda Síochána in Raheny with regard

to her initial complaints, and owing to the trauma she suffered as a result of the continuing abuse, the plaintiff felt she could not

confide in anyone for help. In or around 1993/1994 the fact of this continuing abuse came to the knowledge of An Garda Síochána

indirectly through a social worker who had dealings with the plaintiff. Afterwards J.B. was charged with various counts on indictment

including unlawful carnal knowledge on a number of occasions, rape and sexual assault, to which he pleaded guilty in the Central

Criminal Court on 7th April, 1997. On the 13th June, 1997 he was sentenced in the Central Criminal Court by Carney J. to fifteen

years' imprisonment. Nicole Dillon deposed that J.B. had recently been granted a retrial by the Court of Criminal Appeal in respect of

the allegations of rape, but that the counts of unlawful carnal knowledge and sexual assault of the plaintiff stand uncontested. At the

sentencing of J.B., Carney J. appeared to accept that the plaintiff had complained to Raheny Garda Station in 1967/1968, that these

initial complaints were credible and ought to have been heeded and acted upon. Carney J. stated that as a result of the failure and/or

neglect on the part of members of An Garda Síochána to heed and act upon the complaints, the plaintiff was sexually and

incestuously abused for almost a quarter of a century more.

6. Appeal

The plaintiff has filed a notice of appeal, setting out ten grounds of appeal. These grounds are essentially that the learned trial judge

erred in law and/or fact in holding that the delay by the plaintiff was inordinate and inexcusable; that he failed to give due

significance to the fact that the State, its servants or agents, contributed to the plaintiff's inability to bring the action promptly. It is

also asserted that the learned trial judge erred in holding that justice would be put to the hazard because the State at this stage

could only resort to a bare denial, and that he had erred in failing to appreciate that this was a case of assertion and denial only and

that no prejudice had been shown by the State. It was further a ground of appeal that the learned trial judge misdirected himself in

appearing to attach significance to the absence of records available to the State when, if the plaintiff's contentions are correct, no

records or entries would have been recorded.

7. Common Law

This is a motion brought regarding civil law proceedings. It does not relate to criminal proceedings. It is important to note and keep

this distinction.

The common law on the issue of delay in commencing proceedings is well established. Henchy J. in his judgment in this Court in

Ó'Domhnaill v. Merrick [1984] I.R. 151 referred to precedents and set out principles. He stated at p. 157:

"Whether delay should be treated as barring the prosecution of a claim must inevitably depend on the particular

circumstances of a case. However, where, as in this case, the delay has been inordinate and inexcusable, such delay is

not likely to be overlooked unless there are countervailing circumstances, such as conduct akin to acquiescence on the

part of the defendant, or inability on the part of an infant plaintiff to control or terminate the delay of his or her agent. In

all cases the problem of the court would seem to be to strike a balance between a plaintiff's need to carry on his or her

delayed claim against a defendant and the defendant's basic right not to be subjected to a claim which he or she could

not reasonably be expected to defend."

In Toal v. Duighnan and Ors [1991] I.L.R.M. 135 Finlay C.J. referred to his acceptance of the principles laid down by Henchy J. in

O'Domhnaill v. Merrick, and adhered to them, as he had himself in a previous appeal. He stated, inter alia, at p. 139:

"In the High Court it was held by Keane J. that the case was governed by the decision of this Court in O'Domhnaill v.

Merrick [1984] I.R. 151. I am in agreement with that view of the law. It is unnecessary for me to repeat here the

principles laid down by this Court in that case, but they may be summarised in their application to the present appeal as

being that where there is a clear and patent unfairness in asking a defendant to defend the case after a very long lapse

of time between the acts complained of and the trial, then if that defendant has not himself contributed to the delay,

irrespective of whether the plaintiff has contributed to it or not, the Court may as a matter of justice have to dismiss the

action."

8. Statute

The State has not pleaded the Statute of Limitations. The Statute of Limitations (Amendment) Act, 2000, refers to persons affected

by sexual abuse. Section 2 amends the State of Limitations Act, 1957 by inserting s. 48A, which provides:

"(1) A person shall, for the purpose of bringing an action—

(a) founded on tort in respect of an act of sexual abuse committed against him or her at a time when he or she had

not yet reached full age, or

(b) against a person (other than the person who committed that act), claiming damages for negligence or breach of

duty where the damages claimed consist of or include damages in respect of personal injuries caused by such act,

be under a disability while he or she is suffering from any psychological injury that—

(i) is caused, in whole or in part, by that act, or any other act, of the person who committed the first-

mentioned act, and

(ii) is of such significance that his or her will, or his or her ability to make a reasoned decision, to bring

such action is substantially impaired.

(2) This section applies to actions referred to in subsection (1) whether the cause of action concerned accrued before or

after the passing of the Statute of Limitations (Amendment) Act, 2000, including actions pending at such passing.

The Statute of Limitations (Amendment) Act, 2000, s. 3 provides:

(3) Nothing in Section 48(A) of the Statute of Limitations Act 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."

However, as the Statute was not pleaded, I have not considered it, nor its relationship to the common law, and it forms no part of

this decision.

9. Decision

The test to be applied is whether there has been inordinate and inexcusable delay, and, if so, whether on the facts, the balance of

justice is in favour or against the case proceeding. It is therefore essentially a test of fairness, which is to be assessed on all the

circumstances of the case, as a matter of discretion, by the Court, in the interests of justice.

9.1 The court has an inherent jurisdiction to control its own procedures and to dismiss a claim when the interests of justice so

require. Concomitantly, the court has an inherent jurisdiction not to dismiss a claim when the interests of justice so require. The

inherent power exists to promote the interests of justice.

9.2 Whether delay should be treated as barring the claim depends on the particular circumstances of a case. The Court must assess

whether the delay is inordinate and inexcusable, and, even if it has been, whether there are countervailing circumstances.

In this case the proceedings relate to events approximately forty years ago. By any scale of analysis such a delay in proceedings is

inordinate.

There is then the question as to whether the delay is excusable. This requires an analysis of the particular circumstances. It is not an

analysis as was made in relation to proposed criminal prosecutions prior to the decision of this Court in H. v. The Director of Public

Prosecutions [2006] I.E.S.C. 55 as this appeal does not refer to a criminal prosecution. Thus, neither the old nor the evolved

jurisprudence, which has developed in judicial review cases relating to criminal trials for sexual abuse, falls four square into this area

of law.

In the analysis it is necessary to consider the particular circumstances. The State's conduct is required to be scrutinised carefully. If

it has itself contributed to the delay significantly that factor would prejudice the State's claim to have the proceedings dismissed. In

considering this aspect of the matter there are relevant factors to be taken into account.

In sentencing J.B., the applicant's brother, after he pleaded guilty to three counts of unlawful carnal knowledge and one of sexual

assault (the court was informed that there was an appeal pending on the issue of rape), the learned trial judge (Carney J.) stated in

open court, having recited rejection by her parents and her claim that she was rejected by a number of members of Raheny Garda

Station, that:

"The effect of the rejection of the victim's credible complaints has been that she has been incestuously abused for a

quarter of a century longer than was necessary, that she bore a child by her stepbrother, that she was incestuously

abused while married, that she developed suicidal tendencies and that she was seriously intimidated and beaten. She says

herself that she "has not had a life". It is not entirely clear at what stage sexual abuse started but it was prior to the age

of 12. She complained on two occasions to her parents and that resulted in her getting a hiding and getting put out of

the house, this was around the age of twelve and a half. She went to Raheny Garda Station where one of the policemen

to whom she complained, apparently in the presence of a Sergeant said "well did you not enjoy that, did you not feel

good about all the fondling that your brother was doing, you must have go[t] something out of it" she left the police

station crying. In the light of what has happened and in particular in relation to Raheny Garda Station some old law still

holds good requires to be reinstated. "Where a credible complaint of felony is made to a policeman he has no discretion

under the common law not to investigate it and apprehend the named offender" a failure to carry out this duty vigorously

constitutes an illegality on the policemen's part and renders him liable to prosecution on indictment. In Craig and Gamble

[1887] 24 Law Reports Ireland at page 458, Chief Barron Pallas said "a person against whom a reasonable suspicion of

felony exists should be brought to justice. A police officer is not only entitled but bound to arrest him". This principle of

common law holds a hundred and ten years later. It is an indictable offence of common law where a public officer wilfully

and without reasonable excuse or justification to neglect to perform a duty imposed on him, either by common law or

statute, that this is so was most recently confirmed in R-v-Dytham [1978] Queens Bench at page 722."

The contribution of a party is a relevant factor. In Toal v. Duignan & ors [1991] I.L.R.M. 135 at p. 139 Finlay C.J., having referred to

the decision of Ó'Domhnaill v. Merrick [1984] I.R. 151, summarised the application of the principles of law to that case as:-

". . . where there is a clear and patent unfairness in asking a defendant to defend a case after a very long lapse of time

between the acts complained of and the trial, then if that defendant has not himself contributed to the delay,

irrespective of whether the plaintiff has contributed to it or not, the court may as a matter of justice have to dismiss the

action." [The emphasis is added]

Thus, whether a defendant has contributed to a delay may be an important factor.

Applying that analysis to this case, while there has been a very long lapse of time, the plaintiff's case is based on a claim that the

State contributed to her suffering. The action is essentially about delay and the consequences to the plaintiff. Thus delay is at the

core of the plaintiff's case. The proceedings brought by the plaintiff raise the issue of the responsibility for that delay. The plaintiff

claims that the State is responsible. That issue is the essence of the proceedings. This is a relevant factor in determining the motion,

for the issue pleaded in the action is delay and the State now seeks to prevent the proceedings on the grounds of delay.

Also at the core of the plaintiff's claim is that a report (and hence record) was not made about her complaint to An Garda Síochána.

The State have brought this motion on the basis of absence of records. I am satisfied that it would not be proportionate to dismiss

the plaintiff's claim because of something which is an essence of the claim - i.e. the absence of a report.

Fundamentally, what has to be applied is a test of fairness. This balancing is required to take place in all the particular circumstances

of a case. The onus lies on the State in the motion to dismiss the plaintiff's proceedings. I am satisfied that they have not discharged

this obligation. As a matter of justice, in all the circumstances of the case, the State may not avail of the issue of delay as a reason

to dismiss these proceedings about delay. Nor may the State avail of the issue of the absence of records as a reason to dismiss these

proceedings which raised the issue and complains of the absence of a report. To permit of such dismissal would not be fair. As a

matter of discretion, as to the balance of justice, in light of the particular circumstances of this case, I would not dismiss the

proceedings of the plaintiff.

While this case relates essentially to the issue of delay prior to the commencement of the proceedings, reference was made to

prosecutorial delay. It appears that the learned trial judge did not decide the case on this basis. He stated:

". . . but insofar as what happened after Ms. Dillon was instructed, I do not propose to decide the case in any way on

that allegation. It seems to me that any responsible solicitor, and I am quite satisfied Ms. Dillon behaved most responsibly

throughout, would have undertaken careful inquiries and exhaustive inquiries to find out if there was material and to take

all necessary steps in such a serious matter and fully comply with the terms of her brief. I am satisfied that she did that

in an exemplary way and I do not accept any criticism of her in the matter whatsoever. I am grateful that Mr. O'Higgins

has clarified to the Court that no personal criticism of any sort was intended against the solicitor who came on record in

this matter."

The general principle is that no appeal may proceed in this Court on a ground not decided by the High Court. Consequently this issue

does not arise for decision. However, even if the issue were extant, which it is not, I am satisfied that the State are not entitled to

relief on that basis.

Whether the test applied is that pursuant to the principles described in O'Domhnaill v. Merrick [1984] I.R. 151 and Toal v. Duignan

[1991] I.L.R.M. 135, as set out above, or that adumbrated by Hamilton C.J. in Primor plc v. Stokes Kennedy Crowley [2001] 2 I.R.

526, in all the circumstances of the case, as a matter of fairness and in the interests of justice, I would refuse the State's application

to dismiss the plaintiff's proceedings. Therefore, I would allow the appeal.