About this case:

• Citation:
  [2019] IEHC 632
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Granting the order to dismiss the proceedings, Mr Justice Garrett Simons said that since the principal witnesses to events were either deceased or unable to recollect the events, there was a real and serious risk of an unfair trial.

Background

In 1979, Patricia Breaden went to the Catholic Protection and Rescue Society of Ireland (now known as Cúnamh, the first named defendant) seeking advice in relation to her pregnancy. Ms Breaden submitted that she only learnt that this was an adoption service at a subsequent visit.

In July 1979, Ms Breaden, who was then sixteen-years-old, gave birth to a daughter.

In August 1979, Ms Breaden signed a form consenting to the placement of her daughter for adoption. In February 1980, she signed a Consent to Adoption in the form of a sworn affidavit, stripping her of all parental rights and consenting to an adoption order being made by An Bord Uchtála (now the Adoption Authority Of Ireland, the second named defendant). In October 1980, Ms Breaden swore another affidavit which stated that she did not wish to be further consulted in relation to the application for the adoption order.

In December 1980, an adoption order was made in respect of Ms Breaden’s daughter.

In 2000, Ms Breaden wrote to the Adoption Authority requesting copies of the documents she signed in relation to her daughter’s adoption.

In August 2015, Ms Breaden instituted the present proceedings by way of a Personal Injury Summons. Ms Breaden claims that the circumstances surrounding the subsequent adoption of her daughter entailed a breach of her rights. Ms Breaden submitted that she ‘did not understand the content, import or consequences of the documents’ she signed, and that the Adoption Authority failed to ensure that she was in a position to give informed consent to the adoption of her daughter.

In November 2015, a notice for particulars was served on behalf of the Adoption Authority, however, no replies have been received to date. The Adoption Authority and Cúnamh delivered Personal Injuries Defences.

Application to dismiss

The Adoption Authority made an application to dismiss the within proceedings (i) on the basis that the claim is statute barred, and (ii) on the grounds of inordinate and inexcusable delay. The Adoption Authority further submitted that a fair trial would not be possible in circumstances where there is a significant lapse of time and potential witnesses are either unavailable or do not have specific recollection of the relevant events.

Ms Breaden sought to resist the application on the basis that she was suffering from PTSD, and submitted a report from a consultant psychiatrist stating that “it would not have been possible for her to bring the events of 1979 and 1980 to mind in a way which would have allowed her to make decisions or to consider legal action” until recently. It was also submitted that Ms Breaden had been “of ‘unsound mind’, and thus labouring under a ‘disability’ for the purposes of section 48 of the Statute of Limitations”.

Mr Justice Simons said that the issue of the proceedings being statute barred could not be determined on an interlocutory application heard on affidavit only. He said that, although there was “scant” evidential basis for the argument that Ms Breaden was labouring under a disability, “it would be inappropriate to rule on this issue without the benefit of oral evidence and cross-examination”.

Inordinate and inexcusable delay

Mr Justice Simons said he had been able to form a definitive view on the application to dismiss the proceedings on the grounds of inordinate and inexcusable delay.

Mr Justice Simons said that the pre-commencement delay “might have been excusable” on the basis that Ms Breaden was incapable of instituting proceedings any earlier, but that the post-commencement delay was “inexcusable”. He said that given the late start to the proceedings, it “behoved” Ms Breaden and her representatives to pursue the litigation expediently – and the failure to reply to the notice for particulars served in November 2015 was inexcusable.

Risk of an unfair trial and/or an unjust result

Having regard to the principles set out in Cassidy v The Provincialate [2015] IECA 74, Mr Justice Simons said that if the proceedings were to be allowed to go to a full hearing, there would be a real and serious risk of an unfair trial and/or an unjust result.

Mr Justice Simons said that the ability of the Adoption Authority to defend the proceedings was seriously prejudiced by the delay of almost four decades – particularly so in circumstances where the principal participants in key events in 1980 are either deceased or have no specific recollection of the events.

Furthermore, Mr Justice Simons said that since Ms Breaden sought to “contradict the content contemporaneous documentation”, a fair trial would necessitate all relevant witnesses being available – he said that the absence of testimony would result in a one-sided trial and fail to meet the constitutional requirements for a fair trial.

Accordingly, Mr Justice Simons made an order dismissing the proceedings against the Adoption Authority.

• by Róise Connolly for Irish Legal News