About this case:

• Citation:
  [2019] IEHC 640
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Dismissing the proceedings due to the significant pre- and post-commencement delay, Mr Justice Garrett Simons said he did so with “no small degree of reluctance” because this meant depriving the plaintiff of redress “for what is alleged to be a very grave wrong”.

Allegation of sexual assault

The plaintiff, Michael O’Brien, instituted proceedings against the Oblate Fathers in Ireland (the first named defendant) and the State, seeking damages, inter alia, for assault, battery and trespass to the person. Mr O’Brien alleged that he was sexually assaulted from 1952/1953 until approximately 1960 by an Oblate priest in Dublin, identified as “Father L”. The proceedings against the State were discontinued in 2009.

Father L died in 1989, however, Mr O’Brien sought to hold the current Provincial of the Oblate Fathers vicariously liable for Father L’s actions.

Mr Justice Simons said the allegations were “of the most appalling kind” and that if the Provincial was found to be vicariously liable, then it was very likely that Mr O’Brien would succeed in obtaining an award of substantial damages.

Application to dismiss the proceedings

The plenary summons were issued in June 2001, and the statement of claim was delivered in November 2004. Thereafter, the Oblate Fathers’ defence was delivered in February 2007. In February 2017, Mr O’Brien issued a notice of intention to proceed against the Oblate Fathers, however, in May 2017, the Oblate Fathers issued the notice of motion to dismiss considered herein.

The Oblate Fathers submitted that claim was statute barred, and that Mr O’Brien was guilty of inordinate and inexcusable delay. In the present proceedings, the Oblate Fathers sought an order dismissing the claim for want of prosecution. Alternatively, an order was sought pursuant to the inherent jurisdiction of the court to dismiss the proceedings on the grounds of want of prosecution and/or inordinate and inexcusable delay, and/or on grounds that it would be contrary to natural and constitutional justice to allow the proceedings to continue given the extent of the delay in progressing the proceedings.

Mr O’Brien acknowledged that he did nothing between filing the defence and seeking “therapeutic assistance” from the Oblate community in 2011, but took issue with the failure of the Oblate Fathers to provide him with an appointment. He also took issue with the fact that it was only disclosed in 2018 that there had been another complaint against Father L, and that he had been prejudiced in his ability to make enquiries to assist his claim due to the Oblate Fathers’ failure to be candid.

Substantial delay

Considering, inter alia, the seminal cases of O’Domhnaill v Merrick [1984] IR 151 and Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459, Mr Justice Simons said that none of the cases to which he was referred came close to the substantial pre-commencement delay in this case, and that the post-commencement delay was “at least as long as the longest delay in any of the cases”.

Mr Justice Simons also considered Cassidy v The Provincialate [2015] IECA 74 and Whelan v Bridget Lawn & others [2014] IESC.

Considering Mr O’Brien’s acknowledgment that “there were no witnesses to the alleged abuse”, Mr Justice Simons said there was no doubt that the Provincial of the Oblate Fathers would be forced to defend the proceedings “without the benefit of any evidence from the person most critical to the defence” and “quite probably without the benefit of any evidence at all”.

Regarding the ten-year delay since the filing of the defence, Mr Justice Simons said that while some of the delay may be excused while Mr O’Brien sought to avail of the therapeutic services offered by the Oblate community, the further delay made it more difficult to defend the proceedings. He said the delays were caused solely by Mr O’Brien’s inaction.

Granting the order dismissing the proceedings, Mr Justice Simons said he did so with “no small degree of reluctance, because, as Hardiman J. noted in Whelan v Bridget Lawn & others this conclusion means that the plaintiff is deprived of redress for what is alleged to be a very grave wrong”.

Mr Justice Simons concluded his judgment with Hardiman J’s conclusion in Whelan: “… if the action were to proceed in the present circumstances it would be merely a ‘parody of justice’ as this Court put it in O’Keeffe v Commissioners of Public Works … The action cannot proceed because of lapse of time and the death of the defendant himself and of the principle defence witness have meant that the issues are ‘beyond the reach of fair litigation’ in Mr. Justice Henchy’s phrase. An action in which the defendant could call no evidence at all on the central issue would totally ‘lack that mutuality and fairness which are essential for the administration of justice’”.

• by Róise Connolly for Irish Legal News