The High Court has dismissed a man’s damages claim over alleged sexual assaults in the 1950s, ruling that the long delays and death of the alleged abuser left the case beyond fair litigation.
Mr Justice Binchy delivered the decision on 4 September 2019 on an application by the first-named defendant to dismiss the proceedings for want of prosecution and inordinate and inexcusable delay. The court granted the application and dismissed the proceedings. It did not decide whether the alleged assaults occurred or whether the defendant was vicariously liable.
The plaintiff alleged that he was sexually assaulted on several occasions between about 1952 and 1960 by an Oblate priest identified in the proceedings as Father Bernard L. The judgment says the priest’s correct first name was Henry or Harry and that he died in 1989, before the case began. The first-named defendant was sued as a representative of the Oblate Fathers in Ireland. After that defendant died, the order’s then provincial, Father Gerald Oliver Barry, was substituted.
The plaintiff issued proceedings in June 2001. A defence was delivered in February 2007, denying the allegations and pleading that the claim was statute-barred. The plaintiff did not take further steps to advance the case until February 2017, when a notice of intention to proceed was issued. He acknowledged delay but argued that it was not inordinate and inexcusable, and that the defendant had not shown a real risk of an unfair trial. He also said that the defendant’s handling of his 2011 request for therapeutic support contributed to the delay.
The judge found that there was no explanation for the 37 years between the plaintiff reaching adulthood in 1964 and starting the proceedings. He also found a ten-year delay after the defence, with at most six months potentially excused by the request for therapeutic assistance. The judgment said the defendant had not contributed to the delays.
The court noted that the alleged abuser had died and that, according to the plaintiff, there were no witnesses to the alleged assaults. The defendant had identified two elderly members of the Oblate community who had no relevant recollection. The judge concluded that the defendant would have to defend the case without evidence from the person most critical to its defence, and quite possibly without any evidence on the central issue. He held that the cumulative delays made the proceedings unfair to continue.
The dismissal was based on delay and fairness, not a finding on the truth of the allegations. The judgment acknowledged that the result deprived the plaintiff of redress for what he alleged was a grave wrong.