The High Court has struck out a man’s civil action against St John of God Trust (Ireland), finding that the passage of time and loss of the Garda investigation file created a real risk of an unfair trial.
The action concerned allegations that a male care worker sexually assaulted the plaintiff while he attended a school run by the defendant between November 1987 and March 1990. The allegations were not findings of the court. The judgment records that the Director of Public Prosecutions directed that there should be no criminal prosecution after a Garda investigation.
The plaintiff issued civil proceedings in August 1995. Pleadings closed in March 1998. His solicitor served a notice of trial in September 2000, but it was invalid because no notice of intention to proceed had first been filed. A further notice of intention to proceed was served in January 2006, with no subsequent effective step to advance the action before the defendant applied to strike it out in February 2019.
The defendant argued that the delay was inordinate and inexcusable, that witnesses’ memories would have faded, and that the missing Garda file caused specific prejudice. The plaintiff accepted that the delay was inordinate but argued it was excusable in light of his intellectual disability, inability to read or write, family circumstances and difficulty giving instructions. A psychiatrist’s 2019 report concluded that he lacked capacity to instruct a solicitor on the litigation. His mother was appointed as his next friend in November 2022.
Barr J held that the unavailable Garda file was significant. The judgment said it may have contained witness statements, search findings, forensic results and material that could have been used to challenge the plaintiff’s account. The court inferred that the investigation had uncovered contradictory material, but that inference was not a separate finding about whether the alleged assaults occurred. The judge concluded that the file’s loss, combined with the lapse of time, meant the defendant could not receive a fair trial.
The judge also found that the 2000–2019 delay was inexcusable. He concluded that the plaintiff’s personal circumstances did not explain the long period of inaction, particularly as the solicitor had considered the case ready for trial in 2000. Under the separate Primor analysis, the court found general prejudice from the age of the allegations and specific prejudice from the missing file; it also found that the defendant had not contributed to the delay.
The court directed that the relief sought in the defendant’s February 2019 motion be granted and that the action be struck out for delay and want of prosecution. The judgment did not settle costs or the terms of the final order: it allowed two weeks for written submissions and listed the matter for mention on 9 March 2023.