The Court of Appeal set aside a High Court jury award of €493,037.47 to Caroline McNamee after ruling that her civil claim against Michael Boyce should have been dismissed before trial because of inordinate and inexcusable delay.
The judgment, delivered by Ms Justice Irvine on 4 February 2016, allowed Boyce’s appeal against the High Court order of 18 November 2014. The High Court jury had found in McNamee’s favour and awarded damages for her claim of sexual assault. The Court of Appeal held that the delay and resulting prejudice meant the balance of justice favoured dismissing the proceedings. The judgment does not record a new trial or a reconsideration of the allegations on their merits.
McNamee issued a plenary summons in June 2001, but it was not served until December 2002. After that, no step was taken until July 2011, when she served a notice of intention to proceed. Her solicitor’s explanation was that taking instructions had been difficult because she had been moving and working in different countries. The High Court found the delay inordinate and inexcusable, but allowed the case to proceed, placing significant weight on Boyce’s failure to enter an appearance until 2011.
The appeal court said the primary responsibility for the delay rested with McNamee: Boyce’s failure to enter an appearance did not prevent her from advancing the case, and he was not at risk of judgment without further notice. The court also considered the long period between the alleged assaults, which McNamee said occurred between 1979 and 1992, and the later proceedings.
A central issue was the death of Boyce’s wife, Helen, in 2005. She had testified for her husband in a 1999 criminal trial concerning six sexual assault counts involving McNamee. He was convicted on one count and acquitted on five. In the civil proceedings, the High Court ruled that claims concerning alleged assaults after 4 April 1985 were statute-barred.
The Court of Appeal found that a transcript of Helen Boyce’s criminal-trial evidence was not an adequate substitute for her live testimony. It said she had given evidence on matters relevant to credibility, including whether an outdoor flush toilet existed at the family home, whether McNamee stayed there overnight, and whether Boyce bought her clothes. The appeal court considered that the loss of her potential evidence, alongside the delay, created significant prejudice to Boyce’s ability to defend the allegations.
The court did not need to decide whether dismissal would also have been justified under the separate principles in O’Domhnaill v Merrick. Its decision concerned the balance of justice under the test for inordinate and inexcusable delay.