The Court of Appeal has allowed an appeal in part in a long-running case brought by Anthony McDonagh over alleged abuse at a Brothers of Charity primary school in Renmore, Galway. It upheld the dismissal of the claim concerning alleged sexual abuse by a deceased former staff member, but ruled that the separate claim of physical assault could proceed.
The judgment, delivered by Ms Justice Baker on 2 October 2018, concerns an appeal from a High Court order dismissing the proceedings against the first defendant, a representative defendant for the Congregation of the Brothers of Charity. The State defendants were not parties to the motion or appeal. The claim against the Western Health Board had been discontinued in 2006.
McDonagh alleges that he was sexually and physically assaulted while attending the school as a child, and that he was repeatedly beaten by its principal after reporting the alleged sexual abuse. The first defendant denied the alleged assaults. The Court of Appeal noted that the alleged sexual abuser, referred to in the pleadings as “Brother Jim”, was reasonably identified in the evidence as Brother G., who died in 2011. The court treated that identification as a reasonable inference, rather than a separately established identity.
The High Court had struck out the proceedings because the passage of time and the death of the alleged sexual abuser created a substantial risk of an unfair trial. The Court of Appeal said the application should primarily have been considered under the Primor/Rainsford test, which weighs the parties’ interests and conduct, including whether delay was inordinate and excusable. It agreed that the delay was inordinate, but found the plaintiff had offered a good explanation for the period from 2008 to 2013, citing his incarceration, illiteracy and lack of support or treatment in prison.
The appeal court nevertheless concluded that the first defendant had suffered sufficient prejudice to justify dismissal of the claim concerning alleged sexual abuse. The deceased man was a central witness, and the defence denied that the assaults took place.
It reached a different conclusion on the physical assault claim. The court said the identified person accused of that abuse was still alive, had not provided evidence of prejudice, and the first defendant had not shown that a fair trial of that part of the case was impossible. It ruled that the physical assault claim could be separated and proceed.
The court allowed the appeal to that extent and directed that the proceedings be listed for directions on 25 October 2018. It warned that there must be no further delay, adding that the defendants could bring a fresh application to strike out the remaining proceedings if delay continued.