The High Court has refused to dismiss a civil action brought by an anonymised woman who alleges that her older brother sexually assaulted and raped her repeatedly when she was aged between 11 and 13.
The defendant denies the allegations. He sought to have the proceedings struck out before trial, arguing that the passage of 44 to 46 years since the alleged events meant he could no longer receive a fair hearing.
The plaintiff alleges that the abuse took place between September 1979 and August 1981, mainly in her bedroom at the family home. She claims it occurred about 120 times and ended when her mother discovered the defendant in her bed.
Proceedings were issued in February 2023. The plaintiff relied on psychiatric evidence stating that trauma arising from sexual abuse by three different people had impaired her ability to make a formal complaint until 2019.
The defendant argued that important witnesses, including both parents, had died and that employment records from hotels where he worked were no longer available. He also disputed the plaintiff's original account that he had been returning from boarding school at weekends, stating that he had left school in 1978, worked in hotels and joined the Army in 1980.
Mr Justice Barr accepted that the very long delay created difficulties but said the legal test required more than an imperfect trial or litigation disadvantage. The defendant had to establish that a fair trial was no longer realistically possible.
The court found that threshold had not been met. The plaintiff's sister, who shared her bedroom during at least part of the relevant period, remains available and could potentially give important evidence for either side. Army records may also exist, while the defendant can seek discovery of medical, psychiatric and counselling records relevant to the plaintiff's account and memory.
Barr J therefore refused the strike-out application. He proposed awarding the plaintiff her costs of the motion, with enforcement stayed until the substantive case is finally determined. The underlying allegations remain unproven and will be matters for trial.