The High Court has refused Joseph Carrick’s application to set aside judgments totalling €4.7 million after two civil trials proceeded in his absence, finding that he had not proved he lacked capacity to make decisions about the litigation at the time.
Geraldine Nolan was awarded €700,000 and Jacqueline O’Toole €4 million in damages following jury trials on 20 and 21 November 2012. The actions arose from allegations of sexual abuse by Carrick. Both plaintiffs were also awarded costs.
Carrick sought to reopen the judgments on two grounds: that the court should set them aside under a rule concerning a party’s absence at trial, and that its inherent jurisdiction should be used because he lacked the mental capacity to defend the cases. The application was heard together in respect of both actions.
The judge refused relief under the rule, which requires an application within six days of trial. Carrick’s motion was issued on 11 April 2013. The court said it could extend the deadline in an appropriate case, but found this was not one: Carrick knew the cases remained in the trial list and had been told they might proceed the following week. He did not attend, arrange new representation or renew the request for an adjournment. The judge found his absence was not due to mistake or surprise and noted that no evidence had been put forward about his prospects of defending the claims.
The court also declined to set aside the judgments under its inherent jurisdiction. It held that this exceptional power was generally unavailable where an appeal remained open to the applicant. The judge said that procedural difficulties in pursuing an appeal did not change that principle.
The court nevertheless considered evidence on Carrick’s capacity. Three experts described mild cognitive impairment, with possible effects from depression, pain and other health problems. The judge accepted that Carrick had mild cognitive impairment and was likely in pain in November 2012, but said the evidence did not establish that he could not understand litigation decisions with appropriate legal assistance. He had given experts detailed accounts of the proceedings, and there had been no suggestion during earlier criminal trials that he was unfit to participate.
The judge said Carrick’s handling of events around the trials showed poor judgment, but did not necessarily demonstrate incapacity. The court was not satisfied on the balance of probabilities that he lacked capacity to make the necessary decisions in November 2012, and refused to set aside the judgments.