The Court of Appeal has dismissed a personal injuries action alleging abuse between 1977 and 1980, overturning a High Court decision that had allowed the claim to proceed. The court found the plaintiff’s delay in bringing the proceedings was inordinate and inexcusable, and that the passage of time had made a fair trial impossible.
The judgment, delivered by Ms Justice Irvine on 16 April 2015, concerned an appeal by the Provincialate from an order made by the High Court on 28 February 2014. The High Court had refused the defendant’s application to dismiss the case on grounds of delay.
The plaintiff issued proceedings in May 2012. She alleged that a man identified in the judgment only as PD had assaulted, abused and raped her, and falsely imprisoned her when she was aged between 12 and 16. She claimed that PD was employed by the defendant, which she alleged was negligent in allowing him unsupervised access to children and was vicariously liable for his alleged actions. The defendant denied employing PD, denied wrongdoing and liability, and pleaded that the claim was statute barred. The Court of Appeal did not decide the limitation defence or the truth of the abuse allegations.
The High Court had found the delay inordinate but excusable, citing the plaintiff’s upbringing, the alleged abuser’s dominion over her and the effects of the abuse on her life. It also found no real or serious risk of an unfair trial. On appeal, the Court of Appeal said the material before the High Court did not provide sufficient evidence to support those conclusions. The plaintiff had relied on her pleadings and verification affidavit and had not provided additional evidence explaining the delay.
The Court of Appeal considered both the Primor test, which weighs the balance of justice after inordinate and inexcusable delay is established, and the separate O’Domhnaill test, which asks whether proceeding would create a real risk of an unfair trial or unjust result. It found the defendant had not caused or acquiesced in the delay.
The court said PD was believed to be dead and that many potential witnesses from the period had also died, were untraceable or could not assist. It concluded that the defendant had lost the evidence of the person accused of the central acts, as well as potential supporting witnesses. The court also noted that some alleged incidents were said to have occurred away from the defendant’s premises and that the plaintiff had not reported the abuse until 2009, leaving no contemporaneous account against which to test her evidence.
Allowing the case to proceed, the court concluded, would put justice at risk and deny the defendant a fair hearing. It allowed the appeal and dismissed the proceedings under both delay tests. The decision addressed whether the action could proceed; it did not determine whether the alleged abuse occurred or whether the defendant was liable.