The High Court dismissed a man’s claim against a representative of the De La Salle Order of Brothers, finding that the passage of time created a real and serious risk of an unfair trial. The ruling addressed the claim against the first-named defendant; it does not state that the claims against the other defendants were dismissed.
The plaintiff, identified in the judgment only as P.K., alleged that he suffered physical, psychological and sexual assaults while attending a national school run by the Order between 1953 and 1960. He was aged about six to 12. The allegations were not findings of the court.
Proceedings began in March 2003. The plaintiff’s statement of claim followed in March 2005, and he supplied further particulars in July 2006 naming five Brothers he alleged were responsible for different forms of abuse or neglect. The defendant’s motion to dismiss was dated August 2007.
The defendant argued that the delay was inordinate and inexcusable and had undermined its ability to defend the case. By June 2002, when the Order first received a complaint, three of the named Brothers had died. A fourth, Brother V., was alive when the allegations were first raised but was unable to give instructions after his health deteriorated; he died in April 2007. The remaining Brother, identified as Brother M., was unwell and denied abusing the plaintiff.
The plaintiff accepted that there had been delay but said his psychological condition had impaired his ability to confront his alleged abusers and bring proceedings. He said he had undergone psychotherapy and had only developed the strength to take legal steps in 2002. The judge accepted that he was not in a position to sue until completing psychotherapy in 2000, but found no adequate explanation for subsequent delays, including the time taken to issue proceedings and provide particulars.
Justice Dunne considered the authorities on delay and applied the broader fairness approach used for cases where the main delay occurred before proceedings began. She found the delay—between 43 and 50 years before the summons issued—inordinate. She also concluded that the defendant had suffered actual prejudice, including the death of a Brother after the complaint was made and the unavailability of witnesses and records. The case would require oral evidence about disputed events, and four of the five Brothers who taught at the school had died.
The judge acknowledged that dismissal would prevent the plaintiff from having his case heard against the first defendant. However, she concluded that the defendant’s prejudice outweighed that harm and that requiring it to defend the claim would be clearly and patently unfair. She dismissed the plaintiff’s claim against the first-named defendant.