The High Court has dismissed a man’s damages claim alleging he was assaulted and sexually assaulted as a child at a primary school, ruling that the passage of time created a real and serious risk of an unfair trial.
Mr Justice McDermott delivered the decision on 17 August 2012, on an application by the defendant to dismiss the proceedings because of delay and resulting prejudice. The court did not decide whether the alleged assaults occurred. It also did not determine the defendant’s separate plea that the claim was statute-barred.
The plaintiff alleged that, when he was about eight in or about 1964, a Brother Brendan beat him with a leather strap and sexually assaulted him on one occasion. He also alleged that a second, unnamed Brother beat him about three weeks later. The defendant was sued as representative of the religious order that owned and operated the school.
The judge recorded that the plaintiff’s initial correspondence described repeated abuse. In replies to particulars in March 2010, the claim was narrowed to the two alleged incidents. The plaintiff had first notified the Order of the claim in February 2006, and proceedings were issued in January 2007, around 43 years after the alleged events.
The plaintiff accepted that the delay was inordinate. The judge found it excusable, relying on psychiatric evidence that post-traumatic stress symptoms, agoraphobia and alcohol dependence had significantly impaired the plaintiff’s ability to seek redress. The judge therefore concluded that the narrower test for dismissal for want of prosecution did not require dismissal.
However, the court separately considered its inherent power to dismiss a case in the interests of justice, even where delay was excusable. The Order’s inquiries found that most people who might have been interviewed about events at the school were dead. The alleged Brother Brendan identified as the perpetrator was also dead. The Order could confirm the plaintiff had attended the school and that a Brother Brendan worked there, but could not reconstruct the surrounding circumstances. The judge said the case would depend on oral evidence and found the Order had been wholly prejudiced in preparing a defence.
The court held that the defendant had established both a real and serious risk of an unfair trial and clear and patent unfairness in requiring it to defend the action. It dismissed the plaintiff’s damages claim in the interests of justice. The ruling resolved the dismissal application; it made no finding on the truth of the allegations.