The High Court has refused to dismiss a man’s claim alleging abuse at two institutions during his childhood, ruling that the proceedings should be allowed to go to trial and proceed expeditiously.
The defendants had applied to dismiss the case for inordinate and inexcusable delay, arguing that the passage of time had prejudiced their ability to defend it. The plaintiff admitted that the delay was inordinate. In a judgment delivered on 15 December 2011, Mr Justice Hanna found the delay excusable and said the balance of justice favoured allowing the case to proceed.
The proceedings concern allegations that the plaintiff was physically and psychologically abused while resident at a convent school from 1949 to 1954, and sexually, physically and psychologically abused at an industrial school from 1954 to 1962. The plaintiff also alleges failures of care and statutory duty. These remain allegations: the judge stressed that the motion was not a trial of the substantive issues, and made no determination of liability or whether the alleged abuse occurred.
The plaintiff issued a plenary summons in September 1999. His statement of claim was delivered in April 2009, well outside the 21-day period provided by the court rules. The judge found the defendants were not estopped from objecting to its late delivery and treated that procedural failure as an additional element of the delay. The defendants brought their dismissal application in December 2009.
The plaintiff relied on psychiatric reports diagnosing post-traumatic stress disorder, depression and anxiety, and on his account of his involvement in survivor advocacy and consultation processes. He had applied to the Residential Institutions Redress Board in 2005 and withdrew in 2008. The judge found that the medical evidence and circumstances, including his disillusionment with the Board process, explained the delay. He also ruled that the statutory provision concerning time spent before the Board did not require that period to be disregarded when assessing delay in this application.
The defendants pointed to deceased or untraceable witnesses, elderly or unwell potential witnesses, and missing or limited records. The plaintiff argued that some witnesses remained available and that former residents could assist. The judge accepted that the defendants faced prejudice but found it did not outweigh the prejudice the plaintiff would suffer if his claim were stopped. He also found that the defendants’ eight-month period between receiving the statement of claim and applying to dismiss was not excessive in the circumstances.
The court refused to exercise its inherent jurisdiction to dismiss the proceedings. The plaintiff must still prove his case at trial; the ruling addressed only whether the action should be dismissed at this preliminary stage.