The Court of Appeal has allowed a woman’s appeal against the dismissal of her civil claim alleging childhood sexual abuse by her brother, finding that the delay in prosecuting the case was excusable. The underlying allegations have not been tried, and the court ordered no finding on whether they are true.
The appeal concerned a High Court order of July 2012 striking out the proceedings for want of prosecution. The plaintiff had accepted that the delay was inordinate but maintained that it was excusable. The defendant denied the allegations.
The plaintiff began proceedings in March 2006, alleging repeated sexual abuse between about the ages of eight and 12. The judgment says the alleged abuse took place in the family home in Balbriggan. The defendant’s position was that he regularly lived away from home from 1974. The claim also included allegations of assault and false imprisonment, and sought damages for psychological and emotional injury.
After discovery was completed in April 2008, there was a period of about four years before the plaintiff served a further notice of intention to proceed in March 2012. The defendant then applied to have the proceedings dismissed. The High Court found the delay inordinate and inexcusable, and considered that the balance of justice favoured dismissal.
On appeal, the court accepted that the plaintiff’s son had a serious, lifelong medical condition that worsened from 2008, including seizures and multiple surgeries. The plaintiff was his primary carer. The Court of Appeal held that these circumstances satisfactorily explained the four-year delay. It stressed that this did not justify unlimited delay, particularly in a case involving serious allegations that could affect the defendant’s reputation.
The court also said it was unnecessary to decide the balance-of-justice issue because it found the delay excusable. It added that, even if the delay had been inexcusable, it would have considered that the balance favoured allowing the proceedings to continue. It reasoned that the long interval between the alleged events and any trial would have created evidential difficulties regardless, and noted that other family members remained available to give evidence despite the deaths of two potential witnesses.
The appeal was allowed, so the proceedings were not dismissed. The court noted that a notice of trial had been served nearly three years earlier and said the case must now proceed to trial without further delay. The judgment does not determine the truth of the allegations.