The Supreme Court has dismissed an appeal by Fiona Whelan and affirmed the High Court order ending her civil action against the estate of James Whelan. The Court did not decide whether the alleged assaults occurred. It held that the case had passed beyond the reach of fair litigation because the defence could not present evidence on the central dispute.
Whelan issued proceedings in September 2008, alleging that her grandfather sexually assaulted her between 1989 and 1992, generally at his home in Finglas. James Whelan denied the allegations. His wife, whom the judgment described as a principal defence witness, had died before the proceedings began. James Whelan died in 2011, after the High Court had dismissed the action.
In December 2009, the High Court granted the defendant’s motion to dismiss on grounds of delay and prejudice. The Supreme Court appeal concerned that dismissal. The estate was represented by James Whelan’s legal personal representative, Bridget Lawn.
Giving judgment on 18 December 2014, Mr Justice Hardiman said the deaths left the representative unable to call any witness to contradict the plaintiff’s case. He described the loss of the grandmother’s potential evidence as a serious blow to the defence and said the defendant’s death meant his side could not be heard in evidence at all. In those circumstances, he concluded, a trial would lack the mutuality and fairness required for justice.
The Court relied on its inherent power to dismiss proceedings where delay and resulting prejudice make a fair trial impossible. The judgment said that this power may apply even if the plaintiff was not responsible for the delay. It also stressed that the Court was not deciding the truth of the allegations: that would require hearing both sides’ witnesses.
Mr Justice Hardiman said it was unnecessary to decide whether the plaintiff’s delay was inordinate or inexcusable. He noted that the High Court had found it was, and said he would affirm that finding if required. The appeal was disallowed and the High Court dismissal affirmed, leaving the civil claim unable to proceed. The judgment said that result deprived the plaintiff of redress for what she alleged was a grave wrong, but that a trial without any defence evidence on the central issue would be a parody of justice.