Gaeilge

Title:	Whelan -v- Lawn (LPR of Whelan deceased)
Neutral Citation:	[2014] IESC 75
Supreme Court Record Number:	20/10
High Court Record Number:	2008 7644 P
Date of Delivery:	12/18/2014
Court:	Supreme Court
Composition of Court:	Denham C.J., Hardiman J., McKechnie J., Clarke J., Laffoy J.
Judgment by:	Hardiman J.
Status:	Approved
Result:	Dismiss
Judgments by Link to Judgment Concurring Hardiman J. Link Denham C.J., McKechnie J., Clarke J., Laffoy J.

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Denham C.J.
Hardiman J.
McKechnie J.
Clarke J.
Laffoy J.

Between/

Judgment of Mr. Justice Hardiman delivered the 18th day of December, 2014.

1. This is the plaintiff’s appeal from the judgment and order of the High Court (Charleton J.) of 18 December 2009 whereby the plaintiff’s proceedings were dismissed, due to prejudice including the death of a principal witness.

2. The dismissal of the plaintiff’s proceedings took place on foot of the defendant’s Notice of Motion to dismiss the proceedings on the grounds of delay and prejudice, issued in August 2009.

Factual background.
3. The plaintiff issued these proceedings against the original defendant James or Jim Whelan, on the 7th September, 2008. This was within the limitation period as it was within six years of the plaintiff’s majority. She did not, therefore, need to avail of the extended limitation period which is mentioned below. The original defendant was the plaintiff’s grandfather; in the proceedings the plaintiff alleges against him various episodes of sexual assault, “generally” taking place in his and his wife’s home in Finglas. These alleged assaults took place, according to the plaintiff’s affidavit, between 1989 and 1992 i.e. between twenty-five and twenty-two years ago. The defendant denied these allegations.

Before the proceedings were issued the plaintiff’s grandmother, the wife of the defendant who had always resided with him, had died. The original defendant himself, who was ninety-one years old at the time of the High Court judgment in December 2009, and who had suffered a stroke in December 2008, died in 2011. Accordingly the proceedings have been reconstituted with the estate of the deceased now represented by his Personal Representative. Ms. Bridget Lawn.

4. In his judgment of the 18th December, 2009, the learned trial judge sets out a background to these allegations in great detail. This includes details of the plaintiff’s distressing circumstances which include a history of psychiatric illness and of substance abuse on her part and of the birth to her of two children in her mid and late teens.

There are also included details of what is said to be a most unfortunate omission on the part of the Garda Síochána to investigate complaints made to them by the plaintiff both in Mayo (where she now resides) and in Dublin. There are details of the effect on the defendant, and in particular on his memory and intellectual functioning, of the stroke which he suffered in 2008. However, in my view it is unnecessary to discuss these matters in any detail for the purposes of the present case. The salient factual features, in my view, are as follows:

(a) Proceedings were issued against the deceased defendant many years after episodes of alleged assault were said to have taken place, between 1989 and 1992.

(b) The defendant was the plaintiff’s grandfather and the assaults, or the generality of them, were said to have taken place in his house which he shared with his wife.

(c) The defendant’s wife, the plaintiff’s grandmother, died before proceedings were issued.

(d) The defendant, Jim Whelan, died in 2011, after delivery of the High Court judgment dismissing the action against him.

The defendant’s estate.
5. The estate left by the defendant amounts to less than €140,000 net. It is evident that this would be insufficient to meet an award of damages of the order previously awarded in similar cases. Apart from any award of damages, the sum would probably be exhausted in discharge of the costs of both sides, including V.A.T. There would be nothing left for the beneficiaries even if he won the case. This result is only constitutionally possible after a finding of liability in a fair trial in which both sides were fully heard.

The legal background.
6. The most obvious primary recourse for a person who has been the victim of crime is to complain to An Garda Síochána, the sole police force in the State. The plaintiff in the present proceedings says she did this but that, for one reason or another, no meaningful action was taken on foot of her complaint. I say “for one reason or another” because it emerged during the hearing of the present appeal that the plaintiff’s advisers had it in mind to institute proceedings against An Garda Síochána but had deferred doing so pending the outcome of the present application. Since the gardaí were not heard in the present proceedings I forbear to say anything about the merits, or lack of merits, of such a claim, without hearing the other side of the story.

7. A person who is the victim of a crime, or of a wrongful act which does not constitute a crime, also has available to him or her a civil remedy in the form of an action for damages. In the case of Grant v. Roche Products (Ireland) Limited [2008] 4 I.R. 679, a fatal case, this Court held that such a remedy was part of the mechanisms made available by the State for the vindication of its citizens human and personal rights. Accordingly, in the ordinary course of events, it is most important that a person who considers himself or herself to have been wronged in an actionable way should have the opportunity to pursue redress in the form of a civil action.

8. Indeed, in recent years there has been an increased consciousness of the need to provide redress for those who can demonstrate injury loss or damage arising from sexual assault. Criminal cases of this kind have been permitted to proceed after periods previously regarded as unthinkable. The Statute of Limitations (Amendment) Act, 2000 extended the time limit for taking civil proceedings for sexual assault (see s.2 of the Statute).

9. The developments, however, can throw up circumstances which are legally problematical. This arises, in particular, after some very long delays in instituting such proceedings and from the difficulty, and sometimes the impossibility, of finding evidence with which to rebut a false claim of this sort. Of course, the grossest form of prejudice in civil proceedings is the death of the defendant himself, so that he is not able to deny what is alleged against him in evidence, or of witnesses who might have been available to the defence at an earlier stage.

10. Bearing these things in mind, it is not surprising that s.3 of the Statute just cited provides:

“Nothing in s.48A of the Statute of Limitations 1957, (inserted by s.2 of this Act) shall be construed as affecting any power of a court to dismiss an action on the ground of their being such delay between the accrual of the cause of action and the bringing of the action as, in the interests of justice, would warrant dismissal”.

11. Although s.48A did not have to be invoked in the present case, s.3 of the Act of 2000 acknowledges the recognised inherent power which the Court is invited to exercise in this case. It is most important to emphasise that the Court is not required to make any decision about the merits of the case and indeed it cannot do so because that requires a court to see and hear the witnesses on both sides. I wish to reiterate what was said by the learned trial judge at para. 7 of his judgment on this case:

“I am not in a position to make any judgment as to whether anything which the plaintiff complains of occurred. Nor can I judge, as has been said on his behalf, whether the defendant is a victim of a false allegation. In the field of human affairs, false relationships arising out of obsession occur sometimes in the most extreme forms: Royal Dublin Society v.Yeats (High Court, unreported, 31 July 1997, per Shanley J.). In addition, from time to time, false allegations of sexual misconduct are made against innocent people: DPP v. Hannon [2009] IECCA 43. It suffices to say that no matter what the Court decides, that the parties must live with their own conscience. No matter what decision a court comes to, nothing can ever change the facts that have truly happened. It is upsetting if false allegations are made, or if a person does not have the courage to face himself and to admit the truth, but these are merely attitudes in contrast to the truth which, because it is unalterable, has an eternal quality”.

I agree with everything the learned trial judge said in the passage just quoted except that I would, perhaps, use a stronger adjective than “upsetting” in the last sentence quoted, about false allegations.

Case law.
12. The experience of the Courts, as recorded in decided and reported cases shows that it is not uncommon for people to delay grossly in instituting legal proceedings for wrongs which they say have afflicted them, and it is not uncommon, even after legal proceedings have been instituted, for people to delay grossly in moving these proceedings along. In such cases, a defendant may come to court before the action is tried and complain of the plaintiff’s delay and additionally say that, by reason of that delay, the defendant has lost the chance properly to defend the action brought against him or her. Witnesses may have died, or become unavailable; documents or other physical evidence may have disappeared, or other difficulties caused by delay may have affected the defence. As mentioned above the grossest imaginable prejudice is the death of the defendant himself in a case where the basic facts are disputed by one person’s word against another’s.

These difficulties may arise even in the absence of culpable delay. The Courts have developed an alternative basis on which a claim may be dismissed where (even in the absence of culpable delay) a fair trial is no longer possible. See para. 20ff below.

13. In a case like the present, the death of Jim Whelan means that his Personal Representative, who has to defend the action, will not be able to call any witness whatever to contradict the plaintiff’s case. Accordingly, the plaintiff’s counsel will be able to urge that his client’s evidence is uncontradicted so that she must win the case. The loss of the grandmother is also a catastrophic blow to the defence, for the reasons I gave in J’OC v. DPP [2000] at 3 I.R. 478. There, on facts not dissimilar to those of the present case, in as much as the child complainant was said to have visited the defendant’s home frequently, I said:

“Where constant visits to the applicant’s home by a child neighbour form an essential part of the background, ordinary experience suggests that a housewife working at home will have much to say about the circumstances of the visits, if they happened as alleged. Still more so, where the prosecution case involves frequent and regular visits to a particular part of the house by the complainant and the applicant alone. If the wife were alive, it would be extraordinary and very damaging to the applicant if he did not call her. Nor can it fairly be said that her evidence would add nothing to the applicant’s own. It is corroboration from a source other than a person accused of a reprehensible offence. And the wife may very well be able to say more than the applicant: whether the child called when he was not there, what he or she did in the house, whether visits to the alleged location of the crimes occurred in other contexts, whether she herself would have been absent or otherwise engaged often enough and long enough to allow the husband to behave as alleged so frequently.

To require the applicant to prove affirmatively that the wife had specific evidence to give, when no allegation had been made in her lifetime, is to require him to attempt the impossible. Experience, certainly that of anyone who has acted in any number of these cases, strongly suggests that she will have some relevant, and perhaps vital, evidence in circumstances such as those of this case. And if the wife is an impressive witness, the very fact of her support and her evidence as to character is significant, and not capable of substitution by any other relative or friend. To suggest that the evidence itself might not have been available is to ignore the presumption of innocence and to use the onus of proof as a sort of Catch 22”.

14. The prejudice is indeed dramatic. The principal defence witness, the plaintiff’s grandmother died before the proceedings were issued. This event in itself was sufficient to cause the learned High Court Judge to dismiss the action. Subsequently, in 2011, the defendant died. The Per Rep is thus left in a position where she will have to defend the action without witnesses and where her side of the case cannot be heard at all in denial of the plaintiff’s claim in evidence.

In my view, this action should be dismissed because it has become afflicted with difficulties and prejudice to the defendant “so… as to be beyond the reach of fair litigation” in the phrase of Henchy J. giving the judgment of the Court in Sheehan v. Amond [1982] IR 235, at 239.

That phrase was pronounced in the following context. The judge noted that after an interval of twelve years from the inception of proceedings (seventeen years from the road traffic accident which gave rise to the action), the High Court had permitted a Notice of Trial to be served. Henchy J. said:

“Understandably, the defendant has appealed against that decision. In effect, his counsel submits that it would be contrary to the fundamentals of fair court procedures if, after what would be at least seventeen years after the accident in question, the defendant were to be expected to mount an effective defence against a claim which the plaintiff solicitor has inexplicably allowed so to fade into the dim uncertainties of the past as to be beyond the reach of fair litigation”.

The Judge continued:

“For my part, I find the defendant’s appeal unanswerable. We have been referred to many of the relevant cases such as Allen v. Sir Alfred McAlpine & Son [1968] 2 QB, 299; Dowd v. Kerry County Council [1970] IR 27; O’Reilly v. Córas Uimpir Eireann [1973] IR 278 and Birkett v. James [1977] 3 WLR 38. In none of these cases, however, can any factor be found which could to be said to provide a countervailing consideration which would offset the inordinate and inexcusable delay on the plaintiff’s side, and the obvious and fairness of forcing a trial on the defendant at this stage. Giving due weight to all relevant considerations I fear that the plaintiff, if he still wishes to pursue his claim, must not be allowed to maintain it against the defendant”.

15. There is a considerable volume of consistent jurisprudence subsequent to Sheehan v. Amond. The leading case is Ó Domhnaill v. Merrick [1984] IR 151.

This Court held:

“…it would be contrary to natural justice and an abuse of the process of the Court if a defendant had to face a trial in which she would have to try to defeat an allegation of negligence on her part in an accident that would have taken place twenty-four years before the trial, and a claim for damages of which she first learned sixteen years after the accident”.

The Court considered the submission that because the case was not statute-barred, it should therefore not be struck out:

“However, the Statute of Limitations 1957 was enacted in a legal milieu which makes such reluctance to intervene inappropriate. Apart from implied constitutional principles of basic fairness of procedures, which may be invoked to justify determination of a claim which places an inexcusable and unfair burden on the persons’ sued, one must assume that the statute was enacted… subject to the postulate that it would be construed and applied in consonance with the State’s obligations under international law, including any relevant treaty obligations”.

The judge then went on to cite Article 6.1 of the ECHR, which requires “a fair hearing, within a reasonable time, by an independent and impartial tribunal”.

16. In Dowd v. Kerry County Council, cited above, Ó Dálaigh C.J. found “wholly admirable” the following observation of Diplock L.J. in Allen v. McAlpine, cited above:

“… where the case is one in which at the trial disputed facts would have to be ascertained from oral testimony of witnesses recounting what they then recall of events which happened in the past, memories grow dim, witnesses may die or disappear. The chances of the Courts being able to find out what really happened are progressively reduced as time goes on. This puts justice to the hazard”.

17. At the hearing of his appeal it was observed, quite correctly, that a flawed trial could lead to a just result. This is self evidently true. The same remark, indeed, could be made about a form of trial involving determining the issue of liability by tossing a coin. It is equally true, I suppose, that a perfect trial might lead to an unjust result but these are merely piquant observations. From a legal point of view, the parties are entitled to a fair trial, the defendant no less than the plaintiff.

18. In O’Keeffe v. Commissioners of Public Works (Supreme Court, unreported, 24 March 1980), a majority of this Court regarded as “a parody of justice” a hearing which would take place twenty-three years after an industrial accident in which the plaintiff had lost an eye in circumstances where one witness had died and another’s memory “had been all but obliterated by the passage of time”. This was because a hearing “would come at a time, when the defendants through no fault of theirs had been deprived of a true opportunity of meeting the plaintiff’s case”.

This in turn, was because:

“The reason is that a hearing in those circumstances would lack the mutuality and fairness which are essential for the administration of justice”. (Emphasis added)

The term “mutuality” in my view connotes that both sides, and not merely one side, have a chance to make their case. There has been a total loss of this quality of mutuality in this case because the defendant, the alleged perpetrator, and the person who generated the estate which is the paying party if the plaintiff succeeds, cannot be heard at all.

19. At the hearing of this appeal, the question arose as to whether the prejudice of which the defendant complains must be shown to be caused by some default on the plaintiff’s part.

20. In Toal v. Duignan (No. 1) [1991] ILRM 135, separate applications were made by different defendants to dismiss the plaintiff’s action for medical negligence. Both of the judgments in that case approved “the principles laid down in the judgment of Henchy J. in Ó Domhnaill v. Merrick”. These principles are summarised by Finlay C.J. at p.139 of the report as follows:

“… where there is a clear and patent unfairness in asking a defendant to defend a case after a very long lapse of time between the acts complained of at the trial then if that defendant has not himself contributed to the delay, irrespective of whether the plaintiff has contributed to it or not, the Court may as a matter of justice have to dismiss the action”.

A little earlier it had been stated that:

“Even though therefore, the plaintiff may be blameless in regard to the date at which these proceedings have been instituted and in regard to the period of twenty-five to twenty-six years since the events out of which they arose, as far as these defendants are concerned there would be an absolute and obvious injustice in permitting the case to continue against them”.

The foregoing judgement was given in relation to an application to strike out the proceedings by the hospital authorities and certain consultants – the other consultants involved had died in the interval. There was then a similar but separate application by a locum GP who was also sued. This is Toal v. Duignan (No.2) [1991] ILRM 140. Here, no doubt having regard to the result of the first application, the Court was specifically invited to depart from the law as laid down in Ó Domhnaill v. Merrick. It refused to do so. Finlay C.J. said:

“If the Courts were to be deprived of a right to secure to a party in litigation before them justice by dismissing against him or her a claim which by reason of the delay in bringing it, whether culpable or not, would probably lead to an unjust trial and an unjust result merely by reason of the fact that the Oireachtas had provided a time limit which in the particular case had not been breached, would be to accept a legislative intervention in what is one of the most fundamental rights and obligations of the Court to do ultimate justice between the parties before it”.

21. The most recent case to which I wish to refer is Kelly v. O’Leary [2001] 2 I.R. 526, a judgment of Mr. Justice Kelly in the High Court.

There, the plaintiff, Ellen Kelly, sought damages from the defendant, Marie O’Leary, who was a representative defendant, in respect of physical and mental injuries arising from “serious physical and mental injury” which were allegedly inflicted on her by two named nuns while she was in the care of an institution run by an Order of Nuns, between 1934 and 1947. The treatment of the plaintiff was said by her to amount to “torture”. She said that she was “subject to systematic beatings by Sister. B. [name redacted] and Sister. X [name redacted] who used implements including a large bunch of keys and a leather strap. She also alleged that she was stripped of her clothes and her hair shorn; kept in solitary confinement; forced to kneel before a religious statute for long periods; told that her family was bad and that she was a bad person; caused permanent physical scarring and psychological damage. But many years later, in 1960, she committed some children of her own to the care of the same Order, in the same facility.

The plaintiff’s proceedings began in March 1998, over fifty years from the last wrongful act. Sister B., one of the named nuns who was alleged to have beaten her in the brutal and systematic fashion described, had died in 1990. The other was very elderly and had difficulty in remembering individual children. The plaintiff had made the allegations of beatings specifically against the first nun, Sister B. by name, in her Statement of Claim, and repeated them with details in her reply to Notice for Particulars.

The defendant invoked the inherent jurisdiction of the Court to dismiss the action. She relied, amongst other things, on the intervening death of Sister B. The plaintiff only then said that it was not correct to say that Sister B. had beaten her. She said that Sister B., who in her Statement of Claim was alleged to have subjected her to systematic beatings, had in fact never at any time mistreated her. She described Sister B. as “a very kind and gentle person”.

She said that the allegations against Sister B. which were in her Statement of Claim and which were repeated in her reply to Notice for Particulars, were made “due to an error on the part of [the plaintiff’s] solicitor”. The nature of this error was never explained. Accordingly, this case, like that of Hannon cited above, demonstrates that false allegations of mistreatment, sexual or otherwise, can be and have been made in legal proceedings.

22. Apart from Sister B., various other relevant witnesses were, by the time of the judgment, deceased. These included the three nuns who had been in charge of the institution during the relevant period, the doctor who had attended the institution and a priest who also visited the institution and saw part of what the plaintiff complained of.

23. The learned trial judge held that:

“I am satisfied that there is here a clear and patent unfairness in asking the defendant to defend this action after the lapse of time involved. Actual prejudice has occurred to this defendant by reason of the delay. The defendant has not contributed to this delay.

There is here a real and serious risk of an unfair trial. As a matter of probability the trial may amount to an assertion countered by a bare denial. Indeed even the ability of this defendant to make such a denial is doubtful in respect of a number of the allegations. Such an exercise would be far removed from the form of forensic enquiry which is envisaged in the notion of a fair trial in accordance with the law of this State.

Constitutional principles of fairness of procedure require that the action not proceed. To allow the action to go on would put justice to the hazard”.

24. I am therefore of the opinion that the emphasis, in an application such as the present, has to be on whether the underlying dispute has simply “passed beyond the reach of fair litigation”. If it has, then in my view the ensuing trial, if permitted to continue, would scarcely be a forensic exercise at all. I cannot think of a more radical departure from the requirements of a fair trial, or a more obvious example of a case which has passed beyond the bounds of fair litigation, than a hotly disputed factual issue on which one party will not be able to make any showing whatever.

25. This is not a road traffic accident or an action for work done or services rendered. In such actions, it is unlikely that even a death of a party will leave his side with nothing at all to say. Road traffic accidents are now the subject of very professional forensic examination and were always the subject of garda abstracts etc. Actions for work done will normally permit proof at least of the fact that something was done.

Moreover, this action, unlike the examples mentioned above, features an allegation involving an obvious and acute level of turpitude on the part of the defendant. His good name, as well as his small estate, is at enormous risk in these proceedings. I have not found it necessary to consider the full legal implications of this dimension but it is clearly a factor to be taken into account.

26. I do not consider it necessary, in the circumstances of this case, to consider whether the plaintiff has been guilty of “inordinate” or of “inexcusable” delay. In Kelly v. O’Leary, cited above, it was accepted that Ó Domhnaill v. Merrick and Toal v. Duignan did not require the establishment of both inordinate and inexcusable delay before considering the decisive issue of the balance of justice.

Having regard to the fact that the plaintiff may wish, if this action is dismissed, to seek a remedy against other persons or bodies, I would not go into that question here at all. I would dismiss the action simply on the grounds that it has “passed beyond the reach of fair litigation”. I can find nothing in the evidence to displace the learned trial judge’s finding, at para. 16 of his judgment, that the plaintiff’s delay was inordinate and inexcusable and I would affirm it if it were necessary to do so.

27. In the result, the appeal must be disallowed and the Order of the High Court that the action be dismissed must be affirmed.

I would dispose of the appeal in this way with some reluctance, because it means that the plaintiff will be deprived of redress for what is alleged to be a grave wrong. But if the action were to proceed in the present circumstances it would be merely a “parody of justice” as this Court put it in O’Keeffe v. Commissioners of Public Works, cited above. The action cannot proceed because of lapse of time and the death of the defendant himself and of the principal defence witness have meant that the issues are “beyond the reach of fair litigation” in Mr. Justice Henchy’s phrase. An action in which the defendant could call no evidence at all on the central issue would totally “lack that mutuality and fairness which are essential for the administration of justice”. I am more than conscious that the death of the defendant, which deprives the Personal Representative of the ability to defend the present proceedings, has also, even if there were no other obstacle, cost the plaintiff her prospects of redress for what she alleges in the criminal law. I can only hope that this necessary result will emphasise the importance of the timely commencement of proceedings so as to avoid the risk of a case passing beyond the reach of fair litigation.