The new Court of Appeal delivered its judgment in the case of Cassidy v. The Provincialate on 16 April, 2015. The unanimous judgment of the Court was delivered by Ms Justice Irvine and is to be welcomed, as it brings a measure of clarity to the jurisprudence in the area concerning delay in initiating legal proceedings in respect of childhood abuse.

In a pre-trial preliminary application brought by the defendant, the Court of Appeal dismissed the plaintiff’s claim by reason of the fact that there had been delay of over 30 years by the plaintiff in bringing a claim for damages for child abuse, which was inexcusable on the facts and in particular the Court held that the defendant’s ability to obtain a fair trial was severely prejudiced due to the fact that the alleged perpetrator was dead.

The decision of the Court of Appeal overturned the earlier decision of the High Court in this case which had deemed that the plaintiff could proceed with her action despite the delay.

Background to the Case

The plaintiff commenced her proceedings in May, 2012, claiming damages for personal injuries allegedly suffered by her by reason of abuse, by a man between the years 1977 and 1980, when she would have been aged between 12 and 16 years. The plaintiff also claimed that the accused man was an employee of the defendant, a religious congregation. As part of her action, she maintained that the unlawful conduct of the accused was, as a result of the negligence and breach of duty of the defendant, and that the defendant, as the employer of this individual, was vicariously liable in respect of his wrongdoing. The defendant, who was represented by us, brought a pre-trial application in the High Court to dismiss the plaintiff’s claim on the basis of inordinate and inexcusable delay, of more than 30 years, as a result of which, the defendant was severely prejudiced in obtaining a fair trial of the action. The defendant relied on the following factors to show the inherent difficulties in defending the claim: (a) the accused was believed to be dead, although that fact had not been established with certainty, but it was clear that there was no trace of this individual; (b) there were no records which showed that the accused had in fact been an employee of the defendant and (c) the defendant had identified a number of potential witnesses who were either dead or their whereabouts were unknown, except for one former staff member who had a recollection of the accused having worked as a general handyman in the defendant’s premises.

High Court

The pre-trial application was heard by High Court Judge, Mr Justice Barrett, who delivered a judgment on 28 February, 2014, in which he dismissed the defendant’s application. He concluded that whilst the plaintiff’s delay in instituting proceedings had been inordinate, it was excusable by reference to three factors: (1) her upbringing, (2) the fact that her abuser had dominion over her and (3) by reason of the fact that she had been subjected to a “myriad of miseries”, which had impeded her ability to bring proceedings sooner than she had done.

In particular, Judge Barrett concluded that there was no real or serious risk if the claim was allowed to proceed, that the defendant would be at risk of an unfair trial. He was satisfied that the death of the accused was not a solid basis on which to base the risk of a fair trial to the defendant. Instead, he placed particular emphasis on the fact that evidence could be obtained from the former staff member who had worked for the defendant and who had a recollection of the accused.

The defendant appealed the decision of the High Court judge to the Court of Appeal

Court of Appeal

The unanimous decision of the Court of Appeal was delivered by Ms Justice Irvine with whom the other two judges, Judge Peart and Judge Mahon, agreed.

In reaching her decision, Ms Justice Irvine, looked at three factors:

  1. Was the delay inordinate?
  2. If the delay was inordinate, was it excusable?
  3. If there was both inordinate and inexcusable delay, was there a real risk of an unfair trial for a defendant or, on balance, could justice be best served by allowing the case to proceed?

Based on the facts of this case, Judge Irvine, decided firstly, that there had been inordinate delay of 30 years by the plaintiff in instituting legal proceedings - this was a fact not in dispute by the plaintiff. Secondly, the Court decided that this delay was inexcusable. In reaching this decision, the Court noted that the plaintiff had not produced any evidence, including psychological or psychiatric evidence which could have explained the delay. On this basis, Ms Justice Irvine found that there was no “sound evidential basis” for the findings made by the High Court in excusing the delay by the plaintiff. In particular, the Court of Appeal found, unlike the High Court, that (1) the alleged abuser had no power over the plaintiff after the alleged abuse ceased in 1980, (2) that she did not have a disadvantaged upbringing as the facts “imply that she came from a relatively normal middle class background” and (3) there was no evidence to support the conclusion of the High Court that the plaintiff had experienced a “myriad of miseries” which could excuse the delay.

Thirdly, as the delay was both inordinate and inexcusable, the Court decided that the balance of justice warranted the dismissal of the proceedings, as there was a real risk of an unfair trial for the defendant. 

In reaching this conclusion, Ms Justice Irvine placed great weight on the fact that the accused was believed to be dead and concluded that the death of the accused “visited the grossest imaginable prejudice upon the defendant”. This was of particular significance as the defendant was sued for being vicariously liable for the alleged actions of the accused. Ms Justice Irvine also added that the death of all other witnesses which would have been available to the defendant put the issue beyond all doubt. On the basis of all the evidence, Judge Irvine was satisfied that to allow the action to proceed would “put justice to the hazard” and the defendant would not only be at risk of an unfair trial but would have no prospect whatsoever of a fair hearing or just result.