O’F (otherwise F) -v- MJELR Ors
High Court
Judgment was given by Mr Justice Hedigan on November 11th 2009
Judgment
A man who sought to claim damages for alleged assault and sexual abuse by prison officers while he was in detention in St Patrick’s Institution and Shanganagh Prison between 1967 and 1969 had the proceedings dismissed because of the long lapse of time between the alleged abuse and the proceedings, giving rise to “inordinate and inexcusable delay”.
Background
The plaintiff alleged he was assaulted and sexually abused in both prisons between 1967 and 1969 by a particular prison officer whom he identified as “Fitz”, and that he was assaulted by a number of other officers. He initiated proceedings in 2006.
He said he first told his family of the alleged abuse in 2001, as up to that time he had been unable to talk about it. Members of his family had advised him to seek appropriate treatment. He had had psychiatric treatment in the 1970s and 1980s, but did not disclose the abuse at this time. He disclosed the abuse to a Dr Seneviratne in the UK in July 2005, who diagnosed him as suffering from post-traumatic stress disorder.
In 2004 he obtained a record of his time spent in custody in Ireland from the Department of Justice, Equality and Law Reform. In January 2005 he made an application to the Residential Institutions Redress Board for compensation. This was rejected, as the institutions in which he had been incarcerated did not fall within the board’s remit.
He then made an application to the Personal Injuries Assessment Board, in June 2006, which authorised him to institute court proceedings.
The defendants sought the dismissal of the proceedings on the grounds of delay, which they divided into two periods: from the time of the alleged abuse to when he told his family in 2001, and from 2001 until the institution of proceedings. It was stated that his claim that he was unable to talk about the abuse until 2001 was not supported by any medical evidence.
Counsel for the State said the inordinate and inexcusable delay by the plaintiff was causing serious prejudice to the defendants, particularly because of the vagueness of the plaintiff’s recollections.
In his affidavit, the plaintiff had exhibited a photograph taken in Shanganagh Prison which showed himself and the prison officer he identified as “Fitz”. Three prison governors separately identified the officer, whose name was not “Fitz”, did not contain the letters “Fitz” and whom they had never heard called “Fitz”. They recalled a different nickname. A search of the files and records of Shanganagh Prison failed to locate anyone of the name “Fitz”.
Counsel for the plaintiff said the onus of proof lay on the defendants to show inordinate and inexcusable delay. The only delay complained of here was prior to the commencement of proceedings and the courts had shown latitude to plaintiffs in sexual abuse cases.
She argued that Stephens -v- Flynn supported the proposition that delay prior to the commencement of proceedings was only relevant in assessing the impact of delay after they began. She also referred to a medical report from Dr Seneviratne in 2006 stating that the plaintiff was unable to speak of the alleged abuse prior to 2001.
Decision
Mr Justice Hedigan discussed the applicable case-law and also stated that the State had an obligation under Article 6 of the European Convention on Human Rights to ensure the provision of justice within a reasonable time.
Applying the principles outlined to this case, he said there had been a delay of at least 36 years, which was an inordinate period of delay. The question was whether this was excusable in the particular circumstances.
He said no explanation had been offered by the plaintiff as to what had happened in 2001 to enable him to speak to his family about the alleged abuse. He took no action then until 2004, when he sought records from the Department of Justice.
Mr Justice Hedigan said he was not fully satisfied that the 2006 report from Dr Seneviratne provided clear and unconditional support for his assertion that he was unable to speak of these events until 2001.
Even if he were to give the plaintiff the benefit of the doubt on this, there had been further substantial delay between 2001 and 2006. The delay after 2001 was particularly objectionable, in that the events were already historic by then.
The long lapse of time of itself raised a real risk of an unfair trial for the defendants. Oral evidence would be of paramount importance, given the lack of documents, and many of the potential key witnesses were either dead or not in a position to give evidence. The photograph provided by the plaintiff had been of no assistance, and his own recollection of events was somewhat hazy.
“This is prejudice of the kind which establishes a clear and patent unfairness in expecting the defendants to defend the claim after such a substantial lapse of time,” he said. “To allow a trial to proceed in such circumstances would be in clear violation of the constitutional requirements of fairness of procedures and the State’s international obligations.”
He said he was satisfied the court should exercise its inherent jurisdiction to dismiss the proceedings on the grounds of inordinate and inexcusable delay.
The full judgment is on www.courts.ie
Eileen McAuley BL, instructed by D J Synnott, solicitors, St Stephen’s Green, Dublin, for the plaintiff; Conor Dignam BL, instructed by the Chief State Solicitor, for the State