The High Court has struck out a man’s 1995 case that alleged he was seriously sexually assaulted by a male care worker employed at his school.
Mr Justice Anthony Barr said the court has “considerable sympathy for a very vulnerable plaintiff” but it was compelled in the interests of justice to accede to the application from the defendant school to dismiss the case on grounds of delay and want of prosecution.
The plaintiff, who is aged in his 40s and cannot be named, has a mild intellectual disability.
His case alleged he was seriously sexually assaulted on school grounds, in the care worker’s flat and office, in a nearby park and at another house in the late 1980s. He alleged the abuse included rape on a number of occasions.
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The boy made two detailed statements to gardaí upon leaving the school. After investigating the complaints, gardaí sent a file to the Director of Public Prosecutions (DPP), who directed that there should be no prosecution in the matter.
In 1995, when the plaintiff was in early adulthood, he initiated civil proceedings against the school.
Last November, the man’s mother was appointed as his next friend for the purpose of the litigation by order of the High Court’s deputy master. This came after a consultant psychiatrist submitted a report in 2019 stating she believed the plaintiff lacked the capacity to provide legal instructions.
The defendant submitted that the lack of activity in the case between 2000 and 2019 has caused it to suffer general prejudice due to the lapse of time since the alleged events. It has suffered further prejudice due to the loss of the Garda file, it claimed.
The man, through his mother, conceded there has been inordinate delay in the case, but he argued this was excusable in the unique circumstances, including his cognitive disability and his abuse of alcohol for a period that required the intervention of mental health services.
Alternatively, he said, the balance of justice favours allowing his action to proceed.
Allegations of ‘gravest kind’
The judge said the allegations made were of the “gravest kind”.
He said it was unquestionably the case that a full Garda investigation would have been carried out into the allegations. It must be inferred, he said, that gardaí would have interviewed all relevant witnesses.
Considering that the DPP did not direct a prosecution, the court can only infer that there was considerable contradictory material unearthed by gardaí during the investigation that led to the DPP concluding the plaintiff’s account was not credible, he said.
Whatever the material was, it is no longer available due to the loss of the Garda file, which creates a “significant prejudice” to the defendant, the judge added.
The court was satisfied that the lapse of time, coupled with the loss of the file, gives rise to a situation where the defendant cannot get a fair trial at this remove.
Even if the judge was wrong on this conclusion, he said, the plaintiff’s inordinate delay in progressing the case was not excusable due to his mental disability or other circumstances.
The court took into account the personal circumstances and vulnerability of the man, but there was no compelling evidence that any of the misfortunes experienced impeded his solicitor in getting the action ready for hearing, the judge said.
The judge was satisfied that the balance of justice favoured striking out the action.
