Can a defendant reasonably be expected to defend proceedings which relate to an event that occurred over thirty years ago and where many of the potential witnesses have since died? In a recent case, Cassidy v The Provincialate, the High Court thought there would be no real or serious risk of an unfair trial in such circumstances. The Court of Appeal, however, took a different view.
The plaintiff claimed damages against the Religious Sisters of Charity for abuse she allegedly suffered between 1977 and 1980 at the hands of a man she claimed was employed by the Sisters. The alleged abuse was first reported to An Garda Síochána in December 2011 and the proceedings were instituted in May 2012. The Sisters sought to have the proceedings dismissed on the ground that their ability to defend the claim had been severely prejudiced. They were unable to find any record of ever having employed the alleged abuser and it seemed likely he was dead. Further, a number of other potential witnesses had also passed away. The High Court refused to dismiss the proceedings, taking the view that there was no risk of an unfair trial. The Sisters successfully appealed this finding to the Court of Appeal.
The Court of Appeal confirmed that while it was obliged to give due consideration to the decision of the High Court judge, it was nonetheless free to exercise its own discretion as to whether or not the claim should be dismissed. It assessed the claim by reference to the two well-established lines of jurisprudence on delay: (i) the Primor test; and (ii) the O’Domhnaill test. The Court was satisfied that, irrespective of which test was applied, the proceedings should be dismissed.