McLoughlin v Garvey

Factual and Procedural Background

The Plaintiff, born in 1966, alleges that between approximately the ages of eight and twelve, she was sexually abused by the Defendant, her brother, during periods when he intermittently lived at the family home in Balbriggan. The alleged abuse, which included oral sex and sexual intercourse, occurred mostly in an upstairs bedroom and was unknown to other family members at the time. The Defendant denies the allegations, asserting that he lived away from home regularly from 1974, before the alleged abuse commenced in 1976.

The Plaintiff claims to have informed her father of the abuse during the time it occurred but alleges he responded with violence and disbelief; the father denies this. The Plaintiff further disclosed the abuse to her mother, two sisters, and a friend in 2004, and reported it to the police in March 2006, shortly before commencing proceedings.

The Plaintiff initiated High Court proceedings in March 2006, approximately 28 years after the alleged abuse ended. The Defendant responded by entering an appearance and delivering a defence. Procedural steps followed, including discovery and notices of intention to proceed, but there were significant periods of inactivity, notably a four-year delay after discovery was completed in 2008. The Defendant sought dismissal of the claim for want of prosecution due to inordinate and inexcusable delay. The High Court struck out the Plaintiff's proceedings in July 2012, finding the delay both inordinate and inexcusable, and that the balance of justice favoured dismissal. The Plaintiff appealed this decision.

Legal Issues Presented

1. Whether the delay in prosecuting the Plaintiff's claim was inordinate.
2. If the delay was inordinate, whether it was excusable.
3. Whether, notwithstanding any inordinate and inexcusable delay, the balance of justice required dismissal of the claim.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff acknowledged the delay was inordinate but argued it was excusable due to personal and medical difficulties, particularly the severe and deteriorating medical condition of her teenage son, for whom she was the primary carer.
• The Plaintiff contended that her will to bring proceedings earlier was impaired by the trauma of the alleged abuse and that the delay in reporting was attributable to suppressed memories until 2004.
• The Plaintiff maintained that the Defendant was not prejudiced by the delay since he had been on notice of the proceedings since 2006.

Respondent's Arguments

• The Defendant argued the delay was both inordinate and inexcusable, emphasizing the long lapse of time—approximately 26 years between the end of the alleged abuse and the commencement of proceedings, and an additional four years of inactivity after discovery.
• The Defendant highlighted the prejudice caused by the delay, including the death of two potential witnesses and the fading of memories, which impaired his ability to mount a defence.
• The Defendant referred to family incidents and communications illustrating his lack of contact with the Plaintiff and the timing of the allegations.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by applying the three-stage Primor test to the facts. It accepted that the delay in prosecuting the proceedings was inordinate, particularly focusing on the four-year period following the Plaintiff’s affidavit of discovery in 2008 until the notice of intention to proceed in 2012. This delay was significant given the already lengthy period—over 25 years—between the alleged abuse and the commencement of proceedings.

However, the Court carefully considered the Plaintiff's explanation for the delay, primarily her son's severe and deteriorating medical condition, which demanded her full-time care and attention. Medical evidence from an expert psychiatrist and a consultant neurologist corroborated the Plaintiff’s inability to engage with her legal proceedings during this period.

Balancing these factors, the Court found the delay excusable in the particular circumstances. The Court emphasized that excusability does not sanction indefinite delay but recognized the genuine and substantial reason for the Plaintiff’s inactivity.

The Court acknowledged the constitutional and human rights obligations for expeditious justice and the Defendant's right to protect his good name, which militated against delay. Nonetheless, the Court found that the prejudice to the Defendant was not solely attributable to the delay post-2008 but was inherent in the nature of the case, which involved historical allegations and competing narratives.

The Court noted that the Plaintiff’s case rested largely on assertion, and the Defendant’s defence included denial and contradictory evidence from family members. The death of two potential witnesses was prejudicial but not decisive, as other family members remained available to testify.

Given these considerations, the Court concluded that despite the inordinate delay, the explanation rendered it excusable and that dismissal was not warranted on balance of justice grounds.

Holding and Implications

The Court ALLOWED THE APPEAL and set aside the High Court’s order striking out the Plaintiff’s proceedings for want of prosecution.

The direct effect is that the Plaintiff’s claim is reinstated and must proceed to trial without further delay. The Court emphasized the imperative for the case to be tried promptly. No new precedent was established beyond the application of established principles to the specific facts of this case.