Burke v Brothers of Charity Services Galway (Approved)

Factual and Procedural Background

The Plaintiff commenced employment with the Defendant as a locum houseparent in or about October 1995, becoming a full-time houseparent by April 1998. The Plaintiff’s claim concerns damages for personal injuries arising from alleged bullying and harassment in the workplace spanning from 1999 to 2008. Key events include the Plaintiff’s attendance at a team-building programme in 1999 where concerns were raised, meetings with supervisors in 2001 and 2004, difficulties related to sick leave and return to work between the mid-2000s and 2006, and issues surrounding the closure of a home and reassignment in 2007-2008. The Plaintiff resigned in April 2008.

Proceedings were initiated in the Circuit Court in January 2009 but discontinued in March 2013 due to their connection with the present High Court proceedings commenced in January 2010. A Defence was filed belatedly in May 2013 without pleading the Statute of Limitations. The Defendant’s last procedural step was filing an affidavit of discovery in May 2018, after which significant delay ensued. The Defendant seeks dismissal for want of prosecution and delay, or alternatively, permission to amend the Defence to rely on the Statute of Limitations.

Legal Issues Presented

1. Whether the Plaintiff’s claim should be dismissed for want of prosecution due to inordinate and inexcusable delay pursuant to the Court’s inherent jurisdiction and/or Order 122, rule 11 of the Rules of the Superior Courts.
2. Whether the Defendant should be granted liberty to amend the Defence to plead reliance on the Statute of Limitations Act, 1957 (as amended).
3. How to balance the interests of justice considering the delay, prejudice, and constitutional rights involved.

Arguments of the Parties

Defendant's Arguments

• Seeks dismissal of the Plaintiff’s claim for want of prosecution due to inordinate and inexcusable delay, particularly focusing on post-commencement delay of approximately two and a half years after the last procedural step in May 2018.
• Relies on the Court’s inherent jurisdiction and Order 122, rule 11 to dismiss the proceedings.
• Seeks liberty to amend the Defence to plead reliance on the Statute of Limitations, arguing the amendment is necessary and justified given the delay.
• Claims prejudice arising from the delay, including the difficulty of meeting the case fairly and efficiently.

Plaintiff's Arguments

• Contends that the Plaintiff has not abandoned the prosecution and has actively sought to progress the case despite delays, many of which were contributed to by the Defendant.
• Explains delay by reference to difficulties in securing expert reports, briefing of second Senior Counsel, and compliance with court practice directions on mediation.
• Argues that the Defendant’s application to amend the Defence is late and prejudicial as the Plaintiff has proceeded without the statute being an issue since 2013.
• Maintains that no specific prejudice has been demonstrated by the Defendant and that documentary evidence exists to mitigate any prejudice from delay.
• Submits that dismissal would cause significant hardship as the Plaintiff would be left without a remedy.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court recognized significant delay both pre- and post-commencement of proceedings. While acknowledging that bullying and harassment claims involve patterns of behaviour over extended periods, the Court found the delay post-commencement—from the Defence filing in 2013 to the last procedural step in 2018 and beyond—was inordinate and inexcusable. However, the Court also noted substantial contributory delay by the Defendant, including a three-year delay in filing the Defence and a protracted discovery process spanning over four years, often failing to comply with court orders.

The Defendant’s affidavit alleging prejudice was general and lacked specificity, failing to demonstrate concrete prejudice such as unavailability of witnesses or loss of evidence. The Court found that the Defendant’s contribution to delay weighed heavily against dismissal. The Plaintiff’s efforts to progress the case, including motions to compel and attempts to obtain expert reports, were acknowledged, though the Court noted some excessive tolerance of Defendant’s delays by the Plaintiff.

Balancing these factors and constitutional rights—particularly the Plaintiff’s right of access to the courts against the Defendant’s right to a fair trial and protection of reputation—the Court concluded that despite the delay, the balance of justice favored the continuation of the proceedings. There was no established real and substantial risk of an unfair trial.

Regarding the Defendant’s application to amend the Defence to plead the Statute of Limitations, the Court applied established principles emphasizing that amendments should be allowed to determine the real questions in controversy unless they cause injustice. The Defendant could have pleaded the statute earlier, and the Plaintiff claimed prejudice due to the late amendment. However, the Court found no evidence that the amendment would cause insurmountable prejudice or disrupt trial scheduling. The Court proposed allowing the amendment subject to conditions on costs and timing.

The Court directed that the Defendant deliver the amended Defence within fourteen days, any Reply within ten days thereafter, and that mediation requests be addressed within twenty-one days. The Court emphasized that further delay would not be tolerated and ordered that steps to fix a hearing date be taken promptly.

Holding and Implications

The Court DISMISSED the Defendant’s application to dismiss the proceedings for want of prosecution and delay.

The Court ALLOWED the Defendant’s application for liberty to amend its Defence to plead reliance on the Statute of Limitations, subject to conditions as to timing and costs.

The decision ensures that the Plaintiff’s claim may proceed to trial despite significant delay, reflecting a careful balancing of constitutional rights and procedural fairness. The ruling imposes a firm expectation that the parties will expedite the proceedings going forward, with directions to prevent further undue delay. No new precedent was established; rather, the decision applies established principles to the specific facts and procedural history of this case.