Religious order fails to stop damages bid
- Published: 18 December 2008
Source: Irish Examiner
A RELIGIOUS order yesterday failed in a High Court challenge seeking to stop a claim for damages against it by two men who were sexually abused more than 30 years ago by one of its teachers.
The teacher, a member of the Franciscan order, was jailed in 1998 after pleading guilty to physical and sexual assault on the two, when they were aged 11 and 12, and attending a national school where he worked.
The men, now aged 46 and 47, subsequently brought civil proceedings against the teacher and against the Franciscans claiming it was vicariously liable for the actions of the teacher.
Proceedings were also taken against the principal of the school, the parish priest as school manager, and against the Department of Education.
The men obtained judgment in default against the teacher in May 2006 and the case against him is due before the High Court for assessment of damages only. The case against the Franciscans is due to be heard before a judge and jury.
The Franciscans took High Court proceedings seeking to strike out the men's case against them because of alleged inordinate and inexcusable delay in commencing the damages claim in July 2000, and/or a further delay in prosecuting those proceedings, thereby causing prejudice to them (the Franciscans).
The Franciscans argued, among the reasons for seeking a strike out, that the death of the parish priest since the initiation of proceedings meant they were being asked to revisit matters of antiquity where they had lost a witness. They also argued it would be a travesty of justice to allow the hearing proceed because the Franciscans had no involvement in the school.
Lawyers for the two men argued the delay between the dates of the assaults and the bringing of the damages claim was excusable because medical reports showed both men were traumatised by what had happened and could not have taken proceedings sooner. Dismissing the Franciscans' application yesterday, Mr Justice Paul Gilligan said while there had been an inordinate delay prior to instituting the proceedings, it was excusable. The central issue the court had to decide was whether or not the Franciscans knew, or ought to have known, that the teacher had abused before or had a tendency to abuse.
In the particular circumstances of this case and exercising his discretion based on general fairness, the judge said it would be inappropriate to dismiss the claim on grounds it was inordinate but excusable delay before the damages action was brought. The judge said with regard to the post-commencement of proceedings delay, he was satisfied the conduct of both sides contributed to this with regard to disclosure of documents and replies to correspondence.
