Breaden v Cunamh & Anor [2019]_IEHC_632 (05 September 2019)

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Judgmeny of Mr. Justice Garrett Simons delivered on 5 September 2019.

1. This judgment is delivered in respect of an application to dismiss the within proceedings (i)

on the basis that the claim is statute barred, and (ii) on the grounds of inordinate and

inexcusable delay. The application is made by the second named defendant, the Adoption

Authority of Ireland (“the Adoption Authority”). The proceedings arise out of events which

occurred in 1979 and 1980. The Plaintiff had given birth to a daughter in July 1979. The

Plaintiff was sixteen years old at that time. The Plaintiff claims that the circumstances

surrounding the subsequent adoption of her daughter entailed a breach of her rights. The

gravamen of the claim made against the Adoption Authority is that the Authority failed to

ensure that the Plaintiff was in a position to give informed consent to the adoption of her

2. It should be emphasised that this judgment is confined to the two delay-related issues

identified above, and has nothing to say in relation to the underlying merits of the case. In

assessing the effect of the lapse of time, however, it is relevant to note that the claim as

pleaded is inconsistent with the contemporaneous documentation. This documentation

includes an affidavit sworn by the Plaintiff herself on 5 October 1980 wherein she expressly

waived her right to be heard before the making of the adoption order, and confirmed that

she consented to the adoption. This inconsistency between the claim as pleaded and the

contemporaneous documents has the consequence that a trial judge could only make a fair

adjudication on the Plaintiff’s claim if there were evidence available to the court from

individuals directly involved in the key events of 1979 and 1980. The Adoption Authority

submits that a fair trial is not possible at a remove of some thirty-five to forty years, in

circumstances where a number of potential witnesses are unavailable or do not have any

3. The Plaintiff seeks to resist the application to dismiss the proceedings on the basis that she

had been suffering from post-traumatic stress disorder. A report has been exhibited from a

consultant psychiatrist which expresses the opinion that, up until when the Plaintiff began

attending a psychotherapist in more recent years, it would not have been possible for her to

bring the events of 1979 and 1980 to mind in a way which would have allowed her to make

decisions or to consider legal action. The Plaintiff’s counsel goes further and suggests that

the Plaintiff had been of “unsound mind”, and thus labouring under a “disability” for the

4. The application before the court presents an important issue of principle: to what extent, if

any, is it appropriate to attempt to resolve disputed issues of fact on an application to

5. For the reasons set out herein, I have concluded that the objection that the proceedings are

statute barred cannot be determined on an interlocutory application heard on affidavit only.

Whereas the evidential basis for the argument that the Plaintiff has been labouring under a

“disability” is scant, it would be inappropriate to rule on this issue without the benefit of oral

6. I have, however, been able to form a definitive view on the application to dismiss the

proceedings on the grounds of inordinate and inexcusable delay. The delay both prior to

and post the commencement of the proceedings is inordinate. Even if one assumes for the

purposes of argument that the pre-commencement delay might have been excusable on the

basis that the Plaintiff was incapable of instituting proceedings any earlier, the

post-commencement delay is inexcusable. Given the late start to the proceedings, it

behoved the Plaintiff and her legal representatives to pursue the litigation with expedition.

The ongoing failure to reply to the notice for particulars served on behalf of the Adoption

Authority on 26 November 2015 is inexcusable. The notice for particulars raised issues

which are critical to a fair adjudication of the proceedings, and it should have been replied to

7. I have also been able to reach a definitive view on the separate question of whether it would

be unjust to allow the trial to proceed. Having regard to the principles set out in the

judgment of the Court of Appeal in Cassidy v. The Provincialate [2015] IECA 74, I am

satisfied that there is a real and serious risk of an unfair trial and/or an unjust result.

8. Accordingly, I propose to make an order dismissing the proceedings as against the Adoption

9. In order to put the arguments of the parties into context, it is necessary first to provide a

brief overview of the events said to give rise to the Plaintiff’s claim in these proceedings.

This exercise is not straightforward in that (i) the Plaintiff has not yet provided a detailed

account of her version of events (the Plaintiff has failed to reply to a notice for particulars

served on behalf of the Adoption Authority), and (ii) the Adoption Authority asserts that—as

a consequence of the significant lapse of time—it is unable to adduce evidence as to the

relevant events. Indeed, it is precisely because of this (asserted) inability that the Adoption

Authority has brought the application to dismiss the proceedings.

10. The chronology which follows is confined to events and dates which are not in dispute, such

as, for example, the date upon which the Plaintiff’s daughter was born and the date upon

which the adoption order was made. Reference will also be made to the content of some of

the contemporaneous documentation. It appears to be acknowledged on the part of the

Plaintiff that she did sign certain documents at the relevant time, but the Plaintiff’s case as

pleaded is to the effect that she did not understand the content, import or consequences of

141. It bears emphasising that, in referring to this contemporaneous documentation, the court is

not expressing any view as to the legal effect of this documentation nor as to the underlying

merits of the Plaintiff’s case. Rather, the sole purpose of referring to the documentation is

to seek to identify the nature of the issues which would be in dispute were the case to

12. The Plaintiff became pregnant in or about October 1978. At that time, the Plaintiff would

have been fifteen years old. It is pleaded in the Personal Injuries Summons that the Plaintiff

attended at the premises of the Catholic Protection and Rescue Society of Ireland in about

1979 seeking help, assistance and advice in relation to her pregnancy and her

accommodation needs. It is further pleaded that the Plaintiff was only advised that the

13. The Catholic Protection and Rescue Society of Ireland is now known as Cúnamh. For

consistency, I propose to refer to the Society throughout this judgment by its current name,

i.e. Cúnamh. Cúnamh is the first named defendant to the proceedings.

14. The principal social worker employed by Cúnamh who had dealings with the Plaintiff was Ms

Hilda Cassidy. Ms Cassidy passed away in August 2008, i.e. several years prior to the

institution of the within proceedings on 19 August 2015. (See Affidavit of Sheila Fagan

15. The Plaintiff gave birth to a daughter on 29 July 1979. It appears that the Plaintiff

subsequently signed a form consenting to the placement of her daughter for adoption on

24 August 1979. The Plaintiff’s signature on the form had been witnessed by Ms Éilis Burke.

Ms Burke had been employed as a social worker by Cúnamh. Ms Burke has since retired,

and has advised Cúnamh that she has no independent recollection of meeting with the

Plaintiff at all, due to the passage of time, and therefore cannot put matters any further than

her notes from that time. (See Affidavit of Sheila Fagan sworn on 15 February 2016).

16. The first significant interaction between the Plaintiff and An Bord Uchtála appears to have

taken place in February 1980. (The Adoption Authority is the statutory successor to An Bord

Uchtála). The Plaintiff signed a Consent to Adoption on 11 February 1980. This took the

form of a sworn affidavit. Relevantly, the Consent to Adoption included the following

“6. I understand that the nature and effect of an adoption order is that I shall lose all

parental rights and that I shall be freed from all parental duties with respect to the

child and that these rights and duties shall be transferred to the adopter or adopters.

7. I have been informed and I understand that An Bord Uchtála (Adoption Board) may

make an adoption order in respect of the child referred to in paragraph 1 at any time

8. I hereby freely give my consent to the making of an adoption order in pursuance of

9. I have been informed and I understand that this consent may be withdrawn at any

time before the making of the adoption order, by informing An Bord Uchtála, 65

Merrion Square, Dublin 2, and that on the making of the adoption order my consent

10. I have been informed and I understand that I am entitled to be heard in person or to

be represented by counsel or solicitor on the application for the adoption order or to

be consulted again in relation to the application and that I should indicate my wishes

17. The Plaintiff also indicated that she wished to be further consulted and to be heard on the

application for the adoption order. As explained presently, the Plaintiff subsequently

18. On the same date upon which she swore the Consent to Adoption (11 February 1980), the

Plaintiff also completed and signed a questionnaire. This questionnaire set out a series of

questions which sought confirmation from the Plaintiff, as the child’s natural mother, that

she understood the nature and effect of an adoption order, and the implications of her

having consented to the adoption of her daughter. The Plaintiff’s signature was witnessed

by Anne McCarthy, a social worker employed by An Bord Uchtála. Ms McCarthy also swore

“1. I believe that an application has been made or is about to be made for the adoption of

the said [NAME REDACTED] and that the said Patricia Breaden is the natural mother of

2. I have been requested and authorised by the Adoption Board to make the enquiries

set out and numbered 1 to 13 in the Questionnaire overleaf and to report thereon to

the Adoption Board for the purposes of enabling the Adoption Board to comply with

the requirements of the Adoption Acts, 1952 to 1976, in the making of an adoption

3. In pursuance of such request and authorisation I have made the said enquiries and I

was present when the said Patricia Breaden answered the questions overleaf and

appended her name thereto and I say, that to the best of my knowledge and belief,

the said questions were understood by her and that her replies were freely given and

19. Ms McCarthy has recently informed the Adoption Authority that she has no recollection of

any of her dealings with the Plaintiff. (See affidavit of Patricia Carey sworn on 12 July

20. An Bord Uchtála wrote to the Plaintiff on 6 August 1980 inviting her to attend at their offices

on 27 August 1980 to be consulted in respect of the proposed adoption. (It will be recalled

that the Plaintiff had indicated, as part of the Consent to Adoption, that she wished to be

consulted further in respect of the application to make the adoption order).

21. In the event, the Plaintiff responded to the letter of 6 August 1980 by indicating that she

would rather not keep this appointment. Her letter indicated that she was now “very settled

22. An Bord Uchtála replied by letter dated 21 August 1980 indicating that it would be necessary

“We have therefore cancelled the appointment which the Adoption Board gave you for

August the 27th, but as you originally made this request under oath in your consent

form, it will now be necessary for you to make another affidavit, that is a sworn

statement that you do not wish to be consulted again. I know this may seem rather

ridiculous and complicated to you but unfortunately the Adoption Board stick very

rigidly to the legal process involved, and your letter to me in itself is not sufficient

There is therefore another form which you will now have to complete in the presence of a

Commissioner for Oaths. I could send this form to you in Roscommon if you would be

prepared to consult a solicitor there. If not, I am afraid we will have to ask you to

come to Dublin to sign this. Any weekday will suit us provided we know when to

expect you. We will then arrange an appointment for you with our own Solicitor here.

Please let me know by return which arrangement you would prefer – that is that we

send the form to you in Roscommon and you find your own Solicitor there, or

23. The Plaintiff duly swore another affidavit in Longford on 5 October 1980. This affidavit

indicated that she did not wish to be consulted again in relation to the application for the

adoption order. The affidavit stated that, in every other respect, the Plaintiff confirmed her

24. The adoption order was ultimately made on 5 December 1980. As of this date, the Plaintiff

would have been seventeen years old. The judge who signed the adoption order, Justice

A. Cassidy, has since deceased. (See affidavit of Patricia Carey sworn on 12 July 2018).

25. The Adoption Authority has, as part of its application to dismiss the proceedings, exhibited

certain additional documentation which appears to evidence engagement between the

Plaintiff and the Authority in the year 2000. It appears that the Plaintiff had written to the

Adoption Authority on 6 May 2000 and had requested a copy of her Consent to Adoption.

The letter indicates that the Plaintiff had previously spoken to an official of the Authority by

26. This letter appears to have been responded to by a letter dated 19 June 2000 which

enclosed the following documents said to have been signed by the Plaintiff: (i) Form 10

(permission to place a child for adoption); (ii) Consent to Adoption;

27. As discussed presently, counsel on behalf of the Adoption Authority seeks to rely upon this

documentation (i) to establish that, at the very latest, the date of knowledge for the

purposes of the Statute of Limitations was June 2000; and (ii) to rebut any suggestion that

the Plaintiff had been under a “disability” for the purposes of the Statute of Limitations.

28. The Adoption Authority has also exhibited a letter which purports to have been written by a

clinical psychologist with the Midland Health Board. This letter is dated 6 September 1989.

In brief outline, the letter indicates that the clinical psychologist had been seeing the Plaintiff

as a client. The letter expresses the opinion that many of the Plaintiff’s problems were

rooted in an unresolved adoption. The letter then requests that a photograph of the

Plaintiff’s daughter be provided. The letter from the clinical psychologist purports to be

29. Counsel for the Adoption Authority has invited the court to draw certain inferences from the

content of this letter. I have concluded, however, that the letter is inadmissible as evidence

of the truth of the contents thereof for the following two reasons.

30. First, the contents of the letter are inadmissible by reference to the rule against hearsay.

The letter represents a form of documentary hearsay. Whereas Order 40, rule 4 of the

Rules of the Superior Courts does allow for hearsay affidavit evidence in certain

circumstances, this exception does not apply. Order 40, rule 4 reads as follows.

“4. Affidavits shall be confined to such facts as the witness is able of his own knowledge

to prove, and shall state his means of knowledge thereof, except on interlocutory

motions,* on which statements as to his belief, with the grounds thereof, may be

admitted. The costs of any affidavit which shall unnecessarily set forth matters of

hearsay or argumentative matter, or copies of or extracts from documents, shall not

31. The relevance of Order 40, rule 4 to an application to dismiss proceedings had been

considered in Byrne v. Heffernan [2014] IEHC 424 (which has been cited in the Adoption

Authority’s written submissions). The High Court held that an application to dismiss

represented an interlocutory motion for the purposes of Order 40, rule 4. On this basis, the

court was prepared to rely on excerpts from medical records for the purposes of establishing

32. The correctness of this approach is now in doubt. The Court of Appeal in

O’Dwyer v. Daughters of Charity of St. Vincent de Paul [2015] IECA 226; [2015] 1 IR 328

has since held, albeit in the context of deciding the approach to be taken to an application to

admit new evidence, that an application to dismiss is for a final rather than an interlocutory

order. This rationale would appear to apply equally to Order 40, rule 4. Therefore,

notwithstanding that the present application comes before the court by way of what might

be described as an interim or interlocutory motion, i.e. a motion to be heard and determined

prior to a full hearing of the proceedings, I am satisfied that for the purposes of the above

rule, the application is for final orders. In any event, the letter is an exhibit to an affidavit

33. Secondly, were the court to rely on the contents of the letter from the clinical psychologist,

this would offend against the principles governing the use of documents recently set out by

the Supreme Court in RAS Medical Ltd. v. The Royal College of Surgeons in Ireland

“7.6 But it is frankly not appropriate for parties to enter into controversy as to the facts

contained either in affidavit evidence or in documents which are admitted before the

court without successful challenge, without exploring the necessity for at least some

oral evidence. If it is suggested that there are facts which are material to the final

determination of the proceeding and in respect of which there is potentially conflicting

evidence to be found in such affidavits or documentation, then it is incumbent on the

party who bears the onus of proof in establishing the contested facts in its favour to

use appropriate procedural measures to ensure that the potentially conflicting

evidence is challenged. Where, for example, two individuals have given conflicting

affidavit evidence and where it is considered that a resolution of the dispute between

those witnesses is necessary to the proper disposition of the case, then there has to

be cross-examination and the onus in that regard rests on the party on whom the

7.7 A similar principle applies where it is suggested that there is documentary evidence,

properly before the court, which might cast doubt on the reliability of sworn

testimony. It is not permissible to invite a court to reject sworn testimony either on

the basis that there is sworn testimony to the contrary or that the testimony might be

said to be either lacking in credibility or unreliable (on the basis of, for example, a

documentary record) without giving the witness concerned an opportunity, under

cross-examination, to explain, if that be possible, any matters which might go to

34. Whereas the provenance of the letter from the clinical psychologist does not appear to be

disputed by the Plaintiff’s legal representatives, the court knows next to nothing about the

circumstances in which the letter came to be written nor as to the extent of the engagement

between the Plaintiff and the clinical psychologist. It would be unfair to draw inferences

from the letter without affording an opportunity to the Plaintiff of responding to same by

way of oral evidence. This is not something which can be properly explored on an interim or

35. The within proceedings were instituted by way of Personal Injury Summons on 19 August

2015. The Plaintiff swore an Affidavit of Verification in September 2015.

36. It has to be said that the precise nature of the claim being made against the Adoption

Authority is unclear. It seems that the only particulars referable to the Adoption Authority

alone (as opposed to referable to Cúnamh or to both defendants) are those set out at

“8. In about February 1980 the Plaintiff was visited by an employee of the second named

Defendant and was caused to sign additional documents. The Plaintiff was 16 years of

age. In the premises the second named Defendant owed the Plaintiff a duty of care to

ensure inter alia that she understood the content, import and consequences of the

said documents. The Plaintiff was never advised that she could or should obtain

37. It is also pleaded that the Plaintiff does not wish to have the adoption order declared invalid.

“10. The Plaintiff does not wish to have the adoption order declared invalid however to the

extent that it is necessary to examine the validity of the adoption order within the

context with the (sic) within proceedings the Plaintiff will, if necessary, rely upon the

provisions of section 50(1) of the Adoption Act 2010 to ensure that the adoption order

38. A notice for particulars had been served on behalf of the Adoption Authority on 26 November

2015. To date, no replies to particulars have been received. Both defendants have

39. The first named defendant, Cúnamh, issued a notice of motion to dismiss the proceedings on

17 February 2016. It seems, however, that this motion was subsequently adjourned

40. The Adoption Authority issued its motion to dismiss the proceedings on 29 November 2017.

41. Counsel on behalf of the Adoption Authority, Mr Paul Gallagher, SC, submits that the

proceedings are statute barred. The claim against the Adoption Authority relates to events

in 1979 and 1980. The Plaintiff reached the age of majority in 1984. Time began to run for

the purposes of the Statute of Limitations from that date. Irrespective of whether one

applies the three-year limitation period under the original legislation or the two-year

limitation period introduced by the Civil Liability and Courts Act 2004, the limitation period

had long since expired by the time the within proceedings were instituted on 19 August

2015. It is submitted that, at the very latest, the date of knowledge for the purposes of the

Statute of Limitations was June 2000. It will be recalled that as of that date, the Plaintiff

had received copies of all the relevant affidavits and orders from the Adoption Authority.

(See paragraph 25 above). The judgment in Gough v. Neary [2003] IESC 39;

[2003] 3 IR 92 is cited in support of the argument that the Plaintiff’s state of knowledge

was such as to allow her to institute proceedings. It is not necessary that the Plaintiff have

known as of that date whether the acts or omissions complained of did or did not, as a

42. The judgment in O’Dwyer v. Daughters of Charity of St. Vincent de Paul [2015] IECA 226;

[2015] 1 IR 328 is cited as an example of a case where the court determined that

proceedings were statute barred on an application to dismiss, i.e. in the absence of a formal

43. Counsel submits that there is no basis for suggesting that the Plaintiff had been under a

“disability” for the purposes of the Statute of Limitations. Emphasis is again placed on the

fact that the Plaintiff had been able to engage directly with the Adoption Authority in the

year 2000, and had sought and obtained documentation in respect of her daughter’s

44. Counsel also draws attention to the content of the letter from the clinical psychologist dated

6 September 1989, and to the affidavit and exhibits filed on behalf of Cúnamh in support of

its application to dismiss the proceedings. These indicate that there was ongoing contact

between the Plaintiff and Cúnamh during the period 1987 to 1997, and that a meeting

45. In response, counsel on behalf of the Plaintiff, Mr Ciarán Lawlor, BL, makes an overarching

submission to the effect that the question of whether the proceedings are statute barred

cannot be resolved on an application to dismiss in the absence of an agreed statement of

facts. Counsel cites, by analogy, the judgment of the Supreme Court in L.M. v.

Commissioner of An Garda Síochána [2015] IESC 81; [2015] 2 IR 45;

“[36] However, I also consider that a court is entitled, on the hearing of the preliminary

issue, to consider if it is an appropriate case for determination by this procedure. If,

for example, the court proceeded to hear and seek to determine the preliminary issue

after a full and elaborate argument, it would, as I conceive it, still be open to the court

to conclude that in the light of the arguments and the matters advanced, that it was

not possible to give the sort of clear and unequivocal answer to the issue which would

dispose of the case or any issues in the case. Therefore, the case should proceed to

trial to have issues of law determined in the concrete and precise circumstances of an

individual case. Indeed, counsel for the defendants in these cases conceded that this

could be done in an appropriate case, but I do not wish to rest this decision,

particularly in the context of this case, on any such concession. In my view, a court

retains power to refuse to determine a preliminary issue if, after careful analysis, it

becomes apparent that some aspect of the issue was heavily fact-dependent, or that a

possible outcome would be so contingent or qualified as to require almost a form of

46. Turning then to the specific issues, counsel submits that the Plaintiff had been suffering from

post-traumatic stress disorder. This, it is argued, represented a “disability” for the purposes

of section 48 of the Statute of Limitations. The section reads as follows.

“48.(1) For the purposes of this Act, a person shall be under a disability while—

(2) For the purposes of subsection (1) of this section but without prejudice to the

generality thereof, a person shall be conclusively presumed to be of unsound mind

while he is detained in pursuance of any enactment authorising the detention of

47. Counsel relies on extracts from Canny, Limitation of Actions, (2nd edition, Round Hall,

Dublin), §6–11 to §6–14 (“Canny”) as a guide to the interpretation of the phrase “unsound

48. On this argument, time did not begin to run against the Plaintiff until the (unspecified) date

upon which she was first able to make a decision to institute legal action.

49. It has to be said that there are a number of obvious difficulties with this line of argument.

First, in order to succeed it would necessitate this court making a finding that the Plaintiff

had been of “unsound mind” for a significant part of her adult life. Whereas there is no

specific definition of “unsound mind” provided for under the Statute of Limitations, it seems

from the case law discussed in Canny (op. cit.) that, at a minimum, it would connote an

inability to manage one’s own affairs. There is nothing in the evidence before the court on

this application which indicates that the Plaintiff was ever unable to manage her own affairs,

still less that she was unable to do so for a significant part of her adult life. On the contrary,

the evidence indicates that she has been happily married since the age of 19, and has

50. Secondly, no explanation has been offered as to how the supposed inability of the Plaintiff to

call to mind the events of 1979 and 1980 can be reconciled with the documentary evidence

which appears to suggest that, first, she had undergone therapy with a clinical psychologist

as early as 1989, and, secondly, she had been capable of engaging with the Adoption

Authority in 2000, to the extent of seeking the disclosure of documentation which would be

relevant to any legal proceedings. This apparent contradiction is simply not addressed.

There is no reference, for example, in the consultant psychiatrist’s report in 2016 to the

51. Thirdly, as a matter of statutory interpretation, it must be doubtful whether a person

suffering from a psychological disorder, such as post-traumatic stress disorder, could be

regarded as being of “unsound mind”. The Statute of Limitations distinguishes between a

person of “unsound mind” and a person who is suffering from a “psychological injury”. The

latter term is used in section 48A, which section introduces special rules for the calculation

of the limitation period applicable to legal actions in respect of sexual abuse. A person is

treated as being under a disability if they are suffering from a psychological injury of such

significance that his or her will, or his or her ability to make a reasoned decision to bring a

legal action in respect of sexual abuse, is substantially impaired. The fact that the

Oireachtas made separate provision for “psychological injury” under the Statute of

Limitations tends to undermine any argument that the term “unsound mind” should be

52. The position in which it is now contended that the Plaintiff had found herself until 2015,

whereby she was allegedly unable to institute proceedings in respect of the adoption of her

daughter, appears to approximate more closely to the type of situation addressed under

section 48A (“psychological injury”) than that addressed under section 48 (“unsound mind”).

53. One can readily understand why a defendant, such as the Adoption Authority, who considers

that proceedings taken against it are inadmissible by reason of delay should seek to have

those proceedings dismissed at an early stage. Such a defendant will wish to have the

proceedings dismissed without the necessity of having to incur the further delay and costs

inherent in a full hearing. I have concluded, however, that where a question arises as to

whether proceedings are statute barred, then—save in the most straightforward cases—this

question may only be determined in advance of a full hearing where the court has directed

54. This conclusion is based on two reasons, one principled and one pragmatic. First, it seems

to me that in circumstances where the Rules of the Superior Courts have laid down a specific

procedure for determining issues of law in advance of a full hearing, then this procedure

must be availed of. The determination of whether proceedings are statute barred is often

cited as the classic or textbook example of an issue which can properly be tried as a

preliminary issue. If the Adoption Authority wished to have the case disposed of on this

basis, then it was open to it to apply for an order directing the trial of a preliminary issue.

55. A party is not entitled to by-pass the prescribed procedure and to invoke instead the

inherent jurisdiction of the court. See, by analogy, Lopes v. Minister for Justice, Equality

“[15] Applications to dismiss at an early stage of proceedings are, when brought, frequently

based alternatively on the provisions of O. 19, r. 28 of the Rules of the Superior

Courts 1986 (‘RSC’) and the inherent jurisdiction of the court. It is important to

emphasise that the inherent jurisdiction of the court should not be used as a

substitute for, or means of getting round, legitimate provisions of procedural law.

That constitutionally established courts have an inherent jurisdiction cannot be

disputed. That the way in which the ordinary jurisdiction of those courts is to be

exercised is by means of established procedural law including the rules of the relevant

court is also clear. The purpose of any asserted inherent jurisdiction must, therefore,

necessarily, involve a situation where the court enjoys that inherent jurisdiction to

supplement procedural law in cases not covered, or adequately covered, by procedural

law itself. An inherent jurisdiction should not be invoked where there is a satisfactory

and existing regime available for dealing with the issue under procedural law, for to do

56. Whereas these comments were made in the context of a different type of application,

namely an application to dismiss proceedings as an abuse of process, it occurs to me that

similar sentiments apply to an application to dismiss on the basis that the proceedings are

57. Secondly, the rules governing the trial of a preliminary issue are especially apposite to the

determination of whether proceedings are statute barred. The trial of a preliminary issue

will only be directed where there is an agreed set of facts or where the moving party agrees

to accept the other party’s case at its height for the purposes of the preliminary issue. See

Nyembo v. Refugee Appeals Tribunal [2007] IESC 25; [2008] 1 ILRM 289.

58. The determination of whether proceedings are statute barred will, save in the most

straightforward of cases, require a careful consideration of the factual circumstances. The

rules governing the trial of a preliminary issue and, in particular, the requirement that there

either be an agreed or accepted set of facts will ensure that the court has a factual matrix

against which to make the decision. If the facts cannot be agreed or accepted, then the

determination of whether the proceedings are statute barred can only be made in the

context of a full hearing, involving oral evidence and cross-examination.

59. In the present case the court is confronted with a significant dispute on the facts. The

Plaintiff has exhibited on affidavit a copy of the consultant psychiatrist’s report and has

averred that insofar as it records a narrative provided by her, same is accurate and correct.

It would, of course, have been more satisfactory had the consultant psychiatrist sworn an

affidavit in the proceedings himself, and had offered an opinion on the ability of the Plaintiff

60. In response, the Adoption Authority submits that the argument that the Plaintiff was of

“unsound mind” is inconsistent with the documentary evidence before the court. The

Authority relies, in particular, on the content of the documentation from 1989 and 2000 to

suggest that the Plaintiff was capable of addressing her mind to the circumstances

surrounding the adoption of her daughter, and would have been capable of instituting

61. It is not possible for me to resolve this dispute on the basis of the limited material before

the court on this application. Whereas the evidence that the Plaintiff had been under a

disability, i.e. of “unsound mind”, is scant, a final determination of this issue would require

oral evidence and cross-examination. The court would, for example, require to hear

62. The documents relied upon by the Adoption Authority do not prove themselves, and cannot

be relied upon without more to contradict the affidavit evidence and exhibits filed on behalf

of the Plaintiff. See RAS Medical Ltd. v. The Royal College of Surgeons in Ireland

[2019] IESC 4 (discussed at paragraph 33 above). Of course, were the matter to go to full hearing,

then the content of this documentation could, in principle, be put to the Plaintiff and/or the

63. It is also telling that, as part of the affidavit grounding the application to dismiss the

proceedings, the Adoption Authority itself had expressly signalled an intention to seek

independent medical evidence. See paragraphs 17 and 18 of Patricia Carey’s affidavit of

“17. The Statement of Claim and the affidavit of 9 December 2016 contain no clear account

of the facts upon which it is alleged the proceedings were issued within time. The

affidavit of 9 December 2016* contains an extract from a report from a Dr. Brendan

McCormack, consultant psychiatrist, which is exhibited to the affidavit and in which it

For [the Plaintiff], the only way to carry on was to shut down these memories. It

is only in recent times with the help of psychotherapy that she has developed the

capacity to engage in thinking about and remembering these events. Up until

this point, it has not been possible for her to bring these events to mind in a way

that would allow her to make decisions, or to consider any action regarding

18. It seems, although it is not clearly stated, that this is regarded as relevant to the issue

of time limits. While the implications of any such evidence in law are a matter for

legal submission, any evidence to this effect offered on behalf of the Plaintiff requires

to be tested; and the Authority intends to seek independent medical evidence in this

* This is a reference to the affidavit filed by the Plaintiff in response to the earlier application

64. The fact that the first named defendant, Cúnamh, had issued its motion to dismiss the

proceedings in February 2016 meant that by the time the Adoption Authority came to issue

its own motion in November 2017, the Authority had the benefit of sight of the affidavit

which the Plaintiff had filed in response to Cúnamh’s application to dismiss the proceedings.

This earlier application had been adjourned generally in January 2017.

65. The Plaintiff had confirmed, in her affidavit of 30 April 2018, that she was willing to be

examined by any medical practitioners as requested. The Adoption Authority does not

66. Finally, for the sake of completeness, it is necessary to refer briefly to O’Dwyer v. Daughters

of Charity of St. Vincent de Paul [2015] IECA 226; [2015] 1 IR 328 (“O’Dwyer”). It

appears that in that case both the High Court (Kearns P.) and the Court of Appeal were

prepared to determine the question of whether proceedings were statute barred on the basis

of an interlocutory application, notwithstanding that a trial of a preliminary issue had not

67. As in the present case, O’Dwyer concerned the legality of an adoption of a child. The

proceedings had been commenced some forty-four years after the events complained of had

occurred. The central issue before the Court of Appeal was whether the limitation period

had been postponed as a result of concealed fraud on the part of the defendant. This

required a consideration of section 71 of the Statute of Limitations.

68. I am satisfied that O’Dwyer is distinguishable from the present case for a number of

reasons. First, the outcome of the appeal in O’Dwyer turned principally on a question of

statutory interpretation rather than on the resolution of disputed facts. The Court of Appeal

held that whereas the failure of the defendant to inform the plaintiff of her rights under the

Adoption Acts may well have amounted to a breach of duty, there was no concealment of

either (i) actions taken by or on behalf of the defendant, or (ii) facts known only to it. By

contrast, the legal and factual issues in the present case are far more enmeshed. Secondly,

the Court of Appeal was prepared to assume certain facts in favour of the plaintiff. See

paragraph [30] of the judgment. Thirdly, no objection appears to have been raised by the

plaintiff to the question in respect of the Statute of Limitations being determined without a

69. In summary, therefore, the dispute in the present case as to whether the proceedings are

statute barred cannot be resolved without oral evidence and cross-examination, and cannot

be determined on an interim or interlocutory application heard on affidavit. This is in

70. The principles governing an application to dismiss proceedings on the basis of inexcusable

and inordinate delay are well established. The leading judgment remains that of the

Supreme Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 (at 475/76)

“The principles of law relevant to the consideration of the issues raised in this appeal may be

(a) the courts have an inherent jurisdiction to control their own procedure and to

dismiss a claim when the interests of justice require them to do so;

(b) it must, in the first instance, be established by the party seeking a dismissal of

proceedings for want of prosecution on the ground of delay in the prosecution

exercise a judgment on whether, in its discretion, on the facts the balance of

(d) in considering this latter obligation the court is entitled to take into

(i) the implied constitutional principles of basic fairness of procedures,

(ii) whether the delay and consequent prejudice in the special facts of the

case are such as to make it unfair to the defendant to allow the action to

proceed and to make it just to strike out the plaintiff's action,

(iii) any delay on the part of the defendant — because litigation is a two party

(iv) whether any delay or conduct of the defendant amounts to acquiescence

(v) the fact that conduct by the defendant which induces the plaintiff to incur

further expense in pursuing the action does not, in law, constitute an

absolute bar preventing the defendant from obtaining a striking out order

but is a relevant factor to be taken into account by the judge in exercising

his discretion whether or not to strike out the claim, the weight to be

attached to such conduct depending upon all the circumstances of the

(vi) whether the delay gives rise to a substantial risk that it is not possible to

have a fair trial or is likely to cause or have caused serious prejudice to

(vii) the fact that the prejudice to the defendant referred to in (vi) may arise

71. As appears, a court must consider three issues in sequence: (i) has there been inordinate

delay; (ii) has the delay been inexcusable; and (iii) if the answer to the first two questions is

positive, it then becomes necessary to consider whether the balance of justice is in favour of

72. The application of the first of these considerations to the facts of the present case is

straightforward. Counsel for the Plaintiff concedes that the delay has been inordinate.

(17 May 2019, 3.10 pm). This concession was properly made, and it would have been

difficult to argue convincingly to the contrary. There had been a lapse of some thirty-five

years between the date of the events complained of, and the institution of the within

proceedings on 19 August 2015. There has also been ongoing delay in responding to the

notice for particulars served on behalf of the Adoption Authority on 26 November 2015. The

combination of the delay pre- and post-commencement of the proceedings is inordinate.

Whereas the traditional view had been that delay had to be assessed by reference to delay

in the prosecution of the proceedings, i.e. by reference to delay subsequent to the institution

of the proceedings, the more recent case law indicates that both pre- and post-

commencement delay can be considered. See, for example, Cassidy v. The Provincialate

73. The application of the second consideration under the Primor test, i.e. whether or not the

delay is inexcusable, to the facts of the present case is more problematic. It is contended

on behalf of the Plaintiff that she had been under a disability (“unsound mind”) for many

years, and that given the existence of this disability, the delay was excusable.

74. Approaching the matter from first principles, it is at least arguable that if an individual had

been unable to institute proceedings for a number of years because of a disability caused by

the wrongdoing of the prospective defendant, then this might well excuse

pre-commencement delay. The difficulty in the present case, of course, is that it is simply

not possible to determine, on the basis of an interlocutory application heard on affidavit,

whether the Plaintiff did, in fact, suffer from a disability, still less whether this was caused by

any wrongdoing on the part of the Adoption Authority. The evidence before the court is

incomplete. There is no affidavit evidence from a consultant psychiatrist; there is merely a

report which has purportedly been verified in part by the Plaintiff in her affidavit of 30 April

75. Ultimately, the onus of proof of establishing that the delay has been inexcusable lies with

the Adoption Authority as the moving party, i.e. the party seeking to have the proceedings

dismissed. The moving party must first satisfy the court that the delay has been both

inordinate and inexcusable before the court can move on to consider whether the balance of

justice lies in allowing the case to proceed or not. It is only at that stage that the onus of

proof shifts to a plaintiff. See Sweeney v. Keating [2019] IECA 43, [19].

76. The moving party is not, however, required to meet an unrealistic standard of proof but is

instead entitled to ask the court to draw reasonable inferences from the evidence before the

court. See, for example, O’Connor v. John Player and Sons Ltd. [2004] 2 ILRM 321 (at

“Although the onus of establishing that the delay complained of has been inexcusable clearly

rests upon the party so alleging, the onus may be discharged by way of evidence and

argument demonstrating that no reasonable or credible explanation has been offered,

or can reasonably be said to exist, which would account for, or excuse, the delay.”

77. With some hesitation, I have concluded that it is not possible, on the basis of the limited

material before the court at this time, to reach a definitive view on whether the

pre-commencement delay is inexcusable or not. The Plaintiff’s side, by exhibiting the report

of the consultant psychiatrist, has done just enough to ground an argument based on an

alleged disability on her part. Whereas the Adoption Authority has highlighted what appear

to be glaring inconsistencies between (i) the claim that the Plaintiff was of “unsound mind”

and (ii) the documentary evidence—which appears to indicate that she had engaged with the

Adoption Authority in the year 2000 and would have been capable of instituting proceedings

at that time—none of this has been tested by way of cross-examination as of yet. Further,

insofar as it had initially identified a requirement to have independent medical evidence in

this regard, the Adoption Authority tacitly accepted that further evidence is required before

78. None of this is intended to suggest for a moment that the Plaintiff would succeed, at a full

hearing, in establishing that she had been under a disability or that the alleged disability had

been caused by any wrongdoing on the part of the Adoption Authority. This judgment does

not express any definitive view on either of these issues precisely because it is not possible

79. Finally, for the sake of completeness, I should record that I gave careful consideration to the

judgment of the Court of Appeal in Cassidy v. The Provincialate in deciding whether or not

there was sufficient evidence before the court to ground an argument that the Plaintiff was

under a disability. The judgment of the High Court at first instance in Cassidy had been to

the effect that the delay in that case was excusable in circumstances where the High Court

found that the many social, physical and psychological difficulties described by the plaintiff

in her pleadings had impacted on her ability to pursue the litigation. The Court of Appeal, in

overturning the High Court, was not satisfied that there was a sound evidential basis for this

finding. Irvine J. noted that no psychological or psychiatric evidence had been put before

the High Court to support what was otherwise a bald assertion on the part of the plaintiff.

“47. As to the conclusion of the trial judge that the ‘myriad of miseries’ which the plaintiff

had allegedly experienced in her lifetime could excuse the delay, there was again next

to no evidence to support such a finding. Unlike most cases were a plaintiff will seek

to excuse delay of the type involved in these proceedings, no psychological or

psychiatric evidence was put before the court to support what is otherwise a bald

assertion on her part, namely that she suffers/suffered from the many difficulties

referred to in the personal injuries summons. Further, there was no evidence to

support the assertion at para. 18 of the summons that these had affected her ability

to advance her proceedings. Indeed, insofar as the plaintiff relied upon a

psychological condition to excuse her delay, there were no facts pleaded to show for

what part, or parts, of the thirty year period of delay she was under such a disability.

When asked by the defendant, in its notice for particulars dated 21st May, 2012, to

state when she developed the post-traumatic stress disorder upon which she relied to

contend that she had been disabled in her ability to advance the proceedings, she said

in her reply of 10th August, 2012, that this ‘was a matter for evidence’.

48. Having reviewed all of the evidence that was before the learned High Court judge, I

am satisfied that there was insufficient evidence to excuse the plaintiff’s delay in the

issuing of these proceedings. This is particularly so in circumstances, where, during

that period of delay, she married, reared a family and held down a number of

49. In all of these circumstances, I am quite satisfied that the plaintiff has been guilty of

inordinate and inexcusable delay within the meaning of the Primor test.”

80. The facts of the present case are distinguishable from those at issue in Cassidy for the

following reasons. First, the Plaintiff has exhibited a report from a consultant psychiatrist

and has purported to verify the factual content of that report in part. Whereas this evidence

is not sufficient to allow the court to make a definitive determination on the question of

whether the delay was inexcusable, it does appear that the Plaintiff has gone further than

had been done in Cassidy. Put otherwise, this is not a case where there is no evidence

before the court which might support a finding that the Plaintiff was under a disability.

Given that the onus of proof lies with the moving party, it seems to me that the Plaintiff has

done just enough to ground an argument that the delay was excusable because of an

81. Secondly, in contrast to the trial judge in Cassidy, I am not purporting to make a finding of

fact based on insufficient evidence. Rather, it is precisely because I consider the evidence to

be insufficient that I have been unable to reach a finding of fact on this issue.

82. The legal position in respect of post-commencement delay is different. Even if one assumes

for the purposes of argument that the pre-commencement delay might have been excusable

on the basis that the Plaintiff was incapable of instituting proceedings any earlier than

19 August 2015, the post-commencement delay is inexcusable. Given the late start to the

proceedings, it behoved the Plaintiff and her legal representatives to pursue the litigation

with expedition. The ongoing failure to reply to the notice for particulars served on behalf of

the Adoption Authority on 26 November 2015 is inexcusable. The notice for particulars

raised issues which are critical to a fair adjudication of the proceedings, and it should have

83. It is no answer to suggest—as counsel for the Plaintiff did—that the notice for particulars

had been overtaken by the subsequent motion to dismiss the proceedings. The Adoption

Authority’s motion issued on 29 November 2017, that is, more than two years after the

notice for particulars had been served. Put otherwise, the Plaintiff was already in serious

default before the motion issued. If anything, the issuing of the motion—far from justifying

further inaction on the part of the Plaintiff—made it all the more urgent to reply to the notice

for particulars. Certain of the particulars sought were directly relevant to issues arising on

this application. Particulars had been expressly sought in respect of the reasons for the

84. Nor can the Plaintiff rely on the fact that the first named defendant, Cúnamh, had issued its

own motion to dismiss in February 2016 to excuse the delay. That motion only addressed

the position of Cúnamh, and even if it had been heard and determined in favour of Cúnamh,

that would not affect the continuation of the proceedings as against the Adoption Authority.

In any event, it appears that Cúnamh’s application had been adjourned generally in January

85. Given my finding that there has been inordinate and inexcusable delay in the prosecution of

these proceedings, it is necessary to consider next whether the balance of justice is in

favour of or against allowing the proceedings to go to full trial. The factors to be considered

in this regard have been enumerated by the Supreme Court in the passage from Primor

86. One of the principal factors to be considered in the present case is whether the ability of the

Adoption Authority to defend the proceedings has been prejudiced as a result of the delay.

The nature of the consideration to be carried out is described as follows in Primor. The court

“(vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair

trial or is likely to cause or have caused serious prejudice to the defendant”.

87. As it happens, it is necessary to carry out a similar exercise in the context of the application

of the overlapping jurisdiction to dismiss proceedings which is discussed under the next

heading below. As explained presently, the threshold to be met for the purposes of this

overlapping jurisdiction is more demanding than that under the Primor test. Nothing short

of establishing prejudice likely to lead to a real risk of an unfair trial or unjust result will

88. For the reasons set out under the next heading, I have concluded that this higher threshold

has been met on the facts of the present case. On the principle that the greater includes

the lesser, it follows from this conclusion that the lower threshold under the Primor test

must also have been met. To avoid unnecessary duplication, therefore, the analysis of the

prejudicial effect of the delay set out under the next heading below should be read as

applying mutatis mutandis to the application of the Primor test under the instant heading.

89. It remains then simply to determine whether any of the other considerations identified under

90. Counsel for the Plaintiff has been critical of the omission on the part the Adoption Authority

to issue a motion seeking to compel replies to the notice for particulars of 26 November

2015. With respect, this criticism overlooks the distinction drawn in the case law between

acquiescence and mere inaction on the part of a defendant. The distinction is explained as

follows by the Court of Appeal in Millerick v. Minister for Finance [2016] IECA 206.

“38. Why should a defendant who believes that there is some chance that the plaintiff,

because of their tardy approach, may not further pursue litigation against them be

blamed for failing to take positive steps to have the action progressed regardless of

whether or not they consider the claim against them well founded? If they believe the

claim is likely to be successful, should they be criticised for failing to stir the reluctant

plaintiff into action in proceedings that may cause them personal, professional or

financial ruin? Likewise, if they consider they have a good defence, why should they

be damnified for failing to embrace the potential additional costs of ensuring that

proceedings which might otherwise wither and die advance to a trial?

39. For these reasons I am satisfied that in order for a defendant’s conduct to be weighed

against it when the court comes to consider where the balance of justice lies, a

plaintiff must be in a position to demonstrate that the defendant’s conduct was

culpable in causing part or all of the delay. In other words a simple failure on the part

of the defendant to bring an application to strike out the proceedings will not suffice.

Such inactivity must be accompanied by some conduct that might be considered to

amount to positive acquiescence in the delay or be such as would give some

reassurance to a plaintiff that they intend defending the claim, as might arise if, for

example, they were to raise a notice for particulars or seek discovery during a lengthy

91. Similar sentiments have been expressed in the more recent judgment of the Court of Appeal

“There is no obligation on a defendant to progress proceedings or to take steps to pressurise

a plaintiff to pursue an action with diligence. Every step taken by a defendant is one

which is financially costly and a defendant may never recover that expenditure even if

92. Applying these principles to the facts of the present case, I am satisfied that the Adoption

Authority has not been guilty of delay or acquiescence. The Authority entered an

appearance to the proceedings promptly, and served a notice for particulars within three

months (26 November 2015). Notwithstanding that the Plaintiff never replied to this notice

for particulars, the Authority delivered a defence to the proceedings on 12 December 2017.

There was no obligation on the Authority to issue a motion seeking to compel replies to the

93. In all the circumstances, I am satisfied that the balance of justice lies in favour of dismissing

94. The delay on the part of the Plaintiff has been analysed under the previous heading by

reference to what are often described as the Primor principles. These principles are,

however, complemented by a separate but overlapping jurisdiction to dismiss proceedings

where there is a real and serious risk of an unfair trial and/or an unjust result. This

complementary jurisdiction had first been considered in detail by the Supreme Court in

95. As explained by the High Court (Finlay Geoghegan J.) in Manning v. Benson and Hedges Ltd.

[2004] 3 IR 556, this jurisdiction gives effect to constitutional requirements.

“32. The constitutional requirement that the courts administer justice requires that the

courts be capable of conducting a fair trial. This, as was submitted, is required by

Article 34 of the Constitution. Accordingly, if a defendant can on the facts establish

that having regard to a lapse of time for which he is not to blame there is a real and

serious risk of an unfair trial then he may be entitled to an order to dismiss.

33. Also, if a defendant can establish that a lapse of time for which he is not to blame is

such that there is a clear and patent unfairness in asking him now to defend the claim

then he may also be entitled to an order to dismiss. This entitlement derives

principally from the constitutional guarantee to fair procedures in Article 40.3 of the

34. Whilst in some of the cases the judgments have referred to matters under both these

headings, they appear to be potentially separate grounds upon which the inherent

35. The factor to be considered by the court in relation to each question may overlap. It

3. the probable issues to be determined by the court; in particular whether there

4. the nature of the principal evidence; in particular whether there will be oral

6. the length of lapse of time and in particular the length of time between the acts

or omissions in relation to which the court will be asked to make factual

Further, on the second question it will be relevant to consider any actual prejudice to the

defendant in attempting to defend the claim by reason of the lapse of time.”

96. The difference between the legal tests governing these two complementary jurisdictions has

been explained with admirable clarity by the Court of Appeal in Cassidy v. The Provincialate

[2015] IECA 74, [33] to [38]. As appears from that judgment, the two principal distinctions

are as follows. (For ease of exposition, I propose to adopt the same shorthand as employed

by the Court of Appeal in Cassidy, and will describe the tests as “the Primor test” and “the

97. First, whereas it is a necessary ingredient of the Primor test to establish that the delay is

“inexcusable”, the O’Domhnaill test does not require that there have been culpable delay on

the part of a plaintiff. Secondly, whereas both tests require that some consideration be

given to whether the delay has prejudiced the defendant in the defence of the proceedings,

the degree of prejudice required differs between the two tests. Under the O’Domhnaill test,

nothing short of establishing prejudice likely to lead to a real risk of an unfair trial or unjust

result will suffice. The rationale for this distinction is described as follows in Cassidy v. The

“37. Clearly a defendant, such as the defendant in the present case, can seek to invoke

both the Primor and the O’Domhnaill jurisprudence. If they fail the Primor test

because the plaintiff can excuse their delay, they can nonetheless urge the court to

dismiss the proceedings on the grounds that they are at a real risk of an unfair trial.

However, in that event the standard of proof will be a higher one than that imposed

by the third leg of the Primor test. Proof of moderate prejudice will not suffice.

Nothing short of establishing prejudice likely to lead to a real risk of an unfair trial or

unjust result will suffice. That this appears to be so seems only just and fair. Why

should a plaintiff found guilty of inordinate and inexcusable delay be allowed to say

that just because it is possible that the defendant may get a fair trial that the action

should be allowed to proceed when the evidence establishes that they would have

been in a much better position to defend the proceedings if the action had been

brought within a reasonable time? Likewise, why should a plaintiff who has not been

guilty of any culpable delay have their claim dismissed where the court is satisfied

that the defendant is not at any significant risk of an unfair trial or unjust result but

where, by reason of the passage of time it has become moderately more difficult to

38. Considering its jurisdiction having regard to the test in O’Domhnaill, a court should

exercise significant caution before granting an application which has the effect of

revoking that plaintiff’s constitutional right of access to the court. It should only grant

such relief after a fulsome investigation of all of the relevant circumstances and if fully

satisfied that the defendant has discharged the burden of proving that if the action

were to proceed that it would be placed at risk of an unfair trial or an unjust result.”

98. The claim in Cassidy had been for damages for personal injuries allegedly suffered by the

plaintiff by reason of assault, abuse, rape and false imprisonment on the part of a male

assailant. This individual is referred to in the judgment simply by the initials “P.D.”.

99. It was alleged that P.D. had been an employee of the Religious Sisters of Charity, the

defendant to the proceedings. The alleged abuse was said to have taken place between the

years 1977 and 1980. The religious order had no record of P.D. having been employed by

them, and, in any event, it appeared likely that P.D. was dead although an ongoing Garda

100. The Court of Appeal, in applying the Primor test, described the death of P.D. as of such

prejudicial magnitude that it warranted the court determining the balance of justice issue

against the plaintiff. The Court of Appeal also analysed the case in terms of the O’Domhnaill

test, and concluded that there was a real or serious risk of an unfair trial or unjust result.

Relevantly, the Court of Appeal rejected an argument on behalf of the plaintiff that the

application to dismiss should fail because the defendant had taken insufficient steps to

establish the whereabouts of other potential witnesses. The Court of Appeal described these

witnesses as peripheral in the context of the “enormous prejudice” caused by the death of

“64. I reject the submission made by counsel on behalf of the plaintiff that the defendant’s

application should fail because it has taken insufficient steps to establish the

whereabouts of four of the potential twenty nine witnesses that might have been

available to the defendant in these proceedings. That type of criticism might be valid

in a case where it is alleged that something occurred in the presence of a particular

individual and the defendant had not sought to track that person down. However, the

witnesses whom the plaintiff complains the defendant should have more hotly pursued

are so peripheral in the content of the enormous prejudice caused by the death of PD

65. Having considered the evidence that was before the High Court, I am quite satisfied

that to allow this action proceed would, to use the words of Henchy J., ‘put justice to

the hazard’, given that I am fully convinced that the issues between the parties are

now long ‘beyond the reach of fair litigation’. The defendant would not only be at risk

of an unfair trial but to my mind would enjoy no prospect whatsoever of a fair hearing

or a just result. Any trial as might take place would, as Kelly J. stated in Kelly v.

O’Leary [2001] 2 I.R. 526 at p.544, ‘be far removed from the form of forensic enquiry

which is envisaged in the notion of a fair trial in accordance with the law of this State’

and would amount to what was described in O’Keeffe v. Commissioners of Public

Works (Unreported, Supreme Court, 24th March, 1980) as a ‘parody of justice’.

Further, the Court itself would be unable in the circumstances to fulfil its constitutional

mandate under Article 34 of the Constitution, given that this can only be met by the

provision of a fair trial based on procedures which are fair and just for both parties.

In the aforementioned circumstances, I have come to the conclusion that the defendant is

also entitled to have this action dismissed in the exercise by the Court of its

101. Applying these principles to the facts of the present case, I am satisfied that the lapse of

time since the date upon which the events said to constitute wrongdoing on the part of the

Adoption Authority occurred is such that there is a real and serious risk of an unfair trial or

an unjust result if this action were permitted to proceed to trial. The initial placement of the

Plaintiff’s daughter for adoption, and the subsequent making of an adoption order, took

place over a period of eighteen months in the years 1979 and 1980. A period of more than

thirty-five years had elapsed prior to the institution of these proceedings on 19 August 2015.

The court is entitled to take judicial notice of the fact that the ability of potential witnesses

102. The nature of the claim made in these proceedings gives rise to specific prejudice. Insofar

as can be ascertained from the sparse pleadings to date, the claim as against the Adoption

Authority is to the effect that the Authority failed to ensure that the Plaintiff gave informed

consent to the adoption of her daughter. In order to adjudicate properly on this claim, the

trial judge would have to consider the circumstances in which the Plaintiff came to swear not

one but two affidavits expressly consenting to the adoption. Further, as set out at

paragraphs 16 et seq. above, the documentary evidence indicates that the Adoption

Authority had taken the precaution of having an authorised person question the Plaintiff to

ensure her understanding of the adoption process, and for that authorised person to swear

an affidavit to that effect. The authorised person in this case was Anne McCarthy. Ms

McCarthy has informed the Adoption Authority that she has no specific recollection of her

dealings with the Plaintiff. This is entirely unsurprising in circumstances where, as explained

on affidavit, Ms McCarthy would have been involved in numerous adoptions. It would be

unrealistic to expect that she would have a specific recollection of an individual adoption

some thirty-five to forty years after the event. (It matters not for the purposes of this

finding whether one reckons the delay up to the date of the institution of the proceedings

(some thirty-five years) or to today’s date, i.e. to include the post-commencement delay

103. It seems that it will not be possible to adduce evidence on the part of two other potentially

significant witnesses. These are the two social workers from Cúnamh who had been dealing

with the Plaintiff. The principal social worker has, unfortunately, since died. The other

social worker, Ms Éilis Burke, has indicated to Cúnamh that she has no specific recollection

104. The fact that neither of the two defendants will be in a position to lead evidence from the

three individuals who had the most dealings with the Plaintiff during 1979 and 1980 has the

consequence that a fair trial is not now possible. The nature of the claim in this case is such

that it could only ever be properly determined on the basis of oral evidence from the

105. One of the striking features of this case is that the Plaintiff’s claim is entirely inconsistent

with the contemporaneous documents. These documents indicate that the Plaintiff made an

informed decision to consent to the adoption. Presumably, were the matter to proceed to

trial, the Plaintiff intends to provide oral evidence of her own recollection of the events of

1979 and 1980 to contradict the content of the contemporaneous documents. One of the

central issues for the trial judge to determine would be whether the Plaintiff’s version of

events is credible. This is a case, more than most, where a fair trial necessitates that the

defendants have an opportunity to test the credibility of the principal witness on the

106. As a consequence of the delay of more than thirty-five years, however, the Adoption

Authority will not be in a position to challenge the Plaintiff’s version of events in a

meaningful manner. The Authority will not now be able to call witnesses who could have

provided direct evidence as to their dealings with the Plaintiff. The Authority’s ability to

cross-examine the Plaintiff will also be undermined. A successful cross-examination requires

that counsel be able to put his or her client’s version of events to the witness. This is

dependent on the ability of the client to provide detailed instructions. The death of some of

the potential witnesses, and the faded memories of others, means that the instructions will

not be as complete as they would have been had the proceedings been brought promptly.

107. It is also relevant to this analysis to note that witnesses who might otherwise have been in a

position to give meaningful evidence in relation to the events in the year 2000 are not now

in a position to do so. See affidavit of Patricia Carey sworn on 12 July 2018, at

108. All of this has the consequence that, were this action to be allowed to proceed to full

hearing, there is a real risk that the trial would be one-sided. Such a trial would fall far

short of the standards of fairness required under the Constitution of Ireland and would

109. Counsel on behalf of the Plaintiff sought to criticise what he characterised as a failure on the

part of the Adoption Authority to track down potential witnesses. With respect, the nature

of the claim made against the Adoption Authority is such that there are, in truth, only three

principal witnesses other than the Plaintiff herself. The other employees of the Adoption

Authority, such as the clerical officers whose names appear on the file, do not seem to have

had any meaningful interaction with the Plaintiff, and certainly not in relation to the issue of

her informed consent. Again, there is a parallel with the judgment in Cassidy where the

Court of Appeal rejected an argument that what were, in effect, peripheral witnesses should

110. The criticism made on behalf of the Plaintiff rings hollow in circumstances where the Plaintiff

has failed to set out proper particulars of her claim as against the Adoption Authority in the

Personal Injuries Summons, and has failed to reply to a notice for particulars served on

behalf of the Authority on 26 November 2015. A plaintiff who has failed to provide

particulars cannot be heard to criticise a defendant for failing to seek out witnesses in

circumstances where it is entirely unclear on the basis of the pleadings as to who it is that

111. Having regard to the principles set out in the judgment of the Court of Appeal in Cassidy v.

The Provincialate [2015] IECA 74, I am satisfied that were these proceedings to be allowed

to go to full hearing there would be a real and serious risk of an unfair trial and/or an unjust

result. By the time these proceedings were instituted on 19 August 2015, a period of some

thirty-five years had elapsed since the date of the events said to give rise to the Plaintiff’s

claim. The ability of the Adoption Authority to defend these proceedings has been seriously

prejudiced by this delay. In particular, it will be unable to adduce evidence of the key

events in 1980 in circumstances where the principal participants are either deceased or have

112. The nature of the claim advanced by the Plaintiff and, in particular, her seeming intention to

contradict the content of the contemporaneous documentation means that a fair trial of this

action would necessitate all relevant witnesses being available. The absence of testimony

from relevant witnesses on behalf of the Adoption Authority and Cúnamh would have the

effect that a trial would be one-sided and would not meet the constitutional requirements for

a fair trial. There is also a real risk that the trial judge would be unable to reach a just

result in circumstances where he or she would not have the benefit of all relevant evidence.

113. I am also satisfied that the proceedings should be dismissed on the separate ground that

there has been inordinate and inexcusable delay on the part of the Plaintiff and her legal

representatives in prosecuting same, i.e. post-commencement delay. The ongoing failure to

reply to the notice for particulars served on behalf of the Adoption Authority on

26 November 2015 is inexcusable. The notice for particulars raised issues which are critical

to a fair adjudication of the proceedings, and it should have been replied to years ago.

114. Accordingly, I propose to make an order dismissing the proceedings as against the Adoption

Ciarán Lawlor for the plaintiff instructed by Carl O’Mahony & Co Solicitors.

Paul Gallagher, SC and Eoin Carolan for the second named defendant instructed by Matheson.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Breaden v Cunamh & Anor [2019]_IEHC_632 (05 September 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_632.html Cite as: [2019]_IEHC_632

High Court of Ireland Decisions