Settled or not? Some claims could reactivate

The Supreme Court in Dublin recently gave judgment in three connected cases relating to abuse by Fr. Brendan Smyth. Three plaintiffs had made allegations of abuse (with the various periods of abuse covering 1969-1988) and issued court proceedings in Northern Ireland in 1996.

Initially, two of the claims were against Cardinal Daly (as Primate of All Ireland), the then Provincial for the Norbertine Order (of which Fr. Smyth was a member), the local Abbot of the Norbertine Abbey in Kilnacrott (where Brendan Smyth was based) and Brendan Smyth himself.  One of the plaintiffs claimed only against the Abbot and Brendan Smyth.

In 1998 and 1999, settlements were reached and terms of settlement signed. The settlement was compromised as there were a number of active claims against the Norbertines at that time. The settlement terms were worded slightly differently in the cases but purported to include a clause making the settlements full and final in respect of all allegations related to complaints against Brendan Smyth. All parties were fully represented in the discussions.

In September 2012, the three plaintiffs issued fresh proceedings against the Diocese of Kilmore and Cardinal Séan Brady saying that in 2012 they became aware of meetings in 1975 with victims of Brendan Smyth. The striking information was that one of the current plaintiffs was named by a victim in 1975.

The three plaintiffs now allege a re-traumatisation following the revelations of the interviews in 1975.

The Diocese of Kilmore issued a preliminary motion seeking a ruling that the matters were settled and so could not proceed.

At first instance the High Court ruled in favour of the Diocese and found that the relevant limitation period was from 1996 when there was media coverage of the trial of Brendan Smyth and Cardinal Daly made public statements which were carried in national media and that there was a prior accord and satisfaction. The Plaintiffs appealed and the Court of Appeal upheld the lower court ruling.

The Plaintiffs then appealed to the Supreme Court.

In the ruling delivered on the 24 March, the Supreme Court commented on preliminary issues and indicated that they were an appropriate step in managing cases and making use of court time by reducing the issues before a trial judge or removing unsuitable cases from the lists at an early stage.

However, they felt that in these cases the issue of the settlement and the intention of the parties could not be extracted from the core of the case, and that cases of this nature needed to be considered in full.  This approach is very similar to the approach taken in abuse cases where limitation is an issue in dispute. There, the courts have taken the view that it is not appropriate to have two separate hearings. The Supreme Court indicated that in these cases the Plaintiff’s faced a difficult battle in light of the limitation issues and in persuading the court that the earlier settlements were not in full satisfaction. However, that did not mean they were not issues which merited full consideration. The potential claim that the new revelations were, in fact, a new abuse and did not flow from the abuse by Brendan Smyth directly was also an issue for the court to consider.

The matter has now been referred back to the High Court where the cases will be presented in full and the court will need to rule on the issue again in light of the full facts of the cases.

The potential now for parties who settled cases many years ago but who did not include potential areas of negligence (potentially even claims which were not appreciated when the settlement was reached) or against defendants not previously identified, could now become a reality. As has been seen with recommendations of the Royal Commission in Australia where some past settlements should be reconsidered and the proposed changes to limitation in Scotland also envisage the possibility of revisiting prior cases which have been defended on limitation grounds.

The true picture of how many cases and settlements will be reopened is unclear and, in reality it is likely that these cases will be rare.

However along with the IICSA looking into numerous areas, the ruling from Dublin could have wider implications.

Canavan_F-BLM7-web Written by Fintan Canavan, partner

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