Fosberry (nee Reid) (Ellen) v The Poor Sisters of Nazareth
| Jurisdiction | Northern Ireland |
| Judge | Colton J |
| Judgment Date | 17 October 2018 |
| Neutral Citation | [2018] NIQB 78 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 17 October 2018 |
1
Neutral Citation No: [2018] NIQB 78
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: COL10736
Delivered: 17/10/2018
2015/7711
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION
________
BETWEEN:
ELLEN FOSBERRY (nee REID)
Plaintiff/Appellant;
-and-
THE POOR SISTERS OF NAZARETH
Defendant/Respondent.
________
COLTON J
Background
[1] The plaintiff was born on 4 May 1936. She was a resident in the Nazareth
House Children’s Home, Ormeau Road, Belfast, between 19 November 1945 and
23 September 1950, during which time she was under the care of the defendant, the
Poor Sisters of Nazareth.
[2] She alleges that during her residency there she was subject to a range of
assaults, abuse and degrading treatment which has caused her personal injuries, loss
and damage, the effects of which are ongoing.
[3] On 27 January 2015 she issued a Writ of Summons seeking damages arising
from her treatment in the home alleging assault, battery, trespass to the person and
negligence.
[4] On 11 April 2017 the defendant issued a summons pursuant to Order 18 Rule
19 of the Rules of the Supreme Court seeking an order for trial of a limitation point
between the parties as a preliminary issue on the ground that the plaintiff’s action
was irrevocably time barred.
[5] The matter was heard initially by Master McCorry who delivered a written
judgment in the matter on 2 April 2018. Rather than treating the matter as an
2
application for determination of a preliminary issue, with the consent of the parties
the matter was treated as an application by the defendant to strike out the plaintiff’s
action on the ground that it was irrevocably time barred.
[6] Having heard the arguments of the parties and considered the relevant case
law the Master struck out the plaintiff’s claim on the ground that the defendant in
this action has accrued an irrevocable limitation defence to the plaintiff’s claim.
[7] The matter was appealed to the High Court. The parties agreed that the issue
to be determined was whether the defendant enjoyed an irrevocable limitation
defence to the plaintiff’s claim.
Consideration
[8] The initiation of claims for damages long after the facts which give rise to the
claims raise difficult issues relating to limitation, none more so than in cases of
alleged historical institutional abuse.
[9] The difficulties arise because of the fact that Parliament has made successive
alterations to the limitation rules over the years, some of which are applied
retrospectively.
[10] The determination of the issue in this case depends on the interpretation of a
number of statutes. The matter is further complicated by the fact that the House of
Lords has ruled definitively on the interpretation of analogous, but not identical,
statutory provisions in England and Wales.
[11] In considering this issue I have been greatly assisted by counsel in both their
oral and written submissions. Mr Montague QC appeared with Mr Gareth Purvis on
behalf of the defendant/respondent and Mr Michael McCartan appeared for the
plaintiff/appellant.
What then are the key dates and statutory provisions?
[12] It is agreed that the plaintiff’s cause of action accrued between 19 November
1945 and 23 September 1950.
[13] At that time the relevant limitation periods were governed by the Common
Law Procedure Amendment Act (Ireland) 1853 (the 1853 Act) and in particular
sections 20 and 22.
[14] Section 20 imposes a 6 year limitation period for a personal injury claim based
on negligence and a 4 year limitation period for a claim based on assault or battery.
[15] Section 22 provides that time does not begin to run against a person who has
accrued a relevant cause of action until he or she reaches the age of majority, then
To continue reading
Request your trial