High Court dismisses personal injury case brought by woman whose sister was murdered in 1975
The case was taken by Ms Birkinshaw against the coroner for Tipperary North, North Tipperary County Council, and the justice minister. Picture: iStock
The High Court has dismissed the case of a woman who sued her local coroner's office and the justice minister, claiming trauma from a 36-year delay for an inquest into the death of her sister, who was killed in brutal circumstances.
In February 1975, then 30-year-old Anne Birkinshaw's sister, Kathleen Cashin, was killed in Co Tipperary. An individual was found "guilty but insane" of her murder.
In his High Court judgment, Mr Justice David Nolan noted the background facts to the case as "tragic" and said the court proceedings themselves were "unusual".
The case was taken by Ms Birkinshaw against the coroner for Tipperary North, North Tipperary County Council, and the justice minister.
The defendants brought an opposing application to dismiss or strike out the proceedings, which were launched in 2013, under court rules on delay.
In his judgement, Mr Justice Nolan said that "for reasons never properly explained" there were no records to show that an inquest was ever held into Ms Cashin's killing before 2011.
The judge said because of pressure from the plaintiff's family, an inquest was ultimately held in December of that year.
Prior to the 2011 inquest, a post-mortem report from state pathologist, Professor John Harbison, now deceased, was provided to Ms Birkinshaw.
She claimed the report added significantly to her trauma and hurt, causing her psychological injury, as she had been under the mistaken belief that her sister had died quickly as a result of a blow to the head, but the report indicated otherwise.
In 2013, Ms Birkinshaw issued personal injury proceedings and sought a court declaration that the failure to hold an inquest within a reasonable period of time amounted to a "denial of natural justice".
Mr Justice Nolan, noting that court proceedings were issued in 2013, said: "It is not an understatement to say that the case has taken what can only be described as a leisurely approach through the courts".
The defence argued that the underlying events dated back over 40 years and that the inquest took place 15 years ago.
The defence claimed the delay in proceedings had created severe prejudice for them, in that key witnesses, including Prof Harbison and members of An Garda Síochána, have either died or cannot be found.
Solicitor for the defendants, Nicola Tyson, in her affidavit, said the unexplained delay in taking the court case was "extraordinary" and the case could only be properly addressed by cross-examining witnesses who are now deceased or unavailable.
In his judgment, Mr Justice Nolan said there had been "total inactivity" between April 2019 and December 2024.
The judge noted the current coroner for North Tipperary is not an employee of either the local authority or the State and cannot be liable for the acts or omissions of predecessors.
He said he would "readily concede" that this is an unusual case, but added that the question to be asked is whether there is a pressing need that requires the case to be permitted to go to trial.
He added: "Although I accept that the public interest favours allowing potentially meritorious litigation to continue, the facts, as presented, offer little realistic prospect of success."
"The only reason the court has engaged in a discussion about some elements of the merits is to see if it can be saved," he said.
He said the court could not ignore the fact that three of the four original plaintiffs are dead and that it would also be "nigh-on impossible to find any witness from the time of the murder trial who could give evidence", putting the defence at a "clear disadvantage amounting to prejudice".
Mr Justice Nolan said that he had come to the view that, "notwithstanding egregious delays", the case could not be saved and dismissed the matter.
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