O'B (J) v Residential Institutions Redress Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Daniel O'Keeffe
• Judgment Date: 24 June 2009
• Neutral Citation: [2009] IEHC 284
• Docket Number: [No. 253 J.R./2009]
• Court: High Court
• Date: 24 June 2009

O'B (J) v Residential Institutions Redress Board

JUDICIAL REVIEW

BETWEEN

J.O'B.

APPLICANT

AND

THE RESIDENTIAL INSTITUTIONS REDRESS BOARD

RESPONDENTS

[2009] IEHC 284

[No. 253 J.R./2009]

THE HIGH COURT

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S8(2)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S8(1)

O'KEEFFE v BORD PLEANALA 1993 IR 39

S (D v T) v MIN FOR JUSTICE & ORS 2008 3 IR 476

REFUGEE ACT 1996

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

R v LONDON BOROUGH OF BRENT EX PARTE GUNNING 1984 LGR 168

R v SECRETARY OF STATE FOR EDUCATION EXPARTE NATIONAL UNION OF TEACHERS UNREP JACKSON 14.7.2000

R v NORTH EAST DEVON HEALTH AUTHORITY EX PARTE COUGHLIN 2000 2 WLR 622

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 5(1)(B)

Mr. Justice Daniel O'Keeffe

1 The decision challenged in this application is that of the Residential Institutions Board ("the Board") established by the Residential Institutions Redress Act ("the 2002 Act") sent to the Applicant under cover of a letter dated 19^th December, 2008 recording its decision that there were no exceptional circumstances to justify the late admission of the Applicant's application for redress under the 2002 Act.

2 The Applicant is aged 74 (date of birth, 26^th February, 1935). In his application to the Board, he states that he was a resident in St. Patrick's Industrial School, Upton, Cork from 1947 to 1953 where he claims he was abused. He moved to England in 1955 and has lived there ever since. He lives in Coventry. He made an application to the Board which was dated 23^rd January, 2006 and was received by the Board on 20^th February, 2006. The application was sent under cover of letter from his current solicitor which letter was dated 14^th February, 2006. In addition to the completed form there was also enclosed an affidavit sworn by the Applicant on 10^th February, 2006. The Applicant in his affidavit explained the circumstances in which he became aware of the scheme established by the 2002 Act. He claimed that he had been unaware of the scheme until late November 2005 when he saw an advertisement in a national newspaper in England. He claimed to have about two weeks to make the application having learned of the scheme. His half brother was killed in Cork in a hit and run accident on 28^th December, 2006. The Applicant attended the funeral. On his return to England he attended an Irish Welfare Centre in Coventry in relation to an Irish pension. He was referred to the Survivor's Outreach Team run by the Coventry Irish Centre where he met Mr. Simon McCarthy. He was advised about the Redress Scheme operated by the Board. He received assistance from Mr. McCarthy.

3 The application was initially rejected by the Board on 18^th May, 2006 and again on 3^rd May, 2007 as being out of time. The Applicant and seventeen others challenged the refusal to extend the time in High Court proceedings. The proceedings were settled on the basis of an oral hearing of the late application. The oral hearing in respect of the Applicant took place on 24^th October, 2008. The Applicant gave evidence which was preceded by generic evidence which was treated as evidence in every case including that of the Applicant.

4 In its decision dated 19^th December, 2008, the Board rejected the Applicant's application and concluded that it did not consider that there were exceptional circumstances within the meaning of section 8(2) of the 2002 Act.

5 The Applicant claims a declaration that the Board's decision that the Applicant's application was not received within the statutorily permitted period was unlawful and in breach of the provisions of the 2002 Act. He further claims a declaration that the decision of the Board that there were no exceptional circumstances was wrong in fact and in law. He claimed a declaration that the Applicant had insufficient opportunity to submit his application for a redress by 15^th December, 2005. He sought orders of certiorari quashing the decision of 19^th December, 2008 and an order for mandamus to compel the Board to admit the application for redress.

6 The Applicant submitted that in its finding that two weeks constituted an adequate opportunity to make an application for redress, the Board was unreasonable, behaved irrationally and/or acted unfairly. The Applicant submitted that the Board misdirected itself in law in finding that a lack of knowledge of the scheme was incapable of amounting to "exceptional circumstances" within the meaning of section 2 of the Act such as to justify the extension of time in which to lodge an application for redress. The Applicant claimed that relevant considerations were ignored by the Board in reaching its decision. The Board,inter alia, failed to have regard to the fact that the Applicant did not know of the existence of the scheme and/or that it applied to him until he was referred to the Outreach Service of the Irish Centre in Coventry on 23^rd January, 2006.

7 It was submitted on behalf of the Applicant that the Board in finding that the Applicant was "striving to be truthful and honest" chose to disregard his sworn evidence that he first telephoned the Board in late November 2005 and that the Board found instead that he first telephoned the Board after 29^th December, 2005. In so doing, the Board, it was contended, placed reliance upon a significant error of fact. There was no substantial basis for such a finding of fact.

8 It was farther claimed the Board may have taken account of an irrelevant factor, namely its suspicion that the Applicant may have known about the scheme since his mother's death in 2003.

9 Section 8(2) provides:-

"The Board may, at its discretion and where it considers there are exceptional circumstances, extend the period referred to in subsection (1)."

Subsection 1 provides that an Applicant shall make an application to the Board within three years of the establishment date (16^th December, 2002).

10 The decision of the Board dealt with what constitutions "exceptional circumstances" as follows:-

"There is no definition of 'exceptional circumstances' included in the 2002 Act. However, some guidance it to be found in the Oxford English Dictionary's definition of 'exceptional circumstances' as being 'of the nature of or forming an exception; out of the ordinary course, unusual, special'.

Both counsel for the Applicant and counsel for the Board agreed that this definition was of assistance. The same dictionary defines an "exceptional case" as one which is 'excepted, a particular case which comes within the terms of a rule, but to which the rule is not applicable; a person or thing that does not conform to the general rule affecting other individuals of the same class'.

In essence, the Board considers that 'exceptional' means something out of the ordinary. The circumstances must be unusual, probably quite unusual, but not necessarily highly unusual. The definitions outlined provide a useful framework from which it is clear that it would be inappropriate for the Board to apply a test of uniqueness in these cases."

11 In this Court, this broad definition of what constitutes "exceptional circumstances" was again accepted by both sides.

12 The Board continued:-

"Accordingly, therefore when considering applications for an extension of time under section 8(2) of the 2002 Act, the Board will determine each application according to its individual merits and particular circumstances. In this respect, the Board does not consider that it is possible to define in advance what circumstances might be considered exceptional. Furthermore, to attempt such an exercise would severely restrict the discretion of the Board and might result in injustices to those whose circumstances in fact were exceptional, but who did not fall within a list of stated and prescribed exceptions.

However, such an approach does not prevent the Board from envisaging or surmising what sort of individual circumstances in a particular case might be considered exceptional, e.g. the effect or impact of mental or physical health problems or conditions on a particular individual; personal family circumstances, whether in the Applicant's own life or in the lives of others for whom he or she cares; communication problems; or difficulties with legal advice. Any of these types of circumstances, prevailing at a relevant time, could have the effect of preventing or inhibiting an Applicant from making an application within the prescribed period and could be considered exceptional."

13 The above instances of what might constitute instances of exceptional circumstances were broadly accepted by counsel for both parties. It is not an exhaustive list.

14 The decision continued at p. 10:-

"The Board wishes to add that it is of the view that ignorance of the existence of scheme and/or closing date, in and of itself, does not constitute exceptional circumstances. It is reasonable to assume that a large majority of, if not almost all, late Applicants will state that their applications are late because they did not know about the redress scheme in time. However, if the Oireachtas intended that all such applications be accepted, the Board considers that it would have employed a state of knowledge test in section 8(2) rather than the test of exceptional circumstances. However, lack of knowledge may have arisen in the context of other factors such as those described above, and in that sense, exceptional circumstances may arise."

15 Looking at the instances which the Board said might constitute exceptional circumstances in a particular case, it is clear that these instances are related to the personal circumstances of the Applicant. It is the Applicant who must show and establish exceptional circumstances. I adopt this approach. In my...