G (M) v Residential Institutions Redress Board

JurisdictionIreland
CourtHigh Court
JudgeMr. Kearns P.
Judgment Date09 August 2011
Neutral Citation[2011] IEHC 332
Date09 August 2011

[2011] IEHC 332

THE HIGH COURT

[No. 1529 JR/2010]
G (M) v Residential Institutions Redress Board
JUDICIAL REVIEW

BETWEEN

M.G.
APPLICANT

AND

THE RESIDENTIAL INSTITUTIONS REDRESS BOARD
RESPONDENT

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S5(1)(A)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S5(1)(B)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S7

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S8

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S8(2)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S8(3)

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

O'B (J) v RESIDENTIAL INSTITUTIONS REDRESS BOARD UNREP O'KEEFFE 24.6.2009 2009/43/10809 2009 IEHC 284

JUDICIAL REVIEW

Certiorari

Application for redress made out of time - Refusal to extend time for bringing claim - Fair procedures - National and constitutional justice - Discretion - Exceptional circumstances - Lack of knowledge of redress scheme - Whether refusal to extend time irrational - Whether breach of national and constitutional justice - Whether failure to apply fair procedures - Whether irrationality - Whether exceptional circumstances which would warrant the respondent to exercise discretion to extend time - Whether lack of knowledge amounted to exceptional circumstances - Whether failure to take into account intellectual and reading difficulties - State (Keegan) v Stardust Victims Compensation Tribunal [1986] IR 642; O'Keeffe v An Bord Pleanála [1993] 1 IR 39; Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701 and O'B(J) v Residential Institutions Redress Board [2009] IEHC 284, (Unrep, O'Keeffe J, 24/6/2009) considered - Residential Institutions Redress Board Act 2002 (No 13), ss 5, 7, 8 - Claim dismissed (2010/1529JR - Kearns P - 9/8/2011) [2011] IEHC 332

G(M) v Residential Institutions Redress Board

1

JUDGMENT of Mr. Kearns P. delivered the 9th day of August, 2011

2

In these proceedings the applicant seeks an order of certiorari to quash the decision of the respondent dated 23 rd July, 2010 which declined to extend the time period for the making of an application for redress by the applicant. The applicant contends that the refusal by the Board to extend time for the brining of a claim was irrational, in breach of the rules of natural and constitutional justice and further was a decision which failed to apply fair procedures in the particular circumstances.

RELEVANT STATUTORY PROVISIONS
3

The respondent body was established by the Residential Institutions Redress Act 2002. The preamble to the legislation states that it is:-

"An Act to provide for the making of financial awards to assist in the recovery of certain persons who as children were resident in certain institutions in the State and who have or have had injuries that are consistent with abuse received while so resident and for that purpose to establish the Residential Institutions Redress Board to make such awards and to provide for the review of such awards by the Residential Institutions Review Committee and to provide for related matters."

4

Section 5 (1) (a) of the Act of 2002 provides that the Board shall:-

"Make awards in accordance with this Act which are fair and reasonable having regard to the unique circumstances of each applicant."

5

Section 5 (1) (b) of the Act of 2002 provides that the Board shall:-

"Make all reasonable efforts, through public advertisement, direct correspondence with persons who are residents of an institution and otherwise, to ensure that persons who were residents of an institution are made aware of the function referred to in para. (a) of the Board."

6

Section 7 of the Act provides as follows:-

7

2 "(1) Where a person makes an application (an 'applicant') for an award to the Board establishes to the satisfaction of the Board-

8

(a) proof of his or her identity,

9

(b) that he or she was resident in an institution during his or her childhood, and

10

(c) that he or she was injured while so resident and that injury is consistent with any abuse that is alleged to have occurred while so resident,

11

The Board shall make an award to that person in accordance with s. 13 (1)."

12

The section with which this application is concerned relates to the period for making an application which is governed by the provisions of s. 8 of the Act of 2002:-

13

2 "(1) An applicant shall make an application to the Board within three years of the establishment day.

14

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

15

(3) The Board shall extend the period referred to in subsection (1) where it is satisfied that an applicant was under a legal disability by reason of unsound mind at the time when such application should otherwise have been made and the applicant concerned makes an application to the Board within three years of the cessation of that disability."

16

It is to be noted that, unlike the Statute of Limitations, this section does not contain a saver in the case of an applicant who was unaware of his or her entitlement to bring a claim, or could not reasonably have known that he or she was entitled to bring such a claim. However, as section 8 (2) of the Act of 2002 makes clear, the Board is left with a wide discretion where it considers there are "exceptional circumstances" to extend the period of three years from the establishment day for the making of an application. While it is a point to which I will return at a later stage, it would strike me as extremely odd if the Board in exercising its discretion did not evaluate "exceptional circumstances" in a manner which was in conformity with the saver contained in the Limitation Acts.

17

The establishment day for the purposes of the Residential Institutions Redress Board Act 2002 was 16 th December 2002. Accordingly, the closing date for receipt of applications was 15 th December, 2005.

FACTUAL BACKGROUND
18

The applicant was born on 16 th August, 1969. In July, 1977 she was sent to an industrial school in the midlands where she remained until September 1987. In her affidavit she deposes that whilst in this institution she was subjected to physical and emotional abuse.

19

She first made application for redress to the Board on 21 st August, 2009, almost four years after the time limit for bringing an application had expired. In her affidavit sworn herein, the applicant states that she had "no idea" that she was entitled to apply to the Redress Board for compensation and only learned about the existence of the Board and the scheme when she casually met on the street a woman who had been with her in the same institution at the same time. This meeting took place in June, 2009 following which the applicant attended at the offices of solicitors who had made an application on her friend's behalf for compensation to the respondent Board. That firm wrote to the Board for an application form which she signed and returned on 21 st August, 2009. She attended the Redress Board for a hearing on 10 th June, 2010 following which she was informed that her application had been rejected. She was informed by her solicitor that the respondents were of the opinion that the application had not been made in time and that there were no exceptional circumstances in her case which would warrant the Board to exercise its discretion to extend the time.

20

By way of further detail, the affidavit of Brian Carolan, solicitor for the applicant, deposes that during the hearing the following matters arose:-

21

a "(a) The applicant stated that she only became aware of the existence of the scheme in or around June 2009 when advised of same by an ex-resident of the industrial school who advised her to see a solicitor, which the applicant did.

22

(b) The applicant stated that she was unaware of any advertising concerning the Redress Board or Redress Scheme during the three year period prior to December 2005.

23

(c) The applicant's counsel showed her an advertisement which had been provided to the applicant's solicitor by the Board as the advertisements which had been placed in the newspapers prior to the closing date for applications. When asked by her counsel to look at the advertisement and to tell the Board what her understanding was of what was being said in the advertisement the applicant read out the words "The Board" before stating that she did not really understand it and that while she could read it she did not know what it was for. When specifically asked what the words "Redress Board" meant to her, she stated "nothing".

24

(d) The applicant had a low to borderline I.Q. and I.Q. testing of the applicant at different times had produced results of between 74 and 82."

25

The Board made its determination on the applicant's application on 21 st July, 2010 in a detailed five page reasoned decision. It concluded as follows:-

"… taking all relevant factors into account, the Board is not satisfied that the applicant has established the existence of exceptional circumstances for the purposes of s. 8 (2) of the 2002 Act, and refuses her application for an extension of time in which to bring her substantive application for redress. No evidence has been placed before the Board that the applicant was under a legal disability by reason of unsound mind at the time when her substantive application should have been made, and the Board has not considered the application for an extension of time under the provisions of s. 8 (3) of the Act."

THE APPLICANT'S CASE
26

The applicant's principal ground of complaint is...

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