J. McE v Residential Institutions Redress Board

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MORIARTY
• Judgment Date: 20 June 2014
• Neutral Citation: [2014] IEHC 315
• Court: High Court
• Date: 20 June 2014

[2014] IEHC 315

THE HIGH COURT

RECORD NO. 148JR/2013

McE (J) v Residential Institutions Redress Board

BETWEEN:

J. McE

APPLICANT

AND

THE RESIDENTIAL INSTITUTIONS REDRESS BOARD

RESPONDENT

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S8(1)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S8(2)

G (M) v RESIDENTIAL INSTITUTIONS REDRESS BOARD UNREP KEARNS 9.8.2011 2011/22/ 5833 2011 IEHC 332

MAXOL LTD v BORD PLEANALA UNREP CLARKE 21.12.2011 2011/34/9596 2011 IEHC 537

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

K (T) v RESIDENTIAL INSTITUTIONS REDRESS BOARD UNREP PEART 8.2.2013 2013/27/8038 2013 IEHC 52

B (P) v MIN FOR HEALTH UNREP IRVINE 31.5.2013 2013/5/1246 2013 IEHC 336

G (A) v RESIDENTIAL INSTITUTIONS REDRESS BOARD UNREP 6.11.2012 2012/16/4476 2012 IEHC 492

F (B) v RESIDENTIAL INSTITUTIONS REDRESS BOARD & ORS UNREP 14.3.2014 2014 IEHC 129

Judicial review application - Application for redress - Late submission - Refusal to extend time for reception of application - Residential Institutions Redress Act, 2002 - Applications to be submitted within three years of the establishment of the Board - s.8 (2) gives Board discretion to extend time - Exceptional circumstances - To be determined on individual merits and particular circumstances - Institutional abuse - Knowledge of existence of respondent

Facts An application for redress was received by the respondent on 16th September, 2011, some five and three quarter years after the date specified for receipt of applications under s.8(1) of the Residential Institutions Redress Act, 2002. The application stated the applicant had been born on 25th July, 1958 and that as a child he had resided in St. Kieran's Industrial School for Junior Boys, during which time he had been abused within the meaning of the Act. An oral hearing was held on 21st November 2012 before the Late Applications Sub-Committee. On 17th January, 2013, a written determination, which was adverse to the applicant, was furnished to his solicitors. Reference was made to the extensive relevant publicity throughout the relevant period between December, 2002 and December, 2005 about the respondent. The respondent claimed that despite his inability to read or write, there were ample means of acquiring knowledge as regards the existence of the respondent. The Board found that he was not so afflicted by alcohol difficulties that the existence of the Redress Board was prevented from coming to his attention during the relevant period and said it was noteworthy that he gave a sworn testimony that throughout that period he watched either the six o'clock news or the nine o'clock news on most days. The applicant contended the Respondent, in making its determination, unlawfully fettered its discretion. It was also contended that fairness of procedures had been infringed due to circumstances in which a further late application had been brought at the same time as the applicant on behalf of a nephew of his, who had also been resident in the same Institution.

Held The judge concluded it was appropriate that all relevant matters, including the access to publicity regarding the existence and purpose of the respondent, along with such matters as his education, health and work record and length of delay in applying were inquired into in the course of the hearing. He stated the hearing of applications could not be conducted in a vacuum and it was surely appropriate that all relevant and material circumstances be inquired into and assessed in the round at late application hearings to enable a balanced assessment to be arrived at. On the basis of clearly established prior legal authorities, the judge was unable to find the respondent had wrongly assessed the concept of “exceptional circumstances” or that there was insufficient material laid before it to entitle the determination that was reached being made or that such determination was otherwise tainted by bias or other impugning factors.

-Application dismissed

1 MR. JUSTICE MORIARTY delivered on 20th day of June, 2014.

2 1. This matter is a Judicial Review Application brought on behalf of the Applicant against the Respondents' refusal to extend time for reception of his Application for redress under the provisions of the Residential Institutions Redress Act, 2002. The Board was established under the provisions of that Act on 16 ^th December, 2002. Further to s.8(1), Applications for redress were to be submitted within three years of the establishment, in effect by 15 ^th December, 2005. However, s.8(2) enabled the Board, at its discretion and where it considered there were exceptional circumstances, to extend time for reception of an Application. A number of prior Applications have in recent years been already brought to this Court, with somewhat divergent outcomes relating to their individual circumstances, and these will be referred to later in this Judgment.

3 2. Little if any controversy arises in relation to the underlying facts preceding Respondents' refusal to extend time pursuant to the Act, and the substantive complaints made on behalf of the Applicant relate to the manner in which the Respondent considered what was placed before it on behalf of the Applicant, and the conclusions that were thereafter drawn. What transpired was that an Application for redress on behalf of the Applicant from his Solicitors was received by the Respondent on 16 ^th September, 2011, some approximately five and three quarter years after the aforesaid date specified for receipt of Applications under s.8(1) of the Act. What was conveyed in that Application was that the Applicant had been born on 25 ^th July, 1958, and that as a child he had resided in St. Kieran's Industrial School for Junior Boys, during which time he had been abused within the meaning of the said Residential Institutions Redress Act, 2002. Following correspondence between the advisors to the parties, in which reference was naturally made to the lateness of the Application, an oral hearing was on 21 ^st November, 2012, held before the Late Applications Sub-Committee at its Dublin offices, in which both parties were represented by Solicitor and Counsel. On 17 ^th January, 2013, a written Determination, which was adverse to the Applicant, was furnished to his Solicitors. The present proceedings were thereafter promptly instituted, and on 4 ^th March, 2013, leave was granted by Peart J. Leave was granted to proceed in relation to an Order of Certiorari by way of Judicial Review, quashing that adverse Determination, and for an Order remitting the Application to the Respondent, to be determined in accordance with law.

4 3. The primary matters canvassed at the said hearing were set forth in the Determination, and may be summarised as follows. The Applicant testified that he was unable to read or write, and also referred to long-standing problems with alcohol, contributing to the collapse of his marriage. He drank seven days a week, in particular after finishing work. This pattern had modified as a result of forming a new relationship in or about 2005. He had not seen his son in over twenty years. He further stated that he did not listen to the radio, but did watch television. It was in September of 2011 that his new partner made him aware of an advertisement by a firm of solicitors, in consequence of which he proceeded to bring his Application. He confirmed the contents of a letter that had been written by his Solicitors, in which it was stated that it could have been about three or four years previously when he saw something on television relating to sexual abuse, and thereby learned of the existence of the Respondent. Questioned by Counsel for the Respondent, he stated that between 2000 and 2006 he was working as a block-layer's labourer. He was able to work every day and was not drinking to such an extent as to be unable to work. Insofar as it seemed that no relevant medical records relating to him existed for the period between December, 2000 and January, 2006, he confirmed that he was not then drinking to such an extent that his health was adversely affected. Despite his illiteracy, he stated that on most days he would have watched either the six O'clock news or the nine O'clock news on television. When put to him that within that period there had been extensive publicity relating to the Respondent and the possibility of compensation for abuse suffered in institutional care, he stated that he had never seen this. When questioned further on the matter, he responded that "what I am saying to you is what I seen on television it was all about, on the news it was always about priests, all that kind of thing. I took no notice of that". He agreed it was fair to say that he watched the news perhaps once a day most days between the end of 2002 and the end of 2005.

5 4. In the further course of its said written Determination the Respondent stated as follows:

"There is no definition of 'exceptional circumstances' included in the 2002 Act. However, some guidance is to be found in the Oxford English Dictionaries definition of 'exceptional circumstances' as being 'of the nature of or forming an exception; out of the ordinary course, unusual, special'. The same dictionary defines an 'exceptional case' as one which is 'excepted, a particular case which comes within the terms of the rule, but to which the rule is not applicable; a person or a thing that does not conform to the general rule affecting other individuals of the same class".

6 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 definition as outlined provide a useful framework from which it is clear that it would be inappropriate for the...