J. McE v Residential Institutions Redress board

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Gerard Hogan
Docket NumberRecord No. 2014/1326 [Article 64 transfer]
Date03 February 2016

[2016] IECA 17

THE COURT OF APPEAL

Hogan J.

Record No. 2014/1326

[Article 64 transfer]

Kelly P.

Hogan J.

Edwards J.

BETWEEN/
J. McE.
APPELLANT
- AND -
THE RESIDENTIAL INSTITUTIONS REDRESS BOARD
RESPONDENT

Extension of Time ? Late Applications ? s. 8(2) of the Residential Institutions Redress Board Act 2002 ? Interpretation

Facts: This appeal considered the interpretation of the discretionary power conferred upon the respondent Board by s. 8(2) of the Residential Institutions Redress Board Act 2002 (?the 2002 Act?) to extend time for late applications. The High Court upheld the Board?s decision to refuse an extension of time and rejected the argument that the Board misinterpreted the relevant sub-section. Section 8(2) of the 2002 Act permits the Board to extend time for late applications in exceptional circumstances. The court determined whether the Board had correctly defined the term ?exceptional circumstances.?

Held by Hogan J: Section 8(2) of the 2002 Act should be interpreted in a broad way. An applicant only needs to demonstrate that exceptional circumstances exist to justify an extension of time. It is unnecessary for an applicant to go further by explaining any circumstances that may have impeded him/her from making an application or that they lacked knowledge of the existence of the redress scheme. The court allowed the appeal, quashed the Board?s decision and remitted the matter for further consideration.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 3rd day of February 2016
1

This appeal raises once again the difficult question as to how the discretionary power conferred on the respondent Board by s. 8(2) of the Residential Institutions Redress Board Act 2002 (‘the 2002 Act’) to extend time so as to permit late applications should be interpreted. The Board refused the applicant's application to extend time. In his judgment in the High Court ( JMcE v. Residential Institutions Redress Board [2014] IEHC 315) Moriarty J. rejected the argument that this sub-section had been misinterpreted by the Board and accordingly refused to quash that decision. The applicant, Mr. McE., now appeals to this Court against that decision.

2

Section 8(2) of the 2002 Act gives the Residential Institutions Redress Board (‘the Board’) power to extend time for the making of late applications ‘at its discretion and where it considers there are exceptional circumstances.’ It is acknowledged that the applicant in the present case is illiterate and drank heavily at the relevant times, yet the Board did not consider that this amounted to ‘exceptional circumstances’ within the meaning of s. 8(2) of the 2002 Act. It concluded that these education and social disadvantages were not such as ‘might have prevented the existence of the Redress Board from coming to his attention during the relevant period.’

3

The net question which arises is whether the Board had correctly defined the terms ‘exceptional circumstances.’ The applicant maintains that the Board misdirected itself in law regarding the meaning of this phrase and that its decision of 17th January 2013 should accordingly be quashed. The issue arises in the following fashion.

The background to the 2002 Act
4

The 2002 Act represents society's belated response to the appalling treatment of generations of children in residential care. Few who endured such treatment have emerged unscathed. The cases which came before the Board and the courts arising from this period are tragically replete with searing accounts of physical cruelty, sexual abuse, emotional neglect and institutional indifference to the fate of those who were condemned by society to be raised in such an environment.

5

The 2002 Act was accordingly enacted by the Oireachtas with a view to making some recompense to those whose lives were broken, ruined or damaged in this fashion. The Long Title to the 2002 Act provides:

‘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.’

6

It is against this background that the Supreme Court has recently confirmed that the 2002 Act is a remedial statute: see O'G v. Residential Institutions Redress Board [2015] IESC 41. It follows, therefore, that the 2002 Act should be construed ‘as widely and liberally as can fairly be done’: see, e.g., the comments of Walsh J. in Bank of Ireland v. Purcell [1989] I.R. 327, 333.

The application in the present case
7

This was the background to the 2002 Act. The applicant now seeks to quash a decision of the Board dated the17th January 2013, which refused to extend time beyond the statutory time limit. The Board did not consider that the applicant had established the existence of ‘exceptional circumstances’ pursuant to s. 8(2) of the 2002 Act for making applications for redress as would have enabled him to apply to the Board for compensation. Section 8 of the 2002 Act provides:

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

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

(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.’

8

The establishment day in question was the 16th December, 2002, so that the closing day for applications for the purposes of s. 8(1) of the 2002 Act was 15th December, 2005. The applicant did not, unfortunately, make an application to the Board until 16th September, 2011. This was, as it happens, one day before the ultimate cut-off date in respect any further applications to the Board under the 2002 Act. The Board can no longer entertain any further applications after 17th September, 2011: see s. 8(4) of the 2002 Act (as inserted by s.1 of the Residential Institutions Redress Board (Amendment) Act 2011)).

9

The applicant was born in 1958. He contends that he resided as a boy at St. Kieran's Industrial School for Boys where he was abused within the meaning of s. 1 of the 2002 Act. He stated that he was illiterate and that he drank heavily during the years 2002-2005. While he was aware from radio and television of various controversies associated with child sexual abuse, he assumed that such controversies were exclusively associated with clerical sexual abuse. His case is that he was only made aware of his possible entitlement to apply for redress from the Board when his girlfriend saw an advertisement from a local solicitor in September 2011 immediately before the absolute cut-off date.

10

The challenge in the present proceedings is based on the manner in which the Board interpreted its jurisdiction to extend time under s. 8(2) of the 2002 Act. In essence, the applicant's case is that he was not aware of his entitlement to possible redress until 2011 ( i.e., well after the original closing date in December 2005) and that this constitutes or, at least, is capable of constituting ‘exceptional’ circumstances within the meaning of the 2000 Act.

The reasons of the Board
11

The Board gave very detailed reasons for the conclusion in its decision of the 17th January, 2013 that the applicant had not in fact established the existence of exceptional circumstances for the purposes of s. 8(2) of the 20002 Act. The following passages (which are quoted below) may nevertheless be taken as representative of the reasoning of the Board.

12

The Board accepted that the applicant was illiterate and that he had been a heavy drinker. This, however, was not dispositive of the matter.

13

The Board first noted that the there was no definition of the phrase ‘exceptional circumstances’ contained in the 2002 Act:-

‘However, some guidance is to be found in the Oxford English Dictionary's definition of ‘exceptional circumstances’ as being of ‘the nature of forming an exception; out of the ordinary course, unusual, special’. The same dictionary defines ‘exceptional case’ as one which is ‘excepted’, a particular case which comes under the terms of a rule in which the rule is not applicable; a person or thing that does not conform the general rule affecting any 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 definition outlined throughout provides a useful framework from which it is clear and make it appropriate for the Board to apply a test of uniqueness in these cases.’

14

While the Board accepted that it was probably impossible to give an exhaustive definition of the term on a priori basis, it went on to say:

‘However, such an approach does not prevent the Board from envisaging or surmising what sort of exceptional 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 considered circumstances prevailing at a relevant time could have the effect of preventing or inhibiting an applicant from...

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