M (KM) v Residential Institutions Redress Board and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 02 February 2015
• Neutral Citation: [2015] IEHC 66
• Court: High Court
• Date: 02 February 2015

[2015] IEHC 66

THE HIGH COURT

[No. 109 J.R/2014]

M (KM) v Residential Institutions Redress Board & Anor

BETWEEN

K.M.M.

APPLICANT

AND

RESIDENTIAL INSTITUTIONS REDRESS BOARD

RESPONDENT

AND

S.F.

PROPOSED NOTICE PARTY

Practice & Procedures – O. 15, r. 13 and O. 84, r. 22(2) of the Rules of the Superior Courts – audi alteram partem – Fair procedures – Residential Institutions Redress Act 2002

Facts: The applicant had made a complaint against the proposed notice party to the respondent for physical and sexual abuse, in which the respondent made no adverse findings against the proposed notice party. Following the grant of leave to seek judicial review of the decision of the respondent, the proposed notice party, in the present proceedings, sought an order to be joined as a notice party in the proceedings between the applicant and the respondent.

Mr. Justice McDermott granted an order to the proposed notice party that she should be joined as a notice party in the proceedings between the applicant and the respondent. The Court held that in civil cases, any person who wished to join in any action against the will of the opposite party must show that his absence would cause a real and adverse effect on his propriety interests and not just damage to his reputation. The Court observed that the proposed notice party was directly affected by the decision of the respondent in the present case and therefore, the notice party would be entitled to present her case with the help of counsel independent of the defence made by the respondent. The Court opined that right to be heard is contained under art. 40.4 of the Constitution and fair procedures must be followed to allow a person to defend himself.

1 JUDGMENT of Mr. Justice McDermott delivered on 2nd February, 2015

2 1. This is an application pursuant to O. 15, r. 13 of the Rules of the Superior Courts and/or O. 84 and/or on the basis of the inherent jurisdiction of the court, whereby S.F. seeks to be joined as a notice party in the proceedings as presently constituted between the applicant and the respondent, in the following circumstances.

3 2. S.F. is a nun against whom a complaint was made by the applicant in her application to the respondent pursuant to the Residential Institutions Redress Act 2002. The applicant claimed that while a resident in an institution for a period of approximately eight months, having been admitted there on 14 ^th June, 1978, and discharged on or about 25 ^th February, 1979, she was physically and sexually abused by S.F. S.F. was formally notified of the existence of the applicant's complaint by a letter from the respondent dated 3 ^rd April, 2013. A copy of the application form completed by the applicant was requested on her behalf and subsequently, the applicant's statement containing the allegations made against S.F. was furnished by the Board. S.F. denied the very serious allegations made by the applicant which would clearly constitute criminal offences. She was anxious to vindicate her right to her good name and with this in mind, returned to Ireland from Rome where she was residing to consult with solicitor and counsel.

4 3. S.F. was considered to be a "relevant person" within the meaning of s. 1(1) of the Residential Institutions Redress Act 2002 ("the Act"), and took a full part in the proceedings before the respondent. A statement of evidence was prepared on her behalf and furnished to the respondent on 30 ^th July, 2013. In her statement S.F. denied any allegations of physical or sexual abuse and set out in detail her recollections of the applicant's time at the institution and her own work there. She sought an oral hearing of the claim, wished to give evidence and to be represented and have the claimant cross examined on her behalf. She claimed that she was "very anxious to have the opportunity to refute the claim and allegations and thereby vindicate her constitutional right to her good name".

5 4. The case was listed for hearing on 2 ^nd October, 2013, before the respondent.

6 5. On 31 ^st July, 2013, a division of the respondent considered and granted a request made on S.F.'s behalf pursuant to s. 11(8) of the Act for consent to cross examine the applicant. The applicant was informed of this decision on 7 ^th August, 2013.

7 6. At the commencement of the hearing on 2 ^nd October, 2013, counsel for the applicant advised the respondent of the applicant's intention to present the application pursuant to the provisions of s. 10(5) of the Act, which provided that she could provide evidence either orally or by written statement. The Chairman of the division of the respondent then invoked the provisions of s. 10(8) and requested that the applicant provide oral evidence. Since the applicant had determined to present her application pursuant to the provisions of s. 10(5)(b), by written statement, she declined to comply with the request.

8 7. S.F. elected to give oral evidence and exposed herself to what is said to have been a "prolonged and difficult cross examination". In her affidavit she states that this decision was made because of her determination to defend her good name. She had travelled from Rome to be present for the oral hearing and engaged solicitor and counsel, thereby expending considerable time and money in what she regarded as the defence of her good name and standing before the respondent. Her affidavit states that she now suffers from cancer and has recently undergone surgery. She continues to receive treatment in Rome.

9 8. S.F.'s solicitor wrote to the respondent on 3 ^rd October, 2013, seeking written confirmation as to whether the Board had made any adverse finding against her. This was clearly of enormous importance to her in her personal and professional life. On 21 ^st October the Board informed S.F.'s solicitors that they would be in touch "as soon as a decision has been made by the Board". In a further letter dated 23 ^rd October, her solicitors were informed that the Board made "no adverse finding against S.F.".

10 9. In the course of S.F.'s cross examination the respondent disallowed a number of questions:-

11 (i) based on instructions from the applicant which were not reflected in the written evidence provided by the applicant to the Board and in respect of which she would not be providing any oral evidence;

12 (ii) which repeated a question already asked and answered, namely whether S.F. stood by her evidence that she had never witnessed physical abuse of any child by a Sister or staff member in the institution in circumstances where the congregation of which she was a member had made an apology before the Commission to Inquire into Child Abuse (The Ryan Commission), and;

13 (iii) questions directed to S.F. and her capacity within the Order of which she was a member rather than her capacity as a "relevant person" before the Board.

14 10. The Board reserved its decision and subsequently delivered a written determination on 20 ^th November, 2013.

15 11. In these proceedings the applicant contends, inter alia, that the respondent acted unlawfully in permitting S.F. to give oral evidence and also allowing her to cross examine the applicant and any person giving evidence on her behalf in advance of the oral hearing. For its part, the respondent will contend that it is entitled to deal with applications by relevant persons seeking consent to provide oral evidence and to cross examine an applicant in advance of a hearing, because this allows the relevant person to retain solicitor and counsel, if desired, and puts the applicant on notice of the fact that the relevant person will give evidence so that he or she can consider whether to cross examine the relevant person. Furthermore, the applicant will then be on notice of the fact that he or she may be subject to cross examination.

16 12. It is part of the applicant's case that she was not given an opportunity to make any representation in relation to the decision of the Board to allow the relevant person to give oral evidence, and to cross examine her and any person giving evidence on her behalf. It is the respondent's case that its decision to allow S.F. "in the interests of justice and for the purpose of protecting and vindicating her constitutional rights, to give evidence and to cross examine the applicant and any person giving evidence on her behalf was intra vires, reasonable and consistent with constitutional fair procedures. Furthermore, there was, in this case a conflict of fact between the account given by the applicant on the one hand, and by S.F. on the other". The respondent contends that it was necessary to proceed in the manner adopted by the Board having regard to the conflict of fact that existed between the accounts given by the applicant on...