MOS v Residential Institutions Redress Board

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 24 April 2017
• Neutral Citation: [2017] IEHC 251
• Court: High Court
• Docket Number: [2016 No. 189 J.R.]
• Date: 24 April 2017

[2017] IEHC 251

THE HIGH COURT

JUDICIAL REVIEW

McDermott J.

[2016 No. 189 J.R.]

BETWEEN

M.O.S

APPLICANT

AND

THE RESIDENTIAL INSTITUTIONS REDRESS BOARD

AND

SUPERIOR COURT RULES COMMITTEE

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

Damages & Restitution – Practice & Procedures – Financial awards for injury to residents – Delay in bringing claim – The Residential Institutions Redress Act 2002 – S. 8(4) of the Residential Institutions Redress (Amendment) Act 2011 – Judicial review – Extension of time – O.84, r. 21 of the Rules of the Superior Courts – Good and sufficient cause

Facts: The applicant sought an order of certiorari for quashing the determination of the respondent that the applicant's application for financial reward in relation to injuries suffered while he was a resident at the named residential unit was out of time. Since the applicant's application for judicial review was out of time, the main issue that fell for consideration was whether the applicant should be granted an extension of time for bringing the delayed application. The applicant pointed out that the test for “exceptional circumstance” was the subject of a subsequent litigation and the applicant waited for the outcome of that case and thus, delayed in making the application for certiorari as the applicant also wanted to challenge the same test in the present proceedings.

Mr. Justice McDermott refused the applicant's application. The Court held that the applicant must establish that there were good and sufficient reasons that were beyond his control that prohibited him from making the present application for certiorari within the prescribed time limit. The Court held that the applicant had made an informed choice for not sticking to the time limit. The Court found that the respondent's refusal to entertain late application was just and cogent as there was an express bar on receiving new applications after 17 September 2011 under s. 8 of the Residential Institutions Redress Act 2002. The Court held that the applicant had failed to demonstrate good and sufficient reason under o. 84, r.21 of the Rules of the Superior Courts that would warrant the grant of extension of time.

JUDGMENT of Mr. Justice McDermott delivered the 24th day of April, 2017

1 The Residential Institutions Redress Board (the Board) was established under the provisions of the Residential Institutions Redress Act 2002 (the 2002 Act). The statutory preamble states that the Act is to ‘provide for the making of financial awards to assist in the recovery of certain persons who as children were resident in certain institutions of the State and who have or have had injuries that are consistent with abuse received while so resident…’ The Board was established to make such awards. The abuse which was to be the subject of awards by the Board is defined as:

‘(a) The wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child,

(b) The use of the child by a person for sexual arousal or sexual gratification of that person or another person,

(c) Failure to care for the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects on his or her behaviour or welfare, or

(d) Any other act or omission towards the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects on his or her behaviour or welfare.’

2 Under s. 7 of the 2002 Act where a person who makes an application for an award to the Board establishes to its satisfaction:

‘(a) Proof of his or her identity,

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

(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.

The Board shall make an award to that person…’

3 The time limit for the making of an application to the Board is limited under s. 8(1) of the Act to three years from the establishment day. That period may be extended under s. 8(2) at the Board's discretion ‘where it considers there are exceptional circumstances’ to do so. The Board is obliged under s. 8(3) to extend the three year period 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: no legal disability is said to arise in this case.

4 The establishment day of the Act was 16th December, 2002.

5 Under s. 8(4) and (5) of the Residential Institutions Redress (Amendment) Act 2011 (the 2011 Act) it was provided that the Board ‘shall not consider an application under s. 8 that is made on or after 17th September, 2011. To that end the Board was obliged to publish not later than six weeks before that date a notice to the effect that no application would be considered by the Board on or after that date in Iris Oifigiúil, two daily newspapers circulating in the State and two daily newspapers circulating in the United Kingdom.

6 On 21st January, 2008, the applicant with the assistance of his former solicitor submitted an application form for redress to the respondent pursuant to the provisions of the 2002 Act. In his statement grounding the application, the applicant outlined how he had been committed to St. Joseph's Industrial School Clonmel, Co. Tipperary for two years at the age of twelve. He described a history of physical beatings and sexual abuse while detained there. The application was also accompanied by a report from his general practitioner. It was received by the Board on 23rd January, 2008. The period for the making of his application had in fact expired on 15th December, 2005 pursuant to the provisions of s. 8(1) of the 2002 Act.

7 The applicant sought an extension of the period for the making of his application under s. 8(2). The medical report submitted refers to this delay and stated that he had suffered severe beatings and sexual abuse to such an extent that he suppressed all his feelings and emotions at that time. He had never spoken to anybody about that period in his life and had only lately informed his wife in the context of his wife's uncle having similar experiences. He was afraid that his relationship with his wife would suffer if she were aware of his past. No case was made that the applicant was under any legal disability under s. 8(3). Therefore, the extension of time fell to be considered under s. 8(2) which permitted the Board in its discretion and where it considered there were exceptional circumstances to extend the period for the making of the application.

8 On 28th May, 2008 the Board refused the application for an extension of time for the reasons set out in a letter of that date. It did not consider that any exceptional circumstances had been established in the applicant's case. In reaching that decision the Board took into account an affidavit submitted on behalf of the applicant sworn on 12th February, 2008. The applicant deposed in that affidavit that he first consulted or attended his solicitor in relation to his application for redress in or about December, 2007 following the death of his wife's uncle who had also suffered abuse. He had never been able to grapple with issues relating to the abuse which he suffered while resident in St. Joseph's Industrial School. He explained the shame and embarrassment relating to what had occurred while he had been resident there which prevented him from disclosing or dealing with those issues.

9 The Board, in refusing the application, stated that advertisements had been placed in all national broadsheet and tabloid newspapers as well as the main provincial papers and on various television networks in respect of the closing date for the receipt of applications prior to 15th December, 2005. Advertisements were also placed in all Irish daily newspapers highlighting each ministerial order which added to the institutions listed in the schedule and placed similar advertisements in Irish newspapers advising applicants of the closing date for the receipt of applications. It set up a website which was a conduit for newsletters, statements and media releases and contained all relevant information concerning the Board. Furthermore, the Board did not accept that there were exceptional circumstances in the applicant's case. It stated:

‘Despite the fact that the redress board had widely advertised the closing date for applications a number of potential applicants were, due to inability to grapple with issues related to what had occurred while they were resident in institutions scheduled in the Act, and also due to shame and embarrassment, unable to lodge applications prior to the 15th December, 2005. Your client's circumstance in this regard is not, therefore, exceptional.’

10 The Board therefore formally determined that the application was not validly received within the statutory period provided in the Act and would not be further considered.

11 By letter dated 3rd November, 2010 the applicant's new solicitors requested the Board to permit their client's application to be reopened in respect of the extension of time which had been refused on 28th May, 2008. It was indicated that there were additional factors involved which should have been addressed but had not been submitted to the Board for its consideration in the initial application. Further documentation was submitted. The Board considered a general practitioner's report of 16th October, 2007, the statement of the applicant, the affidavit of the applicant sworn 12th February, 2008, a report and letter of a consultant psychiatrist dated 10th June, 2010 and 12th August, 2011 and the...