Mr A v The Minister for Education and Science

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 26 May 2016
• Neutral Citation: [2016] IEHC 268
• Court: High Court
• Docket Number: Record No. 2003/13968P
• Date: 26 May 2016

BETWEEN:

(1)

MR A

PLAINTIFF

AND

THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND, THE ATTORNEY GENERAL, MICHAEL MURRAY, GARY CREEVY, JOHN GIBSON, BRENDAN McNICHOLAS

AND BY ORDER

NOEL SHEEHAN

DEFENDANTS

(2)

MR L

PLAINTIFF

AND

JAMES BREHONY, DAVID GIBSON, THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND, THE ATTORNEY GENERAL

AND

THE BOARD OF MANAGEMENT OF ST JOSEPH'S CBS

DEFENDANTS

(3)

MR M

PLAINTIFF

AND

JOHN KEVIN MULLAN, THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

(4)

MR R

PLAINTIFF

AND

ANTHONY MARK MCDONNELL, THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

(5)

MR H

PLAINTIFF

AND

DAVID GIBSON, THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

[2016] IEHC 268

Record No. 2003/13968P

THE HIGH COURT

Contract – Compromise – Acceptance of offer – O. 26 of the Rules of the Superior Courts 1986 – Withdrawal of notice of discontinuance – European Convention on Human Rights (ECHR) – Effective remedy

Facts: Following the acceptance of an offer by the plaintiffs to the effect that if the proceedings initiated by the plaintiffs in relation to their school day sexual abuses were discontinued, the State would not look for its costs but if the proceedings were continued and the State succeeded, the State would seek its costs, the plaintiffs now sought an order for setting aside the notices of service of discontinuance of those proceedings. The plaintiffs contended that the State had failed to provide an effective remedy in accordance with the ECHR as identified in O'Keeffe v. Hickey [2009] 2 I.R. 302 by the European Court of Human Rights, which the plaintiffs could not understand at the time of serving notice of discontinuance and that it was a common mistake as to the law.

Mr. Justice Max Barrett declined to set aside the notices of discontinuance of the court proceedings. The Court observed that o. 26 of the Rules of the Superior Courts 1986 did not provide for the withdrawal of the notice of discontinuance by a plaintiff who has served the same. The Court held that it could not exercise jurisdiction in cases where the decision to serve the notice of discontinuance was a conscious one and the withdrawal of the said notice would possibly deprive the defendant of the defence of the statute of limitations. The Court held that it was bound by the decision of the Supreme Court in Smyth v. Tunney [2009] 3 I.R. 322, that the notice of discontinuation of the proceedings would be set aside only if there was an abuse of process of law, which was manifestly wrong so as to bring ill-repute to the administration of justice. The Court found that since the parties had entered into a contract out of their own volition with no serious prejudice or unfairness present in the said contract, the relief sought by the parties could not be granted. The Court, however, expressed its concern over lack of an effective remedy to the plaintiffs despite having undergone sufferings for long. The Court observed that it was important to reach a final settlement once a party consented to arrive at a compromise.

JUDGMENT of Mr Justice Max Barrett delivered on 26th May, 2016.

Part 1

Overview

1 The court does not doubt for a moment that at the root of some or all of these several cases and the many lined up behind them are terrible truths. But the difficulty that the plaintiffs in these cases and others like them now face are three-fold:

- first, with the benefit of legal advice and for good consideration they entered into a contract with the State to discontinue certain legal proceedings. In return, the State waived its right to seek the many thousands of pounds or euro of costs that those proceedings had engendered. Those are good contracts at law that cannot lightly be set aside.

- second, the basis on which the plaintiffs seek to set aside those contracts is fundamentally mis-conceived. It is true that the European Court of Human Rights has indicated in the O'Keeffe case that Ireland is in breach of the European Convention on Human Rights for failing to provide certain parties who can prove their school-daysexual abuse cases with a remedy at Irish law – and the court must admit to no little surprise that, as was indicated by counsel for the plaintiffs at the hearing, no scheme has yet been put in place to provide redress for others who were failed in a similar manner to Ms O'Keeffe. However, the decision of the European Court of Human Rights does not have the result that the law on negligence or vicarious liability (the law by reference to which the parties entered into their settlement agreements) was incorrectly pronounced upon by the courts in the past, or that it has changed.

- third, the court is bound by binding Supreme Court precedent which has the result that the court must, regretfully, deny the plaintiffs the relief that they now seek.

2 Although the court considers that its judgment is correct as a matter of law, it freely admits to wishing that matters were not so. Some of the claimed facts that underlie the plaintiffs' cases, and which were placed before the court, make for deeply unpleasant reading. That those who claim to be similarly placed to Ms O'Keeffe and who might have proved their cases remain denied a remedy as a matter of Irish law is an injustice for which our State already stands attainted in the international arena by the above-mentioned decision of the European Court of Human Rights. As some of the people behind these as yet unproven claims are now advancing in years, they might be forgiven for wondering if they will live to see the day when such injustice as may have been done to them is finally righted by a foot-dragging State –to the extent, that is, that money can ever be a remedy for certain injuries suffered. Legally – and this is a court of law – the court must find the State to be the victor in these proceedings. But the Irish people, with their great and proper sense of justice, may well conclude that the path of rightness in this matter should lead ultimately to a different end, regardless of the end reached here today. This Court, as an Irishman, would respectfully agree were they so to conclude.

Part 2

Background

3 Thanks largely to the contentious historical decision by the State, a laic entity, to satisfy the constitutional right to free primary education by funding third-parties, mostly ecclesiastical bodies, to provide that education, the State has escaped liability in various court cases that were concerned with child sexual abuse within the school environment and which alleged vicarious or other liability on the part of the Minister for Education. Examples of such cases include Delahunty v. South Eastern Health Board [2003] 4 I.R. 361, O'C v. McD [2006] IEHC 261, and O'Keeffe v. Hickey [2009] 2 I.R. 302.

4 Given these and similar court“ victories” for the State, its lawyers made an offer in the past to a number of plaintiffs in similar such cases, including the plaintiffs now before the court. The offer was this: if a plaintiff discontinued his proceedings against the State, the State would not look for its costs; if he did not discontinue, and the State successfully defended those proceedings, the State would seek its costs. Curiously, this meant that the State's continuing failure to keep civil litigation costs to a reasonable level was effectively deployed by the State to its own advantage. But that is by the by. What matters for the purposes of these proceedings is that the plaintiffs now before the court took independent legal advice and, believing, by reference to the trend in court decisions, that there was no remedy available to them under Irish law, they each decided to accept the State's offer and discontinued their respective proceedings.

5 Following these discontinuations, the European Court of Human Rights decidedi n O'Keeffe v. Ireland (App. No. 35810/09; Judgment, 28th January, 2014) that Ireland was (it still is) in breach of its obligations under Art.3 of the European Convention on Human Rights for failing to provide an effective domestic remedy against the State as regards the State's failure to protect Ms O'Keeffe. The decision of the European Court is, of course, a decision by an international court that Ireland is in breach of its international obligations. Even so, the plaintiffs invoke that decision in seeking to have their previous notices of discontinuance set aside. Their principal ground for seeking this set-aside is that(a) Ireland's obligation (and failure) to provide an effective domestic remedy, in compliance with its obligation under the European Convention on Human Rights, was not understood at the time the compromise arrangements that led to service of the notices of discontinuance was agreed, and(b) this was a mutual or common mistake as to the law which is sufficient to justify those notices of discontinuance now being set aside.

Part 3

Withdrawing a Notice of Discontinuance

A. Overview.

6 Order 26 of the Rules of the Superior Courts 1986, as amended, provides for service of a notice of discontinuance by a plaintiff to an action. Order 26 does not provide for the withdrawal of a notice of discontinuance by a plaintiff who has served same. The principles applicable to such withdrawals are to be found in case-law and, for obvious reasons, overlap to some extent with the law concerning compromises. As a result, the court has been referred by counsel to a number of leading cases from Ireland and abroad concerning notices of discontinuance and/or the law pertaining to compromises, viz. Cusack v. Garden City Press Ltd (1978) O.R. (2d) 126, Adam v. Insurance Corporation of British Columbia (1985) 66 B.C.L.R. 164, Fitzsimons v. O'Hanlon (Unreported, High Court, Budd J., 29th June, 1999), Kleinwort Benson...