O'S v Residential Institutions Redress Board
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 16 July 2015 |
| Neutral Citation | [2015] IEHC 465 |
| Docket Number | [2013 No. 615JR] |
| Court | High Court |
| Date | 16 July 2015 |
[2015] IEHC 465
[2013 No. 615JR]
THE HIGH COURT
Practice & Procedures – Residential Institutions Redress Act, 2002 – Delay in filing application – Whether strict interpretation of remedial statute justified
Facts: The applicant sought an order for quashing the decision of the respondent striking out the application of the applicant due to lapse of time to seek compensation for alleged physical abuse suffered by the applicant as a child at a residential institution.
Mr. Justice Max Barrett granted an order thereby quashing the decision of the respondent and remitted the matter for fresh consideration before the respondent. The Court held that the Residential Institutions Redress Act, 2002 was enacted for the purpose of granting relief to persons who had suffered great harm and sufferings at a residential institution and therefore, its provisions must be construed widely and liberally. The Court found that the respondent fell into error by not taking the medical history of continued drug and alcohol abuse of the applicant into consideration at all and therefore acted unreasonably and unfairly.
Should the court quash a decision of the Residential Institutions Redress Board striking out Mr O'S's application to extend the time for him to seek compensation for alleged physical abuse suffered by him as a child at a residential institution?
This is an unhappy case. Mr O'S alleges that he was taken into care in a particular residential institution as a child and that he suffered physical abuse while he was there. He has sought compensation from the Residential Institutions Redress Board. He comes to court complaining that his application has been struck out, in effect for want of timely prosecution.
Clearly, many of the individuals presenting to the Board were and are persons whose terrible childhood experiences have left them vulnerable and led often, if not always, to considerable suffering in adult life. Suffice it to note in this context that Mr O'S is someone who has faced and continues to face significant challenges in his adult life; he would undoubtedly suggest these challenges to derive partly or wholly from a childhood spent in residential care that he claims was marred by physical abuse.
Mr O'S's application for compensation was made pursuant to the Residential Institutions Redress Act, 2002. In terms of the court's general approach to considering the within application, the court is mindful that the Act of 2002 was acknowledged by Hogan J. in A.G. v. Residential Institutions Redress Board [2012] IEHC 492 at para.18 to be a remedial statute. This was confirmed earlier this year by Denham C.J. when the Supreme Court considered the same case on appeal (see O'G v. The Residential Institutions Redress Board [2015] IESC 41 at para.33), albeit that the decision of the Supreme Court involved its finding against the eventual decision that Hogan J. had felt compelled to arrive at in light of certain previous case-law of the High Court.
The Supreme Court's finding on appeal that the Act of 2002 is a remedial statute has the effect that the Act falls to be construed as widely and liberally as fairly can be done. (See in this regard the comments of Walsh J. in Bank of Ireland v. Purcell [1989] I.R. 327). Specifically in this regard, the court considers that when it comes to strike-outs of applications for want of compliance with a direction of the Board, the Board must bring to its considerations a generous understanding of the underlying difficulties that are suffered by many, perhaps all who come within the scope of the redress scheme. More particularly, the court considers that inaction on the part of Mr O'S in terms of compliance with directions of the Board falls to be viewed in a very different light from similar failings of a more conventional applicant before a statutory body or indeed a more conventional applicant for judicial review.
On or about 1st December, 2009, Mr O'S first contacted the offices of Byrne Carolan Cunningham Solicitors by telephone for the purpose of instructing a solicitor to lodge an application with the Residential Institutions Redress Board on his behalf.
Byrne Carolan Cunningham swiftly made application to the Residential Institutions Redress Board. By letter of 3rd December, 2009, the Board acknowledged receipt of this application and forwarded an application form, together with instructions in relation to its completion.
On or about 16th September, 2011, Mr O'S, through his solicitors, submitted to the Board a “Late Application Form” seeking redress pursuant to the provisions of the Residential Institutions Redress Act, 2002. The sharp-eyed will note the delay between issuance of the form and submission of the later application. The court understands from the hearing that, unsurprisingly perhaps, numerous of the people who have historically made application to the Board have been quite vulnerable individuals; as a result, “hiccups” and delays in the application process have been by no means uncommon.
Mr O'S received a reply to his application by letter dated 8th November, 2011, wherein the Board acknowledged receipt of the Legal Application Form and advised that it appeared that Mr O'S had previously instructed another firm of solicitors (Peter McDonnell & Associates) to file an application on his behalf, which had been duly done on 15th December, 2005. The Board further advised that the application had been rejected by the Board on 23rd March, 2010; this decision was upheld by a Review Committee, following an appeal hearing on or about 30th September, 2010. The Board requested that Mr O'S's new solicitors take urgent instructions from Mr O'S in relation to his previous application. The Board further advised that it would not be progressing Mr O'S's late application.
Upon receipt of the foregoing documents, Mr O'S's solicitors sought instructions from Mr O'S. They were instructed that due to Mr O'S's history of drug and alcohol abuse, Mr O'S had not been in a position in to engage with the Board or with his first solicitor in relation to his earlier application.
By letter of 14th May, 2012, the Board wrote to Mr O'S's solicitors seeking a response to its letter of 8th November, 2011, and requiring them to attend at the Board's offices on 23rd May, 2012 to provide an explanation as to why there had been a delay in, for example, furnishing such documentation as would enable the Board to make a final determination in respect of the late application. The Board also advised that this would be the final opportunity to deal with outstanding matters or to lodge outstanding documentation with the Board in respect of the late documentation, and that thereafter the file would be transferred to the appropriate sub-division of the Board to make a final decision in respect of the late application.
By letter of 17th May, 2012, Mr O'S's solicitor replied to the Board, extending Mr O'S's apologies for not engaging fully with his earlier application and asking that the earlier application be re-opened. It was further explained that Mr O'S had a history of alcohol and drug abuse and that it was as a consequence thereof that problems had arisen as regards progressing his application.
By letter of 17th July, 2012, the Board advised that Mr O'S's late application had recently been considered by the Late Applications Division of the Board. A history of the first application was set out and it was specifically noted that Mr O'S's first solicitors had indicated to the Board that their last contact with Mr O'S had been in 2005. The Board further stated that in the period between 2005 and 2012, it appeared that Mr O'S had done nothing to prosecute this first application. The Board asserted that it had afforded Mr O'S every reasonable opportunity to move the matter forward but Mr O'S had failed to prosecute his first application. The letter concluded as follows: ‘[T]he Board takes the view that it has done everything that could reasonably be expected of it in relation to Mr O'Shea's [first] application and…will not reopen the [first] application’.
Following receipt of this letter, Mr O'S's solicitors attempted to advance matters before a Review Committee. Some correspondence went to and fro. Ultimately, the Review Committee, while expressing its sympathies to Mr O'S, declined to have any further involvement in the matter.
On or about 11th March, 2013, the Board, acting pursuant to s.8(7) of the Residential Institutions Redress Board Act, 2002, as inserted by s.44 of the Residential Institutions Statutory Funds Act, 2012, issued a document entitled ‘ Notice of Intention to Strike Out a Request to Extend a Time Period Referred to in Section 8(1) of the Residential Institutions Redress Board Act, 2002’. This notice related to Mr O'S's second application. The Board directed that Mr O'S should furnish to the Board on or before 10 a.m. on 18th April, 2013 ‘[p]roof that your client meets the requirements of Section 8(2) and/or (3) of the Residential Institutions redress Board Act, 2002’.
Mr O'S was further advised in this Notice that the matter would be listed before the Board on 18th April, 2013 or the first available opportunity thereafter to verify compliance with the Notice. It was further advised that if compliance was not so verified, the Board might strike out the request.
The matter came before the Board on 26th April, 2013. Mr O'S's solicitor was present on behalf of Mr O'S. He explained that he was not in a position to furnish “proof” as directed by the Board and requested an adjournment or, in the alternative, that the matter...
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