O' S -v- The Residential Institutions Redress Board & ors, [2018] IESC 61 (2018)

Docket Number:103/17
Party Name:O' S, The Residential Institutions Redress Board & ors
 
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THE SUPREME COURT[Appeal No: 2017 103]

O’Donnell J.

MacMenamin J.

O’Malley J.

Finlay Geoghegan J.

Irvine J.

Between/

M. O’S.Applicant/Appellantand

The Residential Institutions Redress Board and The Superior Courts Rules Committee and The Minister for Justice and Equality Respondents

Judgment of Ms. Justice Finlay Geoghegan delivered on the 6th day of December, 2018.

  1. This is an appeal from an order of the High Court (McDermott J.) made on 5 May 2017 for the reasons set out in a written judgment delivered on 24 April 2017: M. O’S. v. The Residential Institutions Redress Board and The Superior Courts Rules Committee and The Minister for Justice and Equality [2017] IEHC 251. The High Court refused an application for judicial review of a decision of the Residential Institutions Redress Board (“the Board”) of 9 January 2012. The Board’s decision had refused an extension of time for an application to it pursuant to s. 8(2) of the Residential Institutions Redress Act 2002 (“the 2002 Act”).

  2. This Court granted leave to appeal directly from the High Court pursuant to Art. 34.5.4 of the Constitution: M. O’S. v. The Residential Institutions Redress Board and The Superior Courts Rules Committee and The Minister for Justice and Equality [2017] IESCDET 127.

  3. The appeal raises difficult questions in relation to what may or may not constitute “good and sufficient reason” for the purpose of an extension of time under O. 84, r. 21(3)(a) of the Superior Courts Rules (as amended by S.I. No. 691 of 2011) and the vires of the Superior Courts Rules Committee to amend O. 84, r. 21 by the insertion of sub-rules (3)(b)(i) and (ii). The issues pertaining to what may constitute “good and sufficient reasons” on the facts of this appeal relate to an extension of time to challenge the decision of the Board taken under s. 8 of the 2002 Act and that Act is central to certain of the issues.

    Residential Institutions Redress Act 2002

  4. As the long title indicates, the 2002 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 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…”.

  5. The Act provides for the establishment of the Board on the establishment day which was subsequently specified to be 16 September 2002. The functions of the Board are set out in Section 5 and include at subs. 1(a) that the Board shall “make awards in accordance with this Act which are fair and reasonable having regard to the unique circumstances of each applicant”. Section 7 provides for the making of awards by the Board to a person who makes an application and establishes to the satisfaction of the Board:

    “(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.”

    If this is established, the Board shall make an award in accordance with Section 13(1). The scheme is a no fault scheme, as provided for in Section 7(5);

    “(5) An applicant shall not, when presenting an application to the Board, be required to produce to the Board any evidence of negligence on the part of a person referred to in the application, by the employer of that person or a public body.”

  6. Section 8 as originally enacted provides:

    “(1) An applicant shall make an application to the Board within 3 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 3 years of the cessation of that disability.”

  7. Section 8(2) is central to this appeal. Section 8(3) is not relevant on the facts. Section 8 was amended by the Residential Institutions Redress (Amendment) Act 2011 which inserted new subss. (4) and (5). Subsection (4) provides:

    “(4) Notwithstanding the provisions of this Act, the Board shall not consider an application under this section that is made on or after 17 September 2011”.

    Subsection (5) provided for the giving of notice six weeks in advance of 17 September 2011 but nothing turns on this.

    The Facts

  8. The relevant facts are not in dispute. They are set out in the statement of grounds, notices of opposition and verifying affidavits in the High Court and summarised by the High Court judge. For the purposes of the appeal, it is sufficient to state the following.

  9. The appellant was one of 17 children. At age 12, whilst playing truant from school he entered a neighbour’s house, stole some food and a one crown coin. He was apprehended, brought to court and sentenced to two years in an industrial school. He was in the industrial school from November 1962 to April 1964. Whilst there he states that he was subject to severe physical and sexual abuse by identified and named brothers and suffered from neglect and emotional abuse. The statement of grounds and his affidavit set out the impact of this on the appellant in adult life including the fact that he has had periods of imprisonment and suffered from sexual dysfunction, which he considers led to the breakdown of his first marriage and to him doubting the paternity of his children from his second marriage.

  10. The appellant did not make an application to the Board within the initial three year period i.e. prior to 15 September 2005. He made his first late application to the Board in 2008, which was refused on 28 May 2008.

  11. In 2010, he instructed new solicitors and in November 2010, those solicitors made a further application. This was supported by two reports from a consultant psychiatrist. This explained the use of repression by the appellant in order to cope with the memories of his time in care and consequences relevant to a failure to make a timely application.

  12. The Board granted an oral hearing on 21 November 2011, at which the appellant, his wife and consultant psychiatrist gave evidence.

  13. By a decision communicated by a letter dated 11 January 2012, the Board refused the application pursuant to s. 8(2) of the 2002 Act on the basis that it did not consider that there were exceptional circumstances within the meaning of the section such as to allow it to exercise its discretion under the Act to extend the time.

  14. Upon receipt of the decision, the appellant’s solicitor sought the advice of counsel as to whether “we could proceed by way of a judicial review”. His solicitor deposes that advices were received and the applicant was told that they could not recommend that an application for judicial review was likely to succeed and that, should proceedings be brought and prove unsuccessful, the applicant would be exposed to significant legal costs associated therewith. No application for leave was sought.

  15. It is common case that in January 2012, the High Court had previously delivered two judgments upholding the test applied by the Board in determining whether “exceptional circumstances” existed for the purposes of s. 8(2) of the 2002 Act: J.O’B. v. The Residential Institutions Redress Board [2009] IEHC 284, (O’Keeffe J.) and M.G. v. The Residential Institutions Redress Board [2011] IEHC 332 (Kearns P.).

  16. In November 2012, Hogan J. in the High Court in A.O’G. v. The Residential Institutions Redress Board [2012] IEHC 492 reluctantly followed the judgments in J.O’B and M.G. on the basis that he was bound by authority to do so, whilst outlining why, as a matter of principle, he did not find the reasoning of the Board and its approach under s. 8 of the 2002 Act to “exceptional circumstances” convincing.

  17. By letter dated 26 July 2014, the solicitors for the appellant requested that the Board reconsider the appellant’s application. This request was refused by a letter dated 28 July 2014.

  18. On 15 May 2015, the Supreme Court allowed the appeal from Hogan J.: A.O’G. v. The Residential Institutions Redress Board [2015] IESC 41. The single judgment was delivered by Denham C.J. (with whom the other four members of the Court concurred). She considered the meaning of “exceptional circumstances” in s. 8(2) of the 2002 Act and held at para. 39 that “in light of the general tenor of the Act of 2002, which was remedial in nature and the absence of fault in the scheme, the terms ‘exceptional circumstances’ has to be interpreted accordingly”. However, the appeal was decided upon the basis that the evidence adduced met the criteria for “exceptional circumstances” given by the Board itself and that the Board’s decision was irrational. The judgment did not set out a new test for “exceptional circumstances”.

  19. However, the solicitors for the appellant by a further letter of 24 November 2015 sought to have the Board reconsider the decision in respect of the appellant in the light of the Supreme Court judgment in A.O’G. This was refused by letter dated 27 November 2015.

  20. The final and most relevant judgment in relation to the meaning of “exceptional circumstances” in s. 8(2) of the 2002 Act is that of the Court of Appeal, Hogan J. (Kelly and Edwards J.J. concurring) delivered on 3 February 2016 in J. McE. v. The Residential Institutions Redress Board [2016] IECA 17. That judgment reversed a decision of the High Court which, following J. O’B. and M.G., had upheld the refusal of the Board to extend time. Following the principles set out by the Supreme Court in A.O’G., Hogan J. held that the provisions of the 2002 Act including the term “exceptional circumstances” should be construed as “widely and...

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