TK v Residential Institutions Redress Board

• Jurisdiction: Ireland
• Judge: MR JUSTICE MICHAEL PEART
• Judgment Date: 08 February 2013
• Neutral Citation: [2013] IEHC 52
• Court: High Court
• Date: 08 February 2013

[2013] IEHC 52

THE HIGH COURT

Record Number: No. 64 JR/2012

K (T) v Residential Institutions Redress Board

BETWEEN:

TK

APPLICANT

AND

THE RESIDENTIAL INSTITUTIONS REDRESS BOARD

RESPONDENT

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S8(1)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S8(2)

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S8(3)

STATUTE OF LIMITATIONS ACT 1957 S48A

O'KEEFFE v BORD PLEANALA 1993 IR 39

G (M) v RESIDENTIAL INSTITUTIONS REDRESS BOARD UNREP KEARNS 9.8.2011 2011/22/ 5833 2011 IEHC 332

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 643

MEADOWS v MINISTER FOR JUSTICE UNREP SUPREME 21.1.2010 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 10

HAY v O'GRADY 1992 1 IR 210

HENRY DENNY & SONS (IRL) LTD v MIN FOR SOCIAL WELFARE 1998 1 IR 34

O' B (J) v RESIDENTIAL INSTITUTIONS ADDRESS BOARD UNREP O'KEEFFE 24.6.2009 2009/43/10809 2009 IEHC 284

G (M) v RESIDENTIAL INSTITUTIONS ADDRESS BOARD UNREP KEARNS 9.8.2011 2011/22/ 5833 2011 IEHC 332

G (A) v RESIDENTIAL INSTITUTIONS REDRESS BOARD UNREP HOGAN 6.11.2012 2012 IEHC 492

RESIDENTIAL INSTITUTIONS REDRESS BOARD

Judicial review

Applicant bringing claim four years after statutory deadline - Applicant deciding to delay claim until mother's claim completed - Respondent refusing to extend time - Statutory interpretation - "Exceptional circumstances" - Respondent finding that exceptional circumstances not established - Whether error by respondent - Whether respondent's findings based on evidence before it - O'Keeffe v An Bord Pleanála [1993] 1 IR 39 applied - Residential Institutions Redress Act 2002 (No 13), s 8 - Certiorari granted (2012/64JR - Peart J - 8/2/2013) [2013] IEHC 52

K(T) v Residential Institutions Redress Board

Facts The applicant had applied to the respondent Board for an extension of time within which to bring a claim for an award of statutory compensation under the Residential Institutions Redress Act, 2002 (2002 Act). The applicant”s application was received by the Board almost four years past the deadline. The Board had determined that the applicant had not established the existence of exceptional circumstances (as per s.8(2) of the 2002 Act) to grant an extension. The applicant contended that she had decided to postpone making her application in order to provide support to her mother who was pursuing a claim for compensation. The applicant contended that if she had revealed to her mother what had happened to her while in an institution, her mother would have not proceeded further with her own application. It was submitted that the circumstances of the case had met the definition of ‘exceptional circumstances’. The 2002 Act was a remedial Act and therefore should be construed as widely and as liberally as possible. On behalf of the respondent it was submitted that the Board”s decision could be the subject of judicial review only on the basis of irrationality or unreasonableness and that there had been clear evidence before the Board that the applicant could have made an application without telling her mother.

Held by Peart J in granting the application and quashing the Board”s decision: The circumstances that had been put forward by the applicant were out of the ordinary and highly unusual. The Board had clearly not accepted the evidence of the applicant that she was unable go to a solicitor without telling her mother about her own experience. Nevertheless, that was the applicant”s own evidence, supported by her mother”s evidence. There was no evidence to support the conclusion by the Board that the applicant had never felt the need to divulge matters to her mother. The court could find no evidence which supported the Board”s opinion that the applicant could have maintained her silence while proceeding with her own application. The O”Keeffe test had been satisfied, and that the decision of the Board would be quashed.

1 The applicant applied to the respondent Board for, and was refused, an extension of time within which to bring her claim for an award of statutory compensation under the Residential Institutions Redress Act, 2002 ("the Act" or "the Act of 2002").

2 It is not disputed that the applicant was at all material times aware that in order to bring her claim for redress within the time prescribed in Section 8 (1) of the Act of 2002, she had to do so on or before the 15 ^th December 2005. Her application was not received by the Board until 16 ^th October 2009, almost four years past the deadline,

3 Therefore, this is not what is termed "a state of knowledge case" where an applicant seeks to establish that there are good reasons why she did not become aware of the deadline. In fact it is accepted on the applicant's part that she made a deliberate decision to delay her application beyond the deadline date. That certainly makes the facts of this case very unusual. Whether they are "exceptional circumstances" for the purposes of the Section 8 (2) is a different question.

4 Section 8 (2) of the Act confers upon the Board a power to extend the period within which a claim is brought "at its discretion and where it considers there are exceptional circumstances".

5 Following an oral hearing of her application to the Board for an extension of time, at which she was represented by solicitor and counsel, the Board issued its determination on the 7 ^th September 2011 in which it reached a conclusion that the applicant had not established the existence of exceptional circumstances for the purposes of section 8 (2) of the Act, and refused her application for an extension of time. The Board was also satisfied that no evidence had been adduced that the applicant was under any disability for the purposes of Section 8 (3) of the Act. It is not part of the applicant's case that she was under any such disability.

6 The reason given by the applicant for not bringing her application to the Board within the permitted time, despite the fact that she was aware of the deadline, is that in 2004 her own mother revealed to her for the first time that she had been the victim of sexual abuse while a child in an institution and was bringing a claim for redress to the Board, and that because she (the applicant) herself had never felt able to tell anybody (not even her mother with whom she was very close) about the abuse to which she had been subjected, she decided that she would have to postpone her own application so that she could be a support for her mother while her application was proceeding. She has stated that if she had at that time revealed to her mother what had happened to her while in an institution, her mother would have not proceeded further with her own application.

7 The applicant's evidence before the Board was that it was only after the conclusion of her mother's application in 2008 that she felt able to tell her husband about what had happened to her. It was only then also that she first told her mother about it. She stated in her oral evidence that she just couldn't tell her mother about her time in the institution even though she was very close to her mother. She went on to say that she could see how much it was taking out of her mother, and its effect on her health, and she went on to state that she would not have been able to be of any assistance to her mother if she had had to deal with her won application as well. She stated that because her mother would worry about her so much, her mother would not have gone further with her application if the applicant had told her about her own abuse and that she wanted to bring an application. She would have felt guilty if her mother had withdrawn her application on account of the applicant bringing an application. (See transcript - pages 6-7)

8 The applicant stated that she was aware of the deadline as it was approaching. However, she stated that because of what her mother was going through with her application she just could not do anything about her own application, and just concentrated on helping her mother. She stated also that between 2005 and 2008 she knew about late applications, but while her mother's application was going through she just wanted "to be there" for her mother.

9 It was only on the completion of her mother's application that she told her for the first time about the abuse she herself had suffered. She thinks this occurred in early 2009.Her mother was very upset at hearing this. She told the applicant that she should have told her sooner. But the applicant told her that she couldn't. Following this she revealed it all to her husband also. She described how she felt after she had been able to confide in her mother and her husband as follows:

"Well, I think being able to actually talk to my mam now has been a great help and then being able to talk to my husband, because I feel like … when you first talk about it it's like a whole weight is lifted off your shoulders because I kept it in so much and not being able to speak to anyone, but that has helped a lot…" (Transcript - page 13)

10 When cross-examined by John McDonagh SC, legal adviser to the Board, the applicant acknowledged that she knew of the Redress Board since 2004, and she was aware of the deadline for applications. She was asked why if she knew that it was a confidential process she did not consult a solicitor about her own claim since in that way she would not be causing any upset to her mother. Her answer to that was "-because I felt I couldn't deal with it. I wanted to concentrate on my mother. I just couldn 't deal with myself personally". She was pressed further in this regard and she repeated "I just felt I couldn't. I was just going through so much turmoil with what my mother was going through. I just - I couldn't deal with it at that stage" She added that this was the only reason that she did not bring her own application within the deadline, and...