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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A.G -v- Residental Institutions Redress Board [2012] IEHC 492 (06 November 2012)
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Cite as: [2012] IEHC 492
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Judgment Title: A.G -v- Residental Institutions Redress Board Neutral Citation: [2012] IEHC 492 High Court Record Number: 2011 1103 JR Date of Delivery: 06/11/2012 Court: High Court Composition of Court: Judgment by: Hogan J. Status of Judgment: Approved |
Neutral Citation Number: [2012] IEHC 492 THE HIGH COURT [2011 No. 1103 J.R.] BETWEEN A.G. APPLICANT AND
RESIDENTIAL INSTITUTIONS REDRESS BOARD RESPONDENT JUDGMENT of Mr. Justice Hogan delivered on 6th November, 2012 1. The appalling treatment of generations of children in residential care has cast a long shadow over the institutions of this State and ought to be a matter of abject shame for the rest of us who sat idly by as this was allowed to occur. Few who survived such treatment have emerged unscathed. The cases which come before the Residential Institutions Redress Board (“the Board”) and the courts arising from this period are tragically replete with searing accounts of physical cruelty, sexual abuse, emotional neglect and institutional indifference to the fate of those who were condemned by society to be raised in such an environment. 2. It was with a view to making some recompense to those whose lives were broken, ruined or damaged in this fashion that the Oireachtas enacted the Residential Institutions Redress Board Act 2002 (“the 2002 Act”). The Long Title to the 2002 Act provides:-
4. Section 8 of the 2000 Act provides:-
(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 three years of the cessation of that disability.” 6. The applicant contends that she attended two institutions named in the schedule to the 2002 Act in the 1980s. She says that during that time she was subjected to non-penetrative sexual abuse and emotional neglect during this period. When she left institutional life at the age of about 16 she found herself totally unprepared for life. She drank heavily and took an overdose of tablets. 7. If her account is to be accepted, she portrays a chaotic life characterised by acute psychological distress in which she resorted to a series of promiscuous encounters in a vain effort to find self-confidence, love and acceptance. She had a number of miscarriages when aged 16. She married at a young age and she had two children who occupied much of her time. Although she maintained that she was overwhelmed by feelings of distress and sadness, the Board was ultimately to find following an oral hearing held on 15th June, 2011, that she was not so adversely affected:-
The Reasons of the Board 10. The Board first noted that the there was no definition of the phrase “exceptional circumstances” contained in the 2002 Act:-
15. In essence, the applicant’s case is that the Board proceeded from the wrong premise in its interpretation of the words “exceptional circumstances.” There are, of course, two distinct questions here and which, in the end, may merge into each other, at least so far as the circumstances of this case are concerned. The first question is whether the Board has correctly identified the meaning of this statutory phrase. The second is whether this definition has been correctly applied by the Board to the facts of the present case. 16. The former question is, of course, a pure question of statutory interpretation and vires and, in this context arguments based on rationality or reasonableness really do not arise for consideration. It would be no answer, therefore, for the Board to show that its interpretation of the section was a reasonable one if that interpretation was incorrect as a matter of law: see, e.g., the comments of Barr J. in Shannon Regional Fisheries Board v. An Bord Pleanála [1994] 3 I.R. 449, 456, those of Clarke J. in Cork County Council v. Shackleton [2008] 1 I.L.R.M. 195, 215 and by analogy those of Kelly J. in Cork City Council v. An Bord Pleanála [2006] IEHC 192, [2007] 1 IR 761, 768-772.. Recalling the time-honoured words of Marshall C.J. in Marbury v. Madison 5 U.S. 137 (1803), it is, of course, “emphatically the province and duty of the [the judicial branch] to say what the law is.” As that duty represents a core function of the judicial branch, it is the judicial duty to pronounce on whether an interpretation of a statute proferred by an administrative agency such as the Board is correct or otherwise. The Board’s application of that definition to the facts of the case 18. Given that the 2000 Act is in the nature of a remedial statute, it is accordingly appropriate that it should be construed “as widely and liberally as can fairly be done”: see, e.g., the comments of Walsh J. in Bank of Ireland v. Purcell [1989] I.R. 327. One cannot, nevertheless disagree with the Board’s general analysis of the meaning of what the word “exceptional” might mean in this context, i.e., it means something unusual or out of the ordinary. That in itself is not necessarily dispositive of the issue at hand. 19. The real question is rather whether the concept of exceptional is to be measured by reference to the empirical experience of the Board with regard to applications of this kind brought (or, as the case might be, not brought) by potential applicants or whether, alternatively, this should be measured in a conceptual fashion by reference to objective standards which were in turn calibrated by reference to the likely conduct of the population as a whole. 20. Perhaps an example might illustrate this rather subtle difference. Let us suppose that a statutory board were to be established to arrange for the payment of tax refunds to taxpayers who had been overcharged. If we shall further suppose that this board was given three years to process applications and its activities received a good deal of coverage in the media, then we may reasonably assume that the number of otherwise eligible taxpayers resident in Ireland who would make late applications under this hypothetical scheme is likely to be very small and, in that sense, exceptional. One may reasonably make this assumption because the general population is better educated and more careful about protecting its own interests than, for example, those potential applicants under the 2002 Act who were required to endure what was for many was (at best) a miserable existence in institutional care. 21. A comparison might also be made with the experience of claimants under the Hepatitis C Compensation Tribunal Act 1997. Here it may be noted that s. 4(15) of the Act of 1997 also allowed the Tribunal to extend the three time period for claims post-establishment where it was satisfied that there were exceptional circumstances. Indeed, the provisions of s. 8(2) of the 2002 Act so closely mirror the provisions of s. 4(15) of the 1997 Act that the latter may be thought to supply the template for the former. 22. While the claimants under the 1997 Act – invariably pregnant women who contacted Hepatitis C following the administration of contaminated blood products - suffered often debilitating (and sometimes fatal) illness as a result, such claimants nonetheless came from the mass of general population. Absent those cases where the claimant was so overwhelmed with illness that she could not or did not claim within the statutory period, one may surmise (although I accept it is only a surmise) that there were few potential applicants living in Ireland who did not make an application within the statutory time period. Accordingly, in that sense a late application by a potential claimant who was simply unaware of the scheme, even though she was living in Ireland at the time, might be regarded as “exceptional”. 23. How different matters with regard to the actual experience of the Board with regard to the operation of the 2002 Act were. In the nature of things, these potential applicants experienced what was invariably a degrading and humiliating life experience. They were often left with rudimentary education, little life skills, an acute lack of self confidence and severe emotional trauma. They often faced an aimless existence, with no clearly defined path of life in front of them and with many of the doors of opportunity and advancement open to the rest of society closed firmly shut in their faces. It is no wonder that many were lured by the temporary comforts of alcohol, tobacco and drugs as they struggled to cope with their existence. 24. It is perhaps equally not surprising that former inmates so traumatised by their experience might allow a three year period to expire without taking any action to seek redress or, alternatively, fail to pay any or, at least, sufficient attention to the existence of the scheme during that period. The Board frankly acknowledges that this has been an all too common experience so far as potential applicants are concerned. It is in its own way a measure of the neglect and trauma which such persons must have suffered and the extent to which their horrible experiences rendered them effectively dysfunctional that experience has shown that the failure on the part of such persons to apply for redress under the scheme is not unusual. 25. But in this context I cannot agree with the Board’s argument that if it had been intended that applicants who were unaware of the existence of the Scheme during the currency of its operation should have their late applications accepted, then the Oireachtas would have employed a state of knowledge test in s. 8(2):-
27. Nor does it follow at all that had the Oireachtas considered that absence of knowledge should be dispositive in all such late application cases it would necessarily have employed a state of knowledge test in s. 8(2). Rather, by using the broad generic term “exceptional circumstances”, the Oireachtas simply intended to leave the Board with the greatest possible flexibility to deal with the wide variety of possible circumstances in which late applications might be made. The failure of a potential applicant to learn of an entitlement to apply for redress during the three year period was simply one possible category of exceptional circumstances, but there were doubtless many others. One may assume that some applicants may, for example, have applied late due to a bona fide mistake or misunderstanding. This might well be capable of amounting in given cases to exceptional circumstances, but one might as well contend that had the Oireachtas intended that bona fide mistake should be accepted as a ground of excuse for late applications it could have said so expressly in s. 8(2) instead of employing the test of exceptional circumstances. The very fact that the Board engaged in what, with respect, was entirely circular reasoning in its own way demonstrates its inadvertent failure to come to terms with the amplitude of its power to extend time by reason of exceptional circumstances. 28. Accordingly, if the matter were res integra, I would have been interpreted the words “exceptional circumstances” as they appear in this special statutory context in a different manner from that of the Board. In the context of a remedial statute such as the 2000 Act, the argument that the concept of exceptional circumstances should be measured by reference to the anticipated likely conduct of the population as a whole – as distinct from the Board’s actual empirical experience with potential applicants under the present scheme – is an attractive one. 29. If that were indeed the test, then the failure of (an otherwise literate) potential applicant who was residing in Ireland during the period between 2002-2005 could well be regarded as amounting to “exceptional circumstances” in this statutory sense. Judged by the ordinary standards of the general population it seems extraordinary that Ms. G. did not become aware of the scheme during that period, yet the Board expressly found that this was so. It is in that particular sense that it might be said that her circumstances were exceptional. Previous High Court authority 31. In JOB the applicant was a relatively elderly man who had been living in the UK. He applied under the scheme in January 2006, perhaps a month or so after the closing date. The Board found that he had been aware of his right to apply at the latest by November 2005, so that he had sufficient time to apply, but advanced no particular reason as to why he had not done so. It was true that his half brother had been killed in a road accident on 28th December, 2005, but this post-dated by some ten days the actual closing date. It concluded that there were no exceptional circumstances such as would justify an extension of time for the purposes of s. 8(2) of the 2002 Act. 32. O’Keeffe J. applied standard O’Keeffe principles (O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39) to hold that the Board was entitled to reach the view which it did and that these findings could not be disturbed on a judicial review application. While there are undoubtedly different factual differences between JOB and the present case, it is significant that O’Keeffe J. nonetheless observed that the Board was entitled “to conclude that ignorance of the scheme and/or closing date did not constitute exceptional circumstances”. 33. The decision of Kearns P. in MG is perhaps even more in point. Here the applicant who had moderate intellectual difficulties had failed to make an application until several years after the closing time. She had been sent to an industrial school for a ten year period where she claimed that she had been subjected to physical and emotional abuse. Even though she had been residing in Ireland, it appears to have been accepted by the Board that she only learnt about the existence of the scheme when she casually met another acquaintance of hers who had been in the same institution at the same time. 34. Kearns P. upheld the conclusion of the Board that there were no exceptional circumstances as would warrant an extension of time. Applying the principles enunciated by O’Keeffe J. in JOB he nonetheless added:-
37. To my mind, the facts of MG are more or less indistinguishable from the present case. In these circumstances, I would not be justified in departing from two recent decisions of this Court on a point of pure statutory interpretation not raising any fundamental question of principle. In that respect, the present one is very different from a case such as A. v. Minister for Justice, Equality and Law Reform [2011] IEHC 397. In that case I declined to follow earlier authority from this Court dealing with the construction of Article 41 of the Constitution on the basis that the issues so raised were “so fundamental and goes to the heart of our system of constitutional protection” that I felt justified in reluctantly departing from it. 38. The earlier decisions in JOB and MG were fully argued and there is no suggestion that any relevant authorities or arguments were overlooked. In these circumstances, I propose to follow the approach enunciated by Clarke J. in Re Worldport Ltd. [2005] IEHC 189 with regard to stare decisis in the High Court:-
Conclusions 41. The matter is not, however, res integra, but is rather covered by recent authority. In view of the fact that this Court has already determined in both JOB and MG that the Board was entitled to conclude that the mere fact that a former resident of an institution was unaware of the scheme during the three year period did not of itself constitute “exceptional circumstances” as would justify an extension of time for the purposes of s. 8(2) of the 2002 Act, I consider that I am effectively compelled by these authorities to resolve this issue adversely to the applicant. 42. It is in these somewhat singular circumstances that, with deep personal reluctance, I must dismiss this application for judicial review.
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