H492 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:-

      “An Act 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 and to provide for the review of such awards by the Residential Institutions Review Committee and to provide for related matters.”
3. This was the background to the 2000 Act. The applicant now seeks to quash a decision of the Board dated the 17th August, 2011, which refused to extend time beyond the statutory time limit pursuant to s. 8(2) of the 2000 Act for making applications for redress as would have enabled her to apply to the Board for compensation. This sub-section enables the Board to extend time where it considers that there are “exceptional circumstances.” The applicant’s case, in essence, is that the Board misdirected itself as to the meaning of this phrase and that its decision should be quashed accordingly.

4. Section 8 of the 2000 Act provides:-

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

5. The establishment day in question was the 16th December, 2002, so that the closing day for applications for the purposes of s. 8(1) was 15th December, 2005. The applicant did not, unfortunately, make an application to the Board until 3rd September, 2010. (As it happens, due to subsequent legislative change the Board cannot entertain any further applications under any circumstances after 17th September, 2011: see s. 8(4) of the 2002 Act (as inserted by s.1 of the Residential Institutions Redress Board (Amendment) Act 2011)).

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:-

      “by psychological distress, social isolation or depressive symptomotology during the period between December of 2002 and December of 2005 that the existence of the Redress Board could not have come to her attention during that period.”
8. It is important to stress that no challenge has been taken in respect of this aspect of the Board’s decision. Rather the challenge is exclusively based on the manner in which the Board interpreted its jurisdiction to extend time under s. 8(2). In essence, the applicant’s case is that she was not aware of her entitlement to possible redress until 2008 (i.e., well after the closing date had closed) and that this constitutes – or, at least, is capable of constituting -“exceptional” circumstances within the meaning of the 2000 Act.

The Reasons of the Board
9. The Board gave a commendably elaborate analysis of this issue in its decision of the 16th August, 2011. The comprehensive nature of the reasoning is such that one must fear that any extracts may not do it full justice. The following passages may nevertheless be taken as representative of the reasoning of the Board.

10. The Board first noted that the there was no definition of the phrase “exceptional circumstances” contained in the 2002 Act:-

      “However, some guidance is to be found in the Oxford English Dictionary’s definition of “exceptional circumstances” as being of “the nature of forming an exception; out of the ordinary course, unusual, special”. The same dictionary defines “exceptional case” as one which is “excepted, a particular case which comes under the terms of a rule in which the rule is not applicable; a person or thing that does not conform the general rule affecting any other individuals of the same class”. In essence the Board considers that “exceptional” means something out of the ordinary. The circumstances must be unusual, probably quite unusual, but not necessarily highly unusual. The definition outlined throughout provides a useful framework from which it is clear and make it appropriate for the Board to apply a test of uniqueness in these cases.”
11. While the Board accepted that it was probably impossible to give an exhaustive definition of the term on a priori basis, it went on to say:-
      “However, such an approach does not prevent the Board from envisages or surmising what sort of exceptional circumstances in a particular case might be considered exceptional, for example, the effect or impact of mental or physical health problems or conditions in a particular individuals; personal family circumstances whether in the applicant’s own life or in the lives of others for whom he or she cares; communication problems; or difficulties with legal advice. Any of these considered circumstances prevailing at a relevant time could have the effect of preventing or inhibiting an applicant from making an application within the prescribed period and could be considered exceptional.”
12. The Board went on to say, however, that it was of the view that:-
      “…ignorance of the existence of the Redress Scheme and/or closing date, in and of itself, does not constitute exceptional circumstances. A substantial majority of late applicants state that their applications were late because they did not know about the Redress Scheme in time. However, if the Oireachtas intended that all such applications be accepted, the Board considers that it would have employed a state of knowledge test in s. 8(2) rather than the test of exceptional circumstances. However, lack of knowledge may have arisen in the context of other factors such as those described above and in that sense, exceptional circumstances may arise.”
13. The Board then went on to deal with the applicant’s situation:-
      “In her application for an extension of time the applicant has stated in evidence, and the Board accepts, that she was not aware of the existence of the Redress Scheme prior to 2008. However, as already pointed out, the Board is of the view that ignorance of the existence of the Scheme and/or closing date in and of itself does not constitute exceptional circumstances. The existence of the Redress Board and the closing date by which applications were made were widely advertised by the Board.”
14. The Board went on to note that it had duly complied with its obligations under s. 5(1)(b) of the 2000 Act to advertise the existence of the Scheme and the evidence suggests that the Redress Scheme was widely advertised in a wide variety of different types of newspapers (including mass circulation newspapers and local newspapers and on radio and television. Critically, however, the Board noted:-
      “…notwithstanding the level of advertisement and publicity which attached to the Redress Board during that period its existence did not come to the attention of a significant number of potential applicants who could have applied and, in this respect, the applicant’s circumstances are not exceptional.”

The Board’s definition of what could constitute exceptional circumstances
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
17. So far as the Board’s application of this definition to the facts of the case are concerned, two stark facts emerge. First, the Board expressly acknowledged that the applicant was unaware of her right to apply during the currency of the applicable three year period. Second, it appears that many former residents of such institutions remained unaware of their right to apply, so that “a significant number of potential applicants who could have applied” did not do so, the extensive publicity surrounding the Scheme and the entitlement to apply notwithstanding.

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):-

      “The Board is of the view that ignorance of the existence of the Scheme and/or closing date, in and of itself, does not constitute exceptional circumstances. A substantial majority of late applicants state that their applications are late because they did not know about the redress scheme in time. However, if the Oireachtas had intended that all such applications be accepted, the Board considers that it would have employed a state-of-knowledge test in s. 8 (2) rather than the test of exceptional circumstances. However, lack of knowledge may have arisen in the context of other factors such as those described above, and in that sense, exceptional circumstances may arise.”
26. In my judgment, this conclusion does not follow from its premise. The Oireachtas was not to know in advance that substantial numbers of otherwise potentially eligible applicants would not apply in time by reason of lack of knowledge regarding the existence of the scheme. Yet the Board apparently relied on the fact that so many potential applicants applied late in order to demonstrate that ignorance of the scheme was not in itself an exceptional circumstances, precisely because in the event this transpired to be so common.

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
30. The matter is not, however, res integra. There are in fact two earlier decisions of this Court, JOB v. Residential Institutions Redress Board [2009] IEHC 284 and MG v. Residential Institutions Redress Board [2011] IEHC 332 dealing with this precise point and which point in the opposite direction to that which I have just canvassed.

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:-

      “It is important perhaps to stress that this approach does not preclude consideration by the Board of a “state of knowledge” approach to the interpretation of the words “exceptional circumstances”. For example, I would have no doubt but that the Board would regard as “exceptional circumstances” a situation where an applicant had been residing in a far away jurisdiction, or for some other reason had been cut off from all sources of communication, so that the existence of the Scheme could only have come to that applicant’s knowledge after the time limit had expired. In that situation the opportunity to possess the requisite state of knowledge and the existence of exceptional circumstances would amount to one and the same thing.”
35. Kearns P. nonetheless went on to add that:-
      “However I am satisfied in this case that even on an interpretation of “exceptional circumstances” which includes extending the time where an applicant could not reasonably have known of the existence of the Board or the compensation scheme, the outcome must be the same in this particular case for the reasons to which I will now turn. …. [T]here were ample means of acquiring knowledge available to this applicant, and indeed any other applicant living in this jurisdiction over the relevant period of time. Not only was there a national furore taking place on an almost daily basis in the print, radio and television media, there were also extensive advertisements placed by the respondent body on a nationwide basis.”
36. Kearns P. then observed that he was satisfied that the applicant’s intellectual difficulties were not so severe as contended for, so that the Board was also entitled to reach the conclusion that these difficulties did not in themselves take her case into the category of exceptional circumstances.

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:-

      “It is well established that, as a matter of judicial comity, a judge of first instance ought usually follow the decision of another judge of the same court unless there are substantial reasons for believing that the initial judgment was wrong. Huddersfield Police Authority v. Watson [1947] K.B. 842 at 848, Re Howard's Will Trusts, Leven & Bradley [1961] Ch. 507 at 523. Amongst the circumstances where it may be appropriate for a court to come to a different view would be where it was clear that the initial decision was not based upon a review of significant relevant authority, where there is a clear error in the judgment, or where the judgment sought to be revisited was delivered a sufficiently lengthy period in the past so that the jurisprudence of the court in the relevant area might be said to have advanced in the intervening period. In the absence of such additional circumstances it seems to me that the virtue of consistency requires that a judge of this court should not seek to second guess a recent determination of the court which was clearly arrived at after a thorough review of all of the relevant authorities and which was, as was noted by Kearns J., based on forming a judgment between evenly balanced argument. If each time such a point were to arise again a judge were free to form his or her own view without proper regard to the fact that the point had already been determined, the level of uncertainty that would be introduced would be disproportionate to any perceived advantage in the matter being reconsidered.”
39. Indeed, the Supreme Court has recently confirmed that this approach is the appropriate one, with Clarke J. urging that earlier High Court decisions should be followed unless there are compelling reasons to the contrary: see Kadri v. Governor of Cloverhill Prison [2012] IESC 27.

Conclusions
40. If the issue of statutory interpretation presented by this application were res integra, I would have held that the Board had proceeded on an incorrect understanding of the meaning of the phrase “exceptional circumstances” as it appeared in the precise statutory context of s. 8(2) of the 2002 Act, not least having regard to the remedial nature of that Act. In those circumstances I would have found for the applicant.

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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