Historical sex-abuse plaintiffs’ request to re-open case against State denied

The High Court has refused five individuals’ request to revoke an agreement they made with the State to discontinue proceedings against it with regards to historical sex-abuse suffered in schools.

Mr Justice Max Barrett, began by noting that the plaintiffs encountered three difficulties:

That they entered into a contract with the State to discontinue certain legal proceedings, while the State waived its right to seek the many thousands of pounds or euro of costs that those proceedings had engendered.

That while the European Court of Human Rights has indicated that Ireland is in breach of its human rights obligations for failing to provide certain parties who can prove their school-day sexual abuse cases with a remedy at Irish law, this does not have the result that the law on negligence or vicarious liability was incorrectly pronounced, or has changed.

That the Court was bound by Supreme Court precedent.

These three difficulties meant that the Court had to decide in favour of the State. However, Justice Barrett freely admitted that he wished it was not so, describing the State as foot-dragging, and noting that if the Irish people concluded that the path of rightness in this matter should lead ultimately to a different end, then the Court would respectfully agree.

Justice Barrett then outlined the background to the case, noting that the State’s historical decision to fund third-parties to provide State education, had led to its ability to escape liability in various child sexual abuse cases.

As a result of these successes, the State made an offer to a number of plaintiffs. The offer was this: if a plaintiff discontinued his proceedings against the State, the State would not look for its costs; if he did not discontinue, and the State successfully defended those proceedings, the State would seek its costs.

As Justice Barrett noted, “this meant that the State’s continuing failure to keep civil litigation costs to a reasonable level was effectively deployed by the State to its own advantage.”

Following these discontinuations, the European Court of Human Rights decided in O’Keeffe v. Ireland (App. No. 35810/09; Judgment, 28th January, 2014) that Ireland was (it still is) in breach of its obligations under Article 3 of the European Convention on Human Rights for failing to provide an effective domestic remedy against the State as regards the State’s failure to protect Ms O’Keeffe.

The plaintiffs in the present case invoked that decision in seeking to have their previous notices of discontinuance set aside, arguing that Ireland’s obligation was not understood at the time they signed the agreements, and that this mistake as to the law justified the notices of discontinuance now being set aside.

The Court then considered the principles applicable to the withdrawal of a notice of discontinuance.

Following Smyth v. Tunney [2009] 3 I.R. 322, it was first observed that a notice of discontinuance could be set aside in cases involving an abuse of process.

Second, inherent jurisdiction would not be used in circumstances where (i) the decision to serve the notice of discontinuance is a conscious and advised one, and (ii) the withdrawal of the notice of discontinuance would likely deprive a defendant of the defence of the Statute of Limitations.

Third, while a fundamental mistaken assumption can nullify consent so as to make a contract void, this rule is confined within very narrow limits (Fitzsimons v. O’Hanlon (Unreported, High Court, Budd J., 29th June, 1999).

Fourth, inherent jurisdiction could be exercised in proper circumstances to relieve against an act done either by way of inadvertence or misapprehension (Cusack v. Garden City Press Ltd (1978) O.R. (2d) 126).

Fifth, in exercising this jurisdiction, regard may be had to the fact that setting aside would prejudice a defendant and allow a claim otherwise statute-barred.

Sixth, a compromise in civil litigation is a contract and it does not cease to be so when it is enshrined in a consent order, which is a ‘mere creature’ of the contract (Brennan v. Bolt Burden and London Borough of Islington [2004] EWCA Civ. 1017).

Further, where a claimant in a negligence action reaches a full and final settlement of all claims arising from his cause of action, he cannot commence another action at some later date arising from the same matter even where some damage has arisen.

Seventh, a fundamental mistake may now render a contract void even though the mistake is one of law. But for a common mistake of fact or law to vitiate a contract of any kind, it must render the performance of the contract impossible.

Finally, the fact that a person is a litigant in person cannot in itself be a reason for allowing a settlement to be undone, other wise no settlement with a litigant in person would ever be final.

In applying these principles to the facts, Justice Barrett found there was no justification to grant the plaintiff’s the relief they sought.

Their argument that the situation in which the agreement was made with the State amounted to duress was also dismissed, with the Court finding that “There is no reason why a person, even a person possessed of great resources, who is acting in good faith and the legitimate pursuit of his self-interest, may not threaten, or otherwise indicate an intention, to do something which is lawful, in order to induce another to come to some agreement with him.”

Concluding, Justice Barrett reiterated his awareness of the suffering of the plaintiff’s suffering, but found that the Court “with every respect and no little regret, is therefore coerced as a matter of law into declining to grant the relief now sought of it by the plaintiffs.”

  • by Rachel Killean for Irish Legal News