Men who tried to resume actions over alleged abuse will not face costs
The five had discontinued their cases following Louise O’Keeffe Supreme Court case
The five men, who had sued their schools, sought to have the discontinuance orders set aside and so their cases could be resumed, following the European Court of Human Rights ruling.
The Minister for Education has decided not to pursue legal costs of cases taken by five men who sought to resume legal actions over alleged sexual abuse against them as schoolchildren, the High Court heard on Thursday.
As a result, the court could refuse the relief sought by the men in their actions against the State for damages and make no order as to costs in the case, Eoin McCullough, for the Minister said.
A no costs order means both sides pay their own costs.
Mr Justice Max Barrett noted lawyers for the five men were “happy with that” and granted the orders sought.
The men had previously agreed to discontinue their actions, initiated at different times between 1999 and 2005, following a Supreme Court ruling in the Louise O’Keeffe case.
Ms O’Keeffe had sued the Minister and State arising from some 20 sexual assaults in 1973 on her by her school principal Leo Hickey when she was just eight years old.
Hickey was jailed for three years in 1998 after pleading guilty to 21 sample charges of indecent assaults on 21 girls.
The Supreme Court found the State was not vicariously liable for the actions of the school which employed Hickey.
Ms O’Keeffe later won a European Court of Human Rights ruling that the State had breached her human rights by failing to provide her with a remedy in law for those who can prove school-day sexual abuse.
As a result, the five men, who had sued their schools, sought to have the discontinuance orders set aside and so their cases could be resumed.
But last May, the High Court ruled they could not do so because they had entered into a valid contract with the State to discontinue their cases.
In return, the State waived its right to seek what Mr Justice Max Barrett said were “the many thousands of euro” due in legal costs from the men.
Mr Justice Barrett said their application to set aside the discontinuance order was fundamentally misconceived.
Noting the European court decision in the Louise O’Keeffe case, Mr Justice Barrett said he admitted to “no little surprise” that a redress scheme had not been put in place for others who had been failed in a similar manner to Ms O’Keeffe.
However, the judge said, the European Court decision did not have the result that the law on negligence or vicarious liability was incorrectly pronounced upon by the courts in the past, or that it has changed.
The court was also bound by Supreme Court precedent which “regretfully” meant the High Court must decline the men’s application.
Mr Justice Barrett said his court “freely admits to wishing that matters were not so”. He found some of the claimed facts of the men’s cases made for “deeply unpleasant reading”.
Some of the men behind these as yet unproven claims are of advanced years and may be wondering if they will live to see the day when such injustice as may have been done is finally righted, he said.
The court was in law bound to find the State “the victor in these proceedings.
“But the Irish people, with their great and proper sense of justice, may well conclude that the path of rightness in this matter should lead ultimately to a different end, regardless of the end reached here today”.
He added: This Court, as an Irishman, would respectfully agree were they so to conclude.
The judge also noted it was because of the State’s “continuing failure” to keep civil litigation costs at a reasonable level which meant it (State) was able to make the offer of not seeking costs if the men discontinued their actions.
The men took legal advice and believing, by reference to the trend in court decisions, there was no remedy available to them in Irish law, decided to accept the State’s offer and discontinue, he said.
He found however that the cash pressures the men were under to accept the offer did not amount to duress.
If the court was to accept this as a ground for setting aside an order, then every bank loan in the country would have to be set aside tomorrow, he said.
If the men’s claims in the various proceedings are true, their “suffering has been abominable” but the court’s hands were tied by precedent.
It was with no little regret it was therefore coerced as a matter of law into declining to grant the relief now sought of it by the plaintiffs, he said.