A man who has sued over being sexually abuse by a Christian Brother at national school wants the High Court to overturn the State Claims Agency's refusal of his application for a maximum €84,000 redress payment.
The Agency told him last September he cannot apply for the payment because he had not taken proceedings against the State before a revised redress scheme was set up last July, James O’Reilly SC, for the man, said.
This was “irrational” and “unreasonable” when the State itself applied to court some years earlier to prevent itself being sued by childhood abuse victims, he said.
This resulted in a 2016 Court of Appeal finding that such claims against the State were bound to fail which was followed by the State writing to plaintiffs asking them to discontinue their claims against it, counsel said.
The perpetrator had pleaded guilty to the abuse in criminal proceedings, he added.
The man also intends to avail of an internal appeal to the Agency, the court heard.
On Monday, Mr Justice Charles Meenan said he was "entirely satisfied" the applicant had made out an arguable case for judicial review of the Agency's September 2021 refusal.
The judge ordered the man should not be identified and directed the proceedings be served on the respondents – the Minister for Education, the Government of Ireland, Ireland and the Attorney General — within 14 days. The matter will return to court next month.
The case arises from the putting in place last July of a revised ex gratia redress scheme for victims of childhood sexual abuse.
The scheme is intended to implement the 2014 European Court of Human Rights judgment in favour of Louise O'Keeffe, who went to the European court after the Supreme Court ruled the State could not be held liable for sexual abuse she suffered in primary school.
The 2014 ECtHR judgment, which found the law here had deprived Ms O’Keeffe of an effective remedy, led to multiple applications by victims of childhood sexual abuse to join the State as co-defendants to their existing proceedings.
In 2015 the State introduced a redress scheme for plaintiffs who came within the terms of the O’Keeffe decision and who discontinued their existing claims.
In 2016, in a judgment on test applications by the State, the COA ruled the Irish courts were obliged to follow the Supreme Court decision in the O’Keeffe case and, as a result, the plaintiffs claims against State defendants were bound to fail.
The State then wrote to plaintiffs, asking them to discontinue their cases against it.
In 2019, an independent assessor decided a requirement in the 2015 scheme for a prior complaint of sexual abuse having been made to the school involved was not compatible with the ECtHR judgment in O’Keeffe. This led to the revised scheme of July 2021.
The man had in 2011 initiated proceedings against the Congregation of Christian Brothers alleging he was sexually abused in the 1960s by a Brother while a national school pupil. His abuser has since pleaded guilty to charges of indecent assault in relation to several pupils at the school.
In light of the State’s letter, the man did not pursue his application to join it to his proceedings.
However, under the revised scheme published on July 21st last, it was stated only those plaintiffs who had brought proceedings against State defendants prior to July 21st 2021 complied with the requirements for redress.
The man claims that requirement is wholly inconsistent with and contradictory of the State’s pre-emptive motions that led to the COA’s 2016 judgment.
He says he otherwise meets the criteria under the scheme for an ex gratia payment, including that his abuse occurred before November 1991.
If necessary, he is also challenging the scope of the redress scheme as invalid having regard to the constitutional guarantee of equality and the principles of basic fairness of procedures and natural and constitutional justice.