State Seeks Protection from Being Sued by Sex Abuse Victims

Irish Times
January 21, 2016

http://www.irishtimes.com/news/crime-and-law/courts/high-court/state-seeks-protection-from-being-sued-by-sex-abuse-victims-1.2505868

The State has asked the High Court to strike out a decision permitting it to be sued by three alleged sexual abuse victims following a European court ruling in the landmark case of Louise O’Keeffe (above). File photograph: Garrett White/Collins Court

The State has asked the High Court to strike out a decision permitting it to be sued, along with the Christian Brothers, by three alleged sexual abuse victims following a European court ruling in the landmark Louise O’Keeffe case.

In January 2014, the European Court of Human Rights ruled Ms O’Keeffe’s rights under the European Convention of Human Rights had been breached by the failure of the State to protect her from abuse by her school teacher, Leo Hickey, in the 1970s.

Ms O’Keeffe (48) had previously lost High and Supreme Court cases which found the State could not be held vicariously, or separately, liable for the abuse as the school was not operated and managed directly by the State but by an independent board of management.

Won action

Ms O’Keeffe, who won her action against the abuser, had argued the State, as the payer of the teacher’s salary and supervisor of other matters related to the school, was also responsible. The Supreme Court disagreed.

Following the European decision in her case, three men, who had damages actions pending against teachers and the two Christian Brothers’ schools where those teachers taught, successfully applied to have the Minister for Education and the State joined as defendants in their cases.

The State parties on Thursday asked Mr Justice Seamus Noonan to strike out the order joining them in the case on grounds including the European court decision had no impact on Irish law or these men’s cases.

The decision to join the the State was made in September 2014 by the Master of the High Court, who deals with cases on their way to trial.

That decision was made on an ex-parte application by the men, when the State was not represented, and it should be set aside by the High Court, Eoin McCullough SC, for the State, said.

While Ms O’Keeffe’s rights under the 2003 European Convention on Human Rights Act had been found by the European court to have been breached, the substance of that Act, as a matter of general principle, only binds Ireland at an international level and there was no domestic requirement arising out of any breach, counsel said.

Retrospective effect

The 2003 Act introduced the European Convention into domestic law in a limited way but it did not have a retrospective effect, he argued.

The plaintiffs’ position that the O’Keeffe decision has given rise to a domestic remedy is “misconceived”, counsel said.

Unless there is some change in Irish law in relation to this matter, there was no right to sue the State, he said.

The evidence in these three cases before the court was that abuse was allegedly perpetrated against the men when they were boys in Christian Brothers’ schools in the southwest in the 1960s and 1970s.

The three men, now aged in their 50s and 60s, brought legal proceedings against the alleged abusers and the Christian Brothers order. Two of the cases were initiated in 2008 and 2010 and the third in 2012.

Mr McCullough said the cases against the State defendants should be struck out because they were clearly statute-barred, brought outside the applicable time limits.

Psychological factors

Claims by the men that they did not bring their cases earlier because of psychological factors due to their alleged abuse did not withstand scrutiny, Mr McCullough argued.

Their state of knowledge of their alleged injuries was still outside the two-year limit for bringing a damages action, he said.

Their cases were unstateable and showed no reasonable cause of action, he said.

The only new heading under which they were suing was the European Convention right, he said. The other claims had already been dealt with by the Supreme Court in the O’Keeffe case where no vicarious liability was found, counsel said.

Mark Harty SC, for one of the men, said his client had brought his case within the two-year time limit and it was evidently not statute-barred. It was also not unstateable or vexatious because it was based on a finding of the European court that Ireland had breached Louise O’Keeffe’s Convention rights, he said.

The Supreme Court determined the vicarious liability issue on the basis of common law but not on the basis of statute law, he said.

The case continues.