Court Asked to Strike out Decision That State Can Be Sued in Abuse Case

RTE News
January 21, 2016

http://www.rte.ie/news/2016/0121/761972-state-abuse/

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

Lawyers for the State have asked the High Court to strike out a decision that it can be sued, along with the Christian Brothers, by three alleged sexual abuse victims following a European court ruling in the landmark Louise O'Keefe case.

Two years ago the European Court of Human Rights ruled Ms O'Keeffe's rights under the European Convention 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 had previously lost High and Supreme Court cases which found the State could not be held liable for the abuse as the school was not operated and managed directly by the State but by an independent board of management.

Ms O'Keeffe, who won her action against the abuser, 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 two Christian Brothers' schools where they taught, successfully applied to have the Minister for Education and the State joined as defendants in their cases.

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

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

It was done on an ex parte basis with only the men represented but not the State and should now be set aside by the High Court, Eoin McCullough SC, for the State, said.

Ms O'Keefe's rights under 2003 European Convention on Human Rights Act had been found by the European court to have been breached.

However, counsel said, as a matter of general principle, the substance of this Act only binds Ireland at an international level and there was no domestic requirement arising out of any breach, counsel said.

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

"The reliance (of the plaintiffs in these cases) that Louise O'Keeffe 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 the alleged abuse allegedly occurred to the men as boys in a Christian Brothers' schools in the southwest in the 1960s and 1970s.

The three complainants, now 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, while a third was in 2012.

Mr McCullough said the cases against the State defendants should be struck out because they were clearly statute barred.

He said claims by the men that they did not bring their cases earlier because of psychological reasons due to their alleged abuse, did not stand scrutiny.

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.

The other claims had already been dealt with by the Supreme Court in the O'Keefe 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 Ms O'Keefe's Convention rights, he said.

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

The case continues.