APPLICANTS TO THE State’s redress scheme for victims of child sexual abuse that occurred in schools have expressed concern about whether their legal fees will be paid.

The government has, after a protracted legal battle, offered the maximum payments of €84,000 to 13 applicants to the ex-gratia scheme set up in 2015. This decision came after a retired judge found the criteria of the initial scheme involved “an inherent inversion of logic and a fundamental unfairness to applicants”.

Those 13 applicants have the choice to accept what is effectively a settlement from the State, but after years of legal fees to fight their case, some are unsure how much of their legal fees are covered by the State Claims Agency. 

The government has said that the redress scheme may now be opened, and school abuse survivors who did not apply initially because they didn’t think they could meet that “unfair” criteria, will have another chance to receive redress.

Redress scheme

In July 2015, the State set up an ex-gratia redress scheme for those who were abused as children in schools. This came after a European Court of Human Rights ruled that the Irish State failed to protect Louise O’Keeffe from abuse by her school principal. O’Keeffe had lost the same case in the High Court and Supreme Court.

As part of that ruling, the government agreed that it would respond to those who had taken legal action in relation to day school child sexual abuse and who had discontinued those proceedings in the wake of judgments of the High and Supreme Courts, but before the subsequent ECtHR judgment in the Louise O’Keeffe case (2008 – 2014).

To avail of the redress scheme, the government said that applicants must prove an initial complaint was made against a school employee and that no action was subsequently taken:

The terms of the Ex-Gratia Scheme are that payments of up to €84,000 may be offered to those persons whose cases were not statute barred prior to their proceedings being discontinued and where the person can demonstrate that their circumstances involved sexual abuse of a school child by a primary or post-primary school employee in respect of whom there was a prior complaint of sexual abuse to a school authority (including an authority of a school in which the employee had previously worked) prior to the issue of the Department of Education guidelines to primary and post-primary schools in 1991 and 1992 respectively. 

But a ruling by an Independent Assessor recently found that the Irish State misinterpreted the European court’s direction when they included a condition of a “prior complaint” to avail of redress.

“For the State to insist on such a precondition to eligibility involves an inherent inversion of logic and a fundamental unfairness to applicants,” retired judge Iarfhlaith O’Neill said.

The judge added that had a system to report abuse “been in place in the years before 1992 when all of the historic child sexual abuse occurred in national schools… the prevailing culture of impunity which permitted these crimes to occur, could not have existed or survived”.

I have no hesitation in concluding that judgement of the ECtHR does not expressly or by any permissible or possible implication contain such reasoning.

A total of 19 applications to the ex-gratia scheme were assessed by Judge O’Neill. He decided that 13 applicants whose applications to the scheme were refused by the State Claims Agency on the sole ground that they failed to furnish evidence of a “prior complaint” are each entitled to a payment from the scheme.

The remaining six people had their applications refused on grounds of not having made a prior complaint, and because “they did not have litigation against the State which they had discontinued”.

These people are not entitled to a payment from the scheme, the judge found, but may be entitled to compensation from the State Claims Agency under the heading ‘New Litigation in relation to Historic Abuse Claims’.

Legal fees

The Sunday Times reported last weekend that all 13 applicants have been offered the maximum payment of €84,000.

In a statement on the Department of Education’s website, it states that ”a contribution to the applicant’s legal expenses may also be offered”, as a footnote to that figure of €84,000.

One of the victims of school abuse who has been offered a payment has said that there’s still massive mistrust of the State which leads to doubt over whether their legal fees will be paid.

Well look, there was a State apology by the Taoiseach – it’s welcome, but I don’t accept it. They knew, the State knew, the prior complaint criteria was an impossible border.

Why did they put up criteria of a prior complaint as a hurdle to jump over? The apology is too late, it swings hollow.

The person added that if their legal fees over the past four to five years were €100,000, and this payment is €84,000, then school abuse victims still owe a substantial amount of money.

To assess their total costs, some will need to wait until the courts return to get information from the courts on their legal fees.

There are also concerns about those who never initiated proceedings in the first place due to the increased costs and stress associated with court cases. 

“This could have been solved in January 2014, even allowing for six months for the government to get their act together. Why did they put people through the courts?”

A spokesperson for the Department of Education and Skills said that “legal representatives of the applicants have been advised of a process whereby costs can be agreed with the State Claims Agency”.

In consequence, finalising the agreement on costs is a matter for the applicants’ legal representatives and the State Claims Agency. Costs in question are those that are related to the applications under the scheme.

A spokesperson for the State Claims Agency said:

Applicants have been advised to submit their proposed legal costs in writing to the State Claims Agency (SCA) and that the SCA will pass the bill of costs to its Legal Costs Unit, with a view to agreeing the costs with applicants or their legal representatives on a quantum meruit basis in respect of the work undertaken in:
1) Preparing and submitting the application to the SCA, and
2) Any work undertaken in the context of the appeal process involving the Independent Assessor.