The failure of the Department of Education to pay any of the court costs incurred by the victims of sex abuse in day schools as it has been directed to has been described by one expert as “an obvious injustice”.
Payments of €84,000 have now been offered to 13 applicants who were rejected from an ex gratia (out of court) scheme after an independent review directed the Government to do so. However, in order to have qualified for the scheme, survivors are required to have initiated court proceedings against the State.
In some cases, it is understood the fees incurred from these processes far exceed €84,000 and could run upwards of six figures if applicants went to full judgment and appeals.
Last month, Taoiseach Leo Varadkar apologised on behalf of the State to victims of sexual abuse in day schools prior to 1992.
This followed a review by retired High Court Judge Justice Iarfhlaith O’Neill of 19 applications rejected from the scheme, which is administered by the State Claims Agency.
Correspondence seen by the Irish Examiner directs solicitors acting on behalf of the 13 applicants to submit their proposed costs for their work preparing an application to the State Claims Agency.
They are also directed to submit their proposed costs for the work undertaken as part of the appeals process involving the review by Justice O’Neill.
“The State Claims Agency will pass the bill of costs to its legal costs unit with a view to agreeing the costs with your solicitor.”
If an agreement on costs is not reached, the letter proposes that the issue be referred to an independent costs accountant, with both parties agreeing to be bound by their determination, and both being responsible for fees on a 50/50 basis.
The letter does not reference court costs or legal fees outside of this.
The ex gratia scheme was set up in 2015 following the landmark European Court of Human Rights (ECtHR) ruling in Cork woman Louise O’Keeffe’s case, where the State was found to have failed to have protected her from sexual abuse in the 1970s.
In Ms O’Keeffe’s case, the State was ordered by the ECtHR to pay Ms O’Keeffe damages, as well as costs and expenses.
In order to qualify for the ex gratia scheme, applicants are required to have taken court proceedings, according to Dr Conor O’Mahony, director of the Child Law Clinic at UCC.
Dr O’Mahony has worked with survivors of school abuse for 10 years including Louise O’Keeffe.
“It is an obvious injustice to say that applicants will only qualify for redress if they incur significant legal costs, but then refuse to reimburse those costs,” Dr O’Mahony said.
The Irish Examiner asked the Department of Education to clarify if applicants’ court costs, including High Court, Court of Appeal or Supreme Court they may have incurred while pursuing entry to the ex gratia scheme, will be reimbursed.
A spokesman said: “A proposal for the settlement of costs has been sent either to the legal representatives of the claimants or the claimants themselves. The Department is waiting for responses to this proposal.”