The High Court has allowed John O’Brien to amend his judicial review case over his exclusion from a State compensation scheme for prisoners subjected to slopping out, while leaving the underlying dispute unresolved.
In a ruling delivered on 1 February 2024, Ms Justice Siobhán Phelan granted leave to add a claim for damages under the European Convention on Human Rights Act 2003 based on an alleged breach of the right to an effective remedy. She also allowed an application to seek an extension of time, if required, and permitted reliance on Article 6 of the Convention alongside Article 13.
The judge did not decide whether O’Brien is entitled to damages or an extension of time. Those questions, along with the underlying case, remain for the full hearing. She said the applicant would first have to establish that there was no effective remedy under Irish law for the alleged rights breaches when they occurred.
O’Brien’s case concerns detention in Cork Prison between March 2013 and April 2014. The ruling says he shared a cell without in-cell sanitation and was required to slop out. His application to the scheme was rejected in May 2021 as statute barred. The State respondents admitted a breach of his constitutional personal rights and that it was actionable, but argued that a damages claim was out of time. They did not admit breaches of Convention rights under Articles 3 or 8.
The judge refused permission to add a claim seeking a declaration that section 11 of the Statute of Limitations Act 1957 was incompatible with the Convention. She also expressly refused to allow a new claim for damages over alleged historic breaches of Articles 3 or 8. She said the evidence before her did not establish conditions capable of amounting to those breaches, and the claims faced significant time issues.
The court directed that the amended pleadings should expressly set out the applicant’s case that no effective remedy was available before the Supreme Court’s 2019 decision in Simpson, and that applying a retrospective limitation condition to the scheme left him without an effective remedy. These remain allegations to be established, not findings by the court.
The judge said she would hear the parties on whether the pleadings should also include a claim for damages for breach of a constitutional right to an effective remedy. She required a further draft of the amended statement of grounds before final orders. The ruling made no final determination of the judicial review or of eligibility for scheme compensation.