The Court of Appeal has dismissed five appeals by men seeking to revive discontinued personal injury proceedings against State defendants arising from alleged abuse at national schools run by the Christian Brothers.
The men alleged that, while pupils in the 1950s, 1960s and 1970s, they were sexually abused or assaulted by Christian Brothers; some also alleged physical assault. Their claims included negligence, vicarious liability and breaches of constitutional rights or duties. The allegations were not findings in this appeal.
Each man had discontinued his claims against the State defendants after receiving legal advice. The notices followed correspondence in which the State offered not to seek its costs if the claims were discontinued by specified deadlines. The men later applied to set aside or withdraw the notices, relying in part on the European Court of Human Rights’ 2014 judgment in O’Keeffe v Ireland and on evidence from inquiry reports discussed in that judgment.
The High Court refused the applications in 2016. On appeal, the Court of Appeal held that it has an inherent jurisdiction to set aside a notice of discontinuance or permit its withdrawal. It said, however, that the notices here were deliberate and advised, and setting them aside would probably deprive the State defendants of a defence under the Statute of Limitations, as amended.
The court found that the European Court judgment had not changed domestic law or created a new cause of action available to these plaintiffs. The incidents predated the European Convention on Human Rights Act 2003, which the court said did not apply retrospectively. It also held that the subsequent identification of potentially relevant evidence did not justify reopening the notices or the associated arrangements on costs. The court found no basis to conclude that the State’s letters amounted to duress: each plaintiff, advised by his own lawyers, had chosen whether to accept the costs offer or continue at risk of an adverse costs order.
The Court of Appeal upheld the High Court’s refusal to set aside or allow withdrawal of the notices and dismissed all five appeals. It did not determine the underlying abuse allegations.