The O’Toole Scoping Report, focusing on abuse in religious institutions, is a decidedly difficult document for legal professionals, due to its criticism of our judicial system. It argues that this system, referred to in the report as our justice system, is failing to provide its fundamental service – that is, to dispense justice. It further suggests that both criminal and civil cases could lead to re-traumatization for the victim.
The report details the “participants’ encounters with the justice system,” and illustrates that the majority of those who gave their testimonies had adverse experiences. One individual claimed that his civil suit was almost the cause of his death, whilst achieving nothing in return. Another alleged that cross-examination was tantamount to a “character assassination.” It was universally agreed that our judicial system was distinctly unwelcoming. Financial barriers also played a “significant role in discouraging survivors…” from utilising our legal system.
This issue is not a novel one. In a critical 2018 judgement, the then Chief Justice and most senior member of our judiciary, Frank Clarke, noted “a serious and, possibly, escalating issue with access to justice.” In a pointed reference to the legislature, he noted “this is an issue that must be addressed.”
The Government could take two steps to rectify this. Firstly, revise rule 9 of order 16 of the Superior Courts Rules 1986, which currently allows class actions for “numerous persons with the same interest,” ensuring that it definitely permits damage awards, as was suggested by the Law Reform Commission in 2003.
Secondly, they could enact laws to enable a regulated and equitable system for third-party funding. At present, due to the lack of a system for both class actions and third-party litigation funding, Irish groups of victims who lack the means, legitimately have only two methods to seek justice.
Unquestionably, a legitimate class of victims, with numbers on their side and unified in their cause– for example, 2,400 abuse victims from 300 different schools – would be better equipped to handle the stresses of litigation than a single individual pursuit of a ‘test case.’
One method that has been used by groups like the Stardust families and survivors of school abuses is the undertaking of extended campaigns in a bid to obtain an apology from the State and a compensation programme. This has proved to be quite a cathartic resolution, yet despite its numerous benefits, it falls short of providing justice to the victims. The culprits often elude legal repercussions and may not even contribute towards the compensation of the victims. The costs of their wrongdoings are borne by the state while the non-state offenders may escape without making any payment.
Another method employed is what is referred to as a ‘test case’ lawsuit. This typically involves a solitary pioneer litigant suing on a no-win-no-fee basis. This kind of approach was initiated by forward-thinking, public-interest lawyers such as the Free Legal Advice Centres in the 1970s and ‘80s. A prime example of this is the Tate v Minister for Social Welfare case of 1995, which brought about State payments amounting to approximately £265 million (€336 million) for 69,000 affected married women. Today, reportedly it’s being used by the families of 160 autistic children who are suing the state for access to adequate educational facilities.
However, the ‘test case’ method comes with its limitations. The lone plaintiff is exposed to the potential risk of exorbitant costs. A court never determines the total amount of damages or the entitlement of other victims to compensation. Whether other victims benefit from the test case hinges on aggressive negotiations involving lawyers behind closed doors. This technique appears suitable for pressing the State into a settlement, but less so for private enterprises.
In 2003, the Law Reform Commission, advocating for an updated class action and funding mechanism, defined the ‘test case’ strategy as “… no alternative for a formal structure that would facilitate transparent procedures for addressing such litigation.”
Based on the findings from the O’Toole Report, at present, survivors want a public inquiry with the ability to call witnesses, retrieve documents, establish facts and hold the offenders accountable. They also desire a compensation system for damages. Our courts should be equipped to offer these services in a way that is focused on the well-being of the victims.
What we need to work on is creating innovative legal strategies that allow victims to experience justice in our courts, holding perpetrators accountable, and awarding compensation to those who have been wronged.
Undeniably, our adversarial legal system allows for cross-examination to be confrontational. Yet, we ought to remember the significant role cross-examination plays as an invaluable tool in uncovering the truth. A legitimate group of victims, demonstrating unity and a shared goal can certainly handle litigation. Consider the case of 2,400 victims from 300 schools, who arguably would have more resources compared to a singular litigant. The O’Toole Report highlights how solidarity and shared experiences can enhance strength and resilience among survivors.
In my expertise, competition law, the majority of the EU and several jurisdictions based on common law approve of class actions. In Britain, 44 million Facebook users are taking legal action against Mark Zuckerberg’s Meta, seeking €2.6 billion. Google is being sued by app developers for a sum of €1.04 billion and Amazon is facing legal charges from 200,000 UK third-party sellers amounting to €3 billion.
Ireland’s restrained effort in the execution of EU provisions to encourage class actions against anti-consumer corporate behaviour, shown in the Representative Actions for the Protection of the Collective Interests of Consumers Act 2023, will barely make a dent for victims here.
However, it’s not an entirely bleak outlook. Our Supreme Court has indicated that the constitutionally enshrined access to the courts might encompass a right that it be effective, extending beyond just legalities and formalities and permeating real practice. If the Government fails to take action, the Supreme Court has hinted that it may be compelled to take steps that would normally not be justified.
The author of this piece, Philip Andrews, is a founder of Andrews Law and serves as a senior counsel.