Ken Foxe, Public Affairs Correspondent: Sunday Tribune
5th December 2010

Some €157m has been paid in legal fees to barristers and solicitors who worked on behalf of victims of institutional abuse.

The costs make up more than 15% of all the money paid out as part of the redress scheme for thousands of people who suffered sexual and physical abuse in industrial schools and other institutions.

Six firms of solicitors have earned at least €1m for their work on the cases while the maximum award paid to a victim was just €300,000.

Author Paddy Doyle said the legal profession had made a “very tidy living” from the so-called Residential Institutions Redress Board (RIRB).

He said: “How can the spending of €157m in fees for work done by the legal profession ever be justified?

“The vast majority of us who appeared before the RIRB wrote our own statements, had them verified by psychiatrists and others. The solicitors and lawyers simply passed them on to the officers of the RIRB. This is a scandal of enormous proportions.”

The Department of Education said the cost of the redress scheme from its inception to now was €1.038bn. Of that, €832m was paid in awards.

The Department of Education defended the amount spent on lawyers and said the scheme had been specifically designed to reduce costs.

It said: “[It] provided a simple mechanism for redress designed to avoid the complexity, expense and trauma of court proceedings without the need for applicants to prove their case in a formal court setting.

“Had the board not been established, the likelihood is that applicants… may have opted for a civil action, which would undoubtedly have attracted significantly higher legal fees per case.”

The department said only a “reasonable amount” for legal expenses could be paid in each case, including any related court proceedings.

However, it said where legal costs were too high and could not be agreed, it referred them back to the taxing master to come up with a fairer figure.

The most recent annual report of the RIRB from 2008 showed that six legal firms had made €1m.

Michael E Hanahoe solicitors was paid €3.02m for 186 cases while Peter McDonnell & Associates received €2.82m for 351 cases. Two other firms, Byrnes Carolan Cunningham and Murphy English & Co have both earned in excess of €2m.

The Irish Times – Monday, November 15, 2010

McK –v- L Neutral citation IESC 51.

Supreme Court

Judgment was delivered by Mr Justice Joseph Finnegan on October 28th, 2010, Mr Justice Donal O’Donnell and Mr Justice Liam McKechnie concurring.

Judgment

It was not contrary to the Act setting up the Residential Institutions Redress Board to disclose the fact of an award under it to a family law hearing in the Circuit Court, and the award should be taken into account in awarding maintenance.

Background

The case came to the Circuit Court in January 2007 on appeal from a District Court maintenance order. The Circuit Court sought answers from the Supreme Court to the questions: whether the applicant is entitled to details of the award made by the Residential Institutions Redress Board (RIRB); whether the court is entitled to take into account the award when deciding the issue of maintenance.

The facts were that the applicant and the respondent were not married to each other, and had two dependent children, aged nine and seven, when the case was heard in January 2007.

The applicant father had custody of the children, who lived with him, and he was seeking maintenance from the respondent mother, who was not paying it. In the District Court proceedings, it emerged that she was in receipt of €200 a month from the High Court Wards of Court office, following a settlement of a claim from the RIRB. The District Court sought details of the settlement, and the solicitor for the respondent said they were unable to divulge any information regarding the claim as there was a confidentiality requirement on each applicant under section 28 of the Residential Institutions Act 2002. The Circuit Court then sought the views of the court.

The applicant pointed out that under the Family Law (Maintenance of Spouses and Children) Act 1976, there was an obligation on the respondent to maintain her children from the resources available to her. In determining the amount, the court could have regard to the income, earning capacity, property and other resources of each parent.

The respondent said that the provisions of the RIRB Act 2002 are unambiguous and reflect the intention of the Oireachtas to encourage those who suffered to come forward, with an obligation of confidentiality.

Decision

Sections 5A and 5B were introduced into the Act by the Commission to Inquire into Child Abuse (Amendment) Act 2005, and stated that section 28 shall not operate to prohibit the production of documents to a person or body when it or he or she is performing functions under any enactment consisting of the conducting of a hearing, inquiry or investigation of any matter.

The Circuit Family Court is, when hearing an application for a maintenance order, a body or person performing a function under an enactment consisting of the conducting of a hearing, and so these sections apply and section 28 (1) of the Act has no application, Mr Justice Finnegan said. Information and documents may be disclosed to the Circuit Family Court.

Section 28 (6) prohibits a person publishing information concerning an award that refers to any other person by name or could lead to their identification. For the applicant to give information on the amount of any award would not be to publish information concerning “any other person”. Thus the disclosure of the amount of the award is permitted so long as no one else can be identified.

Having regard to the Family Law Act 1976, there is an obligation to disclose the amount of the award and the source of the award may be disclosed. The proceedings will be in camera and there will be no further disclosure of the fact of the application or the award. The clear policy of the 2002 Act in preserving confidential information will not be impaired, he said

Thus the answer to whether the applicant is entitled to details of the award by the RIRB, given the provisions of section 28 of the Act is yes; and the answer to whether the court is entitled to take the award into account when deciding the issue of maintenance is also yes.

The full judgement can be found here Full court judgement.

Diarmaid O’Donovan SC and David Gilvarry BL, instructed by Athlone Law Centre, for the applicant; Michael Molloy BL, instructed by Longford Law Centre, for the respondent.

The Irish Times – Monday, October 4, 2010

MARK HENNESSY, London Editor

IRISH VICTIMS of clerical sexual abuse living in the United Kingdom believe the compensation fund, set up with extra contributions from religious organisations, should also be used to compensate women held in the Magdalene laundries.

Meanwhile, only a minority of victims who took part in a survey expressed interest in returning to live in Ireland permanently – though a majority, particularly the older among them and those with disabilities, said they would appreciate the opportunity of coming back on funded holidays.

In a survey carried out by the Irish Women Survivors’ Support Network (UK), victims complained that the rules governing the statutory fund, which was agreed by an all-party Dáil motion in 2009 – and which is still being set up – are “lacking in significant detail”.

Spending cutbacks to come in the UK could leave some victims homeless, or living in unsatisfactory conditions, the survey notes. Over a quarter currently have problems. “This figure is likely to increase as UK economic circumstances worsen.

“Most homeowners have not recorded that they are in housing need,” according to the survey authors. However, some individuals do need urgent assistance with mortgage repayments to continue to remain in their own home, they found. The victims warned particularly, that the fund “may fail to take account of the needs of survivors” living in the UK.

“It is not clear from the Government’s proposals how the proposed statutory fund will impact on existing arrangements.”

Following difficult negotiations after the Ryan Report was published in 2009, religious congregations offered extra compensation in land and buildings valued by the Government at €348 million, on top of the original €128 million offered under the 2002 indemnity agreement. Since then, victims’ groups have been in discussion with the Government about how the €110 million – in cash – offered in the post-Ryan deal will be spent over coming years, though the detail of the non-cash part of the offer has yet to be finalised. UK survivors strongly demanded that some of their number should sit on the trust fund board, while a majority said experts in public financial administration should also be drafted on to it.

Almost 400 detailed questionnaires were distributed by the pollsters, and 122 returned. Most of those who replied, a total of 115, were women, with an average age of 64. Just over half live in London, with 24 per cent living in the southeast of England.

More than 70 per cent said they will need welfare payments from the fund; with 43 per cent seeking help both with their education and the education of their children and grandchildren. Some 76 per cent identified pensions for those over 66 as important, while 54 per cent sought annual holidays in Ireland – but only 36 per cent sought help to return to live in Ireland.

The poll showed strong support from abuse victims for the extension of the new fund to women who lived in Magdalene laundries. Some 98 of those polled believed it should; only three did not. Just over one-fifth of the victims receive regular counselling and almost half of that number has done so for up to 10 years.

By ALISON O’RIORDAN

Sunday July 18 2010

FIVE years after it was supposed to shut up shop solicitors are again touting for customers to claim compensation from the Residential Institutions Redress Board (RIRB).

So far, solicitors have earned €148m in fees and the RIRB is now preparing to accept more ‘late applications’. The RIRB has, to date, given out at least €800m in compensation to those who spent time in residential institutions.

Now, at least one Dublin solicitor is looking for ‘late applicants’ who didn’t claim– including the sons and daughters of those who were in such institutions to see if they are entitled to claim.

Where a person who is entitled to redress has died since May 11, 1999, the application may be made by his or her spouse or children. Burns Kelly Corrigan solicitors is just one of 856 firms of solicitors who have received a total of 12,034 applications for compensation under the scheme.

“Our firm has been involved with the redress board since 2005, and originally had thousands of applications,” said a solicitor from the firm. “We have got a couple of hundred of late applications, which have been successful. We charge no fee (to applicants) as the redress board pays our fee separately if the application is successful.”

With the final date for receipt of applications as far back as December 2005, victims still receive an average of €63,210 compensation.

The RIRB has so far completed the process in 13,743 cases, with 10,188 offers having been made following settlement talks and 2,741 awards being made.

The board refused to comment on how many applications had been made by spouses or children of those in care. It said the highest award so far had been €300,000.

The redress board was set up to make ‘fair and reasonable awards’ to persons who, as children, were abused while resident in industrial schools, reformatories and other institutions subject to state regulation or inspection.

According to the Department of Education: “The board is continuing to perform its functions including processing the remaining applications and when this process is completed, the department. . . will make the necessary arrangements for its dissolution.”

The final bill is expected to be around €1.1bn.

- ALISON O’RIORDAN

Sunday Independent

Redress could have been far easier for abuse victims

OPINION: Was an adversarial legal approach the best way to handle applications to the abuse redress board? I don’t think so, writes RACHEL FEHILY

LAWYERS SOMETIMES forget how intimidating the legal process can be for people outside the profession. I have no doubt that applying for redress, negotiating settlements and appearing at hearings before the Residential Institutions Redress Board was an extremely difficult ordeal for many of the survivors of abuse in residential institutions.

The survivors who prepared cases for their applications were the most vulnerable people I have ever met. Many had serious problems, including homelessness, alcoholism, drug addiction, depression, mental illness, psychological distress, medical conditions and physical injuries. Some were poorly equipped to prepare themselves and engage in the process. It was important that they were well represented, guided and advised by their lawyers throughout.

I wonder was it right that they had to interface with the State via an adversarial legal forum? Was such a forum able to meet their needs? Were lawyers, however well-meaning and sympathetic, the ideal people to guide survivors through this process?

A Child hangs childs shoes on the railings of the Pro Cathedral, Dublin, to the memory of children abused by religious.

Therapeutic jurisprudence is a school of law that developed in America in the 1980s. It concentrates on the law’s impact on a person’s emotional and psychological well-being, and regards law as a social force that produces therapeutic or anti-therapeutic consequences. It sees the role of lawyers as being capable of expanding to guard the psychological well-being of their clients.

The design of the redress board follows a legalistic model and the process was not intended to be therapeutic, although I’m sure that many applicants found the experience of telling the board about their abuse cathartic. However, the aim of lawyers who represented applicants was (quite properly) to maximise the size of their awards, not to improve the psychological well-being of their clients.

Applicants and their legal advisers were required to prepare statements, gather evidence, negotiate and communicate, and in some cases applicants were subject to probing questions or cross-examination.

In preparation for their cases, applicants told their stories and many were assessed for physical and mental injuries for the first time by lawyers, psychiatrists, psychologists, doctors and dentists. The purpose of telling their stories and describing their injuries was so that comprehensive evidence of their injuries could be presented to the board at a hearing or settlement meeting. It was not done for therapeutic reasons, although I am sure for many it proved to be a first step on the road to dealing with some of their injuries.

The process bore a strong resemblance to an assessment of a personal injury action, although it was less formal, and the standard of proof was lower. Even so, at each hearing, a chairperson, board member, stenographer, registrar, and opposing legal counsel were present. While it was necessary to conduct the applications this way because taxpayers’ money was being paid to applicants, and the board had to guard against fallacious claims, I have no doubt some applicants were intimidated by the formal setting, were hurt that their evidence was minimised, or upset due to robust cross-examination or impatience from their hearers.

There have been media reports that some of the applicants were unhappy with their experience of appearing before the board, and feel that after they accepted financial awards they were effectively gagged. Many think they cannot talk about their experience of appearing before the board, or cannot subsequently describe to the media the abuse they suffered in institutions because the proceedings are privileged under Section 18 of the Residential Institutions Redress Act, 2002. This privilege is necessary because the board cannot make a finding of negligence, and must protect individuals mentioned during hearings who have not been found guilty of negligence or any criminal act.

The provisions of the Residential Institutions Act 2002, and the function and design of the board, ensure that it is limited to providing the applicants with sympathetic statements of acknowledgement and financial awards. It does not and cannot fulfil all the needs of the applicants, which may be multi-faceted. Applicants who need medical or psychiatric treatment, addiction counselling or education must go to other agencies to have those needs addressed. Lump sum payments to vulnerable applicants with chaotic lifestyles may even have been detrimental. For those applicants, I am sure a treatment programme or pension would have been of greater assistance.

The process of mediation, which is an alternative dispute-resolution mechanism, allows parties to a dispute to design and participate in the resolution of their dispute with a neutral third party. The aim of the process is to allow the parties to tell their stories, discover underlying needs, transform relationships and find a resolution that is creative and not limited to a financial award. Applicants who appeared before the board were treated as individuals who had a private dispute to resolve with the State. They were not given an opportunity to design or engage in a public, political forum that would have assisted them to interact safely with the State and representatives of the institutions via a neutral third party. Such a forum might have helped the parties to find a narrative that would collectively redefine their positions.

The Laffoy Commission gave survivors a forum within which to safely tell their stories. Its report was hugely important, as it recorded and described the horrific abuses that occurred in residential institutions, and gave recommendations. Unfortunately, no forum has been set up to enable survivors to engage with the State and the institutions in a way that might allow them to express their emotional needs, have those needs fulfilled by way of mediated meetings with government representatives or representatives of the institutions, and allow them to transform the narrative of their experience from passive victims to active agents for social change, truth-telling, justice, reconciliation and healing for the whole of Irish society.

Would it have been better for the survivors to have been assigned trained counsellors to help them through the process of collective healing? Would lawyers trained as mediators have been better equipped to help the survivors gain a meaningful resolution? It is impossible to know, as this did not happen.

If the Government and the residential institutions had set up and financed a centre for healing and reconciliation that allowed survivors and their families to come together with trained counsellors and mediators, it might have helped them to start a dialogue (where appropriate) with government representatives and representatives of the institutions where the abuse occurred.

All the necessary help could have been located in one holistic centre, and specially trained lawyers could have acted as assessors and mediators, and been given powers to quickly award lump sum payments and pensions. Other professionals at such a centre could have treated medical, psychiatric, psychological and dental problems, and helped with addiction, educational needs and other therapies. Many of the survivors lived abroad but they could have been invited to the centre to stay for an assessment of their needs, and been referred on to other professionals at or near their homes.

Now that the work of the board is nearly over, €1.4 billion has been spent and 14,667 applications received, I hope the current Government is planning to write to all the applicants when the work of the board is complete. It would be useful to ask the applicants what effect the process and award had on them, in order to discover whether or not it was therapeutic or anti-therapeutic. Did the financial award they receive address their needs? Was the process stressful? Cathartic? Did it provide an opportunity for healing or reconciliation? Were they intimidated? What did they want the State or residential institutions to do in response to the wrongs they suffered? Did they want or receive an apology? How important was an apology to them? Has their identity been transformed, or do they still see themselves as victims?

Lawyers and judges have always played an important role in protecting human rights and ensuring the punishment of criminal behaviour. However, mass human rights violations demand a unique response. If the Government and the residential institutions responsible for those violations had been imaginative, they might have created an impressive centre for meaningful redress. Then, we as Irish people would have been able to offer a model to other countries that will no doubt be going through similar collective traumas, as more evidence of institutional and clerical sexual abuse emerges worldwide.

Rachel Fehily is a barrister and mediator. She represented abuse victims at the redress board

By Eilish O’Regan Health Correspondent

Saturday February 20 2010

VICTIMS of institutional sex abuse who seek compensation through the State’s redress board are receiving an average of €63,210, new figures reveal.

The Residential Institutions Redress Board has so far processed 13,743 claims from victims of institutional abuse.

A total of 10,188 offers have been made following settlement talks, with another 2,741 made following hearings and 814 withdrawn, refused or given no award.

However, the level of the awards was severely criticised by abuse survivor and ‘God Squad’ author Paddy Doyle, who yesterday said they fell far short of the sums granted in the courts. He said the court awards were nearer €350,000 and victims had been rushed into accepting the redress board.

Mr Doyle, who was speaking at a press conference in Dublin organised by Survivors of Symphysiotomoy, warned against being too quick to accept a similar compensation route if they were offered it.

As a child he was sent to an industrial school in Cappoquin, Co waterford, and suffered abuse that left him in a wheelchair.

Criticised

He also criticised the fact that victims who went before the redress board could not bring anyone with them to the hearing or talk about the award afterwards. To do so would risk fines of up to €25,000 and jail.

In its latest bulletin, the redress board said the highest award so far had been €300,000. It has paid out €148.5m in legal costs .

Of the 14,667 applications it received, 11 were rejected and 814 were withdrawn, refused or given no award.

In a breakdown of awards the bulletin said that 29 were between €200,000 and €300,000; 209 ranged between €150,000 and €200,000 and 1,717 of the payouts were between €100,00 to €150,000.

Nearly half — 6,407 — of the awards were between €50,000 to €100,000. Another 4,567 awards were under €50,000.

An applicant who wanted to lodge an application after December 15, 2005, had to explain in writing to the board why the application had not been lodged on time.

It said it considered each submission individually and by December 15 last, it had received 647 submissions that had been dealt with.

The final bill for the board is expected to be around €1.1bn.

It recently emerged that the board had so far spent more than €900,000 on travel, hotel bills, taxi fares and courier costs.

- Eilish O’Regan Health Correspondent

Irish Independent

Ken Foxe. Sunday Tribune 24 January 2009

A BOARD set up to adjudicate on claims by victims of abuse in industrial schools and other institutions has spent more than €900,000 on travel, hotel bills, taxi fares and courier costs.

The average award from the Residential Institutions Redress Board is €63.210 with some former residents getting just a few thousand euros in damages.

By the time all 13,743 cases are dealt with by the board, it is expected the final bill to the taxpayer will come to €1.1bn.

According to a breakdown of costs from the Redress Board Board, more than €622.000 has been spent of “travel and subsistence” since its inception.

Further hotel room hire costs of €131,692 have also been recorded, while taxi and courier services have set the taxpayer back €187,568.

Fees for board members have cost a massive €8.59m according to accounts from the Redress Board, whilst administrative salaries have come to €8.63m.

The cost of an advertising campaign to ensure all victims came forward was €899.367, and even postage ended up costing more than €500.000.

Vending machine and water supplies at the Redress Board headquarters cost €67,538, according to the details released by the Department of Education.

“The €900.000 spend is a disgrace given the paltry sums paid to people who were abused,” said Paddy Doyle, a survivor of one of the institutions.

“People would do well to bear in mind that the average payment made by the Redress Board to survivors no stands at around €67.000. Much of that €900.000 could have been used to ensure real redress rather than pocket money.

“Bertie Ahern said payments made by the Redress Board would be in line would be in line with those people who took ‘abuse cases’ to the court…the payments made to people who have gone to the civil courts is about €350.000.”

The department said it expected that the final bill would now exceed the 1bn originally estimated.

“The total paid in Redress Board awards from inception to the end of November is €800,749,870. The total third-party legal costs associated with these awards, and including the costs for those applicants who took High Court actions, is €148,506,089,” the department said in a statement.

“At this point, overall anticipated expenditure associated with the Redress Board is expected to be up to €1.1bn. This estimate is tentative given that the board is still in the process of making awards and the level of awards in these remain cases may vary substantially.”

The average claim hovers around €62,000; just 29 people have been awarded more than €200,000, and the maximum payment to one individual was €300,000.

More than a third of people who were compensated for their time in industrial schools and other institutions were given less than €50,000.

A total of 814 applications were refused or withdrawn, or resulted in no award where the claimants’ stories appeared not to stack up or did not relate to the right institutions.

1,000.00 EUR = £877.599 Pounds sterling.
1,000.00 EUR = $1,413.90 USD

Madam,
The skewed view of evidence referred to by Mary Raftery at the Commission to Inquire into Child Abuse (Irish Times, 12 May) pales in significance compared to the activities of the Residential Institutions Redress Board. A place of secrecy, exclusion and bewilderment.
I have given evidence to the board on three occasions on behalf of three patients, all victims of layers of abuse, in particular sexual. Two of these have been under my care for over 10 years. All will bring their pain and suffering to the grave.
I was not allowed to be present when they gave their evidence, nor indeed were their partners, a friend, an advocate, no one of personal significance.
They were alone. Alone in attempting to articulate their exposure to regimes of unbridled rape and violence which lasted for years, at the hands of sadistic sexual perverts answerable to no one. Alone in telling about how their chance of a normal life was diminished from the beginning. About how they learned to place no value on themselves, and with their lives totally derailed following their release at 16 years old, drifted from one crisis to another for the rest of their lives.
One patient was left alone, on the verge of a panic attack due to the intensity of his fear, to tell the board of a past littered with criminal behaviour, prison records, substance misuse, dysfunctional relationships, mistrust of authority, and family breakdown.
[click on picture to enlarge]

I found the discomfort of waiting in a side room to give evidence, aware of my patients’ fears and worries, unbearable. They dreaded getting a panic attack, a flashback to an incident of abuse, a rush of uncontrollable anger that would alienate the chairman and jeopardise the outcome.
In giving my sworn evidence I felt under time pressure, and worse, that I was an unwelcome irritation slowing down the proceedings. An atmosphere of minimisation prevailed. It was impossible to present a complete picture.

 
The “board” consisted solely of a judge and a medical doctor. On two occasions that doctor, having had no experience of working with traumatised or abused children, let alone a qualification in psychiatry, was nonetheless there for the purpose of contributing to a judgment on the compensation deemed appropriate for each victim.
Not being a court, it is held in secret, away from the eyes of the community, and no perpetrator of a crime is ever sentenced to a punishment.
No apologies can be offered as no one is there representing the religious orders responsible. Justice for the victim is not the purpose, only financial compensation, which is capped to a maximum of €300,000. (To date the average award paid out to 2,555 victims has been €78,000.)
The award is conditional on them signing a secrecy agreement and a waiver on taking further legal action. If the victims disclose the amount they were awarded or discuss the facts of their case in public, they face criminalisation.
The wronged now accused of a crime! They can be fined up to €3,000 and can face a summary jail sentence of six months. After a second disclosure, they face a fine not exceeding €25,000 and a two-year jail sentence. Why the secrecy? It’s certainly not for the benefit of the victim. There is emerging evidence that the Redress Board re-traumatises victims.
One patient of mine used this analogy. “An adult, man or woman, abuses a child. It is their ‘secret’. To make sure the ‘secret’ is kept the adult will give the child money or sweets. They buy silence. By making secrecy a condition upon payment, the board is doing exactly what an abuser does to a child.”
The elements of restorative justice which are required for the restitution of balance and healing are transparency instead of secrecy, formal apologies, the punishment of the wrongdoers, and supreme efforts to compensate for damage done.
The Redress Board embodies none of these. Its role makes a mockery of the legal system, and of the Goddess Themis, whose scales are the symbols of Right and Justice. It is my firm belief that the Redress Board contravenes the most basic of human and civil rights. In short, it represents a crime against humanity.
It should be abolished immediately and replaced by an open forum where the victim is not only properly monetarily compensated, but where they can have their perpetrators named, and the scales of justice balanced.

Yours, etc,
Dr MICHAEL CORRY,
Consultant Psychiatrist,
Dún Laoghaire.

PATSY McGARRY, Religious Affairs Correspondent

JUDICIAL REVIEW of a decision by the Residential Institutions Redress Board not to accept a late application, on grounds of exceptional circumstances, is to begin at the High Court this morning.

The board, in a written decision dated December 19th, 2008, rejected an application from “Peter” (not his real name) as being late and refused to find exceptional circumstances existed which would have allowed his application.

The deadline for applications to the board was December 15th, 2005. The only exceptions allowed were for people suffering from a mental incapacity or where there were exceptional circumstances. Such circumstances were not defined in the 2002 Act that set up the board.

Peter is in his 70s and has lived most of his life in the UK. He had been in St Patrick’s industrial school at Upton in Cork for six years, where he was abused. He applied to the redress board on January 23rd, 2006.
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