The O’Toole Scoping Report on abuse in religious order schools made for extra hard reading for lawyers due to its verdict on our legal system. For survivors, our legal system – what the report calls our justice system – doesn’t fulfil a basic function: deliver justice. Worse, both civil and criminal cases can be re-traumatising for the victim.
Describing “participants’ experience of the justice system,” the report states that most survivors who spoke had a negative experience. One said his civil lawsuit “nearly killed me [and] achieved nothing.” Another described cross-examination as “character assassination.” The “whole judicial system was very unfriendly.” Cost was also a “significant factor preventing survivors ... " accessing our legal system.
This is not new. In an important 2018 ruling the then chief justice, the most senior member of our judiciary, Frank Clarke, spoke of “a significant and, arguably, increasing problem with access to justice”. Speaking quite directly to the legislature, he added “there is a problem which requires to be addressed”.
There are two things the Government could do to fix this. First, amend order 16 rule 9 of the Rules of the Superior Courts 1986, which already allows class actions by “numerous persons having the same interest”, to clarify it permits damage awards, as the Law Reform Commission recommended in 2003.
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Second, legislate to allow a regulated and fair system of third-party funding. Right now, because we have neither a system of class actions nor third-party litigation funding, Irish victim groups without means have really two ways only to fight for justice.
A bona fide class of victims, with strength in numbers and solidarity in purpose – such as 2,400 abused people across 300 schools, say – will surely be better equipped to deal with the challenges of litigating than a single ‘test case’ litigant
One way, as with the Stardust families and school abuse survivors, is campaign for decades for, best case scenario, a State apology plus redress scheme. An important cathartic reckoning, when (or if) it happens, to be sure. But quite apart from the enormous personal cost for campaigners, wrongdoers, as in the school abuse cases, can escape civil justice and may not even contribute to victim redress. Effectively, costs of wrongdoing get nationalised and non-State culprits potentially pay nothing.
The other way is what’s called a “test case” lawsuit. This typically involves a single vanguard plaintiff, with lawyers acting on a no-foal, no-fee basis – an approach pioneered by progressive, public-interest lawyers such as Free Legal Advice Centres in the 1970s and 1980s. A celebrated example is Tate v Minister for Social Welfare (1995), which effectively precipitated State payments totalling around £265 million (€336 million) to 69,000 affected married women. Today, it is reportedly how families of 160 autistic children are suing the State for access to educational facilities.
But this “test case” approach is imperfect on many fronts. A single plaintiff takes sole litigation risk, meaning potentially enormous cost exposure. A court never rules on total damage quantum or on wider victims’ rights to compensation. And for the test case to yield anything for other victims effectively depends on hardball, behind-closed-doors negotiation between lawyers that seems, in practice, best suited to coercing the State as defendant to settle, less so private enterprise.
In 2003, calling for a modernised class action and funding regime, the Law Reform Commission described the “test case” approach in neutral if clear terms as " ... no substitute for a formal structure which would facilitate a transparent procedure for dealing with such litigation”.
According to the O’Toole Report, what survivors most want now is, first, a public inquiry, with powers to summon witnesses and discover documents, make findings of fact and hold the culpable to account, and, second, a redress system (for damages). This is what our courts of law are meant to and surely can provide, including in a victim-centric compassionate way.
What we need to find are new legal ways to allow victim groups to experience this: our courts delivering justice, holding those liable to account and awarding damages to the wronged.
In an adversarial system such as ours, cross-examination can be hostile, for sure. But let’s not forget that cross-examination is also widely considered " ... the greatest legal engine ever invented for the discovery of truth”. A bona fide class of victims, with strength in numbers and solidarity in purpose – such as 2,400 abused people across 300 schools, say – will surely be better equipped to deal with the challenges of litigating than a single “test case” litigant. On this, the O’Toole Report describes survivors “finding strength in shared experiences” and “strength and resilience” in solidarity.
In my practice area, antitrust law, class actions are permissible in most EU member states and many common-law jurisdictions. In the UK, 44 million Facebook users are suing Mark Zuckerberg’s Meta for €2.6 billion. App developers are suing Google for €1.04 billion. And 200,000 UK third-party sellers are suing Amazon for €3 billion.
Ireland’s minimalist approach to implementing EU rules to promote class actions to protect against anti-consumer business practices, in the form of The Representative Actions for the Protection of the Collective Interests of Consumers Act 2023, won’t move the dial for victim groups here.
But there’s hope. According to our Supreme Court, " ... the constitutional right of access to the court may include an entitlement that that right be effective, not just as a matter of law and form, but also in practise.” Absent Government action, the Supreme Court has also said that “the courts, as guardians of the Constitution, might have no option but to take measures which would not otherwise be justified”.
Philip Andrews is a senior counsel and founder of Andrews Law
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