Ministers have been warned of “significant consequences” and costs if the State loses personal injury cases lodged by survivors of mother and baby homes.
The warnings are contained in a departmental briefing document prepared for Minister of State for Integration Joe O’Brien after he took up an additional role in assisting with the response to rising numbers of refugees in Ireland.
The document details how some 60 personal injury cases have been initiated against the Minister for Children in relation to mother and baby homes.
“There is a high level of uncertainty in relation to the costs that may arise as a result of these cases. A significant portion of the claims may be covered by the Mother and Baby Institutions Payment Scheme,” it states.
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An order for discovery has been made in one of the cases, Mr O’Brien was told.
“The department is working on discovery now and the case may be heard in late 2023. The case is challenging the exclusion of certain institutions from the Department of Education Residential Institutions Redress Scheme and delays in the establishment of the Mother and Baby Institutions Payment Scheme,” it says.
“If the State is unsuccessful in its ongoing personal injury case, it could have significant consequences. The financial consequences would be more significant for the Department of Education, which could have to reinstate its scheme.”
The department settled eight applications for judicial review challenging the final report of the Commission of Investigation into Mother and Baby Homes in late 2021. As part of that settlement the department has to pay the applicants’ legal costs.
Mr O’Brien was told that it was “not possible” to quantify what the costs associated with the cases might be, or when these might arise.
“The uncertainty in relation to the personal injury cases is due to the fact that we do not know: whether cases will be pursued, whether plaintiffs will be successful in their claims, how various claims will be assessed by the courts, the legal costs of the plaintiffs.”
The document also said there could be significant challenges in setting up a new redress scheme for survivors of the institutions.
In a recent interview with The Irish Times, Minister for Children Roderic O’Gorman said he hoped the new system would be set up by the middle of the year.
The briefing document says the scheme will be the “largest of its type in the history of the State”.
“Bringing the legislation through to enactment and also establishing the necessary infrastructure to deliver the scheme are significant pieces of work to deliver in a very ambitious time frame,” it says.
It says the scheme will need a form of ICT infrastructure which normally takes “a number of years to develop, test and launch”.
“The commitment to deliver this scheme to survivors as soon as possible in 2023 presents very significant challenges in respect of delivering on a fit-for-purpose case-management system capable of dealing with the level of applications anticipated for the scheme,” the Minister was advised.
It was also indicated that confidential talks with religious congregations are continuing in an attempt to reach agreement on how they might contribute to the scheme.
“The Minister has made the parties concerned aware that he is accountable to the Oireachtas and as such will be making a full report available when this process is concluded,” the document says, adding that this was expected to take a number of months.
