O'Brien v The Governor of Cork Prison & Ors

THE COURT OF APPEAL CIVIL APPROVED NO REDACTION NEEDED Neutral Citation No.: [2026] IECA 68 Court of Appeal Record No.: 2025/106 High Court Record No.: 2024/176 Meenan J. Hyland J. Collins J. BETWEEN/ JOHN O’BRIEN APPLICANT/ APPELLANT - AND – THE GOVERNOR OF CORK PRISON, THE IRISH PRISON SERVICE, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS/RESPONDENTS - AND- IRISH HUMAN RIGHTS AND EQUALITY COMMISSION NOTICE PARTY -2- JUDGMENT of Ms Justice Hyland delivered on 30 April 2026 SUMMARY 1. This is an appeal from a decision of the High Court (O’Higgins J. [2025] IEHC 56) where he refused to grant Mr. O’Brien (the “Appellant”) relief in respect of the decision of the Irish Prison Service that he was not entitled to an offer under the Settlement Scheme (the “Scheme”) arising from the judgment of the Supreme Court in Simpson v. Governor of Mountjoy Prison [2020] 3 IR 113, because his claim was statute-barred. The Scheme provided for fixed amounts of compensation payable by the State Claims Agency (the “SCA”) to persons who had been in prison without in- cell sanitation and were obliged to “slop out” i.e. urinate and defecate in a bucket that was then emptied out each day. For the reasons set out below, I am satisfied that the appeal must fail and that the trial judge’s decision should be upheld. LEGAL CONTEXT 2. The Appellant was detained in Cork Prison for various periods between March 2013 and September 2014. During this time, the Appellant shared a single prison cell with at least one other prisoner and was obliged to slop out. The Appellant sought various reliefs in respect of the refusal to permit him access to the Scheme in these judicial review proceedings, including a quashing of the letter refusing him an offer under the Scheme and damages by way of judicial review for failure to afford him an adequate remedy in respect of the breach of his constitutional rights. To understand -3- the nature of the Appellant’s claim, and his grounds of appeal, it is necessary to revisit the case law on slopping out before addressing his specific arguments. 3. The first relevant decision was that of the High Court in The State (C.) v. Frawley [1976] I.R. 365. In that case, the High Court refused to order the prosecutor’s release under Article 40.4.2 of the Constitution. The central issue was whether the conditions of detention – solitary confinement, handcuffing, and deprivation of ordinary prison amenities – constituted a failure to protect the prosecutor from torture or inhuman or degrading treatment, thereby rendering his detention unlawful. It was held by Finlay P. that the restrictions were neither punitive nor malicious but were imposed to prevent self-injury and escape, finding that the concept of torture, inhuman and degrading treatment and punishment must be construed as “being not only evil in its consequences but evil in its purpose as well.” Hence, the detention remained in accordance with law. That case suggested that, for treatment to be unconstitutional, there must be an intention to cause harm. 4. The question of intention in the context of prison conditions arose again in Mulligan v. Governor of Portlaoise Prison & Ors [2013] 4 I.R. 1. There, the applicant sought a declaration and damages for the absence of in-cell sanitation, alleged unhygienic conditions and the necessity to engage in slopping-out procedures. He claimed these circumstances violated his rights under Article 40.3.1 of the Constitution and Articles 3 and 8 of the European Convention on Human Rights (the “ECHR”). The High Court found that there was no evidence that the purpose and intention of the restrictions and privations were punitive, malicious or evil in purpose. Regarding the slopping out element, MacMenamin J. stated that “The overall finding, despite the substandard aspects, must be that there was no serious threat to life or death. One must look too to causation” (paragraph 116). No breach of the constitutional rights -4- asserted were found, having regard to the absence of any malicious intent on the part of the authorities, the applicant’s failure to disclose his medical condition, and the practical constraints inherent in the prison environment. The claims under Articles 3 and 8 of the ECHR were rejected, as the conditions complained of did not attain the level of severity required by any decision of the European Court of Human Rights (the “ECtHR”). 5. In 2017, the High Court handed down an important decision in the case of Simpson v Governor of Mountjoy Prison [2017] IEHC 561, where White J. held that the plaintiff’s imprisonment on a restricted regime, while sharing with another inmate without in-cell sanitation, constituted a breach of his constitutional right to privacy. While the conditions were described as unacceptable, the Court emphasised that the purpose of the restrictions was neither punitive nor malicious but arose from operational and security constraints. White J. confirmed that such a breach was actionable per se and could attract damages. He nevertheless refused to award damages because the plaintiff’s evidence was found to be, at times, untruthful, and because of the following additional factors, namely his failure to seek judicial review at the time of his imprisonment, his time in the separation unit, and ongoing refurbishment works to remedy the lack of in-cell sanitation. 6. In a direct appeal to the Supreme Court two separate judgments were delivered: the principal judgment by MacMenamin J. and a concurring judgment by O’Donnell J. (as he then was) in Simpson v. Governor of Mountjoy Prison [2020] 3 IR. 113. The Court confirmed that the plaintiff’s claim was grounded in pre-existing constitutional rights under Article 40.3, and was neither a new cause of action, nor arose from principles deriving from the ECtHR. MacMenamin J. held that the infringement constituted a constitutional tort – a civil wrong sounding in damages – though not -5- identifiable as a nominate tort and that intentional mistreatment or a regime designed to break the spirit of a prisoner would create a presumption of violation. The applicant was awarded €7,500 in damages. 7. The last case of relevance to this appeal is the recent decision of the Supreme Court in McGee v Governor of Portlaoise Prison [2023] 1 ILRM 305, another slopping out case. The applicant sought damages for breach of his constitutional rights. He was met with a motion seeking to strike out proceedings on the basis that his claim was time barred, they having issued ten years after his release from prison. Following an extensive review of the case law, the Supreme Court found that an action for damages for breach of constitutional rights is properly characterised as an action founded upon a civil wrong and therefore an action founded upon tort. Accordingly, such a claim is subject to the provisions of s.11 of the Statute of Limitations i.e. the standard six- year limitation period. Mr. McGee’s claim was found to be statute barred and his proceedings struck out. THE SETTLEMENT SCHEME 8. Following the Supreme Court decision in Simpson, various solicitors’ firms made multiple claims on behalf of prison inmates or former inmates who had been subject to in-cell sanitation. The Scheme sought to resolve these claims on a consensual basis. A letter was sent by solicitors acting for the SCA to the firms of solicitors that had issued slopping out claims on behalf of clients. It represented that following the decision of the Supreme Court in Simpson, the State proposed to deal with in-cell sanitation claims by way of a Scheme. The terms of the Scheme were set out in a three-page document. The following three qualifying criteria were identified: “1. The claimant’s claim, or at least part thereof, is not statute barred. -6- 2. The claimant has signed the Settlement and Payment Authority Form in acceptance of the settlement scheme offer. 3. The claimant’s prison regime wherein he/she was imprisoned without in-cell sanitation and/or was required to ‘slop out’ has been analysed and verified”. 9. Claims were categorised into 3 types – category A being described as the Simpson - type regime i.e. protection/23 hour lock up and sharing a cell with at least one other prisoner, category B being the non-protection/ordinary regime prisoners (not on 23- hour lock-up) but sharing a cell with at least one other prisoner and category C being for prisoners who were not required to share a cell with any other prisoner. In each case there was a pro-rata calculation of compensation at a rate per week or part thereof and an overall cap. The cap for category A was €7,500, the cap for category B was €5,000 and the cap for category C was €2,500. 10. The Scheme also addressed the claimants’ legal costs and identified the sums to be paid by reference to the amount of the offer. There were also details in relation to the settlement/payment of claims. The document included sample damages calculation examples. 11. The overall approach of the Scheme was to identify the amount of compensation payable to various categories of slopping out claims, assuming the applicant for compensation had established an entitlement to be compensated. In my view, it is best viewed as an assessment of the quantum of damages, formulated on a transparent basis, that were to be made available to those who met the three specified criteria. The Scheme did not introduce a new limitation period or alter the rules in relation to whether a claim was statue barred. Rather, it simply referenced existing limitation periods and made it clear that offers would only be made to persons whose claims were not statute barred. The Scheme was intended as a mechanism to compromise -7- claims at an early stage of proceedings. It was not designed to award compensation where it was otherwise unavailable. THE APPELLANT’S CLAIM 12. As noted above, between March 2013 and September 2014, the Appellant was detained in Cork Prison. During that time, he shared a cell with at least one other prisoner without in cell sanitation and was obliged to slop out. 13. On 14 November 2019, the Supreme Court delivered its judgment in Simpson. On 3 February 2020, the SCA wrote to the solicitors now on record for the Appellant, Burns Nowlan, identifying the Scheme in the terms described above, although without any particular reference to the Appellant. On 10 November 2020, the Appellant’s then solicitors, Patrick Daly & Co. wrote seeking an offer of compensation under the Scheme in respect of the Appellant. By reply of 17 November 2020 the SCA indicated that, having reviewed the Appellant’s prison records, it was apparent that the Appellant had not been in prison under a slopping out regime within the past six years, the last such occasion being in September 2014 and he was not accordingly entitled to an offer under the Scheme. No response was received to this letter. 14. On 4 March 2021, Burns Nolan wrote seeking to have the Appellant’s claim processed under the Scheme. The letter did not engage with the reasoning in the letter of 17 November 2020 and simply repeated the claim for damages under the Scheme. On 27 May 2021, the solicitors for the SCA replied, referring to their previous letter, and stating the claim was statute barred under s.11 of the Statute of Limitations. -8- PROCEEDINGS 15. On 11 August 2021, the Appellant sought leave to issue judicial review proceedings seeking to quash the refusal to permit him to benefit from the Scheme on the basis that the Respondents had breached their obligation to provide him with an effective remedy contrary to Article 13 of the ECHR in circumstances where he had suffered an acknowledged breach of his constitutional rights and his rights under the ECHR. 16. The Respondents filed a statement of opposition on 1 March 2022, acknowledging the breach of constitutional rights but asserting that the claim was statute-barred by virtue of s. 11 of the Statute of Limitations. On 7 March 2023, the proceedings were adjourned due to the McGee proceedings referred to above. Following the decision of Supreme Court in McGee, the Appellant sought to amend his statement of grounds to add new reliefs. On 1 February 2024, Phelan J. delivered judgment on the motion, granting the Appellant permission to amend certain grounds, while refusing others. 17. On 5 February 2025, O’Higgins J. delivered judgment concluding the Appellant was not entitled to the relief claimed. No order as to costs was made. The Appellant has appealed this decision in its entirety. NATURE OF THE APPELLANT’S CHALLENGE 18. It is important to understand from the outset that the Appellant did not challenge the validity of s.11 or of any other provision of the Statute of Limitations. Rather he sought an order of certiorari quashing the decision communicated to him by letter 27 May 2021 excluding him from the Scheme on the basis that his claim was statute barred. Nor did he seek to quash the Scheme itself. A declaration is sought that his exclusion from the Scheme violates his rights under the ECHR and that the Respondents have breached their obligations under s. 3 of the European Convention -9- on Human Rights Act 2003 (the “2003 Act”). An order of mandamus compelling the Respondents to allow the applicant to apply to the Scheme for compensation is also sought. The Amended Statement of Grounds seeks damages for breach of a right to an effective remedy under the 2003 Act, as well as constitutional damages for breach of the applicant’s right to an effective remedy and/or a failure by the Respondents to vindicate the Appellant’s constitutional rights. 19. As the appeal was presented in this Court by counsel for the Appellant, it appeared to have the following components: • The Appellant could not have issued proceedings prior to the Supreme Court decision in Simpson because up to that point there was no effective remedy available to challenge slopping out conditions. The absence of any such scheme breached his right to an effective remedy; • The Scheme is unlawful because the limitation period contained therein is retrospective and undermines his right to an effective remedy for an admitted breach of his constitutional rights under Irish law and under Article 13 of the ECHR; • The Respondents are estopped from relying upon the limitation periods because of the admitted wrongdoing i.e. the existence of a slopping out regime; • There was a breach of the duty of candour by the Respondents in the way in which they conducted the proceedings. AN EFFECTIVE REMEDY PRIOR TO SIMPSON 20. Turning to the first of these complaints, its parameters may be seen in the Amended Statement of Grounds where it is pleaded that there was no effective remedy under Irish law for breach of the rights occasioned by the practice of slopping out prior to - 10 - the judgment of the Supreme Court in Simpson, that Simpson acknowledged that slopping out was a wrongful practice and that breach of those rights gave rise to an actionable case. It is pleaded that in Mulligan, the High Court conditioned the right such that it was treated as a breach only if the restrictions or privations were punitive, malicious or evil in purpose, following State (C) v. Frawley. It is pleaded that until the judgment in Simpson, there was no effective remedy afforded to the Appellant contrary to Article 13 of the ECHR. Alternatively, it is pleaded there was no effective remedy contrary to Articles 34 and/or 40.3 of the Constitution. In submissions, counsel argued that the decision of the High Court in Simpson did not provide an effective remedy, given that no damages were awarded to the applicant, and that there was still a focus upon the need for an intention to cause harm before a breach could be established. 21. The decision of the trial judge was largely focused on the Appellant’s complaint that there was no effective remedy prior to the Supreme Court decision in Simpson and his rejection of this argument. The Appellant appeals those findings for reasons I will discuss below. However, before embarking upon this question, it is necessary to test the Appellant’s argument on the hypothesis that he is correct in this contention. He appears to proceed on the basis that if there was no effective remedy prior to Simpson, he must be entitled to treat the date of the judgment in Simpson as the date upon which his cause of action arose, and thus the date upon which time begins to run. 22. That argument is based on a fundamental misunderstanding of what a court does when it identifies a breach of constitutional rights. The position is well set out by O’Donnell C.J. in his judgment in Heneghan v. Minister for Housing, Planning and Local Government (No. 2) [2023] IESC 18 as follows: The starting point is that, on a finding of invalidity, the impugned provision is deemed to be void from the beginning – ab initio – either - 11 - from the date of the enactment, if post-dating the Constitution, or from the date of enactment of the Constitution, if the provision pre-dates it. This is consistent with the obligation of the Oireachtas not to enact any law repugnant to the Constitution, and the provisions of Article 50 of the Constitution, which continued the law in force in Saorstát Éireann immediately prior to the date of the coming into force of the Constitution, “to the extent to which they are not being inconsistent therewith”. 23. At paragraph 10, the Chief Justice observed that the power granted under a modern constitution to declare an act of the legislature invalid is very far-reaching and can cause widespread collateral damage to the legal order, particularly given its potential retrospective effect, but that power is an essential guarantee of the checks and balances in a modern constitutional system based on the rule of law and the protection of individual rights. Accordingly, case law has identified a number of principles themselves consistent with the Constitution that control the potentially seismic collateral effects of a finding of unconstitutionality and limit the occasions on which such a remedy must be granted to those where it is truly required, including the principle that the benefit of a finding of invalidity may be limited in time and to those who might have already commenced proceedings. 24. At paragraph 51 of his judgment in Heneghan v. Minister for Housing, Planning and Local Government (No. 1) [2023] IESC 7, Hogan J. refers to the fact that granting fully retroactive status to a finding of unconstitutionality would simply result in the triumph of abstract logic over the requirements of justice, often with unpredictable, chaotic and indefensible consequences. At paragraph 53 he refers to the long history in this jurisdiction of cases where the courts have indicated that they, of necessity, must enjoy the power to restrict the fully retroactive operation of such a finding. 25. In Murphy v Attorney General [1982] IR. 241 at 314-315, Henchy J., speaking in the context of a tax statute that had been found to be unconstitutional in certain respects, observed as follows: - 12 - “Over the centuries the law has come to recognise, in one degree or another, that factors such as prescription (negative or positive), waiver, estoppel, laches, a statute of limitations, res judicata, or other matters (most of which may be grouped under the heading of public policy) may debar a person from obtaining a redress in the Courts for injury, pecuniary or otherwise, which would be justiciable and redressable if such considerations had not intervened….” 26. As Hogan J. notes, that meant that in Murphy, the plaintiffs were allowed only limited recovery of overpaid taxes, backdated only to the first full year in respect of which they had issued proceedings. The logical corollary of that finding was that the vast majority of other taxpayers — who had not issued such proceedings challenging the constitutionality of the law — were not entitled to any recovery in respect of these unconstitutionally collected taxes (see paragraph 58 of the judgment of Hogan J. in Heneghan (No. 1)). 27. In McDonnell v Ireland [1998] 1 IR. 134, the plaintiff forfeited his position in the civil service under s. 34 of the Offences Against the State Act 1939 with effect from 30 May 1974 as a result of being convicted of membership of the IRA. In 1991 the court decided that s. 34 of the Act was unconstitutional. Mr. McDonnell brought proceedings claiming his dismissal was unconstitutional and sought damages for breach of constitutional rights including loss of income pension and gratuity entitlements. His claim was rejected as being time barred under the Statute of Limitations. 28. In certain instances, a court will go further and limit the effect of its declaration of unconstitutionality so that it has prospective effect only. A further refinement of this approach is the suspended declaration of unconstitutionality, deployed in Heneghan, where the court postpones making a declaration of unconstitutionality for a fixed period of time so as to protect other constitutional values. - 13 - 29. However, in Simpson, no application appears to have been made seeking to limit the temporal effects of the declaration of unconstitutionality. The Supreme Court did not place any restrictions on its judgment in this respect, and therefore it must be assumed that the default position applied, i.e. that the slopping out regime was to be treated as unlawful from its inception. 30. Nonetheless, as identified above, to mitigate against the chaotic effects that are often caused by giving full effect to the principle that an impugned provision is deemed to be void ab initio, various devices have been used to limit such effects, including limitation periods. The cases reviewed above arose in the context of a statutory provision found to be unconstitutional: but the Appellant has not suggested that any different approach arises where a practice is found to be unconstitutional, as in the present case. 31. The Appellant contends that the limitation period should only start running from the date of the Simpson decision because it was not clear prior to Simpson that constitutional rights were breached by the mere fact of a slopping out regime, and therefore no effective remedy existed for the breach of those rights. I explain below why I do not accept his argument about the lack of clarity before Simpson. But even proceeding on that basis, it will always be the case that, when a court concludes that a law or practice previously thought to be compatible with the Constitution is in fact unconstitutional, there was no effective remedy prior to that date. 32. As identified above, when a finding of invalidity is made, the impugned provision or practice is deemed to be void ab initio. Coupled with the application of limitation periods, this may mean a person is statute-barred from seeking redress even where they were not aware that their constitutional rights were being breached. But this is a necessary corollary of the law’s concern to avoid the chaos that might otherwise - 14 - result where an unconstitutional practice is found to have violated constitutional rights, or a statutory provision is deemed to be unconstitutional. 33. Therefore, the Appellant’s argument i.e. that a person’s right to a remedy is breached because a declaration of invalidity does not reset the limitation clock, is contrary to established case law. The Appellant has not engaged at all with the orthodox position identified above or explained why this line of case law does not apply in his case. This analysis is sufficient to dispose of the argument of the Appellant in respect of an alleged failure to provide an effective remedy prior to Simpson. 34. However, for the sake of completeness, and given the focus of the decision of the trial judge, I will consider whether, even if the Appellant was entitled to an effective remedy for breach of his rights prior to the Supreme Court in Simpson, that right has been breached. I am satisfied this is not the case for the following reasons. 35. First, the decision that slopping out breached constitutional rights did not come out of nowhere. Similar findings had been made in Mulligan and in the High Court decision in Simpson. I agree with the trial judge’s conclusion that the judgment of MacMenamin J. in Mulligan expressly left open the strong possibility that slopping out in the presence of another prisoner would amount to a breach of privacy. Moreover, the trial judge correctly notes that the plaintiff in Simpson succeeded in establishing in the High Court that a breach of his rights had occurred and that he obtained declaratory relief as to a breach of constitutional rights – a finding not appealed by the State. Contrary to what is argued by the Appellant, as found by the trial judge, the judgment of White J. conclusively rejected the submission that proof of malicious intent or evil purpose was a pre-requisite to a finding of breach of constitutional rights in a slopping out claim. The only reason White J. refused damages was on account of his finding that the plaintiff had told lies and exaggerated - 15 - his evidence. This means I do not have to adjudicate upon the argument made by the Appellant that requiring proof of malicious intent represented an impossible standard, as demonstrated by the lack of successful cases. 36. At paragraph 96, the trial judge makes the following finding: “The difficulty with this aspect of the applicant’s case is that the applicant appeared to have an effective remedy open to him from at least as early as September 2017 (if not earlier) when White J. delivered his judgment in the High Court in Simpson. The applicant took no steps to bring a case at that point and instead appears to have allowed any such claim that he had to become statute barred. As I have mentioned earlier, the applicant has chosen not to set out any evidence on this issue, and therefore there is no treatment of the factual position to assist the court in considering whether there truly was an impediment preventing the applicant from bringing a case at an earlier stage.” 37. Despite this issue being raised at the hearing before this Court, counsel could not explain why the Appellant had not issued proceedings after the decision of the High Court on 13 September 2017 in Simpson. He would have been well within time at that stage, given that his period in prison ended in September 2014. The trial judge concluded at paragraph 71 of his judgment that the affidavits of the Appellant and his solicitor did not establish why the Appellant was personally precluded from challenging the slopping out regime at an earlier stage, why he made no complaint during his incarceration or the six year period thereafter, why he made no claim in the aftermath of the High Court decision in Simpson or why it took him until 10 November 2020 to make a claim under the Scheme (bearing in mind that the judgment of the Supreme Court in Simpson was delivered on 14 November 2019. If the Appellant had made a claim before the end of 2019, he would have still been within time for at least part of the period he spent in prison). Having reviewed the affidavits in question, I am in full agreement with those conclusions. - 16 - 38. To summarise, as a matter of principle, the Appellant has no right to an effective remedy for a breach of constitutional rights prior to that breach being identified by a court. After such a breach is identified, the breach will normally be treated as having existed from the commencement of the practice, unless a different approach is set out in the judgment where the breach is identified. Generally, a person who seeks redress in respect of the breach where the acts took place prior to the decision identifying the breach may be met with limitation periods. This analysis is sufficient to dispose of the argument of the Appellant. 39. Even if the Appellant was entitled to an effective remedy for breach of his rights prior to the Supreme Court in Simpson (and I do not consider he was), the trial judge was correct in rejecting this argument on the basis that (a) case law prior to the Supreme Court decision in Simpson identified that slopping out even absent malicious intent could constitute breach of a constitutional right and (b) the Appellant could have issued proceedings within the relevant six year limitation period following the decision of the High Court in Simpson, gave no explanation of why he chose not to do so, and then delayed seeking redress after the Supreme Court decision in Simpson for a further year. 40. The Appellant has argued that there was a further hurdle in issuing proceedings given an asserted uncertainty as to the appropriate limitation period for breach of a constitutional right. But even if that was so (and I have considerable reservations about the sustainability of this plea given the decision in McGee), the Appellant was not entitled to abstain from issuing proceedings after the High Court decision in Simpson until absolute clarity was provided about the relevant limitation period. Moreover, his argument in this respect is entirely hypothetical: at no point does he assert that this was in fact the reason that he abstained from issuing proceedings. It - 17 - is well established that arguments must be rooted in the facts applicable to the person advancing the argument. 41. For all those reasons, the Appellant cannot succeed on this ground of appeal. THE APPELLANT’S CONSTITUTIONAL RIGHT TO AN EFFECTIVE REMEDY 42. Next, the Appellant argues that the limitation period in the Scheme is impermissible. He contends that the Scheme contained a retrospective limitation period that breaches Articles 34 and 40.3, as it prevented a vindication of the Appellant’s constitutional rights and his right to an adequate remedy where his constitutional rights had admittedly been breached by the slopping out regime. Although the Appellant also invokes Article 50 of the Constitution in the context of this argument, he never explains how it is allegedly breached and therefore, I will not consider it further. 43. In a separate but linked plea, under the heading “Imposition of a retrospective limitation period in the Scheme”, it is pleaded that McGee may be distinguished on the basis that the appeal did not consider the impact of s. 2 of the 2003 Act vis á vis the interpretation of s. 11 of the Statute of Limitations and that the impact of Article50 of the Constitution and related jurisprudence was not considered in McGee on the interpretation of that provision. This relates to the argument made by the Respondents to the effect that the decision in McGee suggests that time limits sit comfortably with a person’s right to be compensated under the Constitution for being subjected to a regime of slopping out. 44. Given that I have found above that the Appellant could have issued proceedings covering the entire time he was in prison following the High Court decision in Simpson and could have issued proceedings/sought damages under the Scheme for - 18 - part of the period he was in prison if he had acted promptly after the Supreme Court decision in Simpson, the question of the Appellant’s standing to make this argument arises. However, as the Respondents did not take that point in the appeal, I will address the substantive issue. 45. To adjudicate upon this argument, it is necessary to revisit the Appellant’s pleadings and the reliefs he sought. The Appellant did not seek to quash the Scheme but rather the letter excluding him from the Scheme. As noted by the trial judge, this is problematic from the point of view of his challenge to the Scheme in his Amended Grounds. 46. However, he has an additional, more serious, difficulty. The limitation period exists because of s.11 of the Statute of Limitations and not because of the Scheme. The Appellant’s criticism of the Scheme is quite misplaced. The Scheme does not create or incorporate a limitation period. Rather, it excludes person who do not come within the Statute. Therefore, the Appellant was obliged to challenge the Statute, either directly in the context of the decision to exclude him from the Scheme on the grounds of the Statute, or by issuing proceedings and resisting the application of the Statute, if pleaded, on the basis that it infringed his constitutional right to a remedy. However, he has done neither of those things. 47. To deal with the Appellant’s complaint about a lack of a remedy is necessarily to entertain a challenge to s.11 of the Statute. Absent s.11, he would not be met with a limitation period and therefore, on his own case, would have a remedy available to him. His argument about the lack of an effective remedy cannot be resolved without considering the legality of s. 11 of the Statute of Limitations. Yet, as the trial judge observed, the Appellant has expressly chosen not to challenge the Statute of Limitations. - 19 - 48. The Appellant raises complex arguments about the constitutional right to a remedy, arguing that the State’s constitutional duty to vindicate rights should not be circumvented by a strict application of time limits where there is an admitted breach. He also contests the relevance of the McGee decision and argues it does not confirm the acceptability of limitation periods in the context of slopping out claims. Those arguments cannot be considered in the absence of any challenge to the constitutionality of s.11 of the Statute of Limitations in the pleadings: see AP v. DPP [2011] IESC 2, where the Supreme Court reiterates that pleas must be clearly raised in judicial review proceedings. Accordingly, the Appellant is precluded from making an argument about the lack of an effective remedy where he failed to challenge the constitutionality of the statutory provision relied upon by the Respondents in treating his claim as statute barred. Accordingly, his appeal in this respect must fail. THE APPELLANT’S RIGHT TO AN EFFECTIVE REMEDY UNDER THE ECHR 49. In his Amended Statement of Grounds, the Appellant seeks damages under s.3 of the 2003 Act for breach of a right to an effective remedy in respect of his slopping out claim, relying upon Article 6 of the ECHR– the right to a fair and public trial within a reasonable time by an independent and impartial tribunal established by law and Article 13 of the ECHR – the right to an effective remedy before a national authority where a person’s rights and freedoms under the Convention have been violated. He argues that the Scheme failed to vindicate his right to an effective remedy under the ECHR, and that the limitation period meant the essence of his right is impaired. The trial judge did not address this part of his claim in any detail given his findings on the remainder of the matters raised by the Appellant. - 20 - 50. In his decision in Simpson, O’Donnell J. made it clear that a court should not consider the compatibility of a law or practice with the ECHR prior to considering its compatibility with the Constitution. Because the Appellant failed to challenge s.11 of the Statute of Limitations it has not been possible to adjudicate on its compatibility with the Constitution. There is a serious question mark over the Appellant’s right to invoke the ECHR in those circumstances. Moreover, the same lacunae in pleading that has dogged the Appellant’s constitutional claim for failure to provide an effective remedy exists in the Convention context also: the Appellant has not argued that s.11 is in breach of the ECHR but rather that the Scheme breaches the Convention for failing to afford an adequate remedy for breach of rights. But the bar to the Appellant is not the Scheme: it is that the Scheme does not absolve the Appellant of the obligation to comply with the standard time limits within which to bring a tortious claim. If the application of time limits is permissible, then this point is unarguable. That brings one back to the ineluctable conclusion that the Appellant is obliged to challenge the applicable time limits, which he has not done. 51. Accordingly, it is inappropriate to commence a full-blown analysis of whether time limits applicable in the context of an acknowledged breach of constitutional rights are a breach of the right to an effective remedy under the ECHR. This means that this ground of appeal must fail. Nonetheless, I will make some brief observations on the approach of the ECtHR on the application of time limits in the context of Article 13 of the ECHR. Starting with the requirements of Article 13, in the judgment of the ECtHR of 25 March 1983, Silver v United Kingdom (CE:ECHR:1983:0325JUD000594772), paragraph 113, the Court held: “Where an individual has an arguable claim to be victim of a violation of the rights set forth in the Convention, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress”. - 21 - 52. However, that protection is not absolute. (Indeed, the Appellant himself accepts at footnote 6 of his submissions that he does not dispute the logic of statutory limitation periods in general). The ECtHR accepts that “[t]he context in which an alleged violation – or category of violations – occurs may entail inherent limitations on the conceivable remedy” (Kudla v Poland, of 26 October 2000, (CE:ECHR:2000:1026JUD003021096), paragraph 151). Hence, Article 13 “is not treated as being inapplicable but its requirement of an “effective remedy” is to be read as meaning “a remedy” that is effective as can be, having regard to the restricted scope for recourse inherent in [the particular context]” (Kudla v Poland, paragraph 151). 53. The Appellant argues that the Scheme ought to have allowed a “délai de grace” (or grace period) as a proportionate and proper response to the Supreme Court Simpson judgment or alternatively have allowed some discretion in the application of the Statute of Limitations, relying on the judgment of the ECtHR of 11 March 2014, Howald Moor and Others v. Switzerland (CE:ECHR:2014:0311JUD005206710). In that case, the ECtHR examined whether Switzerland’s application of a rigid ten-year limitation period for civil claims violated the right of access to a court under Article 6 §1 of the Convention. The applicants were relatives of a man who developed mesothelioma decades after he had been exposed to asbestos, making it impossible for him to bring a claim within the prescribed period. The Court held that starting the limitation period from the date of exposure, without considering the long latency of asbestos-related diseases, deprived those persons of the opportunity to assert their claims before the courts. Therefore, the Court found that the application of the limitation periods had restricted the applicants’ access to a court and was in breach of Article 6.1 of the ECHR. - 22 - 54. The Appellant cannot invoke the reasoning of the Howald Moor judgment to justify extending or suspending the limitation period. The case concerned a scientifically recognised long latency period, meaning victims could not reasonably discover their injury until deceases after exposure. In contrast, in the present case, there is no comparable latency period, no medical or factual barrier, and no external circumstance that prevented the Appellant from pursing a claim within the statutory timeframe. The core principle in Howald Moor – that limitation rules must not extinguish claims before they could be reasonably discovered – has no application where, as in the Appellant’s case, he could have issued proceedings within the time limits but declined to do so and has never explained his omission. 55. I have also considered Loste v. France (CE:ECHR:2022:1103JUD005922712), where the Court found a violation of Article 13 of the ECHR in conjunction with Articles 3 and 9 where it was alleged that France had failed to protect the applicant for years of ill-treatment by the husband of a certified childminder during her placement with a foster family, and for the failure to ensure respect for the family’s undertaking of religious neutrality towards her Muslim faith. The French administrative courts dismissed the applicant’s claim on the basis of a four-year statute of limitations, applying it from 1995, despite her not accessing crucial documentation until 1999. Consequently, her claim was never examined on the merits, denying her any real opportunity to establish the State’s liability. The Court held that this represented “excessive formalism”, incompatible with the requirement under Article 13 that domestic remedies must be effective, as it deprived the applicant of any real opportunity to have her claim examined. The rigid application of the limitation period was incompatible with the right to an effective remedy. - 23 - 56. By contrast, there is no comparable obstacle for the Appellant in the present case. He has not presented any procedural or evidential barriers preventing him initiating a claim within the statutory period; on the contrary the facts establish he could have issued proceedings within the limitation period. The limitation period was applied in the ordinary way, without rigidity or unfairness. In the circumstances, it is difficult to see how reliance upon that case law assists the Appellant. 57. Finally, the Appellant invoked the judgment in Domjan v. Hungary (CE:ECHR:2017:1114DEC000543317) of 17 January 2017. The applicant in that case had been kept in very poor prison conditions in Hungary. The Hungarian Parliament adopted an Act aimed at introducing preventative and compensatory remedies in cases of inadequate conditions of detention. Persons could claim compensation once released from prison, but such a claim had to be submitted within 6 months of the date of release. Claimants who remained in prison had to lodge a complaint, with time running from the date their conditions of detention no longer breached their fundamental rights. The applicant argued that he had no effective domestic remedy under Article 13 of the ECHR. 58. The ECtHR observed that the six-month time limit did not seem to be an unreasonable obstacle to the accessibility of the remedy. In respect of Article 13, the ECtHR held that where it had already decided in the context of an alleged Article 3 breach that the 2016 Act provided adequate remedies, both preventative and compensatory, an effective remedy had been provided. It observed that in accordance with the principle of subsidiarity, a wider margin of appreciation should be left to the domestic authorities in respect of the implementation of a pilot judgment and in assessing the amount of compensation to be paid (paragraph 27). It is difficult to see how anything in this judgment assists the Appellant. - 24 - ESTOPPEL 59. At Ground 7 of the notice of appeal, the Appellant sought to introduce a concept that was neither included in the original Statement of Grounds nor in the Amended version, i.e. that of estoppel. Ground 7 is in the following terms in relevant part: “The High Court urged in fact and/or law in determining that the Respondents were not constitutionally estopped from reliance on the Statute of Limitations in circumstances where such reliance failed to vindicate the Applicant’s constitutional rights. Further or in the alternative, the High Court erred in fact and/or law in not distinctly adjudicating on this issue and/or in failing to hold that such an estoppel ought to occur”. 60. In circumstances where the Amended Statement of Grounds contains no plea relating to estoppel it is no surprise that the judgment under appeal does not address that issue. The Court of Appeal does not function as a forum where entirely new arguments can be raised for the first time. In those circumstances I do not propose to address the grounds of appeal relating to an alleged estoppel preventing the State from raising time limits given its acknowledged breach of the Appellant’s constitutional rights. DUTY OF CANDOUR 61. Finally, I should address an argument made by the Appellant before this Court, although not pleaded in the Amended Statement of Grounds or contained in the Appellant’s written submissions before the High Court, or addressed by the trial judge in his decision. In his written submissions before this Court, the Appellant argues that the lack of successful litigation based on slopping out is suggestive of the fact that the Irish legal system offered ineffectual protection of the rights of prisoners - 25 - prior to the Supreme Court judgment in Simpson. He contends that the Respondents have failed to properly explain the policy reasons in establishing the Scheme and the manner of its construction, lack of proper publication and imposition of a limitation period absent from other schemes for historic State wrongs. He criticises the Affidavit sworn by Ms. Flynn for failing to explain these matters as well as the costs provisions contained in the Scheme, and its manner of publication. He argues that the Respondents have failed in their duty of candour and made points at the hearing that were not properly or sufficiently pleaded in accordance with Order 84 RSC. 62. The Appellant relies upon the dicta of Barniville J. in Facebook Ireland Ltd. v. DPC [2021] IEHC 336 to the effect that public bodies whose decisions are subject to judicial review have a duty of candour in the manner in which they defend the proceedings, and his reliance upon the decision in R. v. Lancashire County Council, ex parte Huddleston [1986] 2 All E.R. 941. 63. The Respondents respond by arguing that the Appellant has failed to identify precisely how they have acted in breach of the duty of candour, that there is no affidavit evidence to this effect, but observe that one aspect of it appears to relate to their failure to disclose all claims related to slopping out. They point out that an allegation of a breach of the duty of candour is a serious one, with important implications for the party accused of same, and its advisors, and they identify their concern at the Appellant’s allegations. At the hearing, counsel made the additional point that no application for discovery by the Appellant had been made and, in those circumstances, the point on lack of candour should go no further. 64. I agree with the Respondents’ submission that an allegation of a lack of candour is a serious matter. Accordingly, a party claiming same must identify with particularity - 26 - the circumstances giving rise to the alleged lack of candour and any relevant factual assertions should be placed on affidavit in the usual way. 65. The Appellant’s complaints, insofar as they can be identified in the absence of any affidavit evidence, appear to be that insufficient information was given about the establishment and operation of the Scheme and/or the extent to which slopping out claims were made prior to the Scheme, and the outcome of any such claims. The Appellant relies upon the well-known dicta of Sir John Donaldson, M.R., in R. v. Lancashire County Council, ex parte Huddleston, to the effect that the judicial review process falls to be conducted with all the cards face upwards on the table. He argues this did not happen, given the lack of information provided by the Respondents on the Scheme. 66. Somewhat less well known are the observations of Parker L.J. who delivered a concurring judgment in the same case. He noted that, when challenged, local authorities should set out fully what they did and why, so as necessary fully and fairly to meet the challenge (his emphasis) and that by doing so they will be making full and fair disclosure and putting the cards on the table as referred to by Sir John Donaldson. He concluded this discussion as follows: “I express my views in a rather more restricted way, for I would not wish it to be thought that once an applicant has obtained leave he is entitled to demand from the authority a detailed account of every step in the process of reaching the challenged decision in the hope that something will be revealed which will enable him to advance some argument which has not previously occurred to him”. 67. In this case, remarkably, the Appellant asserts a lack of candour despite no request being made by either him or his legal team to the Respondents for information about the Scheme, or about claims made prior to Simpson. In Facebook, the applicant had written a letter to the DPC seeking information and based its complaint of a lack of candour in the DPC’s response. However, no discovery request was made following - 27 - the receipt of the DPC’s response. In rejecting the claim of lack of candour, Barniville J. considered it relevant that no discovery request had been made, or indeed any further correspondence issued. But here there was not even a letter written, still less any application for a detailed account of the process. In the circumstances, the assertion of a lack of candour on the part of the Respondents cannot be maintained. CONCLUSION 68. Having regard to the foregoing, I uphold the decision of the High Court judge and dismiss the appeal in its entirety. As the Respondents have been entirely successful, they are presumptively entitled to their costs. Should the Appellant wish to contest this, he should file and serve a written submission of not more than 1,500 words within 10 days from the date of delivery of this judgment, after which the Respondents will have a further 10 days in which to file and serve replying submissions of similar length. 69. Since this judgment is delivered electronically, I am authorised by Meenan and Collins JJ. to state that they agree with it and the orders proposed above.