David Cullinane (Waterford, Sinn Fein) | Oireachtas source

There was a good article in last week's Sunday Independenton the Conroy case. The Conroy family went public. It was an important case. The family stated that they had the means to go all the way to the discovery phase when other families did not have that opportunity. In 2017, an email was sent from the Department to the Chief State Solicitor's officer about the case. It reads:

... we had no realistic option other than to consent to a discovery order in the terms arising from the Shallow/McKenzie discovery ruling(s) and that there is no change in the Department's policy position – informed by legal advices to date from the Office of the Attorney General [and confirmed that the recent high-level strategy review on long-stay litigation with the Attorney General] and Ministers Harris & McEntee – that discovery should be avoided in all long-stay cases, including the Conroy case.

It did not say "in some long-stay cases", but "in all long-stay cases, including the Conroy case." It went on to say that the "reality of making discovery or running a hearing in one of these cases continues to be too risky to be seriously contemplated, and, whether we like it or not, settling the Conroy case – if necessary on terms we may find somewhat unpalatable – appears to be the only way forward". It strikes me that the legal strategy was, as stated earlier in the memo, that the matter needed to be kept confidential and that, where people took cases, there was a red alert and the State needed to settle "in all long-stay cases". Whatever the Department or the Government was fearful of where discovery was concerned, the strategy was to not let a case reach discovery or, whatever else was done, not to let it go to court and to instead settle on terms that were unpalatable. In this case, I believe the settlement was for €100,000. That is the figure I saw quoted in the newspaper, although it may or may not be accurate. Regardless, it was over and above the number of offers that were originally made to the family.

In cases like this, the people involved were in private nursing homes and had the means to take cases. The State dragged them through the courts up to the point of discovery, then settled and the families got whatever they got. We spoke about unfairness – all of the other families who did not have this opportunity got nothing.

These are people who had no means to take court cases. One can talk about legal strategies, but perhaps Mr. Watt will recall that there was a legal strategy in the State relating to Brigid McCole to force her through the courts up until the very end. It does not mean that the legal strategy was the right course of action in defending citizens' rights. I believe that people would look back now and say that maybe this was not the best strategy. A legal defence can be mounted to anything.

As I said earlier, the memo said that all of these cases should be fully defended but then there is this email exchange that indicates the State does not fully defend them, that it is a red alert when it gets to discovery and that then it is a case of settle, settle, settle, and settle on terms that are unpalatable. This shows to me that the Government and the Department were not really too sure about their case here and were afraid of this going to court. They were afraid of a test case and they never found one they felt they could win.

My point to Mr. Watt is that all the people who did not take a case, similar to the other issue around disabilities, were left high and dry. We are talking here about people who had no other choice but to go into a private nursing home. In many cases it was not that they did it by choice. Does Mr. Watt agree, not just about the unfairness of it, but also that the contention from this email exchange, and from all of the memos we have, that it was the Department's logic that it would settle up to the point of discovery? It has never been answered as to why officials were fearful of discovery. Does Mr. Watt have any idea what was so fearful of discovery?