Rossa Fanning SC

The law officer’s 30-page report on matters relating to historic pre-2005 private nursing home charges and the historic pre-2007 Disabled Persons Maintenance Allowance was laid before the Oireachtas and published yesterday.

The report was commissioned following media scrutiny of settlements reached with individuals who sued the State over their exclusion from the Health Repayment Scheme (HRS) established in 2006 on the basis that they stayed in private nursing homes rather than public nursing homes.

Hundreds of legal proceedings were initiated between 2005 and 2013 and the government was warned in 2010 that losing a test case could cost the State more than €7 billion.

The State’s decision to settle with individual plaintiffs instead of contesting the litigation and risking pay-outs to a wider group of people has drawn significant criticism in recent weeks.

However, Mr Rossa said the government of the day had “acted prudently” and criticised “newspaper articles and associated reporting in which the State has been criticised for having a ‘secret litigation strategy’”.

He said: “Any suggestion that a ‘secret litigation strategy’, without more, is in some way improper betrays significant unfamiliarity with the civil litigation process. As I have said above, litigation is, by its very nature, adversarial. Each side is legally represented. Each side has a strategy. Each side keeps that strategy to itself.

“Every single litigant therefore must, of necessity, have a ‘litigation strategy’ and they have a fundamental legal right to keep that strategy confidential. There is nothing whatsoever sinister about that.

“Of course some people may consider that the State ought not to be involved in adversarial litigation with its citizens. I can understand that reaction. But as I am endeavouring to explain, this is unavoidable in certain cases and to think otherwise does betray a fundamental lack of understanding of our legal system.”

Mr Fanning also said there was “clear and unambiguous evidence on the files that I have reviewed that there was a bona fide and viable legal defence to those cases” and that the State would not necessarily have lost a test case.

The report also considers the Disabled Persons Maintenance Allowance and the historical question of the legal authority of the minister to withhold payment of the allowance to persons in full-time residential care funded or part-funded by the State and litigation relating to non-payment of the allowance.

Mr Fanning concludes that there was no positive legal duty to make retrospective payments, but that there was good reason for the State to be concerned about its prospects of successfully defending one case that was brought, at least as insofar as the period between 1983 and 1996 was concerned.

The government said the report will now be considered by the ministers for health and social protection.