- 26 Sep 20
A High Court hearing took place today, during which startling new facts emerged about the decision, by a company owned by the Sisters of Charity, to close down care facilities for elderly and blind people.
The last remaining residents of St Mary’s Nursing Home on Merrion Road in South Dublin, have been removed, it was revealed during a High Court hearing, this morning.
Speaking on behalf of St Mary’s Centre (Telford) company, Michael Fitzpatrick, of business firm Baker Tilly, broke the extraordinary news to Mr Justice Michael Quinn.
Baker Tilly is the provisional liquidator, nominated by the company. The role of the liquidator is to to wind up the company – associated with the Sisters of Charity – which employed up to 80 people and housed 35 older women in its nursing home units.
Most of the residents at St. Mary’s were blind, and former pupils of an all-girls boarding school for the blind, which stood on the same premises and was run from nose to tail by the Religious Sisters of Charity.
Eighteen residents still reside in the Merrion Road complex’s disability centre. Dublin City Council paid for the building of these houses and apartments.
Two Sisters of Charity are the sole shareholders of St Mary’s Centre (Telford) company, which announced its plans for gradual closure, on 3 June, 2020, citing ‘lack of funding’. The company owned by the nuns claimed that it would not be able to meet the standards of care that had been set by the HSE and the Health Information Quality Authority (HIQA).
The company has laid off up to 20 of its employees without pay.
Relying on Promises
During today’s hearing, representing the company, Michael Fitzpatrick said that the Sisters of Charity were open to the idea of leasing the social housing units, which house disabled women of all ages, to the HSE for two years when a suitable, similar facility might be provided for the residents.
Mr Justice Quinn noted that no member of the religious Order was present at the hearing and that the intention was not solidified in writing.
John Kennedy, a barrister representing employees and 14 residents of St Mary’s Telford public housing units, said in no uncertain terms that his clients could not rely on promises that were made in a letter received at “10:41 last night.”
“There is no lease,” he added, “and there is no one here from the central player to advise the court of what they might do.”
Kennedy is asking the court to immediately appoint an independent examiner to assess the viability of the company, which he described as a chance to be saved for the charitable firm.
The court noted that the HSE, HIQA and the office of the Revenue Commissioners have expressed neutrality in regards to the examinership application; they are neither opposing nor supporting the proposal.
Kennedy said that except for the company's Board of Directors, no parties were opposing the examinership, even its creditors.
It is common for firms to appoint an insolvency practitioner to rescue a business if they believe its survival would generate a better return for creditors.
Jon Kennedy had previously noted that Nicholas Jermyn, who sits on the company's board of directors, was one of the main opponents of the proposal.
He said that most companies would welcome a second chance to be saved, yet the directors of St Mary's Centre are advocating for a prompt insolvency.
Kennedy noted that the HSE had promised to fund the centre throughout the course of an examinership.
Michael Fitzpatrick, however, told the judge today that the company's 'funding model' was faulty and that HSE's sponsorship would not fill significant 'funding gaps' for the company.
During the case’s earlier hearing, on Wednesday of this week, Rossa Fanning, a Barrister specialising in insolvency, who represents St Mary’s Centre (Telford), denied suggestions that the Sisters of Charity aimed to free up and sell the land in what might be seen as rather bizarre terms.
Fanning insisted that assertions that that the board had "manufactured this insolvency” – as suggested by People Before Profit TD Richard Boyd Barrett – were entirely unfounded and amounted to ‘conspiracy theories’.
“That the board orchestrated [this], and the real motivation is to facilitate the Sisters of Charity selling the land for financial gain, all of these conspiracy theories are flatly rejected,” Fanning said.
“This is driven by a minority of former employees. There is no plan; there is no funding; there is no management.”
In a strange sortie, during his presentation to the court this week, Fanning described some of the former employees as ‘disgruntled militants’.
He said that the application for examinership was drawn up based on two defective reports drafted by an independent expert, adding that his assessment “exhibits that he knows next to nothing about the company.”
In contrast, John Kennedy asserted, today, that the expert’s conclusions were based on thorough examinations of the company’s accounts.
On Wednesday, Fanning had argued that granting leave to an examinership application would only prolong uncertainty and distress for residents of St Mary’s homes and apartments.
Responding to these suggestions today, John Kennedy said that the assertions were groundless and did not reflect the wishes of his clients.
Kennedy said he represents 14 residents of the St Mary's disability centre, not because the rest were supporting the liquidation but due to the fact that the remaining residents were of 'advanced age' and unable to offer instructions to his firm.
"Maybe it is too late for the nursing home, but what about the residents in the disability centre?” he asked. “What about the jobs? Best case scenario is that the HSE will run it on a wind-down basis.”
The barrister for the staff and residents sharply criticised Baker Tilly for their 'short notice' announcement of a possible intention to lease the premises to the HSE, describing their missive as “the hope letter.”
"It says, we hope this will happen,” John Kennedy stated, “but the crucial player in all that, the Sisters of Charity, it isn't clear what is their position in relation to a lease, engagement to the HSE.
“The court is left in a very difficult position," he concluded.
Unfair on the Court
John Kennedy had previously said that it was unfair on the High Court of Ireland, for it to be forced to decide the fate of disabled women.
Kennedy repeated his pleas for granting leave to the examinership to the judge this morning.
Rossa Fanning had said on Wednesday that the main objector to the examinership application, one Nicholas Jermyn – who sits on the board of St Mart's Centre – was an esteemed individual who had served as the chairman of St Vincent's Hospital and CEO of St Vincent's Healthcare Group. “He gains no financial profit,” Fanning claimed, “from helping at St Mary's Centre.”
Jermyn may indeed be ‘esteemed’. But the same man was forced to step down from his position as the chairman of St Vincent’s Hospital, following an involvement in the Hospital’s top-up scandal, after it became public knowledge in 2014.
At the time, it was revealed that Jermyn had earned an additional €136,591, on top of his HSE salary, making him one of the highest-paid health service administrators in the country. St Vincent's Health Group, run by the Sister of Charity at the time, awarded a contract termination payment of €575,000 to Jermyn. The HSE later denied being consulted about the hefty lump sum.
Adjourning the court at about 4pm today, Mr Justice Quinn said he would issue a decision on Monday at 2 pm.
Not Another Debenhams
In a statement released jointly by members of the Save St Mary’s Campaign, laid-off employees and residents of St Mary's Disability Centre said that that the judge in the case, Mr Justice Quinn, has an opportunity to prevent a repeat of the Debenhams debacle.
Granted a speedy liquidation, back in April, the British department store avoided making redundancy payments to thousands of its former employees in Ireland.
“The situation of the liquidation of St. Mary’s poses untold human suffering for the residents, which will impact them for the rest of their lives,” the statement read.
“The judge has an opportunity to prevent this from happening and the State has an opportunity to step in and prevent corporate interests to precede, in the case of St. Mary’s, that of residents and of workers.”
Meanwhile, the blind residents of St Mary's apartments tuned into the court hearing on Wednesday, nervously watching proceedings.
During the court's lunch recess, they joined a Zoom meeting, heating their soups and sandwiches, as they anxiously chatted, laughed and comforted one another – getting by with a little help from their friends.