Dempsey (A Minor) v Minister for Education & Science

JudgeMiss Justice Laffoy
Judgment Date18 May 2006
Neutral Citation[2006] IEHC 183
CourtHigh Court
Docket NumberNo. 7175 P/2003
Date18 May 2006

[2006] IEHC 183


No. 7175 P/2003







RSC O.34 r2

EDUCATION ACT 1998 S7(1)(a)

EDUCATION ACT 1998 S7(4)(a)(i)

EDUCATION ACT 1998 S6(1)(b)

RSC O.25 r1

RSC O.4 r34

RSC O.25 r2


MCCABE v IRELAND 1999 4 IR 151 2000 1 ILRM 410


MURPHY v ROCHE 1987 IR 106


Trial of preliminary issue

Issues of law and fact - Trial of issue of constitutional law as preliminary point of law- Court to dispose first of issues of law before deciding issues of constitutional law -Overriding requirement that justice be done inter partes - Whether preliminary issue can be tried in vacuo - McCabe v Ireland [1999] 4 IR 151 followed; Murphy v Roche [1987] IR 106 applied - Rules of Superior Courts1986 (SI 15/1986), O 25, r 1 and O 34, r 2 -Trial of preliminary issue refused (2003/7175P - Laffoy J - 18/5/2006) [2006] IEHC 183 Dempsey v Minister for Education and Science

Facts: The defendants sought an order pursuant to Order 34, Rule 2 of the Rules of the Superior Courts, 1986 directing that a preliminary issue be determined in these proceedings in respect of certain points of law. In the alternative the defendants sought an order pursuant to Order 25, Rule 1 RSC to determine as a preliminary issue the plaintiff’s entitlement to an award of damages for the defendant’s alleged failure to provide educational facilities to the plaintiff appropriate to his needs.

Held by Laffoy J. in dismissing the application: That the substantive issue for determination in this case involved mixed questions of law and fact and therefore the points of law raised by the defendants were not susceptible to determination as discrete stand alone issues of law on the basis of assumed facts.

Reporter: L.O’S.

Miss Justice Laffoy

The plaintiff in these proceedings, who will be eight years of age next July, has been diagnosed as autistic. The proceedings were initiated by plenary summons which issued on 16th June, 2003. The plaintiff seeks various reliefs, declaratory relief, damages and injunctive relief, to redress what he alleges was the defendants” failure to provide educational facilities for him appropriate to his educational needs, in breach of his constitutional and statutory rights. Specifically, the plaintiff claims declarations that —


(a) the education facilities made available to him by the defendants were not appropriate to meet his educational needs, and


(b) the failure of the defendants to provide free primary education for him appropriate to his needs as an autistic child is discriminating against him and has deprived him of his constitutional rights pursuant to Articles 40, 41 and 42 of the Constitution, and is also in breach of his statutory rights and the defendants” statutory obligations and, in particular, the obligations set out in the Education Act,1998 (the Act of 1998) and the Equal Status Act, 2000.


On foot of an interlocutory application brought by the plaintiff provision has been made, and approved by the court, for the plaintiff's educational needs pending the trial of the action.


In order to address the issue on the instant application, it is necessary to consider the pleadings which have been delivered and the procedural steps which have been taken to date, insofar as they impact on that issue, in some detail.


In the statement of claim the plaintiff particularises forty-seven alleged breaches by the defendants of their constitutional, statutory and common law duties to the plaintiff. To a greater or a lesser extent failure to allocate sufficient resources is implicit in each allegation, even if not expressly alleged. Two examples illustrate this: it is alleged that the defendants failed to provide any or any adequate and proper speech therapy; and it is alleged that the defendants failed to provide any or any adequate and proper teachers with suitable qualifications for teaching persons such as the plaintiff with his particular disabilities, together with appropriate support staff. Failure to provide resources is also expressly alleged. For instance, it is alleged that the defendants failed to provide sufficient resources to make the position of teachers teaching children with disabilities more attractive by way of training, remuneration, support and supervision. It is also alleged that the defendants failed to provide any or any adequate framework throughout the State to enable education to be provided for persons with special needs to an acceptable standard and, in particular, that they failed to provide a framework that would enable the plaintiff to be provided with education appropriate to his needs. It is specifically alleged that such a framework would involve "such basic matters" as obtaining from the Department of Finance sufficient funds to enable education to be provided for the plaintiff.


In their defence, the defendants admit that the plaintiff has a constitutional right to free primary education and that they are obliged to provide such education. There follows a blanket traverse of the plaintiff's assertions as to the nature and extent of the defendants” obligations and a statement that the scope of the defendants” obligations to provide free primary education is a matter for the trial of the action. Similarly, the defendants admit that they have statutory obligations under the Act of 1998 and state that the application of the Act is a matter for the hearing of the action. The defendants deny any breach of the plaintiff's constitutional and statutory rights. The pleas in the defendants” defence which directly give rise to the issue on the instant application are contained in paras. 21 and 22 and are in the following terms:

"The Defendants will further contend at the hearing of this action that their obligations under Bunreacht na hÉireann and under Statute to the Plaintiff require that those obligations be vindicated as far as reasonably practicable. The Defendants will contend at the hearing of the action that in utilising and allocating limited resources they are exercising an executive power, as sanctioned by Oireachtas Éireann. Insofar as the plaintiff seeks relief directing the defendants as to the manner in which resources should be allocated, the Defendants will contend that any such order made by this Honourable Court will constitute a breach of the principle of separation of powers and, therefore, in the premises no such Order should be made by this Honourable Court.

Furthermore, insofar as the relief sought within the Plaintiff's Statement of Claim involves a claim for damages against the Defendants, it is denied that the Plaintiff is entitled to same to the extent that any such award of damages as sought is predicated upon this Honourable Court forming the view that in the past the Oireachtas and/or the Executive has failed or has failed appropriately to distribute public resources and/or has failed to distribute those resources in the manner which this Honourable [Court] might regard, or might have regarded, as appropriate."


In the plaintiff's reply, issue is joined on those pleas. It is specifically denied that the plaintiff is seeking relief directing the defendants as to the manner in which resources are to be allocated.


The stance being adopted by the defendants in this action has been further clarified. The plaintiff raised particulars on para. 21 of the defendants” defence and, in response, the defendants have explained that plea as follows:

"That is a plea to the effect that the Court is not entitled to intervene in the utilisation and allocation of resources by the Government, as sanctioned by the Oireachtas. This plea is not dependant upon a quantification of the resources allocated by the Government to the Plaintiff. The Plaintiff(sic) is not relying upon documentary material for the purpose of the plea contained in paragraph 21."


In their response the defendants also asserted that they have complied with their obligations under the Constitution and/or statute. It would be more correct to say that they have pleaded that they are not in breach of their constitutional, statutory or common law duties.


A more explicit statement of the defendants” stance is contained in the following extract from a letter of 18th November, 2005 from the Chief State Solicitor to the plaintiff's solicitor:

"The Minister will be defending this case on the basis that what was provided was appropriate. This does notnecessarily mean that there were not other matters which could have been provided if the money was available but were not provided because the money was not available. Of course in any given case the money for any given thing sought could be provided. On the other hand, the services available to John Dempsey are available in the context of the Minister's obligations to all persons in education, including those with special needs. In that sense all educational and health related provision is subject to the financial constraints brought about by the many competing demands for the available resources. Resources available to Ministers are in turn a reflection of the allocation to Ministers of resources by the Oireachtas.

It is for this reason as in all other cases that having regard to the separation of powers it is contended by the defendant that the court will not inquire into the allocation of resources in deference to the doctrine of the separation of powers. It is essentially a matter of distributive and not...

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5 cases
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    • October 6, 2020 allow a claim of constitutional breach to be determined by way of preliminary hearing, Laffoy J. in Dempsey v. Minister for Education [2006] IEHC 183 reiterated the principle observing (at para. 45) that “if the relevant facts are not agreed, the moving party must accept, for the purpose......
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