(E)F & T(F) (plaintiffs) v Minister for Education and Science

JurisdictionIreland
CourtHigh Court
JudgeMR. T.C. JUSTICE SMYTH
Judgment Date12 January 2007
Neutral Citation[2007] IEHC 36
Date12 January 2007
Docket Number[1999 No. 12903 P]

[2007] IEHC 36

THE HIGH COURT

DUBLIN

Record No. 1999/12903 P
F (E) & F (T) v MIN FOR EDUCATION & ORS
E. F.AND T.F.
Plaintiffs
-and-
THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND AND THE ATTORNEY-GENERAL
Defendants

CONSTITUTION

DOWNEY v MIN FOR EDUCATION & ORS UNREP MASTER OF THE HIGH COURT 14.5.2002 2003/12/2699

RYANAIR PLC v AER RIANTA CPT 2003 4 IR 264 2004 1 ILRM 241 2003 46 11374

FRAMUS LTD & ORS v CRH PLC & ORS 2004 2 IR 20 2004 2 ILRM 439 2004 18 4116

RSC O.31 r12

EDUCATION ACT 1998

KILDARE MEATS LTD & KILDARE CHILLING CO LTD v MIN FOR AGRICULTURE 2004 1 IR 92 2004 26 6114

DEMPSEY (A MINOR) v MIN FOR EDUCATION & ORS UNREP LAFFOY 18.5.2006 2006 IEHC 183

SINNOTT v MIN FOR EDUCATION & ORS 2001 2 IR 598 2001 22 5920

O'DONNELL v DUN LAOGHAIRE CORPORATION 1991 ILRM 301

Abstract:

Practice & procedure - Discovery - Constitutional law - Separation of powers - Autistic children - Documents - Resource allocation - Therapies sought - Role of courts - Justiciability - Whether trial on point of law appropriate

- Whether documents relevant to main issue - Education Act 1998

Facts: The plaintiffs sought to appeal a decision of the Master of the High Court as to discovery of documents in the

plaintiffs proceedings relating to the needs of the autistic twin plaintiffs for appropriate therapies and education, pursuant to the Education Act 1998. The defendant alleged that the decision related to non justiciable questions as to distributive justice.

Held by T.C Smyth J. that there was no justification for ordering discovery of documents in respect of a non issue. The

core issue here was as to the legal entitlements of the plaintiffs and not the application of resources by the defendant. The Court set out questions for resolution that did have a bearing upon distributive justice questions, that would not be marked upon lightly.

Reporter: EF

1

MR. T.C. JUSTICE SMYTH ON FRIDAY, 12TH JANUARY 2007

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This judgment is circulated in redacted form to avoid identification of the parties

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JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED THE 12TH DAY OF JANUARY 2007

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MR. JUSTICE SMYTH: This is an appeal from the Master of the High Court dated 31st January, 2006 whereby he refused to order the Defendants to make discovery to the Plaintiffs of the following:-

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a "(f) All documentation in respect of the funding provided by the First or Second Named Defendant to the Health Board in relation to the provision of occupational therapy, physiotherapy, speech and language therapy or behavioural therapy or music therapy to the Plaintiff in order to meet the Plaintiff's needs in its functional area since the coming into force of Sections 6 and 7 of the Education Act, 1998 together with such documentation as may be in the possession of this Defendant in relation to the request for such funding, the information furnished to the First and Second Named Defendants by the Health Board when seeking such funding, how such funding was computed and the amount of such funding actually allocated by the First and Second Named Defendants to the Health Board.

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The reasons why such discovery is required are as follows:-

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(1) Counsel has advised that same will advance the Plaintiff's claim, reduce the length and complexity of the trial and will produce a savings in costs.

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(2) In particular, we will refer you to the particulars of negligence set out in the Statement of Claim.

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(3) The Plaintiff is a person of unsound mind and clearly is not in a position to fully instruct the next friend in relation to this matter. The Plaintiff has for the majority of her life been under the care of the Defendants. The Plaintiff's parent has access to very little documentation on his daughter and accordingly, the only place in which they can gain access to that documentation is by means of discovery against the Defendants.

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(4) The Plaintiff has to have evidence of the resources that were made available in relation to the education for the Plaintiff, the consideration that was given to those resources and the consideration that was contained in her education and in particular, in this regard, the Plaintiff will rely upon the provisions of the Education Act, 1998 in which the Minister is entitled to have regard to resources available and in order to challenge any such decision that was made in relation to the Plaintiff's education, then clearly the Plaintiff will have to have evidence that the Minister did in fact have regard to the resources available.

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(g) All documentation (post-dating the coming into force of Sections 6 and 7 of the Education Act, 1998) in respect of the funding provided by the First and Second Named Defendants to any of the facilities at which the Plaintiff attended during any period in which the Plaintiff attended any such facility together with any documentation in relation to the application for and request for such funding, with any supporting documentation attached to such requests and applications together with all documentation setting out precisely how such funding was computed together with details of how such funding was allocated.

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The reasons why such discovery is required are as follows:-

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Paragraphs 1 to 4 follow in exactly the same order and form the same basis of the request as set out at and under (f) above.

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The Plaintiffs are twins and were born in 1995 and they were diagnosed in May, 1999 as autistic.

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These proceedings were initiated by Plenary Summons dated 21st December, 1999. Notwithstanding that the primary educators of the minors is the family under the Constitution, they have through their next friend effectively sued the State alleging that it has failed to provide for their proper education in breach of constitutional and statutory provisions. The State has raised in its Defence (Amended) the following plea [which is without prejudice to the Pleadings by and on behalf of the Plaintiff that by virtue of the allegations of non-compliance with constitutional and statutory provisions that the Plaintiffs have suffered and continued to suffer loss, damage, inconvenience, upset and expense and will continue to suffer the loss, damage, inconvenience, upset and expense unless and until the Defendants are compelled by order of the court to provide such free primary education for the Plaintiff as the Plaintiffs seek in these proceedings].

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a "9(a) In February 2000, following extensive investigations and enquiries, a recommendation was made by two Departmental Inspectors to the First Named Defendant to establish a special class for children with autism in Ballyduff National School, Kilmeaden, County Waterford to be staffed by a suitably qualified teacher and two special needs assistants whose positions would be funded by the First Named Defendant. The First Named Defendant accepted that recommendation.

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(b) The First Named Defendant has been in discussion with the South Eastern Health Board for the provision of necessary support services for children with autism attending the proposed special class such as speech and language therapy and occupational therapy together with other necessary support services to be provided by a multidisciplinary team of professionals.

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(c) The Plaintiff has been offered a place in the special class commencing in December 2000."

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The response of the Plaintiff in the Amended Reply filed on 1st April, 2004 was that they awaited proof of the matters set out in paragraph 9 of the Defence. There is no specific denial of the plea and, in particular, no specific denial of the plea that the Plaintiffs had been offered a place in the special class commencing in December 2000.

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Mr. McDonagh in the course of his submissions on behalf of the State on this discovery motion appeal, observed that while the Department were considering the recommendation of the Inspectors, a motion seeking interlocutory relief was sought on 12th January of that year, though listed for a later date in that month, and this was simultaneous with the Department in early February sanctioning the special class in the special school. However, it appears that an affidavit was filed for and on behalf of the Plaintiffs amounting to an alteration of their position whereby notwithstanding the class becoming available in the autumn, they wanted an entirely different educational provision involving applied behaviour analysis.

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Notwithstanding such alteration of position by the Plaintiffs, the Department/State proceeded with the establishment of the class which actually was established but the Plaintiffs' parents took the children to California and put them into a school there for a year or so and then brought them back to Ireland.

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The clear inference is that the litigation was continued with a view to either coercing or otherwise seeking the State to alter its position and include the type of additional provision involving applied behavioural analysis to be provided in the special school. A special class had been in existence since the autumn of the year 2000.

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Mr. McDonagh's submissions were not contradicted in any reply made by the Plaintiffs or on their behalf. The Plaintiffs filed an Amended Statement of Claim on 26th June, 2003 which very specifically dealt with aspects of statutory duty and, in particular, pleaded as follows:-

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2 "9. The Plaintiff makes this claim pursuant to the provisions of the Constitution hereinbefore referred to and furthermore pursuant to the provisions of Sections 3, 6 and 7 of the Education Act, 1998 and Sections 3, 4 and 7 of the Equal Status Act, 2000."

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Arising from that amendment, the Plaintiff's claim was extended to include the following:-

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a "(a) A declaration that the Defendants are in breach of the provisions of Sections 3, 6 and 7 of the Education...

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