Freddy Sherry v The Minister for Education and Skills, The Minister for Further Education and Higher Education, Research, Innovation and Science, Ireland, and The Attorney General
| Jurisdiction | Ireland |
| Judge | Mr. Justice Charles Meenan |
| Judgment Date | 26 March 2021 |
| Neutral Citation | [2021] IEHC 224 |
| Docket Number | [2020 No. 655 JR] |
| Court | High Court |
| Date | 26 March 2021 |
[2021] IEHC 224
[2020 No. 655 JR]
THE HIGH COURT
JUDICIAL REVIEW
Costs – Legitimate expectation – Public interest – Applicant seeking costs – Whether the issues raised involved points of exceptional public importance
Facts: The High Court, on 2 March 2021, held that the decision of the respondents, the Minister for Education and Skills, the Minister for Further Education and Higher Education, Research, Innovation and Science, Ireland and the Attorney General, not to apply school historic data and not to apply the ‘mapping tool’ to national historical data in the standardisation model for the award of calculated grades was not arbitrary, unfair, unreasonable, irrational and unlawful and in breach of the legitimate expectations of the applicant, Mr Sherry. The applicant maintained that there were a number of factors that, despite the judgment, lay in favour of a full order for costs being made in his favour: (i) the issues raised involved points of exceptional public importance; (ii) the proceedings involved matters which were in the most part sui generis and had not been previously considered by the Superior Courts; (iii) there was urgent public interest in the challenge being brought expeditiously; (iv) the application involved difficult and complex issues of law and fact, necessitating testimony from expert witnesses; and (v) the Court held that the respondents were in breach of certain commitments that had been given both to students and to teachers. The respondents maintained that: (i) given the applicant’s lack of success, under the relevant statutory provisions, he was not strictly entitled to any costs; (ii) where unsuccessful parties had been awarded costs in cases of “public importance” courts have often tended to award partial rather than full costs; (iii) although the case was a lead case, the applicant was pursuing his personal interest and account should be taken of this; and (iv) the application did not involve complex or novel issues of law but rather was determined on the application of well-established principles.
Held by Meenan J that, having carried out a “balancing exercise” identifying various factors, and the weight to be attached to them, which favoured an award of costs to the applicant and those that did not, the applicant ought to be awarded 65% of his costs, on a party-and-party basis, in respect of the substantive hearing, such costs to be adjudicated in default of agreement. As regards the interlocutory applications that were heard in November, 2020, Meenan J was satisfied that the respondents’ offer to pay 50% of the costs of those motions was more than reasonable. In reaching this conclusion, Meenan J had, in particular, taken into account the decision of the Court and the reason for it on the respondents’ application to exclude the affidavit of Ms Lynch of St. Killian’s German School. Meenan J held that arising from this it should also follow the applicant was entitled to 50% of the costs associated with the application for costs.
Meenan J held that he would make the following orders: (a) an order dismissing the application; (b) an order that the respondents do pay the applicant 65% of the costs of the substantive hearing of the application (to include any reserved costs), on a party-and-party basis, to be adjudicated in default of agreement; and (c) that the respondents pay the applicant 50% of the costs of the interlocutory motions heard in these proceedings in November, 2020 and the application for costs, such costs to be adjudicated in default of agreement.
Partial costs awarded to the applicant.
RULING of Mr. Justice Charles Meenan delivered on the 26th March, 2021
For reasons of public health, the traditional Leaving Certificate in 2020 could not be held as normal. An alternative system to provide calculated grades was required to be put in place as a matter of urgency. The system that was devised had two phases. Firstly, a school phase; and, secondly, a phase undertaken by the Department of Education and Skills whereby the estimated marks submitted by various schools were subjected to a standardisation model. The various features of the standardisation model were the subject of documentation and information notices from the said Department.
In August/September two decisions were taken. Firstly, that school historical data (SHD) would not be used; and, secondly, that national historical data (NHD) would not be subject to the “ mapping tool”. These decisions were taken notwithstanding certain commitments that had been given in the documentation which I have referred to. The consequences of these decisions gave rise to the instant proceedings and in excess of 60 others.
The applicant maintained that the effect of these decisions was that, firstly, the calculated grades which he received were unfairly downgraded from the estimated marks submitted by his school; and, secondly, that there was significant “ grade inflation”, which put his third level courses of choice beyond reach.
Given the number of proceedings issued, and the approaching dates for Leaving Certificate 2021, the Court directed that the parties identify a “ lead” case to have these issues determined. The issue was:-
“That the decision of the first and fifth named respondents of 19 August 2020 and/or the decision of the first named respondent of 21 August 2020 and/or the confirmation of the said decision by the sixth named respondent on 1 September 2020 to alter the standardisation model so as to exclude the use of all school by school historical data (SHD) on the performance of students in past cohorts in each subject was arbitrary, unfair, unreasonable, irrational and unlawful and in breach of the applicant's legitimate expectations.”
In the course of the hearing, the second decision not to apply the “mapping tool” to NHD came into play and so the Court had to make a determination as to the lawfulness or otherwise of:-
(i) The exclusion of SHD; and
(ii) That NHD was not subject to the “ mapping tool”.
On 2 March 2021, the Court gave its judgment and held:-
“104 …that the decision of the respondents not to apply school historic data (SHD) and not to apply the ‘ mapping tool’ to national historical data (NHD) in the standardisation model for the award of calculated grades was not arbitrary, unfair, unreasonable, irrational and unlawful and in breach of the applicant's legitimate expectations.”
This ruling concerns the issue of costs. These costs relate to not only the substantive hearing which took place over some five weeks but also an interlocutory application dealing with a number of matters that was heard and determined over a number of days in November, 2020.
At the conclusion of the judgment I stated:-
“117. On the matter of costs, I would ask the parties to consider that this was the ‘lead case’ for the purposes of determining a central issue that is common to numerous other applications.”
By open letter, dated 10 March 2021, the Chief State Solicitor, on behalf of the respondents, stated that the respondents “ are amenable to paying 50% of [the applicant's] reasonable legal costs, on a party-and-party basis, to be adjudicated in default of agreement”. This applied not only to the substantive hearing but also to the interlocutory applications. The letter also stated that the respondents assumed liability to pay the full stenography costs and “ TrialView” costs, amounting to just short of €110,000.
In a reply, dated 12 March 2021, this offer was rejected and, on the matter of stenography costs and the costs of “ TrialView”, the following was stated:-
“You reference to the costs of ‘ Trial View’. Whereas obviously it was of some benefit to have ‘ Trial View’ in the case, it was only necessitated by virtue of one of the State's witnesses being unavailable to travel to Dublin.
As regards the costs of stenography services, we do note that the State wished to have an overnight transcript and although happy to have had access to same, this was prepared very much at the request of the Minister.”
As no...
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