G v Health Service Executive

• Jurisdiction: Ireland
• Judge: O'Donnell C.J.,Charleton J.,Baker J.,Woulfe J.,Hogan J.
• Judgment Date: 02 June 2022
• Neutral Citation: [2022] IESC 26
• Court: Supreme Court
• Docket Number: S:AP:IE:2021:000053 Circuit Court Record No. 2019/5526

In the Matter of Section 16 of the Courts of Justice Act 1947 (As Amended) – A Case Stated from the Circuit Court to the Court of Appeal

Between/

ELG (a minor suing by her mother and next friend SG)

Appellants/Applicants

and

Health Service Executive (No. 2)

Respondent/Respondent

[2022] IESC 26

O'Donnell C.J.

Charleton J.

Baker J.

Woulfe J.

Hogan J.

S:AP:IE:2021:000053

Court of Appeal Record No. 2020/155

Circuit Court Record No. 2019/5526

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Case stated – Statutory interpretation – Costs – Appellants seeking costs – Whether costs follow the event

Facts: The appellants sought the costs of an appeal to the Supreme Court, including those in respect of the hearing of a preliminary issue regarding the jurisdiction to hear a case stated when the judge stating the case had retired. The appellants also sought the costs of the hearing before the Court of Appeal, and an issue arose as to whether the determination granting leave to appeal to the Supreme Court permitted an appeal on that ground. The appeal concerned the question of whether the minor appellant, who was assessed with needs falling short of a disability, could be entitled to a service statement for the purposes of the Disability Act 2005. In the substantive judgment Baker J rejected the proposition advanced by the appellants concerning the interpretation of the legislation ([2022] IESC 14). The practical consequence of the decision of the Court on the case stated was therefore that the appellants could not succeed in obtaining the relief sought in the motion before the Circuit Court. The appellants asserted that they were entitled to the costs of the appeal because in the words of s. 161(1)(A) of the Legal Services Regulation Act 2015 the “nature and circumstances of the case” so require, and that costs should be awarded to them in the Court’s general discretion, whether the issue of costs is assessed under the Act of 2015 or under O. 99, r. 2(1) of the Rules of the Superior Courts. It was asserted that it was “reasonable” for the appellants to support the request by the respondent, the Health Service Executive, that the Circuit Court would state a case to the Court of Appeal, and also reasonable for them to appeal the decision of the Court of Appeal. It was argued that the affidavit evidence of the respondent in the Circuit Court was that the issue was one of “systemic” importance, which “potentially touches thousands of applicants across the country who have been assessed not to have a disability”.

Held by the Court that, having regard to the fact that the appellants did not specifically raise and identify the issue of costs as a live issue in the appeal, and to the fact that what was sought was an appeal of a discretionary order where no error could be identified in the reasoning of the Court of Appeal, it should not allow an appeal from the order of the Court of Appeal. The Court held that the decision of the Court of Appeal was “within the range of costs orders which were open to the trial judge within the margin of appreciation which must be afforded” to it: per Clarke J in Nash v DPP [2016] IESC 60 at para. 73. The Court held that the fact that the appeal arose by reason of a case stated from the Circuit Court, one promoted or initiated by the respondent, distinguished the circumstances from those arising in either Minister for Communications Energy and Natural Resources v Wymes [2021] IESC 63 or Sobhy v Chief Appeals Officer [2022] IESC 16. The Court noted that the respondent was a State agency, which has broader interests and obligations than a private party to litigation. The Court had regard to the imbalance in interests in the litigation and in resources. The Court held that while the appellants commenced the Circuit Court application to seek a personal benefit for the first applicant, and she had lost that application, the minor child had needs and required some State support over that available to a child without those needs, and those circumstances meant that some engagement with the respondent and the legislation was both appropriate and inevitable. The Court was of the view that the appellants should be awarded some costs, albeit not the full measure of costs. The Court noted that the appellants lost the appeal, and as a consequence, they would not succeed in the Circuit Court application commenced on behalf of the minor child.

The Court dismissed the appeal from the order of the Court of Appeal and awarded the appellants 40% of the costs of the appeal on the basis of one day’s hearing.

Appeal dismissed.

COSTS RULING of the Court delivered on 2 day of June 2022

1 . The appellants seek the costs of the appeal to this Court, including those in respect of the hearing of the preliminary issue regarding the jurisdiction to hear a case stated when the judge stating the case had retired. The appellants also seek the costs of the hearing before the Court of Appeal, and an issue arises whether the Determination granting leave to appeal to this Court permitted an appeal on that ground.

2 . Briefly, the appeal concerned the question of whether the minor appellant, who was assessed with needs falling short of a disability, could be entitled to a service statement for the purposes of the Disability Act 2005 (“the Act of 2005) which provides an enforcement mechanism to access to certain services.

3 . The issue arose for determination in the application to the Circuit Court commenced by originating motion pursuant to the enforcement and complaints procedure provided by the Act of 2005. The Circuit Court judge agreed to state a case to the Court of Appeal, by way of consultative case stated, as to the proper interpretation of the statutory provisions. The initial request to state the case was made by the respondent, and the appellants agreed. The Court of Appeal in its judgment observed that the issue raised was one which could potentially impact on a large number of persons, and had agreed with the submission of the respondent that the issue raised was of “systemic” importance. The Determination of this Court granting leave noted the potentially “wide-ranging implication” of the issue.

4 . The case was stated by the Circuit Court judge who had retired from office before the judgment of the Court of Appeal was delivered. In those circumstances a separate and new issue arose for consideration by this Court as to whether jurisdiction existed to hear an appeal from the decision of the Court of Appeal, and although neither party asserted that this Court did not have jurisdiction, the issue was one of some novelty and resulted in the Court reserving its judgment and the delivery of two judgments: Baker J. and Hogan J. ( [2021] IESC 82). The Court, for the reasons stated, accepted it had jurisdiction to hear the appeal.

5 . The hearing of that preliminary issue may fairly be said to be separate from the substantive appeal, and arose from circumstances outside the control of both parties to the case stated and to the appeal. It could be said that there was no “winner” of this aspect of the appeal as both parties had urged the Court to assume jurisdiction because, as noted in the judgment of Baker J., the question of law arising was capable of finally resolving the issue between the parties but “also the cases of those other children potentially affected by the statutory provisions”.

The costs of the appeal

6 . In the substantive judgment Baker J., with whom the other members of the Court agreed, rejected the proposition advanced by the appellants concerning the interpretation of the legislation ( [2022] IESC 14). The practical consequence of the decision of this Court on the case stated was therefore that the appellants could not succeed in obtaining the relief sought in the motion before the Circuit Court.

7 . The appellants assert, however, that they are entitled to the costs of the appeal because in the words of s. 161(1)(A) of the Legal Services Regulation Act 2015 the “nature and circumstances of the case” so require, and that costs should be awarded to them in the Court's general discretion, whether the issue of costs is assessed under the Act of 2015 or under O. 99, r. 2(1) of the Rules of the Superior Courts. Again, by reference to...