Health Service Executive (HSE) v A (O)

JurisdictionIreland
JudgeMs. Justice Iseult O'Malley
Judgment Date12 April 2013
Neutral Citation[2013] IEHC 172
CourtHigh Court
Docket Number[2012 No. 1568 SS]
Date12 April 2013

[2013] IEHC 172

THE HIGH COURT

SS 1568/2012
Health Service Executive (HSE) v A (O)
IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACTS, 1961 - 1991
No Redaction Needed
BETWEEN/
HEALTH SERVICE EXECUTIVE
Applicant
-and-
O.A.
Respondent

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

CHILD CARE ACT 1991 S13

CHILD CARE ACT 1991 S17

CHILD CARE ACT 1991 S19

CIVIL LEGAL AID ACT 1995 S33

DUBLIN CORPORATION v ASHLEY 1986 IR 781

NATIONAL AUTHORITY FOR OCCUPATIONAL SAFETY & HEALTH v O'K TOOLS HIRE 1997 1 IR 534

DPP v BUCKLEY 2007 3 IR 745

SOUTHERN HOTEL SLIGO LTD v IARNROD EIREANN 2007 3 IR 792

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S108

DISTRICT COURT RULES 1997 O.15 r1

AG v CRAWFORD 1940 IR 335

DISTRICT COURT RULES 1926 r37

DISTRICT COURT RULES 1926 r37(A)

DISTRICT COURT RULES 1926 r37(B)

CUSTOMS INLAND REVENUE & SAVINGS BANK ACT 1877 S5

AG v SHAW 1979 IR 136

CHILD CARE ACT 1991 S25

CHILD CARE ACT 1991 S25(4)

CHILD CARE ACT 1991 S25(5)

CHILD CARE ACT 1991 S26(3)

CHILD CARE ACT 1991 S3

T (CHILDREN), IN RE 2012 1 WLR 2281

T (CHILDREN), IN RE 2011 1 FCR 354

COURTS OF JUSTICE ACT 1924 S91

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S34

INTERPRETATION ACT 1937 S17

DISTRICT COURT RULES O.51 r1

CIVIL LEGAL AID ACT 1995 S24

CIVIL LEGAL AID ACT 1995 S33

CIVIL LEGAL AID ACT 1995 S33(6)

CIVIL LEGAL AID ACT 1995 S29

CIVIL LAW (MISC PROVISIONS) ACT 2008 S80

DISTRICT COURT RULES O.51

SOUTHERN HOTEL SLIGO LTD v IARNROD EIREANN 2007 3 IR 792

DILLANE v IRELAND 1980 ILRM 167

CONSTITUTION ART 40.1

CIVIL LEGAL AID ACT 1995 S28(3)

DUNNE v MINISTER FOR ENVIRONMENT 2008 2 IR 775

HEALTH SERVICE EXECUTIVE v N (A) UNREP FENNELLY 14.4.2010 [TRANSCRIPT NOT AVAILABLE]

SINNOTT v MIN FOR EDUCATION 2001 2 IR 545

D (T) v MIN FOR EDUCATION 2001 4 IR 259

MAGEE v FARRELL 2009 4 IR 703

LAW SOCIETY OF IRELAND v COMPETITION AUTHORITY 2006 2 IR 262

HENEHAN v ALLIED IRISH BANKS UNREP FINLAY 19.10.1984 1985/2/279

PRACTICE AND PROCEDURE

Costs

Child care proceedings - District Court - Jurisdiction of District Court to award costs in child care proceedings - Meaning of civil proceedings - Whether child care proceedings civil proceedings - Whether District Court having jurisdiction to award costs in child care proceedings - Rule that cost follow event - Discretion of court to depart from rule - Means of litigant - Separation of powers - Public policy - Whether public body performing functions pursuant to statutory duty should be liable for costs - Whether permissible on costs application to consider whether litigant had applied for legal aid - Whether necessary on costs application to consider whether litigant had applied for legal aid - Dunne v Minister for the Environment [2007] IESC 60, [2008] 2 IR 775 and Dublin Corporation v Ashley [1986] IR 781 applied - Director of Public Prosecutions v Buckley [2007] IEHC 150, [2007] 3 IR 745 and The National Authority for Safety and Health v O'K Tools [1997] 1 IR 534 approved - Attorney-General v Crawford [1940] IR 335; TD v Minister for Education [2001] 4 IR. 259; Dillane v Ireland [1980] ILRM 167; Garnett v Bradley (1878) 3 App Cas 944; Henehan v Allied Irish Banks Ltd (Unrep, Finlay P, 19/10/1984); Law Society of Ireland v Competition Authority [2005] IEHC 455, [2006] 2 IR 262; Magee v Farrell [2009] IESC 60, [2009] 4 IR 703; Sinnott v Minister for Education [2001] 2 IR 545; Southern Hotel Sligo Ltd v Iarnrod Éireann [2007] IEHC 254, [2007] 3 IR 792; The State (Attorney General) v Shaw [1979] IR 136; The State (Freeman) v Connellan [1986] IR 433 and Wheat v United States (1988) 486 US 153; 108 S Ct 1692; 100 L Ed 2d 140 considered - Re T (Children) [2010] EWCA Civ 1585, [2011] 2 FLR 264; [2012] UKSC 36, [2012] 1 WLR 2281 not followed - Rules of the District Court 1997 (SI 93/1997), O 51 - Courts of Justice Act 1924 (No 10), s 91 -Interpretation Act 1937 (No 38), s 17 - Courts (Supplemental Provisions) Act 1961 (No 39), s 34 - Civil Legal Aid Act 1995 (No 32), ss 25 and 33 - Questions answered in the negative (2012/1568SS - O'Malley J - 12/4/2013) [2013] IEHC 172

Health Service Executive v A(O)

Facts: The hearing concerned the question of whether the successful respondent, a mother in care proceedings, could apply for costs. The argument advocated by the respondent Health Service Executive was that her eligibility to receive legal aid could or should be taken into account in refusing to do so. Indeed the HSE contended that the District Court did not possess the necessary jurisdiction to award costs in the case. This was a consultative case where the determination of the court was sought.

O"Malley J held that the District court did have the necessary jurisdiction to award costs in care proceedings. It was highlighted that litigation involving children is not wholly unlike other litigation, it is adversarial, there are "winners and losers". The issue was not legal aid, the applicant had chosen her representative, which she had the right to do, and had then sought costs as any successful litigant is entitled to seek.

The arguments proposed by the HSE would amount to discrimination, resulting in those with limited means having to explain and justify their choice of representative whilst wealthier litigants would not be obliged to do so, going against the constitutional right of access.

The mother"s eligibility for legal aid was held to have no bearing on her entitlement to apply for costs.

1

Judgment of Ms. Justice Iseult O'Malley delivered the 12th of April, 2013

Introduction
2

1. This is a consultative case stated by District Judge Toale pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act, 1961. The issue on which the determination of the court is sought concerns an application by the respondent ("the mother") for her costs at the conclusion of care proceedings brought by the applicant ("the HSE"). In brief, the HSE contends, firstly, that the District Court has no power to order costs in proceedings of this nature; secondly, and in the alternative, that if it has such power, it may or must take into account the mother's possible eligibility for legal aid in considering whether to grant an order for costs.

3

2. The Attorney General, on application, was joined as a notice party in the court to make submissions on the constitutional issues.

The case stated
4

3. The circumstances in which the issue arose are set out in the case stated, which is set out here in full. (The Applicant is the HSE and the Respondent, the mother.)

5

i (i) At a sitting of the District Court held on Thursday, the 28 th April, 2011, the District Court granted an Emergency Care Order under s. 13 of the Child Care Act, 1991 [the CCA] in respect of a child of the Respondent herein, the said Emergency Care Order to expire on 5 th May 2011. The respondent did not have the benefit of legal assistance on this occasion, nor was she present in Court. Thursday, the 28 thApril, 2011 was immediately prior to the May Bank Holiday which fell on Monday, 2 nd May, 2011.

6

ii (ii) Subsequent to the granting of the said Emergency Care Order, the Applicant issued an application for an Interim Care Order under s.17 of the CCA, returnable to Thursday, 5 th May, 2011. The Respondent was notified of the said application by registered post and attended at Dolphin House, Courthouse on the 5 th May, 2011. On the 5 th May, 2011 the Respondent was legally represented by Mr. Eamonn Bennett, Solicitors, who thereafter represented her interests before the Court on the following occasions;

7

11 thMay,2011

8

2 ndJune, 2011

9

28 thJune, 2011

10

12 thSeptember, 2011

11

6 thOctober, 2011

12

1 stNovember, 2011

13

and on each of those dates the Interim Care Order was extended.

14

iii (iii) On the 28 th November, 2011 and on the 12 th December, 2011 the Applicant applied under s19 of the CCA for Supervision Orders in respect of the child, which were granted. The later Supervision Order expired on the 5 th March, 2012. The Respondent was represented on each occasion by Eamonn Bennett Solicitors.

15

iv (iv) On the 5 thMarch, 2011 the Respondent's legal advisers sought their costs as against the Applicant with regard to the said proceedings.

16

v (v) It was contended by the Applicant that it believed the respondent would have been entitled to receive legal aid from the Legal Aid Board and therefore should have applied for legal aid with regard to the proceedings in issue. It was further contended by the Applicant that if the Respondent had retained private legal representation with regard to the Child Care Proceedings before the Court in circumstances where she might have been entitled to receive legal aid, she was not therefore entitled to her costs in this matter.

17

vi (vi) It was contended on behalf of the Respondent that it was not within the remit of the Applicant to enquire into the Respondent's means. Furthermore, it was contended on behalf of the Respondent that it may be a breach of the separation of powers doctrine if the Court were to enquire into the economic means of the Respondent as to do so was treading into the area of policy making and this was the function of the executive or legislature.

18

vii (vii) It was further contended by the Respondent that section 33 of the Civil Legal Aid Act, 1995 specifies that a Court or tribunal shall make an order for costs in a matter in which any of the parties is in receipt of legal aid in like manner and to like effect as the court or tribunal would otherwise make if no party was in receipt of legal aid and all parties had respectively obtained the services of a solicitor or barrister or both, as appropriate, at their own expense.

19

viii (viii) Therefore, it was the Respondent's contention that, as the Legal Aid Board is obliged...

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