Health Service Executive -v- NG & anor (Costs of Notice Party)

• Judge: Halpin J.
• Judgment Date: 30 April 2008
• Neutral Citation: [2008] IEDC 1
• Case Outcome: Approved
• Date: 30 April 2008
• Court: District Court (Ireland)

[2008] IEDC 1

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

NG & PG

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 47

IN THE MATTER OF CHILD 1 AND CHILD 2

30 April 2008

1. This is an Applicat ion by the Notic e Party pursuant t o section 47 of t he Child Care Act, 1991, see king the cost s of representing the

Notice Party .

2. On 12 December 2005, solicitors lodged an applicat ion on behalf of the Notice Party pursuant to s ect ion 47 of the Child Care Act ,

1991, seeking inter alia, to join a Notice Party. T he Notice Pa rty has since changed solicit ors. The Applicat ion in respect of the Notic e

Party was in the following terms — See Appendix [given].

3. The HSE submitted a Soc ial Work report, undated, in respect of t he Application which se t out a brief history of t he cas e. See

Appendix [given].

4. The matter c ame on for hearing on or about 20 December 2005 and the HSE submitted a report to t he Court in the fo llowing terms.

See Appendix [given].

5. On 20 December 2005, the Court made the following decision. See Appendix [given].

6. It is notew orthy, notw ithstanding that it is cust omary to employ such wording, that t he Court sta ted t hat it wa s satisfied t hat t he

welfare of t he children required the joining of a Notic e Party to the instant matter. Ac cordingly, this Court c annot adjudicate upon the

justification of the joining of the Notic e Party nor ass ess the role they played nor seeking to quest ion the dec ision of this Court in

that regard and t hus, this Court does not intend t o devote any of its consideration to these matters, rather it will conc entrate upon

the Application in respec t of cost s.

7. By way of aside, I regularly see occ asions when Respondents require something more than legal representation. This is a Court of

Inquiry but nonet heless it seems to me that very many of t he case before the Court taken on the mantle of conte sted litigation. T he

HSE is a very professional organisation and they frequently a nd regularly furnish reports to t he court. These reports can be from

social workers or other professionals. On any one c ase, it is easily conc eivable that there would be t en or more reports and all reports

supporting the HSE Application. Rarely would a respondent lodge a Stat ement to t he Court, yet there may be occasions t hat t he

fact ual position outlined to t he Court may have another or alternative explanation but the Respondents, ill equipped in this forum, may

not offe r such bec ause they may feel that t hey will not be believed.

8. Given this, the sc ales of just ice has t o be in some measure tilted and it is up to the Court t o balance t his neatly poised sc ales to

maintain an equilibrium between the parties. In Discours sur la Profession d’Avocat , a French critique upon the legal profession in the

early twenty cent ury, the aut hor questioned how ca n one expect the ordinary citizen t o ac quire “that infinite variety of knowledge for

which he has oc casion; that immense number of volumes which he is obliged not o nly to read, but meditat e upon and fathom their

depths; that multitude of laws which ought to be the objec t of his memory; and still more of his discernment and his reflections; t hat

crowd of commentat ors whose sc atte red rays of interpretat ion he ought to c ollect ?”

9. Acc ordingly, I can see oc casions when a Notice Party or suc h person can be helpful to the Court in addressing this complex area of

law and perhaps we might in the future address t his matter.

10. In respect of this Applicat ion, both sides seemed to rely upon bot h Western Health Board v KM (see below) and Southern Hotel

Sligo Limited v Iarnroid Eireann (see below).

11. Generally, the issue of c osts in t he District Court rarely arises beca use such issues are covered w ith extensive Rules governing

the regulation of t hese matters. T he HSE in the instant matter have strenuously emphasised that t his Court has no disc retion in

respect of c osts. T he District Court is a Court of Rec ord which is Court of loc al and limited jurisdiction; no one questions t his.

Invariably, but not always, t he Court is bound by st atute which governs t he proceedings at hearing. It is not nec essary, for t he

purposes of a matter involving cost s to address the mechanisms which set up t he District Courts, but suffic e to say that the Courts

of Justic e Act , 1924 was enac ted to give eff ect to t he Courts’ struc tures as env isaged by the original Constitution of 1922. T his

Constitution was replaced by t he 1937 Bunreacht na hÉireann which Articles 34 to 38 relate to t he structure of t he Courts’ syst em.

The Courts (Est ablishment and Const itution) Act , 1961 was enac ted to give eff ect to t he new sys tem and the Courts (Supplement

Provisions) Act, 1961 provided for the establishment of the va rious Courts and the various regulations and struct ures which governed

the various Courts.

12. Regrettably, not much has been written upon the subject of cost s in the District Court but a case of fairly recent vintage, t he

Southern Hotel case , has dealt w ith the jurisdiction of t he District Court in awarding costs, I w ill refer to this cas e but I do not think

that it will be of any great assistanc e to us in respect of this c ase.

13. In Southern Hotel Sligo v. Iarnrod Eireann [2007] IEHC 254, a cas e which involved environmental matters, Hedigan J noted on the

cost s issue, that the Respondent had submitted that:

“sect ion 108 of the Environmental Protection Agenc y Ac t 1992 which c reated t he jurisdict ion which the c omplainant

had sought to use provides that: -

‘the Court may order the person or body making, c ausing or responsible for t he noise to t ake the