S v Minister for Education; M v Minister for Education
| Jurisdiction | Ireland |
| Judge | Ms. Justice Bolger |
| Judgment Date | 16 February 2023 |
| Neutral Citation | [2023] IEHC 80 |
| Court | High Court |
| Docket Number | [Record No. 2021/596 JR] |
[2023] IEHC 80
[Record No. 2021/596 JR]
[Record No. 2021/598 JR]
THE HIGH COURT
Protective costs order – Public interest litigation – Exceptional jurisdiction – Applicants seeking protective costs orders – Whether the proceedings were of general public importance
Facts: The first applicant was a 19-year-old man with autism spectrum disorder, an intellectual disability, and a congenital birth anomaly, cystic hygroma. The second applicant was a 19-year-old man with autism spectrum disorder, global developmental delay and epilepsy. Both applicants applied for a further year in special school in order to make up for what they said was a significant amount of school time which they missed out on due to COVID-19 restrictions during the school year 2020/21, leaving them without the essential skills required to transition to an adult day service. Rule 64(1) of the Rules for National Schools prohibits the retention of a pupil on the roll of a national school after their eighteenth birthday. The respondent, the Minister for Education, issued the ‘Extension of Enrolment of Students over the age of 18 Guidelines’ on 21 April 2021 which provide for the retention of a person on the rolls of a school after their eighteenth birthday including where the student is pursuing certain courses. The applicants’ disabilities were such that they could not pursue such a course and they claimed that they were denied a fourteenth year in school because of their additional needs without adequate consideration of their situations. The first applicant turned eighteen on 19 March 2021 and the second applicant turned eighteen on 4 March 2021. On 28 June 2021 they sought leave for judicial review and interlocutory injunctive relief. On 26 July 2021 they were served opposition papers which confirmed that other children had been given places in the school for the coming school year, and that there was no place for the applicants. This rendered the proceedings moot but the applicants wished to continue the proceedings in order to address what they said were undetermined important issues of general public importance for other children with additional needs. They sought an order from the High Court that, regardless of the outcome of their substantive proceedings, they would not be made liable for the respondent’s costs.
Held by Bolger J that she was not satisfied that proceedings which began life seeking relief personal to the applicants, as well as more general relief, could evolve into public interest litigation to which the exceptional jurisdiction of the protective costs order may be applied. She found that the case law envisaged this exceptional jurisdiction being applied only to a purely public interest claim, exemplified by an environmental law case where the applicant’s only interest is and was the protection of the environment, a situation governed at least in part by statute. She held that there was nothing in the case law supporting the expansion of the limited and exceptional jurisdiction of the protective costs order to include a case that was commenced for the purpose of asserting the interests of an individual but which was later narrowed down by circumstances to a sole claim for relief from which other similarly situated hypothetical persons may benefit in the future. She held that this was not a public interest case of the type that could invoke the jurisdiction of a protective costs order and on that basis, she refused the applications.
Bolger J considered that this may be one of the exceptional cases where no order for costs should be made. She was conscious of the novel nature of the application made by the applicants in the proceedings and the fact that they were motivated by a concern for other people who might find themselves in a situation similar to that in which the applicants found themselves at the time the proceedings were instituted.
Applications refused.
Counsel for the applicants: Derek Shortall SC, Paul Gunning BL
Counsel for the respondent: Barry O'Donnell SC, Lewis Mooney BL
JUDGMENT of Ms. Justice Bolger delivered on the 16th day of February, 2023
This judgment deals with two applications for a protective costs order providing that, regardless of the outcome of the substantive proceedings and any and all reliefs sought therein, the Minister shall bear all her own costs.
The substantive proceedings concern the Minister's decision to refuse to enrol the applicants for a further year in school and for various declaratory reliefs that the Minister's procedures and rules for determining whether a young person such as the applicants be granted a further year of education are unlawful and/or unconstitutional.
Mr. M is a 19-year-old man with autism spectrum disorder, global developmental delay and epilepsy. Mr. S is a 19-year-old man with autism spectrum disorder, an intellectual disability, and a congenital birth anomaly, cystic hygroma. Both applicants had applied for a further year in special school in order to make up for what they say is a significant amount of school time which they missed out on due to covid restrictions during the school year 2020/21, leaving them without the essential skills required to transition to an adult day service.
Rule 64(1) of the Rules for National Schools prohibits the retention of a pupil on the roll of a national school after their eighteenth birthday. The Minister issued the ‘Extension of Enrolment of Students over the age of 18 Guidelines’ on 21 April 2021 which provide for the retention of a person on the rolls of a school after their eighteenth birthday including where the student is pursuing certain courses. The applicants' disabilities were such that they could not pursue such a course and they claimed that they were denied a fourteenth year in school because of their additional needs without adequate consideration of their situations.
Mr. S turned 18 on 19 March 2021 and Mr. M. turned 18 on 4 March 2021. The Guidelines were issued on 21 April 2021. On 28 June 2021 they sought leave for judicial review and interlocutory injunctive relief which were given a hearing date of 27 June 2021. On 26 July 2021 they were served opposition papers which confirmed that other children had been given places in the school for the coming school year, and that there was no place for the applicants. This rendered the proceedings moot but the applicants wish to continue the proceedings in order to address what they say are undetermined important issues of general public importance for other children with additional needs. They seek an order from this Court that, regardless of the outcome of their substantive proceedings, they will not be made liable for the Minister's costs, commonly known as a protective costs order. Their solicitors and Counsel are not charging them fees but acknowledge their intention to seek their costs from the Minister if they succeed in their substantive claims.
The applicants rely on case law (including Village Residents Association Ltd v An Bord Pleanála [2000] 4 IR 321, R v Lord Chancellor ex p. CPAG [1998] 2 All E.R. 755, and Rosborough v Cork County Council [2008] 4 IR 572), Order 99 of the Rules of the Superior Courts and s.168 and s.169 of the Legal Services Regulation Act 2015 in submitting that the court enjoys a discretion in any application for costs and that a costs order may be made at any time.
The applicants assert that the proceedings are of general public importance and that they no longer have any private interest in them. The applicants have no means and their parents have only modest means whereas the Minister has superior financial capacity to bear costs. The applicants will discontinue proceedings if the order is not made.
The applicants identify three issues of law within these proceedings which they say are of general public importance:
The applicants say this issue remains to be determined following the Supreme Court decision in Sinnott v Minister for Education [2001] IESC 63 and rely on Mc D v Minister for Education & Science & Ors [2008] IEHC 265 and O'Carolan v Minister for Education. They say the issue is of general public importance effecting a large cohort of people and that the applicants have, at least, an arguable case.
The constitutional obligations on the State to provide for ongoing/further education for the applicant is also of general public importance and affects a large cohort of people. The Minister regularly utilises circulars and other guidelines that effect the rights of children which should be dealt with by way of legislation in accordance with Article 15 of the Constitution and s.5 of the 1998 Act, which requires regulations and orders made under that Act to be laid before the Houses of the Oireachtas. Neither the Rules nor the Guidelines have been laid before the Oireachtas.
Administrative procedures should not be exercised arbitrarily, capriciously, in bad faith or, as a subsidiary proposition, to be so inflexible as to cause an injustice.
The Guidelines expressly exclude any consideration of any disability or special educational needs. Any discretion to allow for an exemption from the Rules via the Guidelines must be exercised “within any relevant statutory limitations” ( Dunne v Donohoe [2002] IESC 35) and must be exercised properly in each individual case ( McCarron v Kearney; Magee v Murray; McVeigh v Minister for Justice...
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Browne and Others v an Taoiseach and Others
...in which applications were made for protective costs orders were Village Residents, Curragh, Tearfund and J.S v. Minister for Education [2023] IEHC 80. In each of these cases, the applications were rejected. Thus, the parties were unable to highlight even one instance in the past 23 years (......