Student A.B. (A Minor) v The Board of Management of a Secondary School

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 21 June 2019
• Neutral Citation: [2019] IEHC 453
• Docket Number: 2019 No. 83 J.R.
• Date: 21 June 2019

BETWEEN

STUDENT A.B. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND C.D.)

APPLICANT

AND

THE BOARD OF MANAGEMENT OF A SECONDARY SCHOOL

RESPONDENT

[2019] IEHC 453

Simons J.

2019 No. 83 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Costs – Judicial review – Disciplinary proceedings – Applicant seeking to have at least part of his costs paid by the respondent – Whether the applicant had been justified in instituting the proceedings

Facts: The applicant was a student in a fee-paying secondary school (the student). The student, through his next friend, sought to challenge disciplinary proceedings which had been taken against the student arising out of his alleged possession and supply of a controlled drug on the school premises. The substantive hearing took place over three days in April 2019. Judgment was delivered on 17 April 2019: Student A.B. v Board of Management of a School (No. 1) [2019] IEHC 255 (the principal judgment). The application for judicial review was dismissed in its entirety. The application was refused for the following reasons: first, the statutory right of appeal under s. 29 of the Education Act 1998 represented an adequate alternative remedy to judicial review; secondly, the application for judicial review was, in any event, premature in circumstances where the disciplinary process was still in train, and no substantive hearing had yet taken place before the board of management. Notwithstanding that outcome, leading counsel on behalf of the student applied to have at least part of the student’s costs paid by the school. The application was predicated on an argument that the student obtained a benefit from the proceedings. Specifically, it was said that, at the eleventh hour, the school conceded an important point of principle in relation to the interpretation of the school’s code of behaviour. That point of principle concerned the question of whether expulsion was automatic where a student was found to have supplied illegal drugs to other students in the school even in the case of a first-time offence. The student’s position was that the student should be regarded as having won this “event”. This, it was said, was sufficient to trigger an entitlement to an order of costs by reference to the general rule that costs follow the event.

Held by the High Court (Simons J) that it would be inconsistent with the rationale of the principal judgment to hold that the student had been justified in instituting the proceedings, and that this should be reflected in even a partial order for costs in his favour; the entire thrust of the principal judgment was that the student should not have brought judicial review proceedings at the time that he did.

Simons J proposed making an order directing that the applicant do pay to the respondent school the costs of the proceedings (with the exception of the costs of the interlocutory injunction application which were the subject of a separate order made by Barrett J), such costs to include the costs of the written legal submissions and all reserved costs. Simons J held that, in default of agreement, the costs were to be taxed. Simons J held that a stay would be imposed on the costs order pending the determination of the applicant’s appeal to the Court of Appeal (Appeal 2019 No. 227).

Application refused.

JUDGMENT of Mr. Justice Garrett Simons delivered on 21 June 2019.

INTRODUCTION

1 This supplementary judgment addresses the question of which party should be liable for the costs of these judicial review proceedings. The applicant is a student in a fee-paying secondary school (‘ the student’). The student, through his next friend, had sought to challenge disciplinary proceedings which had been taken against the student arising out of his alleged possession and supply of a controlled drug on the school premises. The substantive hearing took place over three days in April 2019. Judgment was delivered on 17 April 2019. See Student A.B. v. Board of Management of a School (No. 1) [2019] IEHC 255 (‘ the principal judgment’).

2 The application for judicial review was dismissed in its entirety. In brief, the application was refused for the following reasons. First, the statutory right of appeal under section 29 of the Education Act 1998 represented an adequate alternative remedy to judicial review. Secondly, the application for judicial review was, in any event, premature in circumstances where the disciplinary process was still in train, and no substantive hearing had yet taken place before the board of management.

3 Notwithstanding this outcome, leading counsel on behalf of the student has applied to have at least part of the student's costs paid by the school. This application is predicated on an argument that the student obtained a benefit from the proceedings. Specifically, it is said that, at the eleventh hour, the school conceded an important point of principle in relation to the interpretation of the school's code of behaviour. This point of principle concerned the question of whether expulsion was automatic where a student was found to have supplied illegal drugs to other students in the school even in the case of a first-time offence. A proper understanding of this argument requires careful consideration of the relevant provisions of the code of behaviour. For introductory purposes, however, it is sufficient to note that the student's position is that the student should be regarded as having won this ‘event’. This, it is said, is sufficient to trigger an entitlement to an order of costs by reference to the general rule that costs follow the event.

4 For the reasons set out herein, I cannot accept this argument. It would be inconsistent with the rationale of the principal judgment to hold that the student had been justified in instituting the proceedings, and that this should be reflected in even a partial order for costs in his favour. The entire thrust of the principal judgment is that the student should not have brought judicial review proceedings at the time that he did.

DISCUSSION

5 The disciplinary process, the...