High Court dismisses appeal for discovery of education funding docs as resource issues are non-justiciable.

This judgment is circulated in redacted form to avoid identification of the parties

Neutral Citation Number: {2007] IEHC 36

THE HIGH COURT

DUBLIN

Record No. 1999/12903 P

E. F.AND T.F.

PLAINTIFFS

AND

THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND AND

THE ATTORNEY-GENERAL

DEFENDANTS

Judgment by Mr. T.C. Justice Smyth on Friday, 12th January 2007

1. Mr. Justice Smyth: This is an appeal from the Master of the High Court dated 31st January, 2006 whereby he refused to order the

Defendants to make discovery to the Plaintiffs of the following:-

"(f) All documentation in respect of the funding provided by the First or Second Named Defendant to the Health Board in

relation to the provision of occupational therapy, physiotherapy, speech and language therapy or behavioural therapy or

music therapy to the Plaintiff in order to meet the Plaintiff's needs in its functional area since the coming into force of

Sections 6 and 7 of the Education Act, 1998 together with such documentation as may be in the possession of this

Defendant in relation to the request for such funding, the information furnished to the First and Second Named

Defendants by the Health Board when seeking such funding, how such funding was computed and the amount of such

funding actually allocated by the First and Second Named Defendants to the Health Board.

2. The reasons why such discovery is required are as follows:-

(1) Counsel has advised that same will advance the Plaintiff's claim, reduce the length and complexity of the trial and will

produce a savings in costs.

(2) In particular, we will refer you to the particulars of negligence set out in the Statement of Claim.

(3) The Plaintiff is a person of unsound mind and clearly is not in a position to fully instruct the next friend in relation to

this matter. The Plaintiff has for the majority of her life been under the care of the Defendants. The Plaintiff's parent has

access to very little documentation on his daughter and accordingly, the only place in which they can gain access to that

documentation is by means of discovery against the Defendants.

(4) The Plaintiff has to have evidence of the resources that were made available in relation to the education for the

Plaintiff, the consideration that was given to those resources and the consideration that was contained in her education

and in particular, in this regard, the Plaintiff will rely upon the provisions of the Education Act, 1998 in which the Minister

is entitled to have regard to resources available and in order to challenge any such decision that was made in relation to

the Plaintiff's education, then clearly the Plaintiff will have to have evidence that the Minister did in fact have regard to

the resources available.

(g) All documentation (post-dating the coming into force of Sections 6 and 7 of the Education Act, 1998) in respect

of the funding provided by the First and Second Named Defendants to any of the facilities at which the Plaintiff

attended during any period in which the Plaintiff attended any such facility together with any documentation in

relation to the application for and request for such funding, with any supporting documentation attached to such

requests and applications together with all documentation setting out precisely how such funding was computed

together with details of how such funding was allocated.

3. The reasons why such discovery is required are as follows:-

4. Paragraphs 1 to 4 follow in exactly the same order and form the same basis of the request as set out at and under (f) above.

5. The Plaintiffs are twins and were born in 1995 and they were diagnosed in May, 1999 as autistic. These proceedings were initiated

by Plenary Summons dated 21st December, 1999. Notwithstanding that the primary educators of the minors is the family under the

Constitution, they have through their next friend effectively sued the State alleging that it has failed to provide for their proper

education in breach of constitutional and statutory provisions. The State has raised in its Defence (Amended) the following plea

[which is without prejudice to the Pleadings by and on behalf of the Plaintiff that by virtue of the allegations of non-compliance with

constitutional and statutory provisions that the Plaintiffs have suffered and continued to suffer loss, damage, inconvenience, upset

and expense and will continue to suffer the loss, damage, inconvenience, upset and expense unless and until the Defendants are

compelled by order of the court to provide such free primary education for the Plaintiff as the Plaintiffs seek in these proceedings].

"9(a) In February 2000, following extensive investigations and enquiries, a recommendation was made by two

Departmental Inspectors to the First Named Defendant to establish a special class for children with autism in Ballyduff

National School, Kilmeaden, County Waterford to be staffed by a suitably qualified teacher and two special needs

assistants whose positions would be funded by the First Named Defendant. The First Named Defendant accepted that

recommendation.

(b) The First Named Defendant has been in discussion with the South Eastern Health Board for the provision of necessary

support services for children with autism attending the proposed special class such as speech and language therapy and

occupational therapy together with other necessary support services to be provided by a multidisciplinary team of

professionals.

(c) The Plaintiff has been offered a place in the special class commencing in December 2000."

6. The response of the Plaintiff in the Amended Reply filed on 1st April, 2004 was that they awaited proof of the matters set out in

paragraph 9 of the Defence. There is no specific denial of the plea and, in particular, no specific denial of the plea that the Plaintiffs

had been offered a place in the special class commencing in December 2000.

7. Mr. McDonagh in the course of his submissions on behalf of the State on this discovery motion appeal, observed that while the

Department were considering the recommendation of the Inspectors, a motion seeking interlocutory relief was sought on 12th January

of that year, though listed for a later date in that month, and this was simultaneous with the Department in early February

sanctioning the special class in the special school. However, it appears that an affidavit was filed for and on behalf of the Plaintiffs

amounting to an alteration of their position whereby notwithstanding the class becoming available in the autumn, they wanted an

entirely different educational provision involving applied behaviour analysis.

8. Notwithstanding such alteration of position by the Plaintiffs, the Department/State proceeded with the establishment of the class

which actually was established but the Plaintiffs' parents took the children to California and put them into a school there for a year or

so and then brought them back to Ireland. The clear inference is that the litigation was continued with a view to either coercing or

otherwise seeking the State to alter its position and include the type of additional provision involving applied behavioural analysis to

be provided in the special school. A special class had been in existence since the autumn of the year 2000.

9. Mr. McDonagh's submissions were not contradicted in any reply made by the Plaintiffs or on their behalf. The Plaintiffs filed an

Amended Statement of Claim on 26th June, 2003 which very specifically dealt with aspects of statutory duty and, in particular,

pleaded as follows:-

"9. The Plaintiff makes this claim pursuant to the provisions of the Constitution hereinbefore referred to and furthermore

pursuant to the provisions of Sections 3, 6 and 7 of the Education Act, 1998 and Sections 3, 4 and 7 of the Equal Status

Act, 2000."

10. Arising from that amendment, the Plaintiff's claim was extended to include the following:-

"(a) A declaration that the Defendants are in breach of the provisions of Sections 3, 6 and 7 of the Education Act, 1998

and Sections 3, 4 and 7 of the Equal Status Act, 2000.

(b) Damages for breach of statutory duty.

(c) A mandatory injunction pursuant to the provisions of the Education Act, 1998 directing the Defendants to forthwith

provide for free primary education for the Plaintiff appropriate to her needs.

(d) Alternatively, a Mandatory Injunction (pursuant to the provisions of the Education Act, 1998 or otherwise) directing

the Defendants to forthwith provide for free primary education for the Plaintiff appropriate to her needs."

11. The foregoing led to very extensive amendments in the Defence by the State which, notwithstanding their length, I consider

appropriate to record in this judgment, and they are as follows:-

"11A. It is denied that the provisions of the Constitution and/or the provisions of Sections 3, 6 and 7 of the Education

Act, 1998 (the "1998 Act") and/or Sections 3, 4 and 7 of the Equal Status Act, 2000 (the "2000 Act") confer on the

Plaintiff the alleged rights or impose upon the Defendants the alleged obligations asserted by the Plaintiff in these

proceedings.

11B. Section 3 of the 1998 Act provides that any expenses incurred by the First Named Defendant in the administration of

the 1998 Act shall, to such extent as may be approved of by the Minister for Finance, be paid out of monies provided by

the Oireachtas. Section 3 of the 1998 Act does not confer any right upon the Plaintiff or impose any obligation upon the

Defendants which is enforceable by way of these proceedings against the Defendants.

11C. Section 6 of the 1998 Act specifies the objects of that Act and provides that every person concerned in the

implementation of the 1998 Act shall have regard to those objects. However, Section 6 of the 1998 Act does not confer

any right upon the Plaintiff or impose any obligation upon the Defendants which is enforceable by way of these

proceedings against the Defendants.

11D. Section 7 of the 1998 Act specifies the functions of the First Named Defendant under that Act and provides that the

First Named Defendant shall have all such powers as are necessary or expedient for the purpose of performing his or her

functions thereunder. Section 7(4) provides that in carrying out his or her functions, the First Named Defendant:

(a) Shall have regard to:

(i) The resources available;

(ii) The provisions for education and training made by other agencies provided by the Oireachtas;

(iii) The need to reflect the diversity of educational services provided in the State, and;

(iv) The practices and traditions relating to the organisation of schools or groups of schools existing at

the commencement of Part 1 of the Act and the right of schools to manage their own affairs in

accordance with the 1998 Act and any charters, deeds, articles of management or other such

instruments relating to their establishment or operation; and

(b) Shall make all reasonable efforts to consult with patrons, national associations of parents, parents' associations

in schools, recognised school management organisations, recognised trade unions and staff associations

representing teachers and such other persons who have a special interest or knowledge of matters relating to

education, including persons or groups of persons who have a special interest in, or experience of, the education of

students with special educational needs, as the First Named Defendant considers appropriate. Section 7 of the 1998

Act does not confer any right upon the Plaintiff or obligation upon the Defendants which is enforceable by way of

these proceedings against the Defendants.

11E. Further or in the alternative and without prejudice to the foregoing, if the provisions of Sections 3, 6 and 7 of the

1998 Act do confer rights upon the Plaintiff or obligations upon the Defendants which are enforceable by way of these

proceedings against the Defendants as alleged (which is denied), it is denied that the Defendants or any of them have

acted in breach of those provisions or any of them.

11F. Section 3 of the 2000 Act contains provisions governing general discrimination. Section 3 of the 2000 Act does not

confer any right upon the Plaintiff or obligation upon the Defendants which are enforceable by way of these proceedings

against the Defendants. Nor does Section 4 of the 2000 Act which contains provisions governing discrimination on the

grounds of disability. Further or in the alternative and without prejudice to the foregoing, if Section 3 and/or Section 4 of

the 2000 Act does confer rights upon the Plaintiff or obligations upon the Defendants which are enforceable by way of

these proceedings against the Defendants as alleged (which is denied), it is denied that the Defendants or any of them

have acted in breach of those provisions.

11G. Section 7 of the 2000 Act contains provisions concerning educational establishments. However, it is denied that

Section 7 of the 2000 Act confers rights upon the Plaintiff or obligations upon the Defendants which are enforceable by

way of these proceedings against the Defendants. Further or in the alternative and without prejudice to the foregoing, if

Section 7 of the 2000 Act does confer upon the Plaintiff the alleged rights or impose upon the Defendants the alleged

obligations enforceable by way of these proceedings by the Plaintiff against the Defendants as alleged (which is denied),

it is denied that the Defendants or any of them have acted in breach of the provisions of Section 7 of the 2000 Act.

11H. Without prejudice to the foregoing, it will be contended by the Defendants at the hearing of these proceedings that

they have fully complied with their statutory and constitutional obligations to the Plaintiff.

11I. Having regard to the foregoing, and having regard to the statutory obligations of the First Named Defendant to have

regard to the resources available to meet all educational needs within the State in exercising his functions under the 1998

Act, it will be contended by these Defendants at the hearing that they do not have any statutory or constitutional

obligation to make any further or additional educational provision for the Plaintiff in these proceedings.

11J. It will be further contended by these Defendants at the hearing that in utilising and allocating the limited resources

available to them, the Defendants are exercising an executive power as sanctioned by the legislature and that insofar as

the effect of the relief being sought by the Plaintiff is to direct the Defendants as to the manner in which such resources

should be allocated, the grant of any such relief would constitute a breach of the principle of a separation of powers

under the Constitution of Ireland. Accordingly, this Honourable Court should not grant such relief.

11K. Further or in the alternative and without prejudice to the foregoing, it is denied that the Plaintiff has put forward any

basis on which she is entitled to aggravated or exemplary or punitive damages.

14. The Defendants will further contend at the hearing of this action that their obligations under Bunracht na hÉireann

and under Statute to the Plaintiff require that those obligations be vindicated as far as reasonably practicable. The

Defendants will contend at the hearing of the action that in utilising and allocating limited resources they are exercising

an executive power, as sanctioned by Oireachtas Éireann. Insofar as the Plaintiff seeks relief directing the Defendants as

to the manner in which resources should be allocated, the Defendants will contend that any such order made by this

Honourable Court will constitute a breach of the principle of separation of powers and, therefore, in the premises no such

order should be made by this Honourable Court.

15. Furthermore, insofar as the relief sought within the Plaintiff's Statement of Claim involves a claim for damages against

the Defendants, it is denied that the Plaintiff is entitled to same to the extent that any such award of damages as sought

is predicated upon this Honourable Court forming the view that in the past the Oireachtas and/or the Executive has failed

or has failed appropriately to distribute public resources and/or has failed to distribute those resources in the manner

which this Honourable Court might regard, or might have regarded, as appropriate."

12. Subsequent to the issue of the discovery motion, a letter was written on 21st October, 2005 by the Plaintiffs' solicitors which

states as follows:-

"Dear Sirs,

We refer to the discovery motion in the above matter which is listed for hearing next Thursday, October 27th.

Would the Minister confirm that she intends defending this case on the basis that what was provided was adequate,

not on the basis that there were other matters which could have been provided if money was available, but weren't

provided because money was not available.

If that is the case, discovery of money issues, does not arise and we will not therefore require to pursue discovery

in the context of paragraphs (f) and (g).

We await hearing from you, in advance of this matter which is listed for hearing on Thursday, 27th October next.

Yours faithfully."

13. The response from the Chief State Solicitor is dated 18th November, 2005 and states as follows:-

"Dear Sirs,

We refer to your letter in the above matter of 21st October, 2005.

The Minister will be defending this case on the basis that what was provided was appropriate. This does not

necessarily mean that there were not other matters which could have been provided if the money was available but

weren't provided because the money was not available. Of course in any given case the money for any given thing

sought could be provided. On the other hand, the services available to T. and E. F. are available in the context of

the Minister's obligations to all persons in education, including those with special needs. In that sense all

educational and health related provision is subject to the financial constraints brought about by the many

competing demands for the available resources. Resources available to Ministers are in turn a reflection of the

allocation to Ministers of resources by the Oireachtas.

It is for this reason as in all other cases that having regard to the separation of powers, it is contended by the

Defendant that the Court will not enquire into the allocation of resources in deference to the doctrine of the

separation of powers. It is essentially a matter of distributive and not commutative justice.

Consequently, it is for this reason that we say discovery does not arise. This was the reason put forward by us in

the recent case of E. O'C. in which your motion for discovery was withdrawn. The contention made in that case as

to the availability or otherwise of discovery still express the Defendant's position.

The Court in the case of E. O'C. was of the view that this issue should be decided before any decision on discovery

should be made.

It would have been decided had you not withdrawn your motion. If it were to be raised again, it is our view that it

should be litigated to a conclusion, following which it can be determined what, if any, orders for discovery are

appropriate.

Yours faithfully."

14. Mr. Gardiner for the Plaintiffs referred to the matters in controversy on this appeal as "resources issues", and submitted that the

points for decision, have in substance been determined in a similar case by Kelly J. in Downey -v- Minister for Education (the High

Court, unreported 9th May, 2002). This is one of "these type of cases" (Mr. Gardiner's expression ). Downey was a decision made prior

to the Supreme Court decisions in Ryanair plc -v- Aer Rianta CPT [2004] 1 ILRM 241 and Framus -v- CRH plc [2004] 2 ILRM 439, both

authoritative Supreme Court decisions on approaches to discovery. This is not a case in which the Defendants are seeking to have

the matter dealt with by way of preliminary issue but are defending the discovery motion on the basis that discovery ought not to be

made in the instant case, because it is not necessary for disposing fairly of the cause or matter before the Court and that in terms of

relevance, necessity and proportionality, the discovery order ought not to be made pursuant to the provisions of Order 31 Rule 12.

They claim it is disproportionate and burdensome and in the context of the provisions of 1998 Act, the public law nature and

character of the functions of the Minister under the Act not to give rise to an entitlement in the proceedings (nor are they

necessarily required for the fair disposal of the issues between the parties). The declaratory relief and injunctive relief sought under

the Statute are effectively a form of judicial review with consequences flowing from it. This Court is bound by the decision of the

Supreme Court in Kildare Meats Limited -v- Kildare Chilling Company [2004] 1 I.R. 192. Discovery ought not to be ordered at this

stage in these proceedings in respect of a decision which could be ignored or by-passed and lead to a direct claim by the Plaintiffs

against the Defendant.

15. A further case of Dempsey -v- The Minister for Science (unreported judgment of Laffoy J. of 18th May, 2006) was drawn to my

attention which has many similarities to the instant case. In her determination Laffoy J. clearly saw two issues requiring consideration

on the procedural question as to whether the court should direct the trial of the points of law raised by the defendants as a

preliminary issue and she held against the defendants on the basis that the defendants had not established that in the circumstances

of the case, that it would be appropriate to direct a trial as a preliminary issue on points of law itemised on the Notice of Motion in

that case.

16. In the course of her judgment in Dempsey's case, Laffoy J. said:-

16 "If at the trial of the action the court were to decide that the provision which the defendants have made to meet the

plaintiff's educational needs is adequate and proper as the plaintiff contends the law requires, or appropriate, as the

defendants contend the law requires, that should dispose of the action and the issue raised by the assertion at (c) should

not arise. But, if the court were not to so find, so that the issue would come into play, what the court would be

concerned with in determining that issue would be the application of constitutional principles.

Counsel for the defendants characterised the issue raised by the assertion at (c) as a question of jurisdiction, suggesting

as I understand the argument, that, if the defendants raise the issues of resource in this type of case, the matter is not

justiciable at all. In my view, that proposition has such profound implications that it would be inappropriate to express any

view on an application of this nature."

(Page 13 of typescript copy of judgment).

17. Issue (c) is what has been characterised (not very accurately) as "a resources defence".

18. In the instant case I cannot envisage any real difficulty in the case proceeding to a point where the Court can determine as a

matter of fact if the Plaintiffs have been accorded the level of education (more truthfully schooling) mandated by the Constitution as

interpreted in Sinott's case. If the answer is in the affirmative, other issues, and in particular "the resource issues" do not arise. I see

no justification for ordering discovery of documents in respect of a non-issue (which apparently was the case in O'Cuanocháin after a

hearing before Peart J. of 68 days). If at a stage in the trial, the trial judge was of the view that the constitutional rights of the

Plaintiffs have not been vindicated - he/she is entitled to so conduct the trial as to make a determination in that regard; and before

permitting the Defendants to seek to defend their position, subject to being satisfied that a "resources defence" is justiciable - and

Mr. McDonagh does not contend that it is non-justiciable, but it is only in the context of Judicial Review (O'Donnell -v- Dun Laoghaire

Corporation [1991] ILRM 301) and the application of Wednesbury principles, then the trial judge, if satisfied, that discovery is, to the

extent and of the character sought on this appeal, necessary to fairly dispose of the cause or matter before the court, it can be so

ordered and the trial resumed to a conclusion.

19. Regretfully, I am unable to agree with the view of Laffoy J. "that the availability of resources is such an intrinsic part of the core

issue in these proceedings - whether the provision actually made for the plaintiff's educational needs meets the statutory

requirements - that it is not possible to segment out of the allocation of resources issue from the overall determination of the State's

liability to the Plaintiff in any meaningful manner."

20. In my judgment the core issue is as to whether the Plaintiffs have been accorded their legal entitlements, not whether the

Defendants had or had not applied or did or did not apply resources. Then questions such as the following may arise:

1) Is there an obligation on the Minister to see to the proper allocation of public monies sanctioned to his Department for

the discharge of his statutory functions;

2) Is a want of resources (if proven) ever a defence to a breach of the constitutional right (if proven) or a statutory duty

(if proven);

3) Does the provision of resources (adequate or inadequate) to enable a Minister to discharge a public function give rise

to a private right based on a duty?

21. All these are questions related to distributive justice upon which the courts should refrain from embarking, but if enquiry is

undertaken as a necessary last resort, upon which the court should do so with a great deal of self-restraint.

22. Conscious as I am of expressing views at variance with my brethren, I would rather be reversed on appeal (if in error) than that

this promoted line of litigation, if it is to continue, would do so with a definitive judgment of the Supreme Court, so that the scandal

of extensive protracted and convoluted litigation and legal costs might cease or proceed on settled lines, and that the resources of

the State would be exclusively applied to the persons who are intended to be protected by the Constitution, the legislation and the

courts.