Supreme Court refuses State costs in sexual assault vicarious liability case due to complex historical context.

THE SUPREME COURT

174/2006

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Between

LOUISE O’KEEFFE

PLAINTIFF/APPELLANT

-v-

LEO HICKEY

DEFENDANT

AND

THE MINISTER FOR EDUCATION AND SCIENCE, iRELAND

AND THE ATTORNEY GENERAL

DEFENDANTS/RESPONDENTS

RULING of the Court on the Question of Costs delivered by Murray C.J. on the 6th day of May 2009.

1. The plaintiff was the victim of sexual assault when she was a schoolgirl. The perpetrator of the assaults was the first

named defendant, a lay teacher in her school who

assaulted her when he was giving her individual, or extra curricular, music lessons in a classroom. She successfully

sued Mr. Hickey for damages and was awarded the sum

of £305,104. Unsurprisingly that defendant did not have the resources to pay those damages and the Court was

informed that he is now required to pay the plaintiff a

monthly amount for the remainder of his life. The plaintiff also sought and obtained redress from the Criminal Injuries

Compensation Tribunal. That award was for the sum

of €53,000 for compensation and expenses.

2. Separately from the foregoing the plaintiff, in these proceedings, claimed further damages and sought to attach

liability for the assaults to the Minister and the other defendants

in these proceedings on the grounds that the Minister, or the State through the Minister, was vicariously liable for the

acts of the teacher. One of the principal premises on

which the plaintiff sought to attach liability to the Minister was that there was an employer/employee relationship

between the teacher and the Minister as a consequence of

which the Minister and the State, although themselves not guilty of any wrongdoing, bore vicarious liability for the acts

of the teacher. There were also other grounds upon

which the plaintiff sought to attach liability to the Minister and the State defendants but it is not necessary to go into

them for present purposes.

3. Her action against the Minister and the other State defendants was dismissed in the High Court. She appealed

against that dismissal and her appeal was dismissed.

4. The State has sought costs against the appellant pursuant to the general principle that the losing party must pay the

successful party’s costs. The equity of that general

principle is obvious. In principle a party who has been found to be innocent of any wrongdoing or liability should be

indemnified in his or her costs by the unsuccessful party

who brought them to court.

5. As is well established, the Courts have a discretion to depart from the general principle according to which the costs

follow the event where there are special or exceptional

circumstances in a particular case.

6. In this case counsel for the appellant has pointed out that this case was a test case governing a significant number of

pending cases on a very substantive issue which

concerned the vicarious liability of the Minister for Education for sexual assaults on pupils by primary school teachers,

whose salaries are paid by the Minister. That it was an

important test case was not disputed by the Minister.

7. In Cork County Council v. Shackelton & Anor (The High Court 12th October 2007 Unreported) Clarke J. outlined

certain general principles, with which the Court

agrees, applicable to costs in test cases. These were:

“Where the proceedings involve entirely private parties then there does not seem to

me to be any proper basis for departing from the ordinary rule in relation to costs,

notwithstanding the fact that the case may properly be described as a test case. There

is no good reason for depriving a successful private party of its ordinary entitlement

to costs simply because the case in which it succeeded happens to be a test case.

However it seems to me that different considerations may apply, at least in some

cases, where one of the parties is a public authority. To take a case at the other end

of the spectrum from the purely private litigation which I have just considered, one

can envisage circumstances where a court was faced with difficult questions of

construction in relation to legislation of widespread and general application which was

introduced by a particular ministry (sic) and in circumstances where that ministry is a

necessary and proper party to the proceedings under consideration. An analogous

situation might arise where Ireland was a necessary party. In those circumstances it

seems to me that it is open to the Court to weigh in the balance in considering costs

the fact (if it be so and to the extent that it is so) that the litigation may have been

necessitated by the complexity or difficulty of legislation for which, of course, either

the Minister concerned or Ireland, was in substance responsible.”

8. As Clarke J. also pointed out a test case in the broadest sense may be said to arise in many circumstances where

there is an issue concerning the law, a statute or the

Constitution to be resolved. Simply because a case may be said to be a test case because it clarifies the law generally

on a particular point is not, as this Court has often

ruled, a ground in itself for refusing to award costs to the successful party. The fact that one of those parties is a public

body or the State does not mean that the taxpayer

should be required to carry the burden of being brought before the courts by an unsuccessful claimant in the absence

of special circumstances warranting the Court to

exercise its discretion not to apply the general principle that costs follow the event. As Clarke J. pointed out above the

fact that a case is in a substantive way a test case to

which the State is a party is a factor, among others, to be taken into account.

9. There are, in the view of the Court, special factors in this case. In recent times a substantive volume of cases have

come before the courts which arise out of sexual assault

and/or abuse of minors by adults, a significant number of which involve teachers whose salary is paid by the State.

Although such cases have come before the courts in

recent times their number reflects the fact that they are the accumulation of claims of wrongdoing extending over the

past three or four decades. In this particular case the

perpetrator involved was a primary school teacher. The issues concerning the alleged liability of the Minister and the

State arose in the context of what are, for historical

reasons, complex relationships between a primary school teacher whose salary is paid by the State, the employer who

is the manager of the school, the owner or trustees of

the school, the Minister who has certain administrative and statutory responsibilities concerning the provision of

education and the approval of teachers and the State itself

which has a constitutional duty to provide for free primary education. The historical evolution and complexity of the

respective role of and relationships between these parties

were reviewed in the judgments delivered in this case and the issue of vicarious liability fell to be decided in that

context.

10. Given the nature of this case, its relationship with other cases of a similar nature and the context in which the

complex issues in the appeal arose, the Court is satisfied that in

all the circumstances there are exceptional reasons why the normal rule of costs following the event should not be

followed in this instance. Those exceptional circumstances

may also be reflected in the fact that counsel for the Minister indicated that a “sympathetic view” would be taken with

regard to the execution of an order for costs in this

case should one be made in favour of the Minister, although what precisely that meant was not expressly stated.

11. In all the circumstances the Court considers that its discretion in this instance should be exercised so as to refuse

the State’s application for costs and accordingly no order

for costs should be made against the appellant in this appeal.

12. Having regard to the same considerations the Court considers that it should also set aside the order for costs

awarded to the State against the appellant in the High Court

and otherwise make no order for costs in those proceedings between the appellant and the State.