Neutral Citation No: [2007] IEHC 36
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:-
The reasons why such discovery is required are as follows:-
The reasons why such discovery is required are as follows:-
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.
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].
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.
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.
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.
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:-
Arising from that amendment, the Plaintiff's claim was extended to include the following:-
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:-
Subsequent to the issue of the discovery motion, a letter was written on 21st October, 2005 by the Plaintiffs' solicitors which states as follows:-
The response from the Chief State Solicitor is dated 18th November, 2005 and states as follows:-
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.
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.
In the course of her judgment in Dempsey's case, Laffoy J. said:-
Issue (c) is what has been characterised (not very accurately) as "a resources defence".
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.
Regretfully, I am unable to agree with the view of Laffoy J.
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:
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.
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.
END OF JUDGMENT OF MR. JUSTICE T.C. SMYTH
Approved: Smyth J.