G v Health Service Executive (Approved)

The appellants seek the costs of the appeal to this Court, including those in respect of the hearing of the preliminary issue regarding the jurisdiction to hear a case stated when the judge stating the case had retired.� The appellants also seek the costs of the hearing before the Court of Appeal, and an issue arises whether the Determination granting leave to appeal to this Court permitted an appeal on that ground.

Briefly, the appeal concerned the question of whether the minor appellant, who was assessed with needs falling short of a disability, could be entitled to a service statement for the purposes of the Disability Act 2005 (�the Act of 2005) which provides an enforcement mechanism to access to certain services.

The hearing of that preliminary issue may fairly be said to be separate from the substantive appeal, and arose from circumstances outside the control of both parties to the case stated and to the appeal.� It could be said that there was no �winner� of this aspect of the appeal as both parties had urged the Court to assume jurisdiction because, as noted in the judgment of Baker J., the question of law arising was capable of finally resolving the issue between the parties but �also the cases of those other children potentially affected by the statutory provisions�.

As the Court of Appeal noted in its judgment at para. 39, and as was noted also in the judgment of this Court on the substantive issue, no authority had directly dealt with the question posed in the case stated regarding the entitlement to a service statement of a person with identified health needs falling short of a disability, such statement being the statutory gateway to the enforcement mechanisms in the Act.�

In correspondence on 4 November 2020, before the case was stated, to the solicitor for the applicants the respondent�s solicitor had proposed that the Circuit Court would make a consultative case stated to the Court of Appeal, as, because the interpretative question raised arose in other cases, there would be a �significant benefit� in clarifying the point. It was said that, should the Circuit Court judge accede to the application to state the case, that no order for costs would be sought against the applicants irrespective of the outcome.