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You are here: BAILII >> Databases >> Irish Court of Appeal >> CFA v A [2020] IECA 52 (28 February 2020)
URL: http://www.bailii.org/ie/cases/IECA/2020/2020IECA52.html
Cite as: [2020] IECA 52
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THE COURT OF APPEAL
Neutral Citation Number: [2020] IECA 52
Record Number: 2018/167
Whelan J.
Haughton J.
Murray J.
IN THE MATTER OF A. A MINOR BORN IN 2000
AND
IN THE MATTER OF THE INHERENT JURISDICTION OF THE HIGH COURT
AND
IN THE MATTER OF THE CHILD CARE ACT, 1991 (AS AMENDED)
AND
IN THE MATTER OF ARTICLE 34.3 AND ARTICLE 40.3 OF THE CONSTITUTION
BETWEEN/
THE CHILD AND FAMILY AGENCY
- AND –
PLAINTIFF/RESPONDENT
A. A MINOR REPRESENTED BY ORDER OF HIS SOLICITOR AND NEXT FRIEND
GINA CLEARY
FIRST DEFENDANT
- AND –
C.
SECOND DEFENDANT/APPELLANT
JUDGMENT of Ms. Justice Máire Whelan delivered on the 28th day of February 2020
Introduction
1. This is an appeal against a judgment given in the High Court on the 21st February, 2018
making no order in respect of the costs of the appellant (C.) incurred in a substantive
plenary hearing. The proceedings had been heard over five days in December 2017. A
written judgment on the substantive issue was delivered in February 2018. The matter
was adjourned for redaction of the judgment and further adjourned in respect of the costs
of the appellant.
2. The appellant, C., is the mother of A. who at the time of the commencement of the
proceedings before the High Court was a minor and the subject of a care order. C. was
joined as defendant to the proceedings by the respondent, the Child and Family Agency
(the “CFA”) from the commencement of the proceedings.
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3. As appears from the substantive judgment ([2018] IEHC 112), the central issue was
whether a doctor was entitled to disclose the HIV status of her patient, A., a minor,
without his consent and against his wishes to a person with whom the doctor believed he
was having unprotected sex and who, as such, was believed to be at risk of contracting
HIV. C. throughout the litigation had supported the position adopted by her son and
opposed the reliefs being sought by the respondents. The Court held, in light of the
evidence before it, that no basis had been established in the circumstances to justify a
breach of A.’s confidentiality. The Court concluded on the evidence, that the risk of HIV
infection was not such as to justify breaching A.’s right to confidentiality which should
only occur in exceptional circumstances. C., a successful defendant, sought her costs
against the CFA.
Costs hearing
4. On the 21st February, 2018 an order for costs was made by consent in favour of A., the
CFA having conceded that such costs should be awarded against it. The CFA disputed the
entitlement of C. to an order for costs contending that there should be no order against
the CFA in respect of her costs in circumstances where she was the beneficiary of civil
legal aid under the Civil Legal Aid Act, 1995.
5. In argument the CFA relied on the Supreme Court decision in The Child and Family
Agency v. O.A. [2015] 2 I.R. 718. The trial judge had noted that although the facts of the
latter case had involved child care orders and legal costs in the District Court and on
appeal in the Circuit Court, he could: -
“…see no reason why the principles as set down by MacMenamin J. in that case
would not be equally applicable to legal costs incurred in the High Court in a child
welfare case, such as the present case. This is particularly so, since it is clear that
MacMenamin J. intended these principles to be of general application and not just
applicable to the ‘costs event’ before him in that case, which was a part-award of
costs on a withdrawn care order application in the District Court.”
6. Having cited extracts, including paragraph 52, from the aforesaid judgment the trial judge
concluded: -
“Applying these principles to the present case, the starting point, per MacMenamin
J. is that there should be no order as to costs in favour of C in this case. As regards
the exceptions to this general rule, first it is clear that the CFA did not act
capriciously, arbitrarily or unreasonably in commencing or maintaining the
proceedings in this case, since it was motivated by a genuine desire to protect B
from harm, based on expert medical opinion. Secondly, it is clear that this was not
a case where the outcome was clear and compelling, particularly as there was no
precedent in this country and little if any precedent abroad on the legal points at
issue. Thirdly, this Court can see no injustice being visited upon C. if her legal costs
are discharged by the Legal Aid Board rather than by CFA. In addition, this Court
does not see any injustice being visited on the Legal Aid Board, if it, rather than the
CFA discharge the costs.”
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7. The trial judge in his costs determination concluded at para. 7: -
“…when one is ultimately dealing with taxpayers’ money (whether the CFA or the
Legal Aid Board foots the legal bill), this Court sees one particular advantage
attaching to the default rule set down by MacMenamin J. whereby the Legal Aid
Board ends up paying its own legal costs.”
The Court refused C.’s application seeking an order for costs against the CFA in her favour.
Appeal
8. The appellant contends that the trial judge erred in law in failing to grant her the costs of
the High Court proceedings for the following reasons: -
(a) He erred in describing her as “a witness as to fact”.
(b) He erred in finding that C. did not require legal representation.
(c) He failed to recognise that the CFA had named C. as a party to the proceedings.
(d) He failed to take due account of the fact that C. was a named defendant who had
filed a full defence together with legal submissions and therefore was entitled to be
treated as a full party to the proceedings.
(e) He failed to have due regard to Order 99 Rule 1(1) of the Rules of the Superior
Courts.
(f) He failed to correctly apply Section 33 of the Civil Legal Aid Act, 1995.
(g) In determining that C. was in receipt of legal aid and fell into a category of case
that was entitled to her costs the High Court judge failed to correctly apply the
(h) In taking into account that C. was entitled to legal aid and using that as a
consideration in refusing the order as to costs the High Court judge failed to
(i) The High Court judge failed to recognise that the appellant C. was a successful
party in defending the claim and therefore the High Court judge incorrectly applied
the decision in The Child and Family Agency v. O.A.
9. The CFA opposed the appeal on all grounds contending that the High Court judge was
correct and had not erred either in law or in fact in determining that C.’s primary role at
the trial was as a “witness as to fact” and that the Legal Aid Board should therefore have
been actively considering whether and to what extent it was justified in expending further
legal costs on behalf of the appellant which would ultimately have to be funded by the
taxpayer. The CFA contended that the High Court judge exercised his discretion in
departing from the normal rule that costs follow the event for the specified reasons set
forth in his judgment. Further, it asserted that he properly identified specified reasons for
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his decision to exercise his discretion and depart from the general rule that costs follow
the event. The CFA argued that the High Court judge acted within jurisdiction and
properly exercised his discretion in respect of an adjudication of costs as between two
state funded agencies.
Discussion
10. The ordinary rule is that costs follow the event and an order for costs is normally made in
favour of a successful party as against the unsuccessful party in litigation. If this rule is
operative and to be applied to the facts of the instant case then C. is undoubtedly entitled
to an order for costs as against the CFA. This is so because the CFA unilaterally made a
litigation decision at the outset to join C., the mother of the minor A., as a defendant in
the proceedings. After a lengthy and contentious hearing lasting over five days in
December 2017 and with further listings in the High Court on the 6th, 12th, 19th and
20th of February, 2018 the Court made a formal order refusing all orders sought by the
CFA. That substantive order was perfected on the 6th April, 2018. The CFA did not appeal
against it.
11. The High Court retained its discretion to make a different order as to costs having regard
to O.99, r. 1 of the Superior Courts, 1986 (as amended) which provides: -
“(1) The costs of and incidental to every proceeding in the Superior Courts shall be in
the discretion of those Courts respectively.
….
(4) Subject to sub-rule (4A), the costs of every issue of fact or law raised upon a claim
or counterclaim shall, unless otherwise ordered, follow the event.”
12. The exercise of judicial discretion in the context of departing from the normal rule as to
costs was considered by the Supreme Court in Dunne v. Minister for the Environment (no.
2) [2008] 2 IR 775 which confirmed that in the exercise of such discretion a court is not
wholly at large but must act on a reasoned basis and identify the factors which in the
circumstances and having regard to the facts of the case warrant a departure from the
normal rule that costs follow the event. The Supreme Court also reiterated that whether
the proceedings seek a private personal advantage and whether the legal issues raised
were of a special and general public importance are factors which are potentially relevant
to such a determination but are not necessarily determinative.
13. It is clear as a result of the Dunne decision that, in the absence of any express legislative
provision, there is no pre-determined category of case which falls outside the full ambit of
the discretionary costs jurisdiction vested in the trial judge.
14. Further, there is no identifiable basis for applying any kind of “bright line” rule to the
approach as to costs in cases involving the CFA. Had it been the intention of the
legislature that special criteria or factors ought to be taken into account in circumstances
where costs are sought against the CFA or in circumstances where there is a dispute
between two state agencies regarding liability for costs which would warrant a deviation
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from the normal principles and rules as to costs and the normal parameters governing the
exercise of its discretion by the court, then same ought to have been addressed in the
relevant statutory scheme.
Civil Legal Aid Act, 1995
15. Indeed section 33(2) of the Civil Legal Aid Act, 1995 provides: -
“A court or tribunal shall make an order for costs in a matter in which any of the
parties is in receipt of legal aid in like manner and to the like effect as the court or
tribunal would otherwise make if no party was in receipt of legal aid and all parties
had respectively obtained the services of a solicitor or barrister or both, as
appropriate, at their own expense.”
16. O’Malley J. in HSE v. O.A. [2013] 3 I.R. 287 at para. 41 in considering the operation of
the provisions of the Civil Legal Aid Act, 1995 in relation to costs observed: -
“That Act post-dates the Child Care Act, 1991. It is clearly applicable to child care
proceedings, given the reference in s. 28(3) to proceedings concerning ‘the welfare
of (including the custody of or access to) a child’. It requires, in s. 33, that an
application for costs should be made on behalf of the legally aided party and that
the court should treat the application as it would that of a party without legal aid.
There is no exception to this requirement for cases involving children. It follows
that there is no statutory basis for the assertion that the legislative policy is that
costs should not be awarded and indeed the contrary appears to be the case.”
17. O’Malley J. in the High Court in HSE v. O.A. considered Dunne v. Minister for the
“The rule of law that costs normally follow the event, that the successful party to
proceedings should not have to pay the costs of those proceedings which should be
borne by the unsuccessful party, has an obvious equitable basis. As a counterpoint
to that general rule of law, the court has a discretionary jurisdiction to vary or
depart from that rule of law if, in the special circumstances of a case, the interests
of justice require that it should do so. There is no predetermined category of cases
which fall outside the full ambit of that jurisdiction. If there were to be a specific
category of cases to which the general rule of law on costs did not apply that would
be a matter for legislation since it is not for the courts to establish a cohesive code
according to which costs would always be imposed on certain successful defendants
for the benefit of certain unsuccessful plaintiffs.”
18. It is clear from the decision in The Child and Family Agency v. O.A. that the authority had
withdrawn child care proceedings ultimately from before the District Court. As a result,
there never was a full hearing although the issue of costs was the subject of an appeal to
the Circuit Court. The Supreme Court noted that “…there had been no full hearing on the
issue before [the Circuit Court] on appeal” (para. 41). With regard to elements of the
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proceedings, particularly the making of supervision orders in regard to children by the
District Court, MacMenamin J. observed: -
“It cannot be convincingly asserted that the mother was a ‘successful party’ in the
latter instances. Nor can it be said that the District Court Judge’s award of costs
had, to apply the well-established phrase, ‘followed the event’, or ‘established
principles’.
In fact, the ruling does not set out a rationale for the award of costs, nor does it
seek to distinguish the full care proceedings from the supervision orders made,
which were clearly unsuccessful from the respondent’s [mother’s] point of view.”
The event
19. MacMenamin J. then observed at para. 42 of the judgment: -
“… the use of the term ‘the event’, as in ‘costs follow the event’ is not always, in
itself, a satisfactory criterion, in the context of child care cases, where, as here,
there may be a number of ‘events’, and there are different orders made as part of a
continuum. The term ‘outcome’ may be a more apposite approach when considering
such applications, thereby allowing a judge to take a more all-encompassing view.
Whether it was appropriate to deny a successful party their costs because of the
existence of legal aid, simply does not arise as an issue here.”
In dealing with the criteria which may appropriately be adopted by the District Court in
dealing with a costs application, he said at para. 52: -
“…the approach to be adopted by the District Court, in dealing with statutory child
care proceedings, should normally be predicated on whether, in the first instance, it
was proper to commence the proceedings…the starting point should be that there
should be no order for costs in favour of parent respondents in District Court care
proceedings unless there are distinct features to the case…”
Application of the principles to the instant case
20. The instant case concerns an issue of child welfare rather than constituting a child care
application. Furthermore, unlike the state of affairs as obtained in O.A., the orders made
by the High Court on the 21st February, 2018 were not as part of a continuum but
conclusively determined the proceedings and indeed the CFA did not appeal that
determination. As MacMenamin J. noted, a key issue in the case before him was when, if
at all, it would be appropriate to award costs to a party for whom the outcome has been
largely unsuccessful. In the instant case it is the CFA which has been wholly unsuccessful,
and C. has been entirely successful in resisting the proceedings and supporting her son in
his litigation.
21. The decision in The Child and Family Agency v. O.A. provides clarity and certainty
regarding costs in District Court child care proceedings and appeals from such
determinations to the Circuit Court. The instant case, by contrast, was novel and the
outcome was by no means predictable. The Supreme Court in The Child and Family
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Agency v. O.A. at para. 52 acknowledges the material distinction in substance of litigation
where the inherent jurisdiction of the High Court is invoked in regard to a child. In
contrast to child care proceedings which are instituted before the District Court,
MacMenamin J. observes: -
“Different considerations would often apply in relation to child care proceedings in
the High Court where the Court is exercising its inherent jurisdiction. Very
frequently the cases in that category address situations where there is no direct
precedent, where the same statutory considerations do not come into play; and
where, frequently, the CFA acknowledges that due to the nature and complexity of
the case it would be unduly burdensome for parents or other parties to bear their
own costs.”
22. In the instant case the CFA, understandably, sought to place reliance on the Supreme
Court decision of MacMenamin J. in The Child and Family Agency v. O.A. However, that
decision is distinguishable in a number of material respects. Firstly, it was a judgment in
relation to the issue of costs and the principles and criteria applicable to determining costs
applications in District Court child care proceedings brought pursuant to the Child Care
Act, 1991 and where sections 13, 17 and/or 19 of the said Act were engaged.
23. By contrast, the instant case was instituted by way of plenary summons in the High Court
invoking the inherent jurisdiction of the High Court and the provisions of Bunreacht na
hÉireann; Articles 34.3.1 and Article 40.3. C. is a guardian and mother of A. As such she
had an immediate, direct and compelling interest in the proceedings, particularly in light
of the identified potential risks to her son’s welfare should the CFA succeed in its
application. Further, far from being a routine application to the District Court pursuant to
the statutory remit of the Child Care Act, 1991 as the trial judge himself noted: -
“This case is unprecedented in the Irish courts since it seeks an order to breach
patient confidentiality for the benefit of a third party” (para. 2 of the substantive
judgment).
The unprecedented, exceptional and ground-breaking nature of the proceedings in the
instant case sets them apart from routine applications which originate in the District Court
pursuant to the provisions of the Child Care Act, 1991.
24. It is clear from the history of the proceedings outlined by MacMenamin J. in The Child and
Family Agency v. O.A. that the matters at issue between the parties there were the
subject of ongoing interim orders including a supervision order, interim care order,
renewals of such orders from time to time, applications for directions seeking to discharge
an interim care order and various directions of the District Court including orders for
review of a supervision order. Hence, the litigation was ongoing in nature, the subject of
sundry interim orders which were varied from time to time, which were the subject of
review from time to time and the subject of an application to be set aside.
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25. By contrast in the instant case, the substantive issue was progressed with a significant
level of expedition by way of plenary proceedings to a final and unequivocal determination
embodied in the order of the High Court dated the 20th February, 2018 refusing the CFA
the reliefs claimed based on a written judgment. Thus there was a clear “event” wherein
C. fully and successfully opposed the application for the reliefs sought by the CFA. The
Agency failed on all grounds and hence the order represents a clear and finite event in
respect of which the CFA did not appeal the orders of the High Court refusing the reliefs
sought.
Conclusions
26. O.99 r.1 (3) and O.99 r.1 (4) provide that costs are to “follow the event”. In the instant
case the determination of the trial judge as to costs was in the context of a final and
conclusive outcome and an order being made following the event of the litigation. The
order was not appealed against. In the event, the CFA had been unsuccessful and failed
to obtain any orders from the Court and C., the second named defendant in the litigation,
had successfully resisted the application concerning her child.
27. The facts in The Child and Family Agency v. O.A, which concerned statutory child care
proceedings in the District Court, are wholly distinguishable from the facts of this case.
There was no “continuum” arising in the instant case. The said decision does not assist
the CFA.
28. There was clarity and finality attendant on the order of the court made at the conclusion
of the hearing and the order made refusing the reliefs sought by CFA was not the subject
of an appeal. As such therefore, the instant case was clearly and significantly
distinguishable from the facts which presented themselves to the Supreme Court in The
Child and Family Agency v. O.A. These proceedings were substantial, novel and complex
requiring argument over approximately five days before the High Court.
29. By any measure these were unusual proceedings. This was illustrated by the fact that
there was difficulty encountered in finding any precedent for such an application across
common law jurisdictions. I am satisfied that given the exceptional nature of the issues
this case falls within the ambit of the circumstances adverted to by MacMenamin J. when
he expressed the view that “different considerations often apply in relation to child care
proceedings in the High Court where the Court is exercising its inherent jurisdiction.”
30. A potential injustice would be visited on the appellant mother if an order for costs was not
made in her favour in all the circumstances of the case. The outcome of this case was a
matter of great importance to her child and to her. This did not cease to be so merely
because he attained the age of majority in the course of the litigation. The welfare of A.
was a matter of paramount consideration in the proceedings. The vindication of his
constitutionally protected rights necessitated that his mother and guardian be made a full
party to the proceedings, a step CFA quite correctly took from the outset. That step was
taken with full knowledge of the existence and import of s.33(2) of the Civil Legal Aid Act,
1995. A. was entitled to have his mother’s views heard on an issue that touched and
concerned his constitutionally protected rights, his welfare and best interests. C. was
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entitled to exercise her parental rights as she did to have the court appraised of her views
concerning her child’s welfare. Her engagement in the litigation was, on the evidence, a
practical vindication of her constitutionally protected rights as parent and guardian of A.
31. I am satisfied that the trial judge fell into error in characterising the appellant C. as being
reduced to merely “a witness as to fact” in relation to her “adult” child, “something which
does not require legal representation”. In fact, C. had a clearly recognised constitutional
right to be engaged in litigation in circumstances where at the date of the institution of
the proceedings her child A. was a minor. She actively engaged with the litigation and put
before the Court comprehensive submissions directed to the child’s welfare in
circumstances where real and significant concerns were identified and articulated to the
Court as to the potential risk of harm or injury that might befall the minor A. were the
orders sought by the CFA to be made by the High Court.
32. C. sought no private or personal advantage from her engagement with the litigation. The
legal issues raised were of a special and general public importance as appears to have
been accepted by the parties.
33. C.’s thoughtful and thorough submissions played a significant part in satisfying the Court
that the breach of A.’s patient confidentiality sought by the CFA ought not to be granted.
Further, she convincingly argued that the CFA had failed to identify the exceptional
circumstances which were required before a breach of patient’s right to confidentiality
could be breached. Thus, I am satisfied that C.’s primary role at the trial of the action was
far more significant and far more central than a mere “witness as to fact”. Her presence
was necessitated by virtue of the constitutional framework and the articles of the
Constitution invoked by the CFA itself in the context of the litigation, and further by the
very measure of the CFA in making a decision ab initio that C. be constituted a full
defendant in the proceedings.
34. I am satisfied that notwithstanding that the trial judge alludes to s.33(2) of the Civil Legal
Aid Act, 1995 he erred in failing to have proper regard to its principles. To suspend the
operation of a statutory provision in such a manner resulted in the trial judge
illegitimately interposing himself between the Oireachtas and the Executive. If the
operation of the general rule as to costs found in Order 99 as combined with the court’s
discretionary power to ensure that justice is done, is to be set aside, suspended or varied
in respect of certain cohorts of litigants it would, in my view, require legislative
intervention.
35. It is clear that the trial judge accorded significant weight to the fact that the dispute as to
costs as between the appellant and the CFA was in substance “A dispute between two
State agencies, the Legal Aid Board and the CFA, as to who should be liable for C’s legal
costs.” Furthermore, he erred in his reasoning at para. 6 in stating: -
“…this Court can see no injustice being visited upon C if her legal costs are
discharged by the Legal Aid Board rather than by CFA. In addition, this Court does
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not see any injustice being visited on the Legal Aid Board, if it, rather than the CFA
discharge the costs.”
36. The learned judge erred in his approach at para. 7 of his judgment where he observed: -
“…when one is ultimately dealing with taxpayers’ money (whether the CFA or the
Legal Aid Board foots the legal bill), this Court sees one particular advantage
attaching to the default rule set down by MacMenamin J. whereby the Legal Aid
Board ends up paying its own legal costs. It is that, in a case such as this, where a
child is represented (and his legal costs are being paid for by the taxpayer) and
where he is as close to adulthood as makes no difference, the Legal Aid Board, with
its limited budget, has to give very active consideration, whether, and to what
extent, it is justified in expending further legal costs which will ultimately have to
be paid for by the taxpayer on behalf of C, when C’s primary role at the trial was as
a witness as to fact in relation to her ‘adult’ child, something which does not require
legal representation.”
37. Such an approach amounts to a clear disregard of s.33(2) of the Civil Legal Aid Act, 1995
as well as the constitutionally protected rights of A. and his mother and supplants the
statutory direction embodied in that provision in a manner which inappropriately enlarges
the Court’s own constitutional role such as to amount to an error of principle.
38. I am satisfied that in the instant case there is no O.A. type continuum and the
fundamental principle that costs follow the event applies in accordance with the tenor of
O. 99. There is no legitimate basis to deviate from that principle in circumstances where
the trial judge was mandated by Statute to make an order for costs in the matter in like
manner and to like effect as the Court would otherwise make had C. not been in receipt of
legal aid and rather had obtained the services of a solicitor and barrister at her own
expense. Further, the order of the Court amounts to a clear and definitive event. The
issues were significant, complex and novel. The decision of MacMenamin J. in The Child
and Family Agency v. O.A. is distinguishable for the reasons outlined above.
39. I would accordingly reverse the order of the High Court and grant C. the costs of the
proceedings, including all reserved costs, when ascertained, against the CFA.
Result: High Court order reversed and C granted cost of the proceedings, including all costs, when ascertained, against the CFA