High Court of Ireland Decisions

 


[2005] IEHC 211

THE HIGH COURT

DUBLIN

1998 No 283 JR

JONATHAN O'MAHONY (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND DELIA O MAHONY)

Plaintiff

MINISTER FOR EDUCATION AND SCIENCE, MINISTER FOR HEALTH AND CHILDREN, IRELAND AND THE ATTORNEY GENERAL

Defendants

APPROVED JUDGMENT DELIVERED BY MR JUSTICE O'NEILL ON WEDNESDAY, 6th APRIL 2005

In this Notice of Motion the Applicant seeks to re-enter these proceedings by order of this court made by McGuinness J. On the 15th July 1999 she ordered in the following terms. I quote directly from the curial part of the order which says as follows:

"And it appearing that a settlement has been reach ed here with the approval of the court, the Court does approve of the settlement and by consent it is when ordered that the Respondent should pay the Applicant the costs of the proceedings herein taxed and ascertained that the said proceedings do stand adjourned generally with liberty to re-enter.

The background to this matter is as follows: The Applicant was born on the 11th April 1986 and was diagnosed as suffering from autism by the age of 3. He was placed in 1990 in the Holy Family special school for moderately Intellectually and Disabled Children. It was contended in these proceedings when they were launched in 1998 that the Respondents breached the Applicant's constitutional rights to appropriate primary education and failing in a variety of respects to provide for the Applicant's special educational needs.

These proceedings concluded with the order of McGuinness J, mentioned above, which was made by consent. In seeking to re-enter these proceedings the Applicant contends that the settlement referred to in the order obliged the Respondents in contract to firstly install a unit which would properly segregate children of different ages, age groups and needs located in the Holy Family special school.

Secondly, that it obliged them to provide a support team to include a psychologist, speech therapist and an occupational therapist.

Thirdly, that it required that the Respondents retain a social worker to plan summer programs and home help and to be responsible for planning and for placement after completion of the programme at the Holy Family special school.

It is the Applicant's case that the Respondent breached the terms of this settlement in several respects, namely, in the first instance that they did not set up the support team until the Summer of 2000.

Secondly, that in December 2000 the social worker resigned and that a new social worker only stayed for 2 months.

Thirdly, that by September 2001 the resident support team had resigned within weeks of each other because of a lack of support from the Respondents to enable them to perform their functions.

Furthermore, that the applicant remained in a class where one child was 8 years younger than him and two other children had severe behavioral difficulties which had a negative affect on him.

As a consequence of all of the foregoing that the Applicant had from 1990 endured for 8 and a half years a situation where he was denied an appropriate programme and that he suffered educationally and behaviorally.

The Applicant contends that he did well on the programme until September 2001 and that since then he has regressed in his behaviour and it is his mother's evidence on affidavit that she cannot now take him into shops or out to walk on the street.

Having regard to the Applicant's age, namely 18 since 11th April 2004, it is conceded by the Applicant's that a mandatory order as sought in 1998 is no longer appropriate. It is further conceded that in the light of the judgment in the supreme court in SL n ott v minister for Education and others, 2001, 2 I.R. at 545, that this case has the effect of outruling the mandatory relief of the kind claimed originally in these proceedings.

The Applicant contends that he is entitled to re-enter the proceedings to claim declaratory relief to the effect that the Respondent's has breached his constitutional rights to appropriate primary education and his constitutional right to equality before the law and also to claim damages.

The Respondents make it the case on affidavit that the matters advanced by the applicant as terms of contract were not that and were never intended to be that. They draw attention to the absence of any written record of any kind of these alleged terms. They say that the proposals put forward in 1990 were no more than statements of intent and that the Respondent could not have fethered their discretion both at that time and into the future in relation to their statutory duty to provide services, by contractual obligations of the kind alleged by the Applicant.

It was submitted by the Respondents that even if the Applicant could establish that these terms had contractual force and even if he could establish on the evidence that there had occurred breaches of these terms, as alleged by the Applicant, the appropriate remedy would be a new action suing for breach of the settlement and not a re-entry of the judicial review proceedings. It was further submitted that the phrase in the order "liberty to re-enter" was in all probability loosely defined and interchangeable with the phrase "liberty to apply". Thus understood the order could not avail the Applicant where his contention was that the settlement had been breached or had broken down, as this facility to return to the Court permitted by such a provision is only for the purpose of ancillary relief to enable or enhance the effectiveness of the order made and never contemplates the complete setting aside of the settlement so as to permit the original cause to be litigated.

It was conceded by the Respondents that where there was no compromise of the claims made in the proceedings in a settlement and where the proceedings were not terminated but adjourned generally with liberty to re-enter that in that circumstance if statements of intent of the kind made by the Respondents were not fulfilled that the Applicant could avail of the right of re- entry so as to litigate the claims made originally in the litigation. It was further submitted that this case was wholly different.

Firstly, it was contended there was a settlement which did oblige the Respondents to pay a sum of 20,000 to the Applicant and also the costs of the proceedings. In addition the Respondents made certain statements of intent. However, it was contended by the Respondents the only terms legally binding on the Respondent was the obligation to pay the 20,000 and the cost of the proceedings. They further submit that the sum of 20,000 can only be properly understood as being a compromise sum in respect of the compensation claimed. It was part of the settlement approved by the court and that was reflected in the order and, hence, they submitted the Applicant's claim for damages was compromised and paid and the applicant could no longer pursue this claim for damages for breaches of the constitutional rights alleged in the proceedings.

That being so it was further submitted by the Respondents that a re-entry of the proceedings was pointless as no tangible relief could be pursued. It was further submitted by the Respondents that the evidence relied upon by the applicant failed to establish breaches of his constitutional rights as alleged and failed to establish the contractual obligations alleged.

For the Applicant in reply it was submitted that the evidence establishes that the 20,000 was paid as an "ex gracia payment" and, therefore, was not a payment of damages or compensation.

It was further submitted that the court should have directed that the application should proceed under order 84, Rule 25, subrule 5 to continue as a plenary action for damages and it was conceded that the Respondents would in the computation of damages be entitled to the credit for the sum of 20,000 paid.

On the facts as deposed to on affidavit I am satisfied that as a matter of probability the Respondents did not warrant, as contractual obligations, to do the things claimed by the Applicant.

It is clear that the Respondent did say that they would do certain things but in my view the Respondents are right to characterize their commitments in this regard as merely statements of intent.

I am inclined to that view for a number of reasons. Firstly, there is a complete absence of a written record of these terms. If it was the case that it was believed at the time that these terms were to have contractual force it is quite extraordinary, indeed simply unbelievable, that no written record of them was created or retained by either side.

Secondly, the Respondents had a statutory duty to provide services of these kind and in the performance of that duty had a discretion to exercise then and into the future. It would seem to me to be very unlikely that the Respondents would fetter that discretion by contractual obligations of the kind alleged.

Although unnecessary for me to decide the question it can be said, at the very least, that it is doubtful whether the contractual obligations of the kind alleged would have been intra vires the legal powers of the Respondents. In any event I am satisfied as a matter of probability that the Respondents did not enter in the kind of contractual obligation as claimed by the Applicant

What then are the consequences of this conclusion? In my view the phrase "liberty to re-enter" coupled with "adjourned generally" in this context can only mean that in the event of a failure to fulfil the commitments made by the Respondent that the Applicant would have the right to litigate the original claims in that proceedings unless it could be said that the proceedings had been brought to termination by a settlement, which was approved by the Court, this would be necessary because the Applicant was a minor at the time.

Interpreting the phrase "liberty to re-enter" as synonymous with the phrase "liberty to apply" would make no sense in this context in that the assurance or statement of intent of the Respondent was not legally binding and could not be amenable to clarification or ancillary relief to enable or enhance its legal effectiveness.

It is quite clear that there was a settlement which was approved by the court, the order makes that plain. It would seem to me that it is highly unlikely that the court was not told of the 20,000 as part of that settlement. In my view such a conclusion is the only reasonable inference to be drawn from all of the evidence including the terms of the order itself. The order says that the Court approved the settlement. I cannot agree with the Applicant's submission that the 20,000 cannot be regarded as a payment in respect of damages for compensation because it was expressed to be ex gratia given that the sum was paid in the context of these proceedings and given that the costs were to be paid additionally.

In my view, this payment cannot be understood otherwise than as a payment which compromised the claim for damages or compensation. otherwise the payment has no meaning at all and no other reason for this payment has been advanced by the Applicant.

I, therefore, have come to the conclusion that the Applicant's claim for damages for breaches of constitutional rights as alleged in these proceedings has been compromised and settled and paid and no purpose can be served in re-entering the proceedings to enable the Applicant to pursue his claim for damages.

A claim for a declaration where no injunctive relief was available and no further damages recoverable would be an idle exercise of this court's jurisdiction and for my part I would refuse to exercise my discretion to permit the Applicant to re-enter the proceedings in the circumstances.

Accordingly, I refuse the claim in the notice of the motion.

END OF JUDGMENT

Approved

O'Neill J

23/6/05