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Cite as: [2013] IEHC 172
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Judgment Title: Health Service Executive v O.A. Neutral Citation: [2013] IEHC 172 High Court Record Number: 2012 SS 1568 Date of Delivery: 12/04/2013 Court: High Court Composition of Court: Judgment by: O'Malley J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 172 THE HIGH COURT IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACTS, 1961- 1991 2012 SS 1568 BETWEEN/ HEALTH SERVICE EXECUTIVE Applicant -and-
O.A. Respondent Judgment of Ms. Justice Iseult O'Malley delivered the 12th of April, 2013 Introduction 2. The Attorney General, on application, was joined as a notice party in the court to make submissions on the constitutional issues. The case stated
(ii) Subsequent to the granting of the said Emergency Care Order, the Applicant issued an application for an Interim Care Order under s.17 of the CCA, returnable to Thursday, 5th May, 2011. The Respondent was notified of the said application by registered post and attended at Dolphin House, Courthouse on the 5th May, 2011. On the 5th May, 2011 the Respondent was legally represented by Mr. Eamonn Bennett, Solicitors, who thereafter represented her interests before the Court on the following occasions; 11th May, 2011 2nd June, 2011 28th June, 2011 12th September, 2011 6th October, 2011 1st November, 2011 and on each of those dates the Interim Care Order was extended. (iii) On the 28th November, 2011 and on the 12th December, 2011 the Applicant applied under s19 of the CCA for Supervision Orders in respect of the child, which were granted. The later Supervision Order expired on the 5th March, 2012. The Respondent was represented on each occasion by Eamonn Bennett Solicitors. (iv) On the 5thMarch, 2011 the Respondent's legal advisers sought their costs as against the Applicant with regard to the said proceedings. (v) It was contended by the Applicant that it believed the respondent would have been entitled to receive legal aid from the Legal Aid Board and therefore should have applied for legal aid with regard to the proceedings in issue. It was further contended by the Applicant that if the Respondent had retained private legal representation with regard to the Child Care Proceedings before the Court in circumstances where she might have been entitled to receive legal aid, she was not therefore entitled to her costs in this matter. (vi) It was contended on behalf of the Respondent that it was not within the remit of the Applicant to enquire into the Respondent's means. Furthermore, it was contended on behalf of the Respondent that it may be a breach of the separation of powers doctrine if the Court were to treading into the area of policy making and this was the function of the executive or legislature. (vii) It was further contended by the Respondent that section 33 of the Civil Legal Aid Act, 1995 specifies that 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 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. (viii) Therefore, it was the Respondent's contention that, as the Legal Aid Board is obliged to seek its costs in all matters which come before the Court in which it represents clients, the Court is not entitled to consider whether or not a person was entitled to receive legal aid, and the issue as to whether or not the Respondent may have been entitled to legal aid should not be considered by the Court when exercising judicial discretion in respect to granting or not granting costs to the Respondent (ix) AND WHEREAS I, the said judge, am of the opinion that questions of law arise in the foregoing case and do hereby refer the said questions to the High Court for determination. QUESTION The questions upon which the opinion of the High Court is required upon the above statement of facts are: -
(ii) In exercising my discretion as to whether or not to grant costs to the Respondent [must I] take into account that the Respondent may have been entitled to legal aid and has access to legal aid. 5. The consultative case stated procedure is meant to be a method whereby a District Judge can, where he or she considers it desirable, seek the assistance of this court on a legal question arising in proceedings before him or her. In this case the Judge has asked a question concerning the exercise of a jurisdiction, the existence of which nobody had challenged before him. Where a case has been stated in such circumstances, and a party then makes the case that in fact the jurisdiction does not exist, difficulties may arise in relation to the preparation of the case by the other side. It may also be seen as unfair to the District Judge. In this case, not surprisingly, the written submissions filed on behalf of the mother dated two weeks before the hearing in this court do not deal with the issue. 6. However, in the event counsel for the Attorney General helpfully referred the court to the relevant statutory provisions by way of counter-submission on the issue. I have also had regard to the judgment of Finlay C.J. in Dublin Corporation v Ashley [1986] I.R. 781where, dealing with a case stated from the Circuit Court, he said:
The HSE's submissions on the jurisdiction to award costs 9. Counsel relies on the judgment of the High Court (Hedigan J) in Southern Hotel Sligo Ltd v Iarnrod Eireann [2007] 3 IR 792 and in particular the following passage (at p. 803):
'It is well established that there is no inherent power or jurisdiction to grant costs and that costs can only be granted under the provisions of some statute or rules; Garnett v Bradley; O'Connor's Justice of the Peace 2nd ed., Vol. 1 p. 198; Paley on Summary Convictions, 7th ed., p.227. The District Court was established by the Courts of justice Act, 1924, and is the creature of that statute.' This finding that the District Court has no inherent jurisdiction to award costs in the absence of an expressed statutory power was affirmed by Finlay P. in The State (Attorney General) v. Shaw [1979] I.R. 136." 11. The applicant submitted, inter alia, that there was an inherent jurisdiction in the court to award costs arising out of O. 51, r. 1 of the District Court Rules, 1997. This provides as follows:
14. Counsel submits that this is analogous to the functions of the HSE in child care cases. This is, he says, a public body fulfilling a public duty under statute, not a private proceeding. It does not, therefore, come within the definition of "civil proceedings" for the purposes of 0. 51, r. 1. 15. It is worth noting the facts in Crawford and Shaw. Crawford was a case stated from the District Court arising out of an unsuccessful prosecution by the Attorney General under the Customs Consolidation Act, 1876. The District Justice had dismissed the summons on the merits and wished to order the Attorney General to pay the defendant's costs. The problem for the defendant was that the only relevant provision of the then-extant District Court Rules, 1926 was r. 37. Paragraph (a) of the rule empowered a District Justice to award costs against a prosecutor in summary cases but it specifically exempted the Attorney General. Paragraph (b) provided that (a) did not apply to proceedings dealing with duties under the care and management of the Revenue Commissioners - a category into which this case fell. In the circumstances, paragraph (b) nullified the whole of paragraph (a) and there was therefore no rule under which costs could be awarded. 16. The defendant attempted to fall back on the provisions of the Customs, Inland Revenue and Savings Bank Act, 1877. Section 5 of that Act provided that in all proceedings at the suit of the Crown under the Customs Acts, the same rule as to costs shall be observed as in suits and proceedings between subject and subject. However, there had been no adaptation of that Act and as the proceedings in question were clearly not at the suit of the Crown, the result was a finding by the High Court that there was no jurisdiction to award costs to either party in such a prosecution. The decision in Crawford was affirmed in AG v. Shaw. 17. The HSE argues that there is no statutory provision conferring on the District Court power to award costs to a parent under the Child Care Act, 1991. 18. It is submitted by the HSE that the power to award costs arises in only two instances under the Child Care Act. These are, firstly, where the court decides to join the child as a party under s. 25, in which case a solicitor is to be appointed to represent the child. The HSE is to pay the costs and expenses of the solicitor unless, on the application of the HSE, the court directs any other party to pay them (pursuant to s. 25(4) and (5)). Secondly, under s. 26 the court may, as an alternative to the power under s. 25, appoint a guardian ad litem to a child who is not represented. Again, the HSE will be responsible for the guardian's costs unless the court directs that another party meet them (s. 26(3)).Since, in reality, the "other party" envisaged can only be a parent or other person in loco parentis, the HSE argues that the legislature must have made a deliberate decision to provide for the possibility that these particular costs could be awarded against the HSE or against the parent, without making similar provision for a parent to claim their own costs. 19. I am told that the HSE does not in practice make applications to have such costs ordered against parents but that it would have a right and a duty to do so if the person concerned was in a position to pay. 20. The HSE says that the Act therefore establishes a policy decision that costs should not be awarded against it (other than in the two specified instances) and that this policy decision is appropriate given the nature of the functions exercised by it under the Act. Counsel points to, inter alia, s. 3 of the Act (which sets out the general principle that it is the function of the HSE to promote the welfare of children who are not receiving adequate care and protection) and s. 16 (the duty to apply to court for a care order or supervision order in respect of a child who requires care or protection and is unlikely to receive it without such an order). It is submitted that proceedings of the sort in question are "inquisitorial" or "investigative" rather than adversarial, with the objective being the promotion of the best interests of the child. In the circumstances it is wrong to see the process involving "winners" or "losers" and there is no "event" for costs to follow. 21. Reliance is placed by the HSE on the judgment of the Supreme Court of the United Kingdom in Re T (Children) [2012] 1 WLR 2281 as support for the proposition that a body such as itself, carrying out child protection functions pursuant to a statutory duty, should in general not be liable for costs. 22. In T., the issue was whether the children's grandparents should recover their costs against the local authority which had brought proceedings under the UK care legislation. Allegations of abuse had been made against six men and the grandparents were alleged to have colluded. For the purpose of the fact-finding hearing into the allegations the grandparents and five of the men had the status of "interveners" although, as noted in the Court of Appeal judgment ([2010] EWCA Civ 1585), it is not clear whether this was on their own application or otherwise. Four of the five men had legal aid. (The fifth represented himself.) The grandparents, who were in their sixties and who had a combined income of £25,000, seem not to have been eligible for legal aid and borrowed over £50,000, repayable over 15 years, to pay for legal representation. After a hearing that lasted more than five weeks they were cleared of all allegations. They were refused their costs on the basis that it was a policy not to award costs against local authorities in child care cases. They succeeded in the Court of Appeal, where it was held that this rule should not apply to fact-finding hearings, but lost in the UK Supreme Court. Before considering the judgment it is worth noting the remarkable fact that the Supreme Court appeal was conducted on a pro bono basis by all counsel involved and was argued without prejudice to the result in the Court of Appeal. 23. The court observed that since the Children Act, 1989 came into force costs had not been awarded against local authorities in cases where no criticism could be made of the manner in which they had performed their duties. It considered that the principle in question did not depend on the nature of the hearing. Judicial notice was taken of the potential impact that costs orders might have on the activities of local authorities and, further, of the fact that such bodies were financially hard pressed. In its conclusions the court said (at para. 42):-
24. The Attorney General is of the view that the District Court does indeed have jurisdiction to award costs, derived from the Courts of Justice Act, 1924 as extended by the Courts (Supplemental Provisions) Act, 1961. 25. Section 91 of the Act of 1924 governs the powers of the rule-making authority of the District Court. In the relevant part it provides: -
Relevant provisions of the Civil Legal Aid Act. 1995
(a) a reasonably prudent person, whose means were such that the cost of seeking such services at his or her own expense, while representing a financial obstacle to him or her would not be such as to impose undue hardship upon him or her, would be likely to seek such services in such circumstances at his or her own expense, and (b) a solicitor or barrister acting reasonably would be likely to advise him or her to obtain such services at his or her own expense.
(2) 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. (3) Subject to subsection (8) an applicant for legal aid or advice shall take all possible steps to ensure that any right he or she possesses to be indemnified either in whole or in part in respect of expenses which would, but for this Act, be required to be incurred by him or her in the matter, will, in respect of expenses incurred by the Board on his or her behalf in the matter and not yet reimbursed to the Board, inure for the benefit of the Fund. (4) A solicitor of the Board nominated for the purpose or a solicitor engaged by the Board under section 11 to provide legal aid or advice to a person in a matter shall take all necessary steps to recover any costs recoverable by such person whether by order of any court or tribunal or by virtue of any settlement reached to avoid or bring an end to any proceedings or otherwise, and shall pay any costs so recovered into the Fund. (5) A person in receipt of legal aid or advice under this Act shall not agree with any party not so in receipt to forego any costs or to meet any costs of any such party or to accept any sum in satisfaction of his costs or the costs of the Board in the matter, save with the prior approval of the Board, and the Board may make it a condition of such approval that any or all of its costs shall be paid out of any property recovered by the said person by virtue of the agreement. 31. The Act requires applications to be considered by reference to, inter alia, a merits test (roughly, whether there is a prospect of success, or whether it is reasonable to litigate) and a means test. However, the merits test does not apply to children cases and, by virtue of s. 29 (as amended by s. 80 of the Civil Law (Miscellaneous Provisions) Act, 2008) the Board has a discretion to provide legal aid or advice without reference to the applicant's means. Conclusions on jurisdiction 33. Counsel further says that the constitutionality of s. 91 is doubtful. That is an argument too far in the context of this particular case stated and I do not propose to embark upon it. 34. I do not think that the two provisions in the Child Care Act relied upon by the HSE - relating to the costs of the child and the guardian ad litem - are of assistance. These provisions clearly create a new power in the court to grant a right to be represented and to participate to persons who would not otherwise have had such a right, because as a matter of legislative policy it was thought appropriate that they should. It then became necessary to make provision for their costs. It does not follow that they are the only participants who should be entitled to their costs. 35. The next question then is whether child care proceedings are "civil proceedings" for the purpose of 0. 51. 36. It is not clear to me whether the Courts Acts were opened to the court in the Southern Sligo Hotel case. In any event, without attempting to second-guess Hedigan J. in relation to the particular procedure under the Environmental Protection Act and the provisions of that Act, it seems to me that the only distinction made in the Rules is between civil and criminal proceedings. There does not seem to be, for the purposes of the question of costs, a distinction between public and private civil proceedings. 37. The final issue under this heading is whether policy considerations require the court to refuse to grant costs against the HSE in child care proceedings. 38. There is no Irish authority that supports the HSE on the point. The decision of the UK Supreme Court in the T. case is certainly persuasive but I feel that I should not follow it for a number of reasons. 39. The grandparents in the case were not parties and do not appear to have been eligible for legal aid. With respect, I have to say that in my view the result of the application of the rule to them would be better described as an injustice than, to use the court's term, a "serious misfortune", were it not for the fact that the local authority concerned ran the appeal to the UK Supreme Court as a moot. In this regard I would prefer the approach of the Court of Appeal. 40. The general policy set out in T. is, I accept, a legitimate one and not unlike that considered by the Supreme Court here in Dillane v Ireland [1980] ILRM 167. In that case, the provision in the District Court Rules preventing a successful defendant from recovering costs against a member of An Garda Siochana acting as a common informer was in issue. (In contrast, costs could be awarded against an "ordinary" common informer.) The discrimination was held not to breach the equality guarantee of Article 40.1 because it related to the difference in social function between the two categories in a manner that was not arbitrary or capricious. Significantly, Henchy J. said in relation to the rule: -
42. In Dunne v The Minister for the Environment, Heritage and Local Government [2008] 2 IR 775 the Supreme Court reversed a High Court decision to award costs to an unsuccessful plaintiff. The award had been made on the basis that particular considerations applied to cases where (1) the plaintiff was acting in the public interest in a matter that involved no private personal advantage and (2) the issues raised were of sufficient general importance to warrant an order for costs being made in the plaintiffs favour. Giving the judgment of the court, Murray C.J. said ( at p. 783)
43. It may well be that a practice has grown up of not awarding costs where the relevant party is legally aided, as happened in the Supreme Court in HSE v A.N (unrep. Fennelly J, 14th April, 2010). It may also be that in many cases that is a proper exercise of the court's discretion. However, I have not been directed to any judgment on the point where s. 33 had been considered. I am therefore not prepared to endorse such a practice as having the status of a legal principle. 44. I therefore conclude that the District Court does have a jurisdiction, based on statute and on the District Court Rules, to award costs in proceedings under the Child Care Act, 1991and that it is not debarred from so doing by policy considerations relating to the function of the HSE under that Act. The questions posed in the case stated Submissions on behalf of the HSE 46. The HSE interprets this case as being, in reality, a claim for the funding of the mother's legal representation other than through the provision of civil legal aid under the Act. On this aspect the HSE argues that the establishment of the civil legal aid system is the mechanism chosen by the State to vindicate the right of access to the courts in cases of this nature. It is submitted that the mother is "manifestly" entitled to legal aid and should have applied for it. Counsel says that if she chooses not to, she should not expect "the public purse" to fund her choice. It is argued that underlying her claim for costs must be an assertion of a constitutional right to legal aid, on the basis that she must be taken to be maintaining that the legal aid system is inadequate to protect her right of access to the court. The assumption is that she considers the limitation of choice in relation to legal aid solicitors to be an impermissible restriction. 47. Following through on this line of argument, counsel for the HSE then cites a number of authorities for the proposition that there is no constitutional right to legal aid in civil matters, while also pointing to features of the Legal Aid Board's operation which do in fact facilitate the exercise of choice by a legally aided person. Such limitations as there exist are, it is submitted, not unreasonable. 48. It is submitted that "a party is not at liberty to have unlimited choice of legal representation in all circumstances". Concern is expressed that "were it otherwise the entire system for the provision of legal aid would be undermined". 49. The HSE says that it does not seek to limit the mother's choice of representation. "It merely seeks to avoid being fixed with liability for the costs of her choosing representation which is not funded by the legal aid scheme. In fact, the [HSE] merely asks that, in the event that [the mother] does so choose and seeks to recover the costs which flow from that choice that the District Judge in considering the question should have regard to the fact that the costs exposure has arisen as a result of [her] choice." 50. The further submission is made that the separation of powers is in issue. To require the District Court to disregard the availability of legal aid would be to disregard the policy decision of the Oireachtas in determining how such representation should be funded "especially where the effect of such a restriction would be to impose the burden of the cost of such representation on the HSE". This, it is said would be contrary to the principles espoused in Sinnott v Minister for Education [2001] 2 IR 545 and T.D. v Minister for Education [2001] 4 IR 259. Submissions on behalf of the Attorney General 52. Counsel refers to the child-centred nature of the jurisdiction and says that in these proceedings there are no winners or losers and no "event" for costs to follow. That being so, the only basis on which a right to costs can be asserted is by virtue of the simple fact that the mother is involved in the case. However it was accepted that the District Judge does have some discretion in relation to costs- while there is no "event", the judge can have regard to the run of the case. 53. On the possible availability of legal aid, it is submitted that it is relevant because the core question in relation to costs is the reasonableness of legal representation, and applying for legal aid is a manifestation of reasonableness. If a parent had difficulty in getting legal aid the judge could take that into account. 54. The court was informed that the Attorney General is expressing these views only in relation to child care cases and not as a general proposition. The concern is, apparently, that the availability of costs would make proceedings more adversarial because private practitioners would see an opportunity to get costs, which is not a motivation for solicitors of the Legal Aid Board. Submissions on behalf of the mother 56. The mother, too, relies on the principle of the separation of powers and the same authorities in relation thereto. The submission in this regard is that the court would be engaged in policy making were it to decide to embark on enquiries as to the mother's eligibility for legal aid. 57. Counsel says that he is not asserting either a constitutional right to legal aid or a right to be paid costs regardless of the outcome of a case. He does assert a constitutional right to choose one's own lawyer, which includes the choice of whether to apply for legal aid or not where one may be eligible for it. He relies on the comments of O'Neill J in the case of Law Society of Ireland v Competition Authority [2006] 2 IR 262. In that case, the Competition Authority had attempted to limit the choice of legal representation of persons summoned to be examined on oath before it.
Notwithstanding the specific discretion given to a court under the above regulations, Barr]. nonetheless held in The State (Freeman) v. Cannel/an {1986} l.R. 433 that freedom of choice of solicitor, from the legal aid panel, should not be denied save for good and sufficient reasons. The conclusion of Barr]. in that regard would appear to me to be similar to that reached by the United States Supreme Court in Wheat v. United States (1988) 486 U.S. 153, namely that a presumption in favour of choice of lawyer must be recognised."
It could not in my view be said that a person availing of the criminal free legal aid scheme should have less autonomy or control over the conduct of their defence and in particular what lawyers were selected to conduct that defence, than would be the case if they were contracting for the services and paying for them themselves."
61. On the nature of child care proceedings, it is agreed that the judge's role is inquisitorial but, it is contended, the process itself is adversarial. Parents who contest the application made by the HSE can only do so by challenging the HSE's evidence and adducing their own. There are always issues to be determined, the primary one being whether the HSE was justified in making the application. Going to a private lawyer does not, as such, make the process more adversarial. Conclusions 63. I accept that child care proceedings under the Child Care Act, 1991 may not be directly analogous to most other forms of litigation. It is certainly the case that the judge's function is different, in that he or she must adopt a more inquisitorial role and reach a conclusion based on the welfare of the child beyond all other considerations. 64. However, that is not to say that it is wholly unlike other litigation. The concept that "there are no winners or losers" is an appropriate one for the attitude of the professional staff of the HSE and its lawyers but it asks a degree of detachment that is very unlikely to be shared by a parent. The procedure is, as a matter of fact, adversarial. Furthermore, although the proceedings may often be more accurately described as a process than a unitary hearing, there may well be individual issues decided along the way in favour of one side or another. 65. I agree with counsel for the mother that this case is not about legal aid or an attempt to indirectly establish a right to legal aid in civil cases. It is, in my view, about the right of an individual litigant who is not on legal aid and has not applied for legal aid to be treated in the same way as any other litigant who is not on legal aid - without arbitrary, capricious or invidious discrimination that, on the arguments mounted by the HSE and the Attorney General, could be based only on her supposed lack of means. The applicant is not seeking to have her representation "funded from the public purse". She chose her representative, as I accept she was entitled to do as a matter of right, and now seeks what any litigant who has succeeded in litigation is entitled to seek- her costs. I know nothing about the merits of the claim or whether in the normal course of events, having regard to all the normal factors taken into account by a judge, she would be entitled to an order for costs. All that appears from the case stated to have been put up by way of opposition to her claim is, in effect, the proposition that she is poor. 66. I realise that putting it in this way may seem invidious and that the HSE and the Attorney General would, with complete sincerity, disclaim any such discriminatory intent. However, there is no way around the fact that the consequence of their submissions would be that persons of limited means would have to justify their choice of advocate, in a way that wealthier individuals would not, despite the fact (or because of the fact) that they are not seeking State assistance. The principle they contend for would mean that judges could or should subject litigants to a sort of reverse eligibility test, enquiring into their income and assets and perhaps, if someone appeared to be over the means threshold, considering to what extent the Legal Aid Board might have used its discretion. This sort of enquiry is understandable when a person applies for a State-funded service but I can see no justification for such an intrusive process when the individual has chosen not to so apply. 67. The HSE has advanced as a rationale that public policy favours the protection of its resources. This argument, however, depends on the assumption that s. 33 of the Civil Legal Aid Act, 1995 is to be regarded as a dead letter and I have already said that I am not prepared to accept that as a matter of law. 68. The Attorney General would apparently prefer that child care cases be dealt with by the practitioners of the Legal Aid Board. I should perhaps state here that I have no doubt that the body of solicitors working for the Board, whether as employees or on the panel of private solicitors, have amassed an impressive expertise in this area of law. However, there is simply no precedent for the proposition that a judge can use his or her discretion in the matter of costs to compel, or even encourage, litigants to abandon their choice of advocate. To do so would, I believe, amount to an impermissible interference with that choice. Costs are an aspect of the right of access to the courts- per Finlay P. in Henehan v Allied Irish Banks (unrep., 19th Oct., 1985)
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