District Court grants costs to Notice Party under Child Care Act 1991 s.47 despite HSE opposition.

[2008] IEDC 1

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

NG & PG

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 47

IN THE MATTER OF CHILD 1 AND CHILD 2

30 April 2008

1. This is an Application by the Notice Party pursuant to section 47 of the Child Care Act, 1991, seeking the costs of representing the

Notice Party.

2. On 12 December 2005, solicitors lodged an application on behalf of the Notice Party pursuant to section 47 of the Child Care Act,

1991, seeking inter alia, to join a Notice Party. The Notice Party has since changed solicitors. The Application in respect of the Notice

Party was in the following terms — See Appendix [given].

3. The HSE submitted a Social Work report, undated, in respect of the Application which set out a brief history of the case. See

Appendix [given].

4. The matter came on for hearing on or about 20 December 2005 and the HSE submitted a report to the Court in the following terms.

See Appendix [given].

5. On 20 December 2005, the Court made the following decision. See Appendix [given].

6. It is noteworthy, notwithstanding that it is customary to employ such wording, that the Court stated that it was satisfied that the

welfare of the children required the joining of a Notice Party to the instant matter. Accordingly, this Court cannot adjudicate upon the

justification of the joining of the Notice Party nor assess the role they played nor seeking to question the decision of this Court in

that regard and thus, this Court does not intend to devote any of its consideration to these matters, rather it will concentrate upon

the Application in respect of costs.

7. By way of aside, I regularly see occasions when Respondents require something more than legal representation. This is a Court of

Inquiry but nonetheless it seems to me that very many of the case before the Court taken on the mantle of contested litigation. The

HSE is a very professional organisation and they frequently and regularly furnish reports to the court. These reports can be from

social workers or other professionals. On any one case, it is easily conceivable that there would be ten or more reports and all reports

supporting the HSE Application. Rarely would a respondent lodge a Statement to the Court, yet there may be occasions that the

factual position outlined to the Court may have another or alternative explanation but the Respondents, ill equipped in this forum, may

not offer such because they may feel that they will not be believed.

8. Given this, the scales of justice has to be in some measure tilted and it is up to the Court to balance this neatly poised scales to

maintain an equilibrium between the parties. In Discours sur la Profession d’Avocat, a French critique upon the legal profession in the

early twenty century, the author questioned how can one expect the ordinary citizen to acquire “that infinite variety of knowledge for

which he has occasion; that immense number of volumes which he is obliged not only to read, but meditate upon and fathom their

depths; that multitude of laws which ought to be the object of his memory; and still more of his discernment and his reflections; that

crowd of commentators whose scattered rays of interpretation he ought to collect?”

9. Accordingly, I can see occasions when a Notice Party or such person can be helpful to the Court in addressing this complex area of

law and perhaps we might in the future address this matter.

10. In respect of this Application, both sides seemed to rely upon both Western Health Board v KM (see below) and Southern Hotel

Sligo Limited v Iarnroid Eireann (see below).

11. Generally, the issue of costs in the District Court rarely arises because such issues are covered with extensive Rules governing

the regulation of these matters. The HSE in the instant matter have strenuously emphasised that this Court has no discretion in

respect of costs. The District Court is a Court of Record which is Court of local and limited jurisdiction; no one questions this.

Invariably, but not always, the Court is bound by statute which governs the proceedings at hearing. It is not necessary, for the

purposes of a matter involving costs to address the mechanisms which set up the District Courts, but suffice to say that the Courts

of Justice Act, 1924 was enacted to give effect to the Courts’ structures as envisaged by the original Constitution of 1922. This

Constitution was replaced by the 1937 Bunreacht na hÉireann which Articles 34 to 38 relate to the structure of the Courts’ system.

The Courts (Establishment and Constitution) Act, 1961 was enacted to give effect to the new system and the Courts (Supplement

Provisions) Act, 1961 provided for the establishment of the various Courts and the various regulations and structures which governed

the various Courts.

12. Regrettably, not much has been written upon the subject of costs in the District Court but a case of fairly recent vintage, the

Southern Hotel case, has dealt with the jurisdiction of the District Court in awarding costs, I will refer to this case but I do not think

that it will be of any great assistance to us in respect of this case.

13. In Southern Hotel Sligo v. Iarnrod Eireann [2007] IEHC 254, a case which involved environmental matters, Hedigan J noted on the

costs issue, that the Respondent had submitted that:

“section 108 of the Environmental Protection Agency Act 1992 which created the jurisdiction which the complainant

had sought to use provides that:-

‘the Court may order the person or body making, causing or responsible for the noise to take the

measures necessary to reduce the noise to a specified level or to take specified measures for the

prevention or limitation of the noise and the person or body concerned shall comply with such order.’

The Section does not provide for any additional or consequential order and if there was to be a jurisdiction to order

payment of costs it would have to be provided for in the Section.

The intention of the Legislature in introducing this procedure was to provide a simple and informal method of

resolving such noise issues between neighbours (which would commonly involve barking dogs or playing music

excessively loud or the like). The absence of provisions entitling the Court to order payment of costs was

consistent with this approach. The use of the Section to resolve this case which involved issues of public

importance relevant to the provision of a train service was never appropriate.

Order 51 Rule 1 of the District Court Rules gives jurisdiction to make an award of costs in Civil Matters. Order 36

Rule gives a similar but more limited jurisdiction in Criminal matters. He submitted that the subject case did not fall

into either category.

The form of the Order to be made by the Court was specified in Order 96 Rule 3 of the District Court Rules which

reads

‘Where upon hearing such complaint, the Court makes an order under the said Section 108(1), the order

shall be in the Form 96.16 Schedule C.’

The Rule is mandatory in its terms and the form in question, a copy of which is attached to this case stated, makes

no reference to costs. This is consistent with the Section of the Act.

Furthermore, neither the Act nor the rules of court provided any mechanism for the collection of any costs which

might be awarded and the court would not make an order which was incapable of enforcement.”

14. In response, the applicants in the Southern Hotel case countered by arguing that:

“[a]s the District Court had entertained this matter on the 8th July 2004 and I had in fact made an order for costs

on that day the Court should continue to have jurisdiction in that regard. (In response to this the Respondents

solicitor pointed out that at that particular time all they were trying to do was rescue the situation which arose

from the non appearance of the Respondent in the proceedings. They had no knowledge of the issues then and

could not be said to be prepared to adequately represent the Respondent and in fact their instructions to deal with

the substantive hearing only came later.)

The Applicant’s Solicitor also indicated that costs in this matter should follow the event as the Applicant had

succeeded to the extent that the Respondent had agreed to the relocation of the engines to the part of the

Station which was at the greatest distance from the hotel. Also the Respondent had replaced the engines, albeit for

reasons not connected with the proceedings.

The spirit of the legislation is such that it would not be envisaged that a successful Applicant would be prejudiced

by not having the opportunity to allow the court to award costs irrespective of the behaviour of any Respondent. It

would be inequitable if the Applicant would be left with no redress for the costs he has incurred in bring such an

application.”

15. The questions posed to the High Court were as follows:

1. In an application for an Order under Section 108 of the Environmental Protection Agency Act 1992, does the

District Court have jurisdiction to award costs to either party to the proceedings?

2. In the absence of any specific provision in the legislation creating the procedure, is there an inherent jurisdiction

in the Court to order payment of costs?

3. If the answer to either question 1 or 2 is yes, how does such jurisdiction arise?

4. If the answer to either question 1 or 2 is yes, what is the appropriate form of Order to be made and how would

such an order be enforced?

16. In considering the questions of the jurisdictional concept of awarding costs in the District Court, Hedigan J distinguished the

opposing submissions made and articulated that the Applicant argued:

“that the court has an inherent jurisdiction arising from O. 51(1) of the District Court Rules. They also maintain their

position in relation to costs arising from the delay caused by the respondent’s solicitors in the District Court and

further argue that costs must follow the event. They urge upon the court that where, as in this case, an applicant

is forced to take proceedings in order to bring about the desired result the court should in any event take a

pragmatic approach to costs and urge on the court that it would be an injustice to deny the applicants in this case

their costs bearing in mind that they had achieved what they set out to do in the first place…”

17. Two cases were opened to the High Court by the applicants in support of their arguments, namely, Brennan v O’Brien [1960] 103

ILTR 36 and Southern Health Board v Reeves-Smith [1980] IR 26, but both of those cases related to the costs of the Superior Courts,

and not the District Court itself, and therefore were unhelpful to the questions posed.

18. The Respondents stressed that the

“District Court is a court of local and limited jurisdiction within the meaning of Article 34.3.4 of the Constitution.

While the current District Court was established by the Courts Act 1961, this carried over the functions and

jurisdiction of the District Court as defined in the Courts Act 1924. The District Court is therefore a creature of

statute and the extent of jurisdiction is defined by statute … As to the applicant’s argument in relation to costs and

the District Court Rules, the respondents argue that the power to make rules is contained in s. 91 of the Courts Act

1924 which includes the practice and procedure relating to costs …The particular rules concerning costs are O. 51

generally and O. 36 in relation to criminal matters. Order 51 r. 1 states:

‘Save as otherwise provided by statute or by rules of court, the granting or withholding of the costs of

any party to civil proceedings in the court shall be in the discretion of the court.’”

19. In relation to what is or are “civil proceedings” within the meaning of Order 51, it has always been accepted within the District

Court that all proceedings that are not criminal in nature are “civil proceedings” but such civil proceedings may be of a public or

private character, as stated by Hedigan J.

20. The Respondents in this case also explored the inherent jurisdiction of the District Court and cited Attorney General v Crawford

[1940] IR 335 where a divisional court of the High Court decided that in proceedings for the recovery of a penalty under section 186

of the Customs Consolidation Act 1886 brought at the suit of the Attorney General, the District Justice on dismissing the matter had

no jurisdiction to award costs. The High Court held “that there was no inherent jurisdiction in the District Court to award costs in the

absence of express statutory power”.

21. Hedigan J, in considering Order 51 Rule 1 of the District Court Rules found assistance from the English case of Ex parte Waldron

where Ackner LJ at page 1101 noted that:

“the words ‘civil proceeding’ unless specially defined, are apt only to cover civil suits involving claims in private law

proceedings. The words are not apt to include proceedings for judicial review.”

22. Interestingly, Hedigan J felt that a proceeding pursuant to section 108 of the 1992 Act is:

“not a claim in private law proceedings but is more in the nature of a public law complaint. The relief provided by s.

108 is an order to take measures to prevent noise which is of general interest; there is no provision for damages as

in private law proceedings. This being so it appears to me that s. 108 of the Environment Protection Act is not a

civil proceeding within the meaning of O. 51 r. 1 of the District Court Rules. I would note further that, even were it

so, it is hard to imagine that the court would exercise its discretion in such a way as to negate what appears to be

the clear intention of the legislature in excluding costs from a s. 108 procedure…”

23. Hedigan J found that there is no inherent power in the District Court to award costs and jurisdiction of the District Court is defined

and limited by statute (see The State (Attorney General) v Shaw [1979] IR 136.). He relied upon Attorney General v Crawford [1940]

IR 335 where a divisional court of the High Court decided that in proceedings for the recovery of a penalty under s. 186 of the

Customs Consolidation Act 1886 brought at the suit of the Attorney General, the District Justice on dismissing the matter had no

jurisdiction to award costs specifically, the divisional court found that there was no inherent jurisdiction in the District Court to award

costs in the absence of express statutory power. At page 342 of the report, Maguire CJ observed that:

“[i]t 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’Conner’s Justice of the Peace 2nd

Edition Volume 1 p. 198; Paley on Summary Convictions, 7th Edition p. 227. The District Court was established by

the courts of Justice Act 1924 and is the creature of that statute.”

24. The above is the present position in relation to the discretionary basis of Costs before the District Court. However, a number of

areas involving costs which do not fit within this rubric have yet to be decided before the High Court. I believe that one of these is

costs arising pursuant to the Child Care Act, 1991, for the reasons set out below.

25. The Child Care Act, 1991 is a piece of legislation which is a remedial or protective statute intended to protect children and that as

such it should be given a liberal and purposive interpretation in accordance with the principles enunciated by Walsh J in the case of

Bank of Ireland v Purcell [1989] IR 327.

26. In Western Health Board v M [2001] IESC 104, the HSE Argued that the case of MF v Superintendent Ballvmun Garda Station

[1991] 1 IR 281 was authority for the proposition that the interpretation to be placed upon statutory provisions designed to protect

children should be reached on foot of principles particularly derived from the clear constitutional protection of the interests of children

in any legal proceedings. Accordingly, the construction of the Child Care Act, 1991 as a whole should be approached in a purposive

manner and the Act, as stated by Walsh J should be construed as widely and liberally as can fairly be done.

27. McGuiness J in the Western Health Board case stated that:

“[t]here is a scarcity of authority on the interpretation of Section 47 of the 1991 Act. The only authority which was

opened to this Court (and I can trace no other) is the judgment of McCracken J. in the High Court in the case of

Eastern Health Board v McDonnell [1999] I IR 174. In that case case the learned High Court judge considered

whether the District Court judge in question had the power under Section 47 to make wide ranging and detailed

orders stretching to the future in regard to the Health Board’s “care plan” for a child…McCracken J. accepted that

the judge had such power. In construing Section 47 McCracken J. stated (at page 184 of the report):

‘In my view Section 47 is an all embracing and wide ranging provision which is intended to entrust the

ultimate care of a child who comes within the Act in the hands of the District Court. It should be noted

that it is contained in part of the Act dealing with ‘Children in the Care of Health Boards’, and is not

qualified in any way. I think the only reasonable interpretation of Section 47 is that it is intended to

give the overall control of children in care to the District Court.’”

28. McGuiness J went on to say that her colleague, McCracken J in his judgment also stressed that both the Health Board, under

Section 3 of the Act, and separately the District Court, under Section 24 of the Act, were enjoined to observe at all times the

paramountcy of the welfare of the child. However, while local authorities and Health Boards must always have regard to the

constitutional rights of the individual child (and other interested parties), as McCracken J points out at page 183, it is ultimately the

function of the Courts to ensure that the guarantees given to an individual child are upheld.

29. In A & B v Eastern Health Board [1998] 1 IR 464 at 477, Geoghegan J stated that:

“[t]he District Court is a court established under the Constitution. Its judges are sworn in to uphold the

Constitution. In relation to every matter that a District Court Judge decides, he or she must always be conscious of

the Constitution and rights under it. The only constitutional area in respect of which there is no jurisdiction in the

District Court is the question of the validity of any statutory enactment having regard to the Constitution. That

function is peculiarly reserved to the High Court or on appeal to the Supreme Court. But every other area of the

Constitution comes within the province of both the District Court and the Circuit Court in the carrying out of their

ordinary jurisdiction. Far from considering that a District Court Judge dealing with applications under the Child Care

Act, 1991, is an inappropriate court to determine whether in any given case a termination of pregnancy should

occur, I think that the opposite is the case. If anything, with the regular experience of dealing with children and

their welfare, he or she may well be better equipped than a judge of the High Court.”

30. The Learned High Court Judge clearly held the view that the District Court had developed a type of specialism in these cases

because of its regular and recurring nature of the work coming before the District Court. Yet the issue of Costs, per se, does not

feature with any significant degree of regularity.

31. To return to the issue in this case, the District Court stated that it was satisfied that the welfare of the children required the

joining of the Notice Party. The Notice Party has obligations to the Court and the Court has obligations to the Notice Party because

of the existence of the District Court Order. In Dunne v Fox and Others (unreported, High Court, Laffoy J, 3 April 1998) the High Court

held that a Notice Party or for that matter a non-party owes a duty of care to the Court but:

“also owed a duty of care to its clients for whom it was carrying out the investigation. In my view, the costs

incurred by the non-party in consulting with its clients and their solicitors and in obtaining advice from its own

solicitors and from counsel instructed by its own solicitors…were reasonably incurred and it is reasonable that they

should be, ultimately borne by the plaintiff, because they would not have been incurred at all but for the existence

of the order…”

32. If section 47 of the Child Care Act 1991 permits a Court to join a Third Party or a Notice Party, ought it have the consequential

power of the recovery of all reasonable and proper and necessary costs and yet contain no strict provision for such recovery? In The

State (Hempenstall) v Judge Shannon and District Justice Reddin [1936] IR 326, it was found that Rule 37(a) of the District Court

Rules, which were made pursuant to section 91 Dublin Police Act, 1842 provides that a District Justice who shall hear and determine

any charge or complaint shall have power to order any party to the said charge or complaint (other than the Attorney-General or a

member of the Civic Guard in his official capacity) to pay to the other party such costs as to him shall seem meet. The High Court

held that Rule 37(a) was validly made. Accordingly, when a District Justice makes an order under section 1 of the Married Women

(Maintenance in Case of Desertion) Act, 1886, for a husband to pay to his wife a weekly sum for her maintenance, the District Justice

has power to order the husband to pay a sum for costs although the Act itself contains no provision for the payment of costs. In the

instant case, I believe that his authority is useful in establishing if section 47 has a silently power to award costs.

33. In MacGairbhith v Attorney General [1991] IR 412 (at 414), the High Court recognised the difficulties a litigant faces if he is

unable to retain the services of a solicitor in processing his action through the court, O’Hanlon J remarked:

“I consider that the ordinary layman who is unable or unwilling to engage the services of a lawyer to represent him

in the courts, must, under the Constitution, nevertheless be allowed full and free access to the courts in his

personal capacity to assert or defend his legal rights, and when this happens such person is normally given as much

assistance as is reasonable by judges and court staffs in the presentation of his case.”

34. In the instant matter, a party has been made a participant to these proceedings by Order of this Court. So is there an obligation

upon the Court to ensure that the costs are defrayed? Parties to these cases face complicated complexities of not only law but also

the whole fabric of difficulties arising from a plethora of relationships. Lord Devlin states that “the ordinary citizen is ill-equipped to do

battle on a field of unpunctuated clauses and strewn with legal jargon” (The Enforcement of Morals, 1968, Oxford University Press,

page 49). The HSE maintains that the Notice Party was under an obligation to obtain Free Legal Aid, particularly if she is entitled to it.

I could find no authority supporting such a proposition.

35. One of the most important rights safeguarded by the Constitution is the right of access to the Courts. The right itself must be

viewed as a right to an effective remedy and to constitute effectiveness there must exist a realistic opportunity to achieve this end.

Finlay P (as he then was) in Sean Henehan v Allied Irish Banks Limited (unreported, High Court, 19 October 1984) stated that:

“[t]he jurisdiction of the Court to award costs and the consequence of an order providing for costs seems to me to

be part of the ancillary machinery associated with access of citizens to the Courts and as such should in my view

be construed in the light of the Constitutional origin of that right of access and the obligation of the Courts to make

such a constitutional right real and effective.”

36. Thus, if the District Court has the power to join a Notice Party it must have the power to grant the costs of such representation

pursuant to section 47.

37. The Court grants the Notice Party’s Application for Costs pursuant to section 47. Such costs to be agreed and in default of

agreement such costs to be measured by this Court.