The High Court has refused two applicants’ request for a protective costs order in proceedings challenging rules on continued school enrolment after age 18. The order would have required the Minister for Education to bear her own costs regardless of the outcome of the substantive case.
The applicants, anonymised in the judgment as J.S. and S.M., are described as 19-year-old men with disabilities. They sought another year in special school, saying they had missed significant school time during Covid restrictions in 2020/21 and lacked skills needed to move to adult day services. Their proceedings challenged the refusal of further enrolment and sought declarations about the legality and constitutionality of the rules and ministerial guidelines.
The judgment says the proceedings became moot after opposition papers confirmed that places had been given to other children and none remained for the applicants. They nevertheless wished to continue to pursue issues they said affected other children with additional needs. Their application for leave to seek judicial review had not yet been heard.
Justice Bolger held that the exceptional costs protection was not available on these facts. The cases began as inter partes judicial reviews seeking relief for the applicants themselves, she said, and only later narrowed to claims that might benefit hypothetical people in the future. The court was not satisfied that such proceedings could become public-interest litigation eligible for a protective costs order.
The judge also considered other criteria. She accepted that the applicants lacked means, that the Minister had greater financial capacity, and that the applicants would discontinue if the order was refused. But she was not satisfied of the case’s merits following short argument, noting that the forthcoming leave application was expected to require lengthy submissions on mootness, standing and whether the claims sought an impermissible advisory opinion. She made no decision on whether leave would ultimately be granted.
The judgment considered the applicants’ argument that section 7 of the Education Act 1998 supported a right to appropriate education. Justice Bolger said that provision concerned an individual assessment of a person’s needs and proposed education, not a generalised right for all people in a similar situation. Whether the Minister’s continuing potential involvement in education and support after a move to HSE care met any statutory duty would need determination in a later case, she said. She also rejected the argument that refusing costs protection would let the scheme evade review, pointing to the Irish Human Rights and Equality Commission’s statutory power to bring proceedings.
The court refused the protective costs order. Its view on final costs was only indicative: although costs would ordinarily follow the event, the judge said this might be an exceptional case where no order should be made. She invited further submissions and listed the matter for 2 March at 10:30 a.m. for final orders, including costs.