The District Court refused to award costs against the Health Service Executive (HSE) after ruling it had no jurisdiction to do so in public law child care proceedings concerning an anonymised child.
The decision, dated 13 February 2009 and reported as [2009] IEDC 1, concerned the respondent’s application for costs. The judge also declined to award the HSE the costs of an adjourned day, which the HSE had sought because the respondents had entered the proceedings late. Those costs had initially been awarded at the outset of the case.
The HSE argued that District Court rules could not create a power to award costs where no statute provided for it. It relied on the High Court decision in *Southern Hotel Ltd v Iarnród Éireann* [2007] IEHC 254 and authorities concerning the District Court’s limited statutory jurisdiction.
The respondent argued that the proceedings were civil and that the District Court had power under legislation and its rules to award costs. Her submission cited, among other provisions, section 91 of the Courts of Justice Act 1924 and Order 51 of the District Court Rules.
The judge treated the child care application as a public law matter brought by a statutory authority to protect children, rather than a private law dispute between individuals. The Child Care Act 1991 did not provide a general power to award costs to parties; its costs provisions concerned particular representation for a child by a solicitor or guardian ad litem (GAL).
Applying the High Court’s reasoning in *Southern Hotel*, the judge held that procedural rules could not confer substantive jurisdiction absent a statutory basis. The judge said the District Court had no inherent power to award costs and concluded that the respondent’s costs could not be granted. Because the court found it lacked that power, it did not decide whether costs should have been awarded on the merits.
The judgment also records that the HSE had initially pursued its application on a real and substantial basis, then changed its plan as circumstances changed and came to consider that the child should return to the mother’s care. The judge said the HSE had acted properly in changing its plan. The psychologist’s evidence and report about the child’s relationship with the parents had not yet been challenged or tested in cross-examination.
The ruling was confined to costs. It did not determine the underlying child care application or make a finding on the psychologist’s account. The judge rejected the respondents’ argument that the costs issue breached their European Convention on Human Rights rights, noting that they had received a fair hearing and were represented by solicitor and counsel.