The High Court has allowed two children’s appeal against a refusal to order discovery of records about public funding for their education and support services. Justice Smyth did not order the records to be produced. He said the trial judge could revisit discovery during the trial if the evidence became necessary to resolve the case fairly.
The redacted judgment, delivered by Justice Smyth on 12 January 2007, concerns proceedings brought by twins, identified as E.F. and T.F., through their next friend. They alleged that the State had failed to provide education appropriate to their needs. Their case included claims under the Constitution, the Education Act 1998 and the Equal Status Act 2000. Those claims remained disputed; the judgment addressed a discovery appeal, not the merits of the education case.
The children sought records about funding provided to a health board and to facilities they had attended. The requested material included funding applications, supporting information, calculations and allocations relating to occupational therapy, physiotherapy, speech and language therapy, behavioural therapy and music therapy. The Master of the High Court had refused the request on 31 January 2006.
The State said it would defend the case on the basis that the education provided was appropriate. In correspondence, it also said that provision was subject to competing demands on public resources, and argued that discovery of funding material was unnecessary at that stage. The State’s position was a submission in the proceedings, not a finding by Justice Smyth.
Justice Smyth considered that the trial could first determine whether the children had received the education required by law. If the court found that they had, he said, the separate questions about resources would not arise. He disagreed with the view in a separate case that resource allocation could not meaningfully be separated from the core question of whether provision met statutory requirements.
The judgment states that if the trial judge found the children’s constitutional rights had not been vindicated, the judge could then consider whether a resources defence was legally available and whether the requested discovery was needed for a fair determination. If so, discovery could be ordered and the trial resumed. The ruling therefore left the funding questions open and made no finding that the State had breached its duties or that any particular funding was inadequate.