This judgment deals with two applications for a protective costs order providing that, regardless of the outcome of the substantive proceedings and any and all reliefs sought therein, the Minister shall bear all her own costs.
The Irish High Court has refused an application for a protective costs orders brought by two disabled 19 year olds seeking a further year of education from the State. Both applicants had applied for an extra year of special schooling in order to make up for the time missed during the Covid-19 pandemic.
The Court held that a protective costs order was an exceptional remedy and that a case involving Irish disability law where such an order had previously been made could not be identified. Further, the Court held that a protective costs order would not ordinarily be granted when the applicants were pursuing private interests, notwithstanding the general public importance of the issue.
The two applicants were 19-year-old men with significant intellectual and learning disabilities. Mr M had autism spectrum disorder, global developmental delay and epilepsy. Mr S had autism spectrum disorder, an intellectual disability and cystic hygroma. As a result of Covid-19 restrictions, their schooling had been limited during the school year 2020-2021.
Accordingly, the parents of the two men requested a further year of education from the Minister for Education, notwithstanding that they were each over the age of 18. The Minister refused the request and judicial review proceedings issued.
Prior to the hearing for interlocutory relief in July 2021, it transpired that all places for special education had been filled for the next year. As such, the proceedings were rendered moot.
However, the applicants wished to continue the proceedings, citing the general public importance of the issues raised. The essential claim was that the applicants were being denied a fourteenth year in school due to their additional needs without an adequate consideration of their respective situations.
Since the applicants could no longer benefit personally from the proceedings, they brought an application for a protective costs order where they would not be liable to pay the State’s costs if they lost the case. The applicants submitted that they would have to discontinue the proceedings if the order was not made as they did not have the means to pursue the litigation.
It was claimed that there were serious issues in the proceedings regarding i) the application of the Education Act 1998 to persons with special needs, ii) the validity of circulars and guidelines to determine the rights of students and iii) the discrimination against persons with special needs arising from the guidelines.
In response, the Minister submitted that a protective costs order should only be made in exceptional circumstances. It was also said that the applicants did not satisfy the onerous test for such an order.
The Court noted that a protective costs order could only be ordered where certain criteria were satisfied and that this would only be in exceptional circumstances. The Court noted that the applicants did not have any ongoing private interest in the proceedings due to mootness, but outlined that the proceedings had begun as private interest litigation against the State. The issues of legal standing and mootness remained issues requiring determination, the Court said.
Overall, the Court was “not satisfied that proceedings which began life seeking relief personal to the applicants, as well as more general relief, can evolve into public interest litigation to which the exceptional jurisdiction of the protective costs order may be applied”. The case law provided that protective costs orders only applied to a pure public interest claim, the Court said.
As the case was not a pure public interest case, the Court determined that it would refuse the application. However, the Court did undertake a consideration of the other grounds which were asserted by the applicants. Ultimately the decision remained.
The Court held that it would refuse the application for protective costs orders.
See here a link to the full judgment in J.S. v. Minister for Education  IEHC 80
See here a link to PILA’s FAQ on Protective Costs Orders in Irish Law
See here a link to PILA’s Report, Public Interest Litigation: The Costs Barrier & Protective Costs Orders
See here a link to the FLAC Opening Statement to Justice Committee on 'Access to Justice and Legal Costs'