Government Submissions in Sinnott Appeal

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BETWEEN

JAMIE SINNOTT A PERSON OF UNSOUND MIND NOT SO FOUND SUING BY HIS MOTHER AND NEXT FRIEND KATHRYN SINNOTT

PLAINTIFF / RESPONDENT

AND

THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS / APPELLANTS

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WRITTEN SUBMISSIONS

ON BEHALF OF THE DEFENDANTS / APPELLANTS

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Filed in accordance with the Practice Direction of the Chief Justice dated the 3 November 2000 as published in the Legal Diary.

Submitted by David J. O’Hagan, Chief State Solicitor, Solicitor for the defendants / apellants, Osmond House, Little Ship Street, Dublin 8. (Ref. 45/97 and 83/97/GOM)

Dated this 7th day of March 2001.

I. Introduction

1. These submissions address in outline the issues referred to in the notice of appeal in Jamie Sinnott v Minister for Education dated the 12 December 2000. It is respectfully submitted that the learned trial judge (Barr J) was in error in the manner he addressed the legal issues adumbrated in the notice of appeal dealing with the interpretation of the Constitution of Ireland.

2. The grounds of appeal are set forth in the notice of appeal. They concern the manner in which the trial judge has interpreted, certain provisions of the Constitution concerning the right to free primary education, the principle of the separation of powers and other constitutional provisions (including the equal protection clause, and the due process clause).

3. The nature of the legal basis of the High Court judgment delivered on the 4 October 2000 is patent from in the perfected order. This includes the mandatory relief directed by the court in reliance upon the Constitution that the State’s obligation to provide for free primary education in Article 42.4 is to be interpreted so that the first named defendant do forthwith provide for free primary education for the plaintiff appropriate to his needs and for as long as he is capable of benefiting from same. This is tantamount to interpreting primary education for an adult plaintiff for life. The court further ordered the provision of individualised home based services under the applied behavioural analysis homebase programme for suffers from autism for two and a half years. The court further directed the necessary funding for such home based ancillary services comprising, speech, physiotherapy, occupational and musical therapies and medical care. In addition, the basis on which the trial judge ordered substantial damages totaling £225,500 (and including £90,000 general damages) is not discernible from the judgment.

4. The court’s order directed that the mandatory injunction to provide such educational and other services and the damages granted to the plaintiff be reviewed in April 2003. The court also ordered, in addition, that a claim for further damages over and above the damages awarded to date be adjourned to this review with liberty to the plaintiff to re-enter or to apply in the interim in that regard.

These written submissions rely on the written legal submissions filed in the High Court at the direction of the trial judge after the conclusion of the evidence and before closing submissions. These are dated the 8 February 2000 and contained in the book of appeal.

II. Interpretation of the Constitution of Ireland

Right to free primary education

6. In substance, the trial judge has found a lifelong obligation to provide (not to provide for) free primary education under Article 42.4. This was achieved by an extension of the High Court judgment in O’Donoghue v Minister for Health_. Going beyond what the High Court had held in O’Donoghue, and adding a significant gloss, Barr J quoted and held as follows:

""Duration of primary education: as this category will, in all probability never proceed further, and are unlikely to proceed far up the ladder of primary education itself, the process should, ideally, continue as long as the ability for further development is discernible." [Emphasis added. This seems to imply continuation into adulthood.]"_

The emphasis and addition in the square brackets are by the trial judge.

7. The trial judge then went on to review the findings of the Report of the Special Education Review Committee, sometimes referred to as the Purple Report by reference to its purple cover. This was the inter-Departmental committee appointed by the Minister for Education and Science to deal with education and special needs._ Barr J reviewed this report from the prospect of autism which it had considered. Having done so, the trial judge made the following finding:

"There is nothing in Article 42.4 which supports the contention that there is an age limitation on a citizen’s right to on-going primary education provided by or on behalf of the State. It is evident that the right to primary education would be fundamentally flawed if narrowly interpreted as ending at an arbitrary age - 18 years."_

The trial judge further continued:

"I am satisfied that the constitutional obligation of the State under Article 42.4 to provide for and continue to provide for primary education and related ancillary services for Jamie Sinnott is open-ended and will continue as long as such education and services are reasonably required by him."_

8. It is accepted for the purposes of this appeal that primary education for a severely autistic child with related profound mental and physical handicap can continue up to age 18. It is submitted that the status of a child, even in the special circumstances that have applied to minors with special needs, ceases when that person attains his majority and becomes an adult. This equally applies when a person’s chronological age is that of an adult even though his mental age has not progressed. For the purposes of services provided by the State to persons with such disabilities, these are furnished in an adult related context. It is further submitted that this interpretation is butressed by the reference to "child" and "children" in Article 42. This occurs in Article 42.1, Article 42.3.1(, Article 42.3.2( and Article 42.5. These references are consistent only with the child or children having the status of a minor or person under full age.

9. By the time the proceedings commenced in the High Court, the plaintiff was aged 19 years of age. When the hearing commenced in October 1999 the plaintiff was 21 years of age and was 22 years of age on the 11 November 1999. It is accepted that primary education applies to children. However, the perfected High Court order of the 31 October 2000 makes a declaration that the first named defendant failed to provide for free primary education for the plaintiff

"… appropriate to his needs as a severely autistic child with related profound mental and physical handicap …"

(Emphasis added).

10. It is submitted as follows:

(i) The nature of the State’s obligation to provide for free primary education as determined by the Supreme Court in Crowley v Ireland_ was not considered.

(ii) The approach of the High Court in Sinnott conflicts with that of the Supreme Court in Crowley concerning the correct interpretation of Article 42.4.

(iii) Primary education in the context of Article 42.4 is an appropriate description for the first level ending at the equivalent of sixth class in the primary or national school cycle.

(iv) The High Court erred in holding, as a matter of constitutional interpretation, that Article 42.4 mandated that the first named defendant was required to provide "primary education" as an open-ended obligation for as long as such education and related services referable to his special needs are required.

These different approaches are further considered in the Report of the Constitution Review Group_ where the consequences of the approach of the High Court are emphasised.

Jurisprudential basis for the High Court judgment

11. The case had been opened to the High Court on the basis that this constitutional obligation to provide an open-ended form of primary education into adulthood, if necessary, had existed since the coming into operation of the Constitution in 1937. The judgment of the High Court (but not the Supreme Court) in Ryan v The Attorney General_ and of the High Court in O’Donoghue refer approvingly to official documents with a Vatican provenance as relevant to the interpretation of the Constitution. This has led to a natural law / Christian and democratic nature of the State formulation to the interpretation of the Constitution. The plaintiff’s case was argued on that basis.

12. The extent to which the trial judge accepted such submissions made on behalf of the plaintiff is emphasised by the following finding:

"That right [to free primary education] has existed from the enactment of the Constitution in 1937 and failure to honour it has sounded in damages at least from the early 1970s when expert opinion widely accepted that those who suffer grievous mental disablement are capable of and will benefit from appropriate primary education. In short, Jamie Sinnott is not availing of a new right and cause of action which did not exist prior to the O’Donoghue judgment in 1993. The right which he enjoys existed from the time when he was diagnosed and treated in Chicago in October 1981 and it remains on-going into the future. His entitlement to damages for breach of that right does not spring from the O’Donoghue judgment, the effect of which was to underline an existing right - not to create a new one."_

13. It is submitted that these findings are without legal or constitutional justification. They adopt a natural law / Christian and democratic nature of the State interpretation of the Constitution. It also constitutes what some commentators described as substantive due process.

14. The trial judge further misinterpreted and failed to understand fully the legal submissions that had been advanced both in written and oral form by counsel for the defendants. It had been submitted to the trial judge that clear constitutional authority and exegesis was required if the "education for life" claim of the plaintiff was to be considered. The trial judge deflected those difficulties by holding that such considerations only applied where a plaintiff was seeking to imply into the Constitution an unenumerated constitutional right:

"I accept that where the court considers that a particular personal right ought to be regarded as an unspecified constitutional right that such a declaration amounts to a far reaching exercise of judicial authority which if not justified would amount to an abuse of judicial power. The making of such a declaration opens up a difficult area of constitutional jurisprudence. Happily in this case those potentially hazardous waters do not require to be navigated by me. If Jamie Sinnott needs continuing primary education and related services from the State probably for life, which I am satisfied he does, it seems to me that his right to such services derives from Article 42.4 of the Constitution and is not a newly found and declared previously unspecified constitutional right. The sub-article enacts that "the State shall provide for free primary education … and when the public good requires it, provide other education facilities or institutions …"."_

15. It is submitted that the "potentially hazardous water" to which the trial judge referred, raising difficult and searching jurisprudential considerations, should be addressed in any ground breaking or novel interpretation of the Constitution for which there are no clear and unambiguous provisions of the Constitution or well established precedent.

16. Issues of constitutional interpretation are never easy. This is underlined in the most recent contribution in Casey, Constitutional Law in Ireland,_ published since the hearing in the High Court.

17. It is submitted as follows:

(i) The natural law, Christian and democratic nature of the State doctrine is inappropriate as a means to interpret the Constitution.

(ii) The difficulties encountered in trying to identify a uniform principle for the interpretation of the Constitution has been highlighted by the Report of the Constitution Review Group._

(iii) Natural law as a means of interpreting the Constitution no longer has unquestioned application: In re Article 26 of the Constitution and the matter of the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill 1995_.

(iv) Judicial restraint is required in interpreting the Constitution in confrontational areas between the citizen and the State involving the expenditure of public funds.

(v) The Report of the Constitution Review Group emphasised the difficulties that had arisen in trying to identify (and being unable so to do) a principled jurisprudence in the interpretation of the Constitution where implied personal rights (or an interpretation of a radical nature) was found._

(vi) The High Court was referred to relevant authorities in paragraphs 29 to 39 of the written legal submissions including the dissenting judgment of Keane J in IO’T v B, The Rotunda Girls Aid Society and Fr. Gerard Doyle_. The submissions in the High Court also referred to and quoted from various journals and articles written by commentators and then serving judges of the Superior Courts.

(vii) While the matter is not without difficulty, Casey, Constitutional Law in Ireland, 3rd edition has highlighted the views of the late John Kelly proposing "rough rules" to address the conflicting doctrines that have emerged in interpreting the Constitution._

(viii) Kelly recommends that a historical approach to the interpretation of the Constitution is appropriate "… where some law-based system is in issue, like jury trial, county councils and the census." (Emphasis in the original)._ The Supreme Court has already adopted such an historical approach in interpreting the meaning of primary education and Article 42.4 in Crowley._

Breach of principle of separation of powers

18. The trial judge did not sufficiently address the submissions made on the principle of the separation of powers. This judgment itself reviewed, the Report of the Special Education Review Committee published on behalf of the Department of Education by the Government of Ireland in October 1993. This report is sometimes referred to as the Purple Report on account of the colour of its cover. It is an inter-Departmental report chaired by a former Secretary of the Department of Education and the National Association of Boards of Management of Special Education, the Association of Community and Comprehensive School, the Association of Secondary Teachers of Ireland, Catholic Primary School Managers Association, Church of Ireland National School Chairpersons Association, Department of Education, Department of Health, Disability Federation of Ireland, Irish National Teachers Organisation, Irish Vocational Education Association, Ministerial nominees, the National Parents Council (Primary), the National Parents Council (Post-Primary), St. Patrick’s College of Education, Drumcondra, the Secretariat of Secondary Schools and the Teachers Union of Ireland. This committee was appointed in August 1991 and reported in October 1993.

19. Earlier in his judgment the trial judge had also made a passing observation on the need to raise taxes if that was required to give effect to constitutional rights._

20. As well as giving instructions to the Government and the Oireachtas on how they should apportion and determine priorities, the trial judge adopted in its entirety the plaintiffs’ request for a home-based programme for suffers from autism which is being pioneered in England._ These English developments follow from the substantive legislative enactments in the United Kingdom dealing with education and special needs. The UK Education Act 1993_ and, now, the UK Education Act 1996_ and the UK statutory instruments made thereunder provide exhaustively and in minute detail for these procedures.

21. The High Court was furnished with copies of the relevant UK statutory provisions in the defendants’ legal authorities and referred to in its submissions. That legislation established a Special Educational Needs Tribunal. The expert witnesses for the plaintiff on the applied behavioural analysis programme were all experienced in giving such evidence before the UK statutory tribunal. Without any legislative authority, and solely in reliance upon Article 42.4, the High Court has achieved, in an inchoate manner, what it took the United Kingdom Parliament and the Secretary of State for Education in that jurisdiction many years of legislation and expert advice to reach. The judgment of the Court of Appeal in Bromley London Borough Council v Special Educational Needs Tribunal_ describes in considerable detail the statutory provenance to the type of expert evidence led on behalf of the plaintiff dealing with the requirement to have a statement of special educational needs and the statutory provenance (in legislation and statutory instruments) in the United Kingdom for such practices.

22. It would appear that the trial judge was aware of the constraints imposed by the separation of powers principle. Having stated that a judge should not trespass

"… into the realm of executive or administrative decision making by the State in which under the doctrine of the separation of powers the court has no function,"_

the trial judge proceeds just to do that. Barr J continued:

"… the evidence herein establishes that the difficulties encountered by Jamie Sinnott and his mother in pursuing their rights against the State are symptomatic of a wide spread malaise. It seems to me that the court as the guardian of the constitutional rights of the citizen has a duty to criticise the response of the State to such claims. In the instant case the grounds for criticism are overwhelming."_

23. The order of the Supreme Court in O’Donoghue left for another day whether and to what extent a jurisdiction subsists in the High Court to review expert reports and for judges to make their own findings in review thereof in reliance upon their interpretation of various provisions of the Constitution concerning children with special needs. The editor’s note by way of postscript to the official report in O’Donoghue notes that the appeal did not proceed as a consequence of the education then being received by the infant plaintiff. The note also records the statements of respective counsel which were at variance on the manner in which the High Court in O’Donoghue had interpreted the Constitution._ This appeal raises identical jurisdictional issues.

24. It is further submitted that the High Court failed to have due regard to the primacy of Dáil Éireann in the raising of public revenue and to the principle of the separation of powers in the administration of the business of Government. It is submitted that the judgment of the High Court went beyond what the principle of the separation of powers and the Supreme Court’s ruling in this field concerning the exercise of poweres of government. In Riordan v An Taoiseach and Others_,the Supreme Court re-stated this principle in the context of the exercise of the executive power of Government. The judgment of the Supreme Court followed its earlier judgment in Buckley and Others (Sinn Féin) v Attorney General and Another_ as reflecting earlier authoritative statements of the law as to the separation of powers:

"The manifest object of [Article 6] was to recognise and ordain that, in the State, all powers of government should be exercised in accordance with the well recognised principle of the distribution of powers between the legislative, executive and judicial organs of the State and to require that these powers should not be exercised otherwise. The subsequent articles are designed to carry into effect this distrubution of powers."_

25. Separation of powers was also stressed by the Supreme Court in rejecting the constitutional challenge in Mac Mathúna v Attorney General_ to certain provisions of the Social Welfare Acts and the Income Tax Act 1967 which were alleged to discriminate against families based on marriage by favouring single families including unmarried mothers. The judgment of the Supreme Court followed the judgment of the High Court (Costello J) in O’Reilly v Limerick Corporation_ in emphasising that the courts could not adjudicate on the fairness or otherwise of the manner in which other organs of the State had administered public resources:

"What could be involved in the exercise of the suggested jurisdiction would be the imposition by the court of its view that there had been an unfair distribution of national resources. To arrive at such a conclusion it would have to make an assessment of the validity of the many competing claims on those resources, the correct priority to be given to them and the final implications of the plaintiffs’ claim. As the present case demonstrates, it may also be required to decide whether a correct allocation of physical resources available for public purposes had been made. In exercising this function, the court would not be administering justice as it does when determining an issue relating to commutative justice but it would be engaged in an entirely different exercise, namely, an adjudication on the fairness or otherwise of the manner in which organs of state had administered public resources. Apart from the fact that members of the judiciary have no special qualification to undertake such a function, the manner in which justice is administered in the courts, that is, on a case by case basis, makes them a wholly inappropriate institution for the fulfillment of the suggested role. I cannot construe the Constitution as conferring it on them. So I must hold that I am not empowered to make the adjudication which the plaintiffs ask me to make. I should add that I am sure that the concept of justice which is to be found in the Constitution embraces the concept that the nation’s wealth should be justly distributed (that is the concept of distributive justice) but I am equally sure that a claim that this has not occurred should, to comply with the Constitution, be advanced in Leinster House rather than in the Four Courts."_

There can be no mistaking the clear intendment of the judgment of the Supreme Court in Mac Mathúna. In the penultimate paragraph of its decision, the court stated:

"As is already indicated in this judgment these are peculiarly matters within the field of national policy, to be decided by a combination of the executive and the legislature, they cannot be adjudicated upon by the courts."_

26. It is submitted, however, that the jurisdiction of the High Court does not extend to directing Ministers of Government or other State authorities or agencies on what is required to give effect to an interpretation of the Constitution. The separation of powers requires that any such decision falls to the executive and the legislature within their respective spheres of government. Articles 6, 15, 17, 28 and 34 of the Constitution are relied upon in this regard. It is also submitted that the primacy of Dáil Éireann in the raising of public revenues and of the Oireachtas in enacting the Annual Appropriations Act are relevant considerations.

27. It is submitted as follows:

(i) The principle of the separation of powers requires circumspection on the part of the courts in matters properly reserved to the executive or the legislature.

(ii) The High Court breached the principle of the separation of powers in the mandatory orders made.

(iii) The High Court was referred to relevant authorities including Mac Mathúna v Ireland_ and O’Reilly v Limerick Corporation_.

(iv) The Report of the Constitution Review Group dealing with the interpretation of personal rights in areas with public spending consequences was also included._ The Report also stated at p. 254:

"It has also meant that the courts are drawn into what may reasonably be regarded as law making in fundamental areas which is not consistent with the principles of democracy. The courts are ill-equipped to engage in resolving what are, in effect, difficult issues of social policy and relevant priorities which are more properly the domain of the people speaking through the provisions of the Constitution or alternatively to their elected representatives."

(v) The judgment of the High Court has effectively "second guessed" the Report of the Special Education Review Committee. There is no constitutional mandate for the High Court exercising such a reviewing and supervisory jurisdiction under the Constitution.

(vi) Paragraphs 49 to 55 in the legal submissions filed in the High Court further addressed these issues.

Article 40.1, Article 40.3.1( and Article 42.3.2(

28. While the perfected order also relies upon the above articles of the Constitution, this was not reflected in the legal submissions nor in the run of evidence. The High Court judgment does not consider any of the constitutional jurisprudence of the Superior Courts on the equal protection clause (Article 40.1) or the due process clause (Article 40.3.1( and 2(). There is a passing reference to the judgment of the Supreme Court in Meskell v Coras Iompair Eireann_, an authority on the latter provisions. However, the reference is made in the context of damages for breach of constitutional rights rather than the interpreteation of Article 40.3.1( or 2(.

29. While there was a passing reference to Article 42.3.2( and the certain minimum education which children are to require, the plaintiff’s case started and ended, in effect, in reliance upon Article 42.4.

Damages for breach of constitutional rights

Introduction

30. On the issue of damages, the trial judge approached an entitlement to damages for breach of constitutional rights as one which followed automatically from any breach of the Constitution. In this regard reliance was placed on the judgment of the Supreme Court in Meskell v Coras Iompair Éireann_. Having further referred to the judgment of the Supreme Court in McDonnell v Ireland_, the analogy the trial judge took was with a straightforward tort claim:

"Claims for damages for breach of constitutional rights as in the Sinnott actions are analogous to a common law action in tort and the relevant provisions of the Statute of Limitations 1957 apply."_

What the trial judge did not address were the principles upon which damages might be assessed in constitutional litigation.

31. Treating the plaintiff’s cause of action as if it was a straightforward action for damages for tort in a common law context is underlined by the passing observation of the trial judge on his perception of the situation facing other unspecified persons with special needs.

"Suffice it to add that having regard to the hundreds of similar actions outstanding against the State and the likelihood of many more in the future if the present situation persists, it is obvious that such a review is imperative, not only in the interests of that who otherwise would become future claimants seeking constitutional redress against the State, but also in the interests of the State exchequer to avoid or reduce potentially massive liability for damages and costs in such cases."_

32. There is surprisingly little guidance in the decided cases on the principles which the Superior Courts should adopt to a claim for damages for breach of constitutional rights. The law has advanced considerably since the State became liable, in principle, at least, to answer an award of damages where negligence is proved against a State authority: Byrne v Ireland_. What is at issue in these proceedings are the principles that apply where the courts have made a declaration that certain State action breached the constitutional rights of a litigant. These submissions address the issue of principle as the High Court awarded substantial damages to the plaintiff in the total of £225,000 with an open-ended order that the plaintiff apply for further damages in the future should the plaintiff so decide.

Absence of leading authority on the principles that are to apply for damages for breach of constitutional rights

33. While there has been a dramatic increase in litigation concerning the interpretation and application of the Constitution the Supreme Court has yet to address in detail the circumstances where damages are recoverable for breach of constitutional rights simpliciter. Cosgrove v Ireland_ and Hayes v Ireland_ illustrate this initial approach reflected also in the nominal damages awarded in Kearney v Minister for Justice_. Exemplary damages were also awarded for breach of constitutional rights against the State in Kennedy v Ireland_ and against a trade union in Conway v Irish National Teachers’ Organisation_ but without addressing the issue of principle on the circumstances in which damages are recoverable for breach of constitutional rights. The court assumed that damages were recoverable without articulating the principle necessary to address that issue. This is not dissimilar to the manner in which the issue of standing / locus standi to institute a constitutional challenge to the validity of legislation was not addressed by the Supreme Court until its judgment in Cahill v Sutton_ some 40 years after the Constitution had come into operation.

34. The issue of the legal principles applicable where damages are claimed for breach of constitutional rights in the Supreme Court would thus appear to be res integra.

Principles on which damages are recoverable for breach of constitutional rights

(i) Introduction

35. Unlike other jurisdictions where guidance is given to the courts by way of legislative or constitutional provision, the question of principle is to be determined by judicial interpretation. In this regard, the experience of other broadly comparable public law systems may assist.

36. Declaratory relief, if applicable, may be the appropriate relief. Transport Salaried Staffs’ Association v Coras Iompair Eireann_. The discretionary jurisdiction of the court is well established as are the principles upon which its application is based.

37. This approach finds support in the most recent judgment of the High Court where the issue of damages in a constitutional context was addressed at some length. In An Blascaod Mór Teoranta v Commissioners of Public Works in Ireland (No.2)_ a preliminary issue arose on whether damages could be obtained for loss suffered as a consequence of the enactment of legislation subsequently declared to be unconstitutional; and the principles applicable to such an award of damages. While both the High Court and the Supreme Court in An Blascaod Mór Teoranta v Commissioners of Public Works in Ireland (No.1) had held An Blascaod Mór National Historic Park Act 1989 to be invalid having regard to the provisions of the Constitution_, in An Blascaod Mór Teoranta (No.2) the High Court held that the declaratory relief granted was the appropriate relief in all the circumstances and refused damages._ This determination accords with the concept that constitutional law is concerned, primarily, with rights whereas torts litigation deals with wrongs. Keane J in McDonald v Ireland referred to this conceptual aspect by emphasising that

"… the English law of tort was traditionally concerned with providing redress for wrongs; whereas the Constitution is essentially concerned with the protection of rights."_

38. Proceeding on the basis that a principle of strict liability does not apply to a claim for damages allegedly suffered as a consequence of the enactment of legislation declared to be unconstitutional, it is submitted that caution is required in the broadly analogous situation where the Superior Courts have made a declaration that the State has failed to respect the constitutional rights of a litigant and damage is proved.

39. This is further considered in McDonald v Ireland_. There are conceptual considerations that have yet to be fully addressed in detail by the courts. Pine Valley Developments Limited v Minister for the Environment_ also illustrates the reluctance of the court to award damages. The judgment of Barrington J in McDonald v Ireland_ states quite clearly that the Constitution is not to be regarded as a "wild card" to be played at any time to defeat all existing rules

"The general problem of resolving how our constitutional rights are to be balanced against each other and reconciled with the exigencies of the common good is, in the first instance, a matter for the legislature. It is only when the legislature has failed in its constitutional duties to defend or vindicate a particular constitutional right pursuant to the provisions of Article 40.3 of the Constitution that this court, the court of last resort, will feel obliged to fashion its own remedy. If, however, a practical method of defending or vindicating the right already exists, common law by statute, there would be no need for this court to interfere. …

There is no doubt that constitutional rights do not need recognition by the legislature or by common law to be effective. If necessary the courts will define them and fashion a remedy for their breach. There may also be cases where the fact that a tort is also a breach of a constitutional right may also be a reason for awarding exemplary or punitive damages.

But, at the same time, constitutional rights should not be regarded as wild cards which can be played at any time to defeat all existing rules. If the general law provides an adequate cause of action to vindicate a constitutional right it appears to me that the injured party cannot ask the our to devise a different cause of action. Thus the Constitution guarantees the citizens right to his or her good name but the cause of action to defend his or her good name is the action of defamation. The injured party, it appears to me, has to accept the action for defamation with all its incidents including the time limit within which the action must be commenced. Likewise, the victim of careless driving has the action for negligence by means of which to vindicate his rights. But he must, generally, commence his action within three years. He cannot wait longer and then bring an action for breach of the constitutional right to bodily integrity."_

(Emphasis added).

40. As the issue of principle has yet to be addressed in detail by the Supreme Court a mistaken impression may be conveyed that a breach of constitutional rights leads, automatically, to an entitlement to damages and that a principle of strict liability applies.

41. In the plaintiff’s appeal, the defendants have paid, without prejudice to their appeal, the out of pocket special damages incurred in the amount of £15,000. Further, the defendants have agreed to pay, pending the outcome of the appeal, the cost of the applied behavioural analysis home based programme for persons suffering from autism directed in the mandatory orders made by the High Court. It is submitted that these payments should be regarded by the Supreme Court in a non dissimilar manner to the terms imposed for the purposes of a stay in common law litigation where it is intended to appeal to the Supreme Court. For the avoidance of doubt, irrespective of the outcome of this appeal, these defendants do not re-claim those monies. On account of the issue of public importance raised in this appeal raising issues of principle of the first constitutional import, the defendants have agreed to pay, on an ex gratia basis, the plaintiff’s costs on a party and party basis.

(ii) Damages recoverable in cases where there has been a significant breach of a clear and unambiguous provision of the Constitution resulting in damage and declaratory relief does not adequately address the justice of the case

42. The most recent Irish authority in this area is the judgment of the High Court in An Blascaod Mór Teoranta v Commissioners of Public Works in Ireland (No.2)._ The judgment of the High Court was not appealed to the Supreme Court by either the plaintiffs or the defendants.

43. While the issue of principle was whether damages were recoverable against the State for losses alleged as a consequence of the passing an unconstitutional Act, An Blascaod Mór National Historic Park Act 1989, the High Court identified three possible approaches to the damages issue. The first was one of strict liability. This was felt inappropriate. The second was to require proof of intention to infringe the right or negligence on the part of the authority concerned. It was felt that this might impede the protection of constitutional rights. The third approach identified was the pragmatic approach of Henchy J in Murphy v Attorney General_ which was to consider the claim on the facts of a case and determine whether the additional relief of damages was appropriate._

44. A principle of strict liability was rejected in An Blascaod Mór Teoranta v Commissioner of Public Works (No.2). That submission by the plaintiff had been based on the passage in the judgment of the Supreme Court in Meskell v Córas Iompair Eireann where Walsh J adopted an ubi ius, ibi remedium approach_. To this might have been added the equally well known dictum of Ó Dálaigh CJ in The State (Quinn) v Ryan_ on the jurisdiction of the courts to guarantee the fundamental rights of the citizen.

45. The High Court in An Blascaod Mór Teoranta (No.2) felt this to be an inappropriate standard:

"The nature of the relationship between a citizen and the State is complicated but the obligations of the State which, through its organs or agents, must engage in such activities as policing, imprisoning and legislating. In the course of making laws, the legislature frequently has to take into account conflicting individual rights and the exigencies of the common good within a process involving balancing and adjusting the scope of rights. There is therefore little justification for a regime of strict liability for infringement of a constitutional right where such rights are competing and in conflict. In such circumstances "ubi ius ibi remedium" is too simple a formula and strict liability would in many cases be too low and easy a threshold to reach."_

46. The High Court similarly reached the conclusion that a principle of vacarious liability, with reference to the judgment of the High Court in Kearney v Minister for Justice,_ was inappropriate:

"This case is helpful in making the point that there can be a wrong done by way of infringement of a constitutional right which is not necessarily also a tort. There is also an indication that the court may take a wide view of vicarious liability on the part of the State. However, the imposition of vicarious liability should be confined to situations where the wrong, although not amounting to a tort, is similar in nature to tortious misconduct."_

47. In addressing liability for legislative acts, (which was the issue before the High Court), the court determined that the declaratory relief already granted was the appropriate redress. The application of these principles were considered at pp. 31 - 32 of the approved transcript of the High Court which adopted the pragmatic approach of Henchy J in Murphy v Attorney General_ which had been the approach of this judge. Henchy J recommended that the consideration of the issue of liability for legislative acts should be addressed on a case by case basis.

48. The issue of Government liability in tort arising from breach of a directly applicable provision of Community law or failure to implement EU directives by the Court of Justice of the European Community may be of assistance in considering the appropriate principles to apply where damages for breach of constitutional rights are claimed. This subject has received extensive consideration by the Court of Justice in recent years illustrated by its judgments in Joined Cases C-6 and 9/90 Francovich v Italy_ and Joined Cases C-46/93 and 48/93 Brasserie du Pêcheur and Factortame_. Breach of a directly applicable provision of Community law is broadly analogous to breach of a provision of the Constitution or fundamental law.

49. Francovich dealt with the failure of a Member State to implement a directive within the time specified and has been considered in this jurisdiction in Tate v Minister for Social Welfare._ The latter case concerned the imperfect implementation of an EU directive. In the present case, however, what is in issue is breach of a specific provision of the Constitution which was given a wide interpretation for the first time in O’Donoghue in 1993. It is submitted that the subsequent judgment of the Court of Justice in Brasserie du Pêcheur and Factortame may be of more assistance than Francovich as this decision considered the liability of Member States in an area where they had a wide discretion. Its facts also raised breach of a directly applicable provision of Community law being the respective provisions of the EC Treaty relied upon by the claimants. In the context of Article 42.4, a wide discretion is accorded to the State authorities in the implementation of policies providing for free primary education.

50. In establishing whether a national government has manifestly disregarded the limits to its discretion, the Court of Justice identified the following factors which should be taken into account:

"The clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law."_

51. When applied to the case under consideration it is submitted that Article 42.4 did not state clearly and unambiguously the interpretation now given post O’Donoghue. There was no case law to give guidance on such an interpretation pronounced for the first time on the 23 May 1993 and the defendants should not be liable in damages for any alleged damages prior to that date. It is submitted that this court may have regard to the approach of the Community courts in considering State responsibility for breach of directly applicable provisions of Community law when establishing the principles on the basis of which damages should be awarded. Following the referrence of the Court of Justice in Brasserie du Pêcheur and Factortame, the House of Lords subsequently delivered final judgment in R v Secretary of State for Transport, ex parte Factortame Limited and Others (No.5)._

52. The declaration by the Court of Justice that an item of Community legislation is void as contravening the EU Treaty does not grant an automatic entitlement to compensation. The case law establishes that damages may only be considered where there has been a sufficiently serious breach of a superior rule of law for the protection of the individual. The case law goes on to state that the Community does not incur liability unless the institution concerned has manifestly and gravely disregarded the limits on the exercise of its power._

53. The circumstances in Community law where damages can be obtained are thus limited in principle, particularly where a discretion is left to the public authority on the manner in which the relevant provision is to be applied even a margin of error is contemplated. In Tate v Minister for Social Welfare_ the High Court was only concerned with the liability of the State as a consequence of the imperfect implementation of a EU Directive. The judgment of the High Court only had to consider Francovich and was decided before the subsequent judgment in Brasserie du Pêcheur and Factortame.

54. On the facts found by the High Court, there was a significant breach of a clear and unambiguous constitutional duty - a duty giving rise to consequential rights; this arose from the failure to comply with O’Donoghue and resulted in damage which is not fully met by declaratory relief. However, the law was not so declared until the pronouncement of the High Court judgment on the 23 May 1993. According to paragraph 1 of the statement of claim, the plaintiff was born on the 11 October 1977. He thus attained his legal majority on the 11 October 1995. It is submitted that the 23 May 1993 until the 11 October 1995 is the relevant period within which to consider the said claim for damages. This submission also relies upon the earlier submissions on the appropriate interpretation of Article 42.4 of the Constitution concerning the meaning of primary education.

Temporal limitation on any claim for damages for breach of constitutional rights

55. In addition, it is submitted that a temporal limitation on damages for breach of constitutional rights also applies to such claims where reliance is placed on a cause of action for breach of constitutional rights sounding in damages only recently declared by the Superior Courts. It is submitted that the trial judge erred in awarding damages for the period beyond the date upon which the plaintiff could be said to have any rights under Article 42.4.

56. The trial judge rejected the established jurisprudence of the Supreme Court and the Court of Justice on a temporal limitation to a claim for damages where loss is proved in respect of a claim for damages for a cause of action not previously determined by the courts.

57. In Murphy v Attorney General_ such a restriction was imposed on litigants who had not made an analogous claim prior to the determination by a superior court of a novel declaration of constitutional rights. The judgment of the Supreme Court in the Married Womens’ Tax Case referred, by way of illustration, to the landmark equal pay claim before the Court of Justice of the European Communities known as the second Defrenne Case_. When equal pay for equal work between men and women was declared by the Court of Justice for the first time in its judgment delivered on the 8 April 1976, the issue immediately arose whether that judgment had retrospective application to the date when the relevant article of the EC Treaty should have been implemented by all the Member States but had not been so implemented. In respect of the original Member State this was the 1 January 1962 and in respect of the then acceding Member States in 1976 (Denmark, Ireland and the United Kingdom) this is from the 1 January 1973.

58. The Luxembourg Court refused to allow retrospectivity unless the litigant concerned had instituted legal proceedings or made an equivalent claim before the delivery of the Court’s judgment on the 8 April 1976. This principle has consistently prevented litigants from seeking to avail, retrospectively, of a change in the law unless they have instituted legal proceedings or made an equivalent claim before the delivery of the relevant judgment. It is submitted that it should be applied by analogy in the case under consideration.

59. In Murphy v Attorney General, the Supreme Court was asked to determine in a separate application made de novo after the court had declared certain provisions of the Income Tax Act 1967 unconstitutional in respect of the manner in which married women had been taxed. The judgment declaring the legislation invalid from the date of its enactment in 1967 was delivered on the 25 January 1980. On the 25 April 1980 the Supreme Court delivered its subsequent ruling on the consequences of its earlier judgment and the liability of the State. Having referred to the judgment of the Supreme Court in The State (Byrne) v Frawley_ in support of the statement that there is no universal rule that what has been done in pursuance of a law which has been held to be invalid for constitutional or other reasons were necessary to give a good cause of action, Henchy J referred to such principles as prescription, res judicata and the like and continued as follows:

"For a variety of reasons, the law recognises that in certain circumstances, no matter how unfounded in law certain conduct may have been, no matter how unwarranted its operation in a particular case, what has happened has happened and cannot, or should not, be undone. The irreversible progressions and by-products of time, the compulsion of public order and of the common good, the aversion of the law from giving a hearing to those who have slept on their rights, the quality of legality, even irreversibility - that tends to attach to what has become inveterate or has been widely accepted or acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and other factors may convert what has been done under an unconstitutional, or otherwise void, law into an acceptable part of the corpus juris. This trend represents an inexorable process that is not peculiar to the law, for in a wide variety of other contexts it is either foolish or impossible to attempt to turn back the hands of the clock. As an eminent historian vividly put it, speaking on the pointless of seeking to undue or reshape the facts of history: "The statue has taken its shape and can never go back to the quarry"._

60. It is submitted that the present claim for damages for breach of constitutional rights in reliance on Article 42.4 should only apply to facts relied upon after a reasonable period of adaptation following the judgment in O’Donoghue delivered on the 23 May 1993. If the plaintiff was entitled to damages for breach of constitutional rights until age 18, the relevant period would be from the 23 May 1993 until the plaintiff attained his legal majority on the 11 October 1995.

Submission on damages for breach of constitutional rights

61. It is submitted as follows:

(i) Damages for breach of constitutional rights are recoverable where there has been a significant breach of a clear and unambiguous provision of the Constitution or a declaration of the Superior Courts so holding resulting in damage and where declaratory relief does not adequately address the justice of the case.

(ii) Declaratory relief, if appropriate in all the circumstances, may be the appropriate relief in the context of an asserted interpretation of the Constitution also claiming damages.

(iii) A principle of strict liability does not apply to a claim for damages for breach of constitutional rights.

(iv) Where a plaintiff relies upon a cause of action for declaratory constitutional relief and damages only pronounced by the Superior Courts on the 23 May 1993 and has not instituted legal proceedings prior to this date, the courts are entitled to consider any such claim on the facts relied upon and proved after this date.

(v) Where a plaintiff relies upon a cause of action for damages for breach of constitutional rights only pronounced by the Superior Courts on the 23 May 1993 and has not instituted legal proceedings prior to this date, the courts are entitled to restrict any claim for damages to the facts relied upon and proved after this date and not for damages allegedly suffered before this date. The plaintiff’s claim for damages extends from the 23 May 1993 until the 11 October 1995 when he attained his majority. This is on the assumption that the plaintiff is entitled to damages to age 18 on the basis of the concession referred to in paragraph 10 above.

(vi) The judgment of the High Court in An Blascaod Mór Teoranta v Commissioners of Public Works in Ireland (No.2)_ was delivered after the conclusion of the evidence and legal submissions in these proceedings in the High Court.

Negligence

62. A negligence claim was never advanced at the hearing. The entire run of the case was one for damages for breach of constitutional rights centered on Article 42.4.

It is submitted that the defendants appeal on the finding of negligence should be allowed. The evidence was based on an alleged breach of Article 42.4. A duty of care in a negligence sense was not pleaded on the plaintiff’s behalf and negligence only appears in the prayer of the statement of claim.

Punitive damages

64. Similarly, the passing observation of the trial judge with regard to punitive damages in a postscript were not addressed at any time during the hearing._

Summary

65. It is submitted that the defendants’ appeal should be allowed on one or other of the grounds advanced above.

THE SUPREME COURT

326/00

(High Court 1997 No. 54P)

BETWEEN

JAMIE SINNOTT A PERSON OF UNSOUND MIND NOT SO FOUND SUING BY HIS MOTHER AND NEXT FRIEND KATHRYN SINNOTT

PLAINTIFF / RESPONDENT

AND

THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS / APPELLANTS

______________________________

WRITTEN SUBMISSIONS

ON BEHALF OF THE DEFENDANTS / APPELLANTS

______________________________

Chief State Solicitor,

Osmond House,

Little Ship Street,

Dublin 8.

Ref. 45/97 and 83/97/GOM

TABLE OF CONTENTS

Introduction

II. Interpretation of the Constitution of Ireland 1

Right to free primary education 1

Jurisprudential basis for the High Court judgment 4

Breach of principle of separation of powers 6

Article 40.1, Article 40.3.1( and Article 42.3.2( 11

Damages for breach of constitutional rights 11

Introduction 11

Absence of leading authority on the principles that are to

apply for damages for breach of constitutional rights 12

Principles on which damages are recoverable for breach

of constitutional rights 13

(i) Introduction 13

Damages recoverable should only be considered

in cases where there has been a significant breach

of a clear and unambiguous provision of the

Constitution resulting in damage and declaratory

relief does not adequately address the justice of

the case 16

Temporal limitation on any claim for damages for breach

of constitutional rights 19

Submission on damages for breach of constitutional rights 21

Negligence 22

Punitive damages 22

Summary 22

_ [1996] 2 IR 20.

_ Transcript of High Court judgment, p. 42; the emphasis is that of Barr J. The quotation from the judgment in O’Donoghue is [1996] 2 IR 20, 70.

_ This report was published by the Government of Ireland on behalf of the Department of Education and Science in October 1993. It is further referred to in the Transcript of High Court judgment, pp. 43 - 45.

_ Transcript of High Court judgment, p. 49.

_ Transcript of High Court judgment, pp. 49 - 50.

_ [1980] IR102.

_ May 1997, pp. 351 - 353. The Report considers in some detail the differences and the submissions it had received on the resource implications of O’Donoghue.

_ [1965] IR 294.

_ Transcript of High Court judgment, pp. 52 - 53

_ Transcript of High Court judgment, p. 48.

_ 3rd edition (2000), pp. 376 - 385. This highlights a contribution on constitutional interpretation by John Kelly in Litton Ed., The Constitution of Ireland 1937 - 1987 (1988), Afterword, pp. 208 - 217 at p. 215.

_ (1997), p. 247: "It is obvious, therefore, that the process whereby individual unenumerated rights have been identified to date has not been based on a coherent theory of fundamental rights." The same observation can be made in respect of judgments interpreting the Constitution in a radical or modern fashion.

_ [1995] 1 IR 1. See also In re A Ward of Court (Withholding of Medical Treatment) (No.2) [1996] 2 IR 79.

_ (1997) pp. 247 - 254 and 259.

_ [1998] 2 IR 321, 269 - 370.

_ Litton Ed., The Constitution of Ireland 1937 - 1987 (1988) at p. 215.

_ Litton Ed., The Constitution of Ireland 1937 - 1987 (1988) at p. 215; Casey, Constitutional Law in Ireland, 3rd edition at p. 384.

_ [1980] IR 102.

_ Transcript of High Court judgment, p. 27.

_ This was based on the evidence of English expert witnesses conversant with procedures and giving evidence before the UK Special Educational Needs Tribunal.

_ 1993 c.35.

_ 1996 c.56.

_ [1999] 3 All ER 587. Leave to appeal to the House of Lords was refused. The judgment is not reported in the Weekly Law Reports or, subsequently, in the Law Reports (Queen’s Bench).

_ Transcript of High Court judgment, p.30.

_ Transcript of High Court judgment, pp. 30 - 31.

_ [1996] 2 IR 20, 72.

_ Supreme Court, 21 July 2000.

_ [1950] IR 67.

_ [1950] IR 67, 81; Riordan v An Taoiseach and Others, 21 July 2000, approved transcript at pp. 11 - 12.

_ [1995] 1 IR 484.

_ [1989] ILRM 181.

_ [1989] ILRM 181, 195 cited in Mac Mathúna [1995] 1 IR 484, 497 - 498. See also Heaney v Minister for Finance [1986] ILRM 164, 166 where the High Court (Murphy J) stated that Article 34 of the Constitution did not "… vest in judges of the Superior Courts vast powers to substitute their view of what is fair and just for that of the Oireachtas which has the right and duty of making the laws in accordance with which justice is to be achieved."

_ [1995] 1 IR 484, 499.

_ [1995] 1 IR 484.

_ [1989] ILRM 181.

_ (1997) p. 254.

_ [1973] IR 121.

_ [1973] IR 121, 123.

_ [1998] 1 IR 135.

_ Transcript of High Court judgment, p.55.

_ Transcript of High Court judgment, p. 31.

_ [1972] IR 241.

_ [1982] ILRM 148.

_ [1987] ILRM 651.

_ [1986] IR 116.

_ [1987] IR 587.

_ [1991] 2 IR 305.

_ [1980] IR 268.

_ [1965] IR 180, 202 - 203, per Walsh J.

_ High Court, Budd J, 28 June 2000.

_ High Court, Budd J, 27 February 1998; Supreme Court [2000] 1 ILRM 401.

_ The judgment of the High Court was not appealed ot the Supreme Court.

_ [1998] 1 IR 134, 159. Reference is made to the article by Professor William Binchy "Constitutional Remedies and the Law of Torts" in Human Rights and Constitutional Law; Essays in Honour of Brian Walsh (Dublin 1992).

_ [1998] 1 IR 134.

_ [1997] IR 23.

_ [1998] 1 IR 134.

_ [1998] 1 IR 134, 147 - 148.

_ High Court, Budd J, 28 June 2000.

_ [1982] IR 241.

_ High Court, Budd J, 28 June 2000, approved transcript, pp. 31 - 32.

_ [1973] IR 121, 132 - 133.

_ [1965] IR 70, 122.

_ High Court, Budd J, 28 June 2000, approved transcript, pp. 22 - 23.

_ [1986] IR 116.

_ High Court, Budd J, 28 June 2000, approved transcript, p. 25.

_ [1982] R 241.

_ [1991] ECR I - 5357.

_ [1996] ECR I - 1029.

_ [1995] 1 IR 418.

_ [1996] ECR I - 1029, 1150, paragraph 56.

_ [2000] 1 AC 524.

_ [2000] 1 AC 524, 539 C - D.

_ [1995] 1 IR 418, Carroll J. The judgment of the High Court was not appealed by the defendant to the Supreme Court.

_ [1982] IR 241, 321 - 322.

_ Case 43/75 Defrenne v Sabena [1976] ECR 455.

_ [1978] IR 326.

_ [1982] IR 241, 314 - 315.

_ High Court, Budd J, 28 June 2000.

_ Approved transcript, p. 69.

_PAGE _1_

_PAGE _i_

327/00

1996 No. 11170P

BETWEEN

KATHRYN SINNOTT

PLAINTIFF / RESPONDENT

AND

THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS / APPELLANTS

______________________

WRITTEN SUBMISSIONS

ON BEHALF OF THE DEFENDANTS / APPELLANTS

______________________

Filed in accordance with the Practice Direction of the Chief Justice dated the 3 November 2000 as published in the Legal Diary.

Submitted by David J. O’Hagan, Chief State Solicitor, Solicitor for the defendants / appellants, Osmond House, Little Ship Street, Dublin 8. (Ref. 45/97 and 83/97/GOM)

Dated this 7th day of March 2001.

TABLE OF CONTENTS

Introduction 1

Interpretation of the Constitution of Ireland

No necessity to address the constitutional relief

claimed as the same relief sought in Jamie Sinnott

v Minister for Education 3

No cause of action known to the law to grant

relief in the replicated claim pleaded in Kathryn

Sinnott--v-Minister for Education 5

Finding of High Court in Kathryn Sinnott

v Minister for Education 5

(d) Written submissions on behalf of the defendants/

appellants in Jamie Sinnott v Minister for Education 7

Summary 8

Introduction

1. These submissions address in outline the issues referred to in the notice of appeal in Kathryn Sinnott v Minister for Education dated the 12 December 2000. It is respectfully submitted that the learned trial judge (Barr J) was in error in the manner he addressed the legal issues adumbrated in the notice of appeal dealing with the interpretation of the Constitution of Ireland.

2. The grounds of appeal are set forth in the notice of appeal. They concern the manner in which the trial judge has interpreted certain provisions of the Constitution concerning the right to free primary education, the principle of the separation of powers and other constitutional provisions (including the equal protection clause, and the due process clause).

3. It is submitted that the trial judge erred in the relief granted to the plaintiff. The substance of the reserved judgment delivered on the 4 October 2000 related to the case of Jamie Sinnott v Minister for Education and the claims advanced on his behalf in reliance on Article 42.4 of the Constitution. There were no grounds on which the High Court should have proceeded to replicate the relief already granted in Jamie Sinnott v Minister for Education in Kathryn Sinnott v Minister for Education.

4. In the approved transcript of the judgment of the trial judge, Barr J, the plaintiff’s claim is considered after the consideration of the claim of Jamie Sinnott v Minister for Education._ It is submitted that the trial judge erred in holding that the defendants’ submissions

"… seems to concede by inference that Mrs. Sinnott has constitutional rights relating to the duty of the State to provide for appropriate primary education for her son, Jamie."_

It was respectfully submitted in the High Court that this plaintiff’s claim should be dismissed. It was further submitted that her claim was repetitious of the claim already made by her son in virtually identical proceedings in which she was the next friend.

5. Jamie Sinnott v Minister for Education is a separate case from Kathryn Sinnott v Minister for Education. Having determined those proceedings, it was not necessary to enter upon a separate consideration of a parallel and virtually identical claim. Further, not only is the jurisdiction of the High Court to exercise constitutional relief exercised with caution, the granting of declaratory relief is not automatic and settled principles apply to the grant of such relief. The present proceeding, it is submitted, would be circumstances where such relief should not be granted. Transport Salaried Staffs’ Association and Others v Coras Iompair Éireann_ was authority for a considered exercise of the court’s declaratory jurisdiction. The granting of declaratory relief is not automatic. This applies with greater force where a declaration concerning constitutional rights is sought.

The following aspects are emphasised.

Interpretation of the Constitution of Ireland

No necessity to address the constitutional relief claimed as the same relief sought in Jamie Sinnott v Minister for Education

6. The High Court did not address the submission that this plaintiff’s claim was almost identical to the claim of Jamie Sinnott. To emphasise the similarity of the reliefs sought, the legal submissions in the High Court reproduced the text of the prayer in the respective statements of claim superimposed one on the other. It is submitted that there is no substantial difference.

7. To underline this, the appropriate expression in the prayer of the statement of claim delivered on behalf of Kathryn Sinnott is set forth in italic type following immediately in bold type with the equivalent expression in the statement of claim delivered on behalf of Jamie Sinnott. It is submitted that the plaintiff’s claim in both proceedings starts and ends with Article 42.4 which was the entire thrust and run of the case.

"(a) A declaration that the first named defendant in failing to provide for free education for the plaintiff’s son, Jamie Sinnott [for the plaintiff] appropriate to his needs as a profoundly mentally disabled child and in discriminating against the plaintiff’s son [the plaintiff] with respect to the provision of appropriate educational facilities vis a viz other children, as deprived the plaintiff of her [his] constitutional rights pursuant to Articles 40.1, 40.3.1( and 2(, and 41.2 and 42.1 and 2, and 3 and 4 [Articles 40.1 and 40.3.1( and 40.3.2( and 42.3.2( and 42.4].

(b) Damages for breach of the plaintiff’s constitutional rights, negligence and breach of duty.

(c) A mandatory injunction directing the first named defendant to provide for free education for the plaintiff’s son [the plaintiff] appropriate to his needs for as long as he is capable of benefiting from same.

(d) Such further and other relief as may appear to this Honourable Court to be necessary or desirable to defend and vindicate the personal rights of the plaintiff.

(e) Costs."_

8. The Superior Courts have long adopted a practice of self restraint in constitutional litigation. Thus, an issue of constitutional validity or for that matter constitutional interpretation will only be reached as a last resort. If the case can be determined on some other issue, it will be. Applying this concept by analogy, if a mother and her son in proceedings with the mother as next friend make claims in reliance upon the provisions of the Constitution concerning the interpretation of primary education and these are repeated, verbatim, in separate proceedings brought on behalf of the mother in her own right, this in itself is sufficient for the court to refuse the relief sought in the latter proceeding. This is a further ground on which to dismiss the claim of the plaintiff.

No cause of action known to the law to grant relief in the replicated claim pleaded in Kathryn Sinnott v Minister for Education

9. The substance of the claim before the High Court concerned an interpretation of Article 42.4 of the Constitution with regard to the primary education of Jamie Sinnott. The primary education of Kathryn Sinnott was not in issue.

10. This plaintiff’s right to primary education was not in issue in these proceedings nor could have been. This plaintiff is an adult long past the stage of primary education. If the claim is viewed from the perspective of the relationship between Jamie Sinnott and Kathryn Sinnott and an assertion that it is not as rewarding as it should have been, it is difficult to see how this fits within a cause of action in reliance, primarily, on Article 42.4 of the Constitution.

11. Statute law has intervened in restricted circumstances to award damages for solatium in circumstances where grief and upset do not otherwise sound in damages. There is no equivalent principle in constitutional litigation.

Finding of High Court in Kathryn Sinnott v Minister for Education

12. The only article of the Constitution relied upon by Kathryn Sinnott and not by Jamie Sinnott concerns the family in Article 41.2.1( and 2( and Article 42.1 and 2 concerning education. In addition, in final legal submissions, the plaintiff relied upon Article 41.1.2( and the provisions concerning the protection of the family in its constitution and authority. Otherwise, the Articles relied upon in the separate proceedings are identical.

13. It is submitted that the above provisions of the Constitution do not alter the submission made that this claim is essentially a mirror claim of the relief sought in Jamie Sinnott in reliance on Article 42.4 and the interpretation of "primary education" therein.

14. Further, it is submitted that the provisions of Article 41 on which the plaintiff relies do not provide the basis for a constitutional provenance for the trial judge’s decision. In PH v John Murphy & Sons Limited_, the High Court did not construe Article 41.1.1( and 2( and Article 41.2 as creating a remedy in damages where children had lost the society of their father through the negligent driving of the defendants. The father of the plaintiffs had to be made a ward of court after the severe personal injuries sustained in a road traffic accident. The infant plaintiffs suing by their mother and next friend sought damages inter alia for breach of constitutional duty for the loss of the non-pecuniary benefits which the father of a family bestows on his children. The High Court rejected this claim.

15. In L v L_ the Supreme Court allowed an appeal from the High Court where the same provisions of the Constitution had been interpreted to confer on a married woman within the home a 50% interest in the family home. The Supreme Court held that Article 41 of the Constitution did not confer on the courts a jurisdiction to make such far reaching orders which were properly a matter for amending legislation.

16. It is submitted, therefore, that the plaintiff’s alleged cause of action in reliance on Article 41 of the Constitution should be dismissed.

17. It is further submitted that any claim in reliance on Article 40.1, the equal protection clause, is properly addressed in the proceedings Jamie Sinnott v Minister for Education. The Superior Court’s jurisprudence under Article 40.1 does not extend to granting the plaintiff the declaratory and other mandatory relief claimed in these proceedings. Similarly, while the plaintiff has also relied upon Article 42.1 and 2 dealing with the family as the natural educator of the child and the entitlement of parents to provide education in their homes or in schools, they do not advance the substance of the plaintiff’s claim which is focused on the meaning and application of Article 42.4.

18. It is further submitted that any constitutional duty owed by the State under Article 42.4 is a duty owed essentially to the child in the context of primary education as provided for therein.

Written submissions on behalf of the defendants / appellants in Jamie Sinnott v Minister for Education

19. To avoid repetition, the defendants adopt the entirety of their written submissions in Jamie Sinnott v Minister for Education, mutatis mutandis, with regard to the claim of Kathryn Sinnott v Minister for Education. The defendants also rely on their submissions filed in the High Court on the 8 February 2000.

20. In the plaintiff’s appeal, the defendants have paid, without prejudice to their appeal, the out of pocket special damages incurred in the amount of £15,000. It is submitted that this payment should be regarded by the Supreme Court in a not dissimilar manner to the terms imposed for the purposes of a stay in common law litigation where it is intended to appeal to the Supreme Court. For the avoidance of doubt, irrespective of the outcome of this appeal, these defendants do not reclaim those monies. On account of the issues of public importance raises in this appeal raising issues of principle of the first constitutional import, the defendants have also agreed to pay, on an ex gratia basis, the plaintiff’s legal costs on a party and party basis.

Summary

21. It is submitted that the defendants’ appeal should be allowed on one or other of the grounds advanced above.

THE SUPREME COURT

327/00

1996 No. 11170P

BETWEEN

KATHRYN SINNOTT

PLAINTIFF / RESPONDENT

AND

THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS / APPELLANTS

____________________

WRITTEN SUBMISSIONS

ON BEHALF OF THE DEFENDANTS / APPELLANTS

____________________

Chief State Solicitor,

Osmond House,

Little Ship Street,

Dublin 8.

Ref. 45/97 and 83/97/GOM

_ Approved transcript of Barr J, 4 October 2000, pp. 56 - 58.

_ Approved transcript of Barr J, 4 October 2000, p. 56.

_ [1966] IR 180, 202- 203

_ Statement of claim of Mrs. Sinnott delivered on 31 January 1997; statement of claim of Jamie Sinnott delivered on 31 January 1997.

_ [1987] IR 621.

_ [1992] 2 IR 727.

_PAGE _1_

327/00

1996 No. 11170P

BETWEEN

KATHRYN SINNOTT

PLAINTIFF / RESPONDENT

AND

THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS / APPELLANTS

______________________

WRITTEN SUBMISSIONS

ON BEHALF OF THE DEFENDANTS / APPELLANTS

______________________

Filed in accordance with the Practice Direction of the Chief Justice dated the 3 November 2000 as published in the Legal Diary.

Submitted by David J. O’Hagan, Chief State Solicitor, Solicitor for the defendants / appellants, Osmond House, Little Ship Street, Dublin 8. (Ref. 45/97 and 83/97/GOM/EOB)

Dated this day of March 2001.

Introduction

"… seems to concede by inference that Mrs. Sinnott has constitutional rights relating to the duty of the State to provide for appropriate primary education for her son, Jamie."_

The following aspects are emphasised.

Interpretation of the Constitution of Ireland

No necessity to address the constitutional relief claimed as the same relief sought in Jamie Sinnott v Minister for Education

(b) Damages for breach of the plaintiff’s constitutional rights, negligence and breach of duty.

(d) Such further and other relief as may appear to this Honourable Court to be necessary or desirable to defend and vindicate the personal rights of the plaintiff.

(e) Costs."_

No cause of action known to the law to grant relief in the replicated claim pleaded in Kathryn Sinnott v Minister for Education

Finding of High Court in Kathryn Sinnott v Minister for Education

16. It is submitted, therefore, that the plaintiff’s alleged cause of action in reliance on Article 41 of the Constitution should be dismissed.

17. It is further submitted that any claim in reliance on Article 40.1, the equal protection clause, is properly addressed in the proceedings Jamie Sinnott v Minister for Education.The Superior Court’s jurisprudence under Article 40.1 does not extend to granting the plaintiff the declaratory and other mandatory relief claimed in these proceedings. Similarly, while the plaintiff has also relied upon Article 42.1 and 2 dealing with the family as the natural educator of the child and the entitlement of parents to provide education in their homes or in schools, they do not advance the substance of the plaintiff’s claim which is focused on the meaning and application of Article 42.4.

18. It is further submitted that any constitutional duty owed by the State under Article 42.4 is a duty owed essentially to the child in the context of primary education as provided for therein.

Written submissions on behalf of the defendants / appellants in Jamie Sinnott v Minister for Education

Summary

21. It is submitted that the defendants’ appeal should be allowed on one or other of the grounds advanced above.

THE SUPREME COURT

327/00

1996 No. 11170P

BETWEEN

KATHRYN SINNOTT

PLAINTIFF / RESPONDENT

AND

THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS / APPELLANTS

____________________

WRITTEN SUBMISSIONS

ON BEHALF OF THE DEFENDANTS / APPELLANTS

____________________

Chief State Solicitor,

Osmond House,

Little Ship Street,

Dublin 8.

Ref. 45/97 and 83/97/GOM/EOB

TABLE OF CONTENTS

Introduction………………………………………….1

Interpretation of the Constitution

of Ireland……………………………………………..3

No necessity to address the

constitutional relief claimed as the

same relief sought in Jamie Sinnott

v Minister for Education ………………………….3

No cause of action known to the

law to grant relief in the replicated claim

pleaded in Kathryn Sinnott v Minister for Education ……………………………………………5

Finding of High Court in Kathryn Sinnott

v Minister for Education………………………..…5

(d) Written submissions on behalf

of the defendants / appellants in

Jamie Sinnott v Minister for Education…………7

Summary……………………………………………..8

_ Approved transcript of Barr J, 4 October 2000, pp. 56 - 58.

_ Approved transcript of Barr J, 4 October 2000, p. 56.

_ [1966] IR 180, 202- 203

_ Statement of claim of Mrs. Sinnott delivered on 31 January 1997; statement of claim of Jamie Sinnott delivered on 31 January 1997.

_ [1987] IR 621.

_ [1992] 2 IR 727.

_PAGE _1_

_PAGE _2_

327/00

1996 No. 11170P

BETWEEN

KATHRYN SINNOTT

PLAINTIFF / RESPONDENT

AND

THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS / APPELLANTS

______________________

WRITTEN SUBMISSIONS

ON BEHALF OF THE DEFENDANTS / APPELLANTS

______________________

Filed in accordance with the Practice Direction of the Chief Justice dated the 3 November 2000 as published in the Legal Diary.

Submitted by David J. O’Hagan, Chief State Solicitor, Solicitor for the defendants / appellants, Osmond House, Little Ship Street, Dublin 8. (Ref. 45/97 and 83/97/GOM/EOB)

Dated this day of March 2001.

Introduction

"… seems to concede by inference that Mrs. Sinnott has constitutional rights relating to the duty of the State to provide for appropriate primary education for her son, Jamie."_

The following aspects are emphasised.

Interpretation of the Constitution of Ireland

No necessity to address the constitutional relief claimed as the same relief sought in Jamie Sinnott v Minister for Education

(b) Damages for breach of the plaintiff’s constitutional rights, negligence and breach of duty.

(d) Such further and other relief as may appear to this Honourable Court to be necessary or desirable to defend and vindicate the personal rights of the plaintiff.

(e) Costs."_

No cause of action known to the law to grant relief in the replicated claim pleaded in Kathryn Sinnott v Minister for Education

Finding of High Court in Kathryn Sinnott v Minister for Education

16. It is submitted, therefore, that the plaintiff’s alleged cause of action in reliance on Article 41 of the Constitution should be dismissed.

18. It is further submitted that any constitutional duty owed by the State under Article 42.4 is a duty owed essentially to the child in the context of primary education as provided for therein.

Written submissions on behalf of the defendants / appellants in Jamie Sinnott v Minister for Education

Summary

21. It is submitted that the defendants’ appeal should be allowed on one or other of the grounds advanced above.