Damien English (Meath West, Fine Gael)
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Question 918: To ask the Minister for Education and Science the cost to and the damages paid by the State in relation to judicial reviews that her Department were responsible for in each of the years 1997 to 2007 inclusive; and if she will provide the information in tabular readable form. [1109/08]

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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Firstly, the Department have not been responsible for any judicial review proceedings in the years 1997 to 2007 insofar as the Minister has not been an applicant in proceedings. Of the proceedings in which the Minister was named as a respondent it may be noted that the cost to the State is borne by the Chief State Solicitor's Office in respect of counsel's fees.

Of the cases in which an applicant for judicial review has successfully obtained an order for costs against the Minister these are the subject of negotiation between the Costs Accounting Section of the Chief State Solicitor's Office and the applicant's legal representatives. Under the provisions of Order 99 of the Rules of the Superior Courts a bill of costs may be the subject of review by the Taxing Master. Further, costs paid in the period 1997-2007 may well relate to actions concluded in previous years. Similarly costs incurred in the period 1997-2007 may not yet be the subject of final orders for costs for several years. It may therefore be noted that the figures supplied below in relation to the number of cases in the time period concerned will bear little relation to the costs paid during that time period.

It is uncommon in judicial review cases for damages to be a remedy. Generally an action taken pursuant to Order 84 of the Rules of the Superior Courts seeks orders of certiorari or mandamus, i.e. to quash a particular decision or to compel the Minister to take a particular course of action. Actions taken by plenary summons or personal injuries summons would be the more common route for damages to be pursued. The figures below only relate to judicial review proceedings. In many cases the Department has not been the sole respondent, i.e. cases may involve the provision of particular therapies or other resource allocation, and this may involve other Government Departments or agencies, e.g. the Department of Health & Children or the HSE. In the circumstances the amounts mentioned are those which relate to this Department's contribution. However, it was customary in the past for the Department to partially bear the costs of an child-related action even if the reliefs sought against the Minister for Education & Science were not necessarily granted. In some cases, e.g. those relating to troubled minors, the education-related component is often not at issue between the parties.

Over the period 1997-2007 a number of bodies have transferred from the Department of Education & Science to other Government Departments and State Agencies, e.g. the National Coaching and Training Centre (NCTC) was transferred to the Department of Arts, Sport and Tourism; under the provisions of the Criminal Justice Act 2006 the amended Children Act 2001 was commenced, the effect of which was the transfer of the children detention schools to the Irish Youth Justice Service and the HSE in 2007.

In the circumstances the details of costs and damages provided below is generally indicitative of the judicial review proceedings in which my Department was named as a respondent. It does not include actions in which the Department was named as a notice party, nor any actions taken by plenary summons. The costs to which reference is made below are party-and-party costs, but information on any settlement costs are included where available, e.g. there are instances in which a particular financial allocation may be made on an ex-gratia basis to contribute towards an educational or other service sourced by the family of a litigant during the course of proceedings. Any such amount would not constitute damages. On the question of awards, it should be noted that, quite apart from court orders or court settlements, the court proceedings themselves can often involve a high level of non-legal costs, such as the extensive use of the National Educational Psychological Service (NEPS), medical fees, witness expenses and so forth. The overall litigation costs cited below may include similar non-legal costs if these were granted to the applicants over the course of the proceedings. Generally however, judicial review cases are contested on the papers and unless there is a need to cross-examine the deponent of an affidavit then the matter of witness expenses should not arise.

Damien English (Meath West, Fine Gael)
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Question 919: To ask the Minister for Education and Science the number of applications for judicial review that her Department was responsible for in each of the years 1997 to 2007; the number of applications where leave was granted for each year; and if she will present the information in tabular readable form. [1124/08]

Mary Hanafin (Dún Laoghaire, Fianna Fail)
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The Department has not been responsible for any applications for judicial review during the period in question. The Minister has been named as a respondent in a considerable number of actions in the years 1997 to 2007. However, it may be noted that leave to apply for judicial review is generally granted on an ex-parte basis, i.e. the Minister is not on notice of the application and thus does not have an opportunity to contest the granting of leave on an inter-parties basis. However, in certain circumstances an interim relief given, such as injunctive relief, may be granted by a judge on the condition that the respondent have the opportunity to contest the interlocutory relief.

On occasion a High Court judge may well decide to refuse leave to apply for judicial review on the majority of the reliefs sought. For the purposes of the Deputy's statistics these cases would still count as those in which leave was granted. The granting of leave to apply for judicial review is given at the threshold of 'arguable/stateable case'. It does not imply that there is necessarily any prospect of successfully quashing a Ministerial decision or the procedures and processes which gave rise to it.

In certain circumstances the Minister may be named as a respondent in a case in which the matters wholly relate to the exercise of a Board of Management's functions under section 15 of the Education Act 1998. Whilst the Department, the NEWB and the Inspectorate offer assistance on the matter of codes of behaviour, admissions policies and related matters, and whilst the provisions of s.29 of the Education Act 1998 offer remedies short of High Court proceedings in situations in which refusal to enrol or permanent exclusion has arisen, it should be noted that the Minister can often be named in legal actions in which there is no basis upon which the reliefs sought could be successfully obtained against the Minister.

Similarly, the Minister may be named as a respondent in cases in which the principal reliefs sought are not of an educational nature, e.g. litigation relating to troubled minors may entail a broad range of state agencies, the Department of Justice, Equality and Law Reform, the Department of Health and Children, the Irish Youth Justice Service and the Health Service Executive i.e. there are a diverse range of care needs to be addressed, and for which the educational dimension may not necessarily result in any relief being granted against the Department of Education and Science. It may also be noted that, under the provisions of the National Treasury Management Agency (Amendment) Act 2000 the management of personal injury and property damage claims were delegated to the State Claims Agency. The State Claims Agency manages claims relating to community and comprehensive schools. However, few of these actions are taken by way of judicial review.

Further, it may be noted that even if leave to apply for judicial review is granted by the High Court this may be set aside on appeal to the Supreme Court, without the substantive matters being heard at High Court level. In the light of the foregoing the tabular information should be understood to include only those cases in which leave to apply for judicial review has been sought against the Minister. If the Deputy has a specific area of concern in mind, such as the primary or post-primary sectors, education-related industrial relations matters, residential institutions and abuse-related litigation, then this could be explored further.