State must pay 65% of student’s costs of failed calculated grades action

The State must pay 65 per cent of a student's substantial legal costs of the hearing of his failed action over the final calculated grades model adopted for the Leaving Certificate 2020 exam, a High Court judge has directed.

The case by Freddie Sherry, a student at Dublin's fee-paying Belvedere College, ran for five weeks.

For reasons including it was a lead action which decided issues affecting 70 other cases, the State offered to pay 50 per cent of Mr Sherry’s costs of the hearing on a party-by-party basis.

It also offered to pay 50 per cent of his costs of pre-trial applications in November 2020, plus the €110,000 costs of a transcript and partial remote hearing of the case via the Trialview system.

After lawyers for Mr Sherry rejected the State's offer and sought their full costs, Mr Justice Charles Meenan heard submissions on the costs issues.

In his ruling on Friday, the judge said the response from Mr Sherry’s side to the State’s offer was “unreasonably dismissive”.

In deciding costs, he had to balance several factors, including Mr Sherry having lost the case and that the case was undoubtedly in the public interest.

Controversy

There was considerable controversy when the calculated grades were awarded, nearly 70 separate legal cases were initiated and the judge had no doubt many others felt aggrieved when their calculated grades fell short of their expectations.

Given the importance of the Leaving Cert in the working and educational life of the country, it was essential that the issues that arose were decided in advance of the 2021 Leaving Cert, he said.

The fact Mr Sherry had a clear personal interest in the case was not a factor against him in that the purpose of his case was to establish he ought to have been awarded higher calculated grades than he had received, he added.

Factors in favour of the Minister for Education and the State included that the issues were decided by applying well-known and established legal principles, he said.

Decisions by the Supreme Court and Court of Appeal, which the judge had relied on in dismissing the case, have clearly established the courts have neither the competence nor the jurisdiction on matters of policy and this applied to education as well as other areas.

The statistical evidence in the hearing also did not establish any material unfairness suffered by Mr Sherry in the calculated grades he was awarded, the judge said.

Having considered those and other factors, he was satisfied Mr Sherry should get 65 per cent of the costs of the hearing, on a party-by-party basis, the highest level.

The respondents’ offer to pay 50 per cent of Mr Sherry’s costs of the pre-trial motions heard in November 2020 was “more than reasonable” and he would make an order to that effect, he said.

He also ordered that Mr Sherry get his costs of the costs application itself.

Core issue

The core issue in the case was whether the Minister’s August 2020 direction, endorsed by Government, to remove school historical data (SHD) – based on the school’s Leaving Cert performance across three prior years – was unlawful.

Mr Sherry, of Newtown, Celbridge, Co Kildare, claimed the removal of SHD resulted in him being unfairly downgraded by 55 points in his Leaving Cert.

In his judgment earlier this month, the judge said it was “not at all surprising” Mr Sherry’s marks were downgraded from the “significantly inflated” estimated marks provided by Belvedere. Inflated school estimates were common among other schools, particularly at the higher levels, he added.

He ruled the Minister and State respondents were fully entitled, despite earlier commitments, to make changes to the standardisation model they considered to be in the public interest. The disputed decision was not arbitrary, unfair, unreasonable irrational or unlawful and did not breach Mr Sherry’s legitimate expectation, he ruled.