The High Court has ruled that the parents of a young autistic boy are not entitled to an order for an estimated €5 million in court costs arising from their attempt to get State funding for his education.
Yvonne and Cian Ó Cuanacháin, who wanted the State to provide a form of education known as applied behavioural analysis (ABA) for their seven-year-old son Séan, said yesterday that they face losing their Co Wicklow home as a result.
Speaking after the case, Cian Ó Cuanacháin said: "We're devastated because the future for Seán is bleak. We're not wealthy people and this case cost millions.
"The department decided to drag this case on, the clock kept running and we're left to face the consequences."
He also said the Department of Education had used their case to set a precedent and not extend ABA tuition to more schools.
A spokesman for Minister for Education Mary Hanafin declined to comment on the case yesterday.
Mr Justice Michael Peart yesterday said he believed the "fair and just" thing to do in relation to the costs of the action, which ran over 69 days, was to make no order for costs, meaning each side must pay its own costs.
Lawyers for the State and the Health Service Executive (HSE) had previously said they were not seeking costs of the action against Cian and Yvonne Ó Cuanacháin, of Woodbine Avenue, Mountain View, Arklow, Co Wicklow, who brought the case on behalf of their son.
The judge's decision on costs yesterday means each party is liable only for their own legal costs of the case.
The entire costs were estimated at €5 million, but lawyers for the Ó Cuanacháins, who were represented by three senior counsel, may not seek to be paid, given the judge's decision.
The legal costs bill facing the State and HSE arising from the action is estimated at more than €2 million.
Explaining his costs decision, the judge said that while the case was clearly of importance to Seán and his parents, it was not of such great public importance as to justify the court exercising its discretion on costs to make an order in favour of the Ó Cuanacháins.
He noted that Ms Ó Cuanacháin had said during the hearing that the case was being brought on behalf of Seán and was not part of a wider campaign in the public interest.
The judge said he had previously raised some doubt as to whether that was the case. Had the State and HSE sought and secured their costs against the Ó Cuanacháins, that sum would run into "some millions" of euro, he added.
The action on behalf of Seán was regarded as a test case for autistic children seeking education according to the ABA system.
His parents sought orders compelling the State to provide funding for such an education but failed to secure those.
Seán was, however, awarded €61,000 damages against the HSE over unreasonable delay in diagnosing his condition and providing appropriate therapies.
The hearing heard evidence from experts for the sides as to the forms of education available for children with autism.
In March 2007, in rejecting the main claim in the action for funding for ABA education into the future, Mr Justice Peart found the programme being provided by the State for Seán was appropriate autism-specific education provision.
When awarding damages in May 2007 to Seán against the HSE for delays in diagnosing him and providing adequate therapies, the judge said the delay was due to the lack of adequate resources to meet the enormous increase in demands for such services. He accepted the service providers had done their "very best" to cope.
Dealing with the costs issue yesterday, the judge noted that the normal rule on costs is that they go to the winning side. The court had discretion in relation to costs and could, in certain exceptional circumstances, award costs to a losing party.
In this case, the Ó Cuanacháins had argued they should be awarded costs arising from the behaviour of the State defendants in relation to Seán's education prior to and during the action.
However, the judge said, none of the complaints made were sufficient to outweigh the fact that the vast majority of the case against the HSE was unsuccessful while the Ó Cuanacháins were "totally unsuccessful" in their case against the State defendants. At the very best, he said the plaintiff would be entitled to an award of a small number of days' costs against the HSE because of the award of damages to Seán.