Leaving Cert student not appealing rejection of his lead case over calculated grades

A student’s decision not to appeal the High Court’s rejection of his lead challenge to the calculated grades model for the Leaving Certificate 2020 exam appears likely to result in halting most, if not all, of some 70 similar cases.

Mr Justice Charles Meenan was told on Wednesday that Freddie Sherry, a Leaving Cert student at Dublin's fee-paying Belvedere College last year, is not appealing the judge's dismissal of his case.

On that basis, the judge granted an application by Joseph O’Sullivan BL, for the Minister for Education and the State, to strike out the matter.

Brendan Hennessy BL, for plaintiffs in about 40 similar cases, said, after Mr Sherry had indicated he would not be appealing, his side had sought instructions from their clients.

Counsel said they had so far obtained instructions to seek orders striking out nine of their 40 cases. While he appreciated the Minister’s side wanted finality, counsel said he needed some short time to take instructions in his remaining cases.

Eoin Sreenan BL said two plaintiffs whom he represents don’t want their cases to proceed as test cases. While appreciating the Minister’s desire for finality, he needed time to take instructions a number of other cases, he said.

The judge made the strike-out orders as sought in various cases and adjourned the remaining cases to April 28th to allow the plaintiffs’ solicitors time to take instructions.

Mr O’Sullivan did not object to the adjournments but stressed his side wanted finality.

The developments came after Mr Justice Meenan last month dismissed the lead case by Mr Sherry, which ran for five weeks with several pre-trial applications.

The judge later ordered the State to pay 65 per cent of Mr Sherry’s legal costs on a party-party basis, the highest level of legal costs.

For reasons including that the case was a lead action which decided issues affecting some 70 other cases, the State had offered to pay 50 per cent of Mr Sherry’s sides costs of the hearing on a party-party basis. Mr Sherry’s side rejected that offer and sought their full costs.

The judge described as “more than reasonable” the State’s additional offer to pay 50 per cent of his costs of pre-trial applications in November 2020 and orders were made to that effect.

The core issue in the Sherry case was whether the Minister’s August 2020 direction, endorsed by the Government on September 1st, 2020, 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 main judgment, 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 amongst 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.