Senior Department of Education official to be cross-examined in case over grades

The High Court has permitted a limited cross-examination of the assistant secretary of the Department of Education during the lead challenge over the Leaving Cert calculated grades process.

That action, by Freddie Sherry, a Leaving Cert student at Dublin’s Belvedere College, is due to open next Tuesday with more than 30 other cases awaiting its outcome.

Mr Sherry, from Newtown, Celbridge, Co Kildare, claims a decision last August by the Minister for Education, approved by the Government on September 1st, to exclude historical schools data from the calculated grades process was unlawful.

He was “hugely disappointed” the CAO points total of 542 for him estimated by his teachers was reduced by 47 points to 487 under the grade standardisation and he lost out on his first choice to study pharmacy at Trinity College.

His case is against the Minister for Education and the State who reject the claims.

Mr Justice Charles Meenan, who will hear the case, gave a ruling on Tuesday on a number of pre-trial applications by both sides.

He granted an application by lawyers for Mr Sherry for cross-examination, on a limited basis, of Dalton Tatton, assistant general secretary of the department of education, on certain matters in his affidavits.

He also permitted limited cross-examination of Hugh McManus, deputy director of the calculated grades office, as well as a general cross-examination of two experts for the sides.

The judge said the core issue in Mr Sherry’s case is whether or not the decision to exclude historical school data from the calculated grades process was unlawful, unfair, unreasonable or irrational and breached Mr Sherry’s legitimate expectation historical school data would be included.

Given conflicts of fact in this case, he considered it was one of those exceptional judicial review challenges where cross-examination could be permitted.

He granted another application by Mr Sherry for production of two data models considered in the development of the calculated grades process. Those models were “central” to the process, the judge said.

He refused, on grounds of privilege attached to discussions before Cabinet, another application by Mr Sherry for discovery of a memo provided to Cabinet when making its September 1st decision.

The State had said it has provided similar material to Mr Sherry which formed the basis of presentations from the Minister and her officials concerning the exclusion of historical school data from the calculated grades process which were made, outside the Cabinet setting, to members of Government and representatives of Fianna Fáil and Green Party, the judge noted. The respondents had said they had provided as full and comprehensive an account as could properly be given concerning how the exclusion decision was arrived at, he added.

He also upheld “well-founded” arguments by the State that Mr Sherry should not be permitted include an affidavit from Alice Lynch, the principal of St Kilian’s German school in Dublin.

The Sherry case was set by the parties some time ago as the lead challenge while St Kilian’s, and some of its students, have taken a separate challenge, the judge said.

Including Ms Lynch’s affidavit seemed to introduce the facts in the St Kilian’s case into Mr Sherry’s case, which concerns Belvedere College and seemed to be an effective attempt to consolidate both cases, he said. That could potentially lengthen Mr Sherry’s hearing because the respondents would need time to address the St Kilian’s claims. Ms Lynch also could not be classified as an independent expert and the facts in her affidavit concerned St Kilian’s.

He did not believe excluding the affidavit would cause any injustice to Mr Sherry, the judge said.