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1. The Applicants are a husband and wife and reside at Daisybank House Powers Hill, Checkpoint, County Waterford. They have five children. At the institution of these proceedings the Applicants were expecting their sixth child and wanted a home delivery. The Respondent decided that the First Named Applicant was an unsuitable candidate for a home delivery and offered to deliver the First Named Applicant’s baby in hospital which offer was declined. The Respondent has a policy that all births take place in properly equipped and staffed maternity units but will facilitate home deliveries. The policy regards as not suitable for home delivery the sixth and subsequent deliveries and on this basis considered the First Named Applicant to be unsuitable for a home delivery.

2. On 1st September, 1999 the Applicants sought and obtained leave to apply for an Order of Mandamus compelling the Respondent to provide the birth services set out in Section 62 of the Health Act 1970 together with further and other relief and costs. The substantive relief sought in the Statement to ground the application for Judicial Review is in the following terms -

3. The Statement goes on to seek further and other relief and costs.

4. Having refused to provide home delivery services the Respondent did offer to make a grant towards the costs of such services on an ex gratia basis. The Applicants’ child was born on the 7th November, 1999. In these circumstances at the opening of the case it was submitted to me by Counsel on behalf of the Respondent that the issue was moot. The Applicants contend that they are entitled pursuant to the terms of the leave given to seek declarations which would in effect answer the following two questions:-

5. Having decided that the substantive relief sought was clearly moot I heard argument as to whether it was appropriate that the matter should proceed further the Applicant seeking only declaratory relief and costs.

6. The Health Act 1970 Section 62 thereof provides as follows -

7. Prior to the Chancery (Ireland) Act 1867 Section 155 a Court of equity would not make a declaration of right except as incidental to relief given: Elliotson-v-Knowles (1842) 11L.J.CH.399. The Chancery Ireland Act 1867 Section 155 provides as follows -

8. While the Chancery (Ireland) Act 1867 Section 155 was repealed by the Statute Law Revision Act 1893 the effect of the new procedure adopted under the Judicature Act and the provisions of the Rules of the Supreme Court Ireland 1905 Order 25 Rule 5 meant that in substance the Courts acted as if the provision had not been repealed. The 1905 Rules in Order 25 Rule 5 provided as follows -

9. The Rules of the Superior Courts 1962 Order 19 Rule 29 and the Rules of the Superior Courts 1986 Order 19 Rule 29 repeat this provision in a slightly modified form -

10. A considerable body of jurisprudence developed as to the circumstances in which the Court would exercise its discretion in deciding whether or not to grant relief by way of declaration. Thus relief will not be given in respect of future rights as the Respondents obligation will vary at different dates and in different circumstances: A.G.-v-Scott (1905) 2KB 160. Nor where a declaration will be of no practical value: Bennet-v-Chappell (1965) 3 All E.R 130. In Gibson-v-The Union of Shop Distributive and Allied Workers (1968) 2 All E.R 252 Buckley J. said -

11. On the facts of that case the Plaintiff remained suspended under the decision which he sought to impugn although that suspension had but a few weeks to run and his conduct during those weeks would be affected by the declaratory relief. The relief sought was not purely academic. The decision endorses a long line of authorities which held that the Court will not deal by way of declaration where the ground of complaint is of an academic character only. While declaratory relief was there granted the decision does not support the Applicant’s claim for declaratory relief.

12. As to the approach adopted by the courts in exercising its discretion in relation to declaratory relief and in particular the consistent approach in refusing to grant relief where the same could be of no practical benefit to an Applicant see Devlin-v-The Minister for Arts Culture and the Gaeltacht and Others (1999) 1IR 47, Brady and Others -v-Cavan County Council (2000) 1ILRM 81.

13. Having regard to the foregoing I propose to consider whether it would be appropriate in the exercise of my discretion to grant declaratory relief dealing with the two questions raised by the Applicant in whatever forms such declarations might be couched.

14. As to the first question it is necessary to consider whether there is any benefit to be derived from making a declaration now as to the services to which the Applicants were entitled at the time of the First Named Applicant’s confinement. On behalf of the Applicants it is argued that such a declaration would be of benefit to the Applicants who propose having a further child or children. I do not think that this can be so as what would be necessary or appropriate in relation to a further confinement could only be determined in the light of circumstances existing at that time. In the exercise of my discretion therefore I refuse to embark upon an enquiry for the purposes of making such a declaration.

15. The Applicants further urge upon me that such a declaration would be of benefit to other persons who might wish to have a home delivery. In this regard reliance is placed on Belfast West Power Limited and Another-v-Belfast Harbour Commissioners and Another (1998) NILR 112. I do not consider that this case supports the Applicants claim for declaratory relief. I am satisfied that any declaration that could be granted in this case could be of no assistance to other persons seeking the provision of home delivery services as the circumstances in each case will vary. Any decision in this case would turn on its own peculiar circumstances. To grant a declaration would expose Health Boards to the possibility of a flood of litigation seeking similar declarations in respect of issues which have become moot and lead to them incurring a heavy burden in costs in dealing with the same and all to no practical advantage either to the particular Applicant or to society as a whole. In these circumstances it would be inappropriate to exercise my discretion and make declarations as sought by the Applicants in relation to the first question.

16. Again the Applicants say that they could rely upon such a declaration in District Court proceedings to recover damages to recoup the excess of expense properly incurred by them over the amount of the ex gratia payment made. The Applicants can of course bring a claim in the District Court but such a claim would carry District Court costs only. The device of having a declaration made in this Court in aid of a District Court claim would greatly increase the costs of such litigation and could be regarded as an abuse of process.

17. With regard to the second question the Supreme Court held in Spruyt and Another-v-Southern Health Board unreported 14th October, 1988 in considering the Health Act 1970 Section 62(1) that a Health Board’s obligation under that provision could not be satisfied by an offer to indemnify a person entitled to such services against the cost of them making their own arrangements. In the light of this I do not consider it proper to advance on an enquiry as to the adequacy of the ex gratia payment made to the Applicants towards the costs of such services.

18. My conclusion therefore is that events having overtaken the principal relief sought in this action being an Order of Mandamus such an Order cannot now issue. While the Court has jurisdiction to grant declaratory relief such relief should not be granted where the declaration relates to future rights or depends upon a contingency or where a mere academic question of no practical value is involved all of which considerations apply here.

19. There are disputes as to fact and medical opinion and practice disclosed in the Affidavits filed in this matter but even if these should be resolved in their entirety in favour of the Applicants it would still be inappropriate to grant declaratory relief. Accordingly I do not propose to embark upon an enquiry in to such facts, opinions and practice.

20. I refuse the application for declaratory relief.