Bebenek v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Keane
• Judgment Date: 30 May 2018
• Neutral Citation: [2018] IEHC 323
• Docket Number: [2016 No. 188JR]
• Court: High Court
• Date: 30 May 2018

BETWEEN

THOMAS BEBENEK

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

AND

IRELAND

AND

THE ATTORNEY GENERAL

AND

THE COMMISSIONER OF AN GARDA SIOCHANA

RESPONDENTS

[2018] IEHC 323

Keane J.

[2016 No. 188JR]

THE HIGH COURT

JUDICIAL REVIEW

Wasted costs order – Legal practitioners – Professional conduct – Applicant withdrew proceedings – Whether it was appropriate to make a wasted costs order against the applicant’s solicitors under Order 99, rule 7 of the Rules of the Superior Courts

Facts: The applicant, Mr Bebenek, applied to the High Court seeking an order of certiorari quashing the decision of the first respondent, the Minister for Justice and Equality, of 10 June 2015 to make a removal order, a stay on the execution of that order pending the determination of the application, damages and costs. The applicant subsequently withdrew the proceedings and in considering the respondents’ application for the legal costs they had incurred in defending them, Keane J raised sua sponte the question of whether it was appropriate to make a wasted costs order against the applicant’s solicitors under Order 99, rule 7 of the Rules of the Superior Courts. The conduct of the litigation on behalf of the applicant gave rise to a wide range of concerns. For that reason, Keane J also considered the exercise of the court’s inherent jurisdiction to hold to account the behaviour of lawyers whose conduct of litigation falls below the minimum professional and ethical standards which must be demanded of all lawyers who appear before the courts.

Held by Keane J that there had been a clear default in the duty owed by legal practitioners to the court in commencing and continuing the proceedings. Keane J would therefore award the costs of the proceedings to the Minister as against the applicant and further order, pursuant to O. 99, r. 7, that the solicitor for the applicant indemnify him in respect of the amount of those costs when agreed with the Minister (or taxed in default of agreement) by bearing them personally.

Keane J held that he would hear the parties and, in particular, the applicant’s solicitor and junior counsel, on a date to be fixed, on the issues of professional conduct that arose and any submissions that the applicant’s solicitor may wish to make on whether it was appropriate to make a further order pursuant to O. 99, r. 7 disallowing the costs of the proceedings as between her firm and the applicant.

Judgment approved.

Judgment of Mr. Justice Keane delivered on the 30th May 2018

Introduction

1 The applicant has withdrawn these proceedings and in considering the respondents' application for the legal costs they have incurred in defending them, I have raised, sua sponte (that is to say, of my own accord), the question of whether it is appropriate to make a wasted costs order against the applicant's solicitors under Order 99, rule 7 of the Rules of the Superior Courts, as amended (“the RSC”). The conduct of this litigation on behalf of the applicant gives rise to a wide range of concerns. For that reason, I must also consider the exercise of the court's inherent jurisdiction to hold to account the behaviour of lawyers whose conduct of litigation falls below the minimum professional and ethical standards which must be demanded of all lawyers who appear before the courts

Background

2 The applicant is a Polish national, born on 16 June 1988, who claims to have entered the State in 2005.

3 The applicant was committed to prison on 17 September 2014 where he began serving various terms of imprisonment imposed on him for different offences under ss. 4 and 15 of the Criminal Justice (Theft and Fraud Offences) Act 2001, s. 3 of the Misuse of Drugs Acts 1977 and 1984, and s. 13 of the Criminal Justice Act 1984. The applicant was due for release on 17 March 2016.

4 According to the records held by An Garda Síochána, the applicant had by then accumulated approximately 39 previous convictions for offences of the type previously mentioned, as well as for offences under the Criminal Damage Act 1991, the Criminal Justice (Public Order) Act 1994 and the Road Traffic Acts.

5 On 2 February 2015, the Garda National Immigration Bureau (“GNIB”) wrote to the Irish Naturalisation and Immigration Service (“INIS”), setting out details of the applicant's previous convictions and requesting that the Minister consider making a removal order against him under Regulation 20 of the European Communities (Free Movement of Persons) Regulations 2006 and 2008 (“the Regulations”).

6 On 13 February 2015, the INIS wrote to the applicant at the Midlands Prison, informing him that the Minister was proposing to make a removal order against him. The stated reason for that proposal was on grounds of public policy because of the threat posed to the fundamental interest of society by the applicant's persistent criminal conduct. A copy of the GNIB letter of 2 February 2015, setting out details of the applicant's previous convictions was enclosed. The applicant was informed of his entitlement to make representations against the proposal in the manner prescribed under Schedule 9 to the Regulations.

7 The applicant responded by letter dated 19 February 2015, in which he made representations against the proposal. Included with that letter were a copy of his son's Irish birth certificate and letters from his brother, his new partner and his new partner's mother. The INIS responded by letter dated 3 March 2015, requesting documentary evidence in support of the applicant's claims concerning his work history, his medical history and his claim to have been living in the State since 2005. The applicant responded with details of his social insurance contributions from 2006 onwards. He later provided a medical report through the doctor in the Midlands Prison.

8 On 22 April 2015, the INIS wrote to the applicant, inviting him to make any final representations he might wish in opposition to the proposal to make a removal order against him. No such representations were received.

9 On 10 June 2015, the INIS wrote to the applicant, informing him that Minister had decided to make a removal order against him, incorporating an exclusion period of five years. The applicant was informed of his entitlement to request a review of that decision in the manner prescribed in Schedule 11 to the Regulations. A copy of the removal order dated 10 June 2015 and of the Minister's seven-page decision of the same date were enclosed with that letter. The applicant did not request a review.

10 In accordance with the requirements of Article 28.1 of Directive 2004/38/EC (“the Citizens' Rights Directive”) and Regulation 20(3)(a) of the Regulations, the Minister's decision took account of the applicant's period of residence in the State, his age, state of health, family and economic situation, social and cultural integration into the State, and the extent of his links with his country of origin, Poland, before going on to consider the potential application of the principle of non-refoulement under s. 5 of the Refugee Act 1996 and the application of the requirements of Article 7 of the Charter of Fundamental Rights of the European Union.

The ex parte application for leave

11 At just after 3 p.m. on Wednesday, 16 March 2016, counsel for the applicant made an application ex parte to Barrett J, then assigned to hear cases in the Non-Jury/Judicial Review List, for leave to seek judicial review of the removal order against the applicant.

12 That application was grounded on a short affidavit sworn on 16 March 2016 by the applicant's solicitor. In that affidavit, the applicant's solicitor gave a brief and fragmentary account of the events that led to the removal order made against the applicant on 10 June 2015.

13 The applicant's solicitor did not identify the prison term the applicant was then serving or the offences of which he had been convicted. Nor did she provide details of the applicant's previous convictions.

14 The applicant's solicitor did not refer to or acknowledge the notification to the applicant, pursuant to Regulation 20(2)(a) of the Regulations, of the proposal to deport him, dated 13 February 2015.

15 The applicant's solicitor did refer to the written representations the applicant made by letter dated 19 February 2015, although she did not exhibit a copy of them and did not explain what was in them. The applicant's solicitor incorrectly averred that those representations were made at a time when the applicant was not legally represented.

16 The applicant's solicitor did exhibit the INIS letter of 3 March 2015 requesting further information but did not refer to or identify the information provided on behalf of the applicant in response.

17 Finally, the applicant's solicitor did exhibit the INIS letter of 22 April 2015, inviting the applicant to make any further representations he might wish within 15 days, although without comment or explanation concerning the applicant's failure to take up that invitation.

18 The applicant's solicitor exhibited a copy of the removal order of 10 June 2015 but not the INIS letter of the same date with which it was enclosed nor, most significantly, the Minister's notification in writing to the applicant, under Regulation 20(3)(b)(ii) of the Regulations and Article 30 of the Citizens' Rights Directive, of the reasons for the decision to make the removal order, which notification was also dated 10 June 2015 and was also enclosed with that letter. The applicant's solicitor did not explain how she had come into possession of a copy of the removal order i.e. whether it had been furnished to her by the applicant or obtained by her elsewhere.

19 The applicant's solicitor then curtly averred: “I say that I only became aware of the removal order dated 10th June 2015 on the 16th March 2016 when the matter was brought to my attention.” The applicant's solicitor did not...