Byrne (A Minor) v Ó Conbhuí

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 09 March 2018
• Neutral Citation: [2018] IECA 57
• Date: 09 March 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 57 Record No. 2016/286

BETWEEN

SEAN BYRNE (a minor)

Suing by His Father and Next Friend SEAN BYRNE

Respondent

- AND -

SEAN Ó CONBHUÍ (otherwise SEAN MacCONBHUÍ otherwise JOHN CONWAY)

- AND -

JAMES LEO CONWAY (otherwise SEAN otherwise SEAMUS Ó CONBHUÍ otherwise CONWAY)

Appellants

[2018] IECA 57

Neutral Citation Number: [2018] IECA 57

Record No. 2016/286

THE COURT OF APPEAL

Taxation of costs – McKenzie friend – Aarhus Convention (1998) – Appellant seeking a review of taxation of costs which had been awarded to the respondent – Whether a McKenzie friend could address the Court on the appellant's behalf

Facts: The respondent, Mr Byrne, brought an action for damages for personal injuries which he sustained as a five year old boy when playing with other children on a metal shipping container on land occupied by the appellants, Mr Ó Conbhuí and Mr Conway, as far back as April 1996. Although the proceedings were commenced in 1996, they did not come on for trial until May 2004 when Kearns J found the appellants jointly and severally liable for the respondent's injuries under the provisions of the Occupiers Liability Act 1995, together with an award of costs. Subsequent to the hearing of the substantive action, Mr Ó Conbhuí made a number of applications to the Supreme Court, including an application to stay the order for costs. An application for an extension of time to appeal to the Supreme Court was ultimately dismissed in January 2011, so it was only at that point that the substantive proceedings finally concluded. A number of orders for costs in favour of the respondent were ultimately made against Mr Ó Conbhuí in the course of the proceedings. A lengthy and complicated taxation of costs ensued. This concluded on the 7th October 2014 with the final ruling of the Taxing Master. Mr Ó Conbhuí then sought a review by the High Court of the taxation pursuant to the provisions of Ord. 99, r. 38(4) of the Rules of the Superior Courts. The High Court (McDermott J), on the 29th April 2016, dismissed Mr Ó Conbhuí's application. Mr Ó Conbhuí appealed to the Court of Appeal against McDermott J's decision. Mr Ó Conbhuí submitted that had legal aid been available to him before the Taxing Master he would have been in a position to have had his interests better protected and in a more professional manner. To that end he invoked the provisions of the Aarhus Convention (1998) and he maintained that its provisions regarding the limitation on costs in environmental matters were applicable to this case by reason of the fact that he was an environmental campaigner. He also requested the Court to permit a McKenzie friend (McKenzie v McKenzie [1970] 3 WLR 472) to address the Court on his behalf.

Held by Hogan J that it was clear from both Re Coffey's Application [2013] IESC 11 and Allied Irish Banks plc v Aqua Fresh Fish Ltd [2017] IECA 77 that the role of the McKenzie friend is simply to assist with papers, make notes, quietly make suggestions and so forth, but save, perhaps, in the case of physical disability or other exceptional circumstances, this does not extend to a personal right of audience in favour of the McKenzie friend on behalf of the litigant concerned. Hogan J noted that the proceedings commenced in 1996 and accordingly pre-dated the conclusion of the Convention in 1998 and, even more pertinently, ante-dated the enactment of the Environment (Miscellaneous Provisions) Act 2011 by some fifteen years; neither the Convention nor the 2011 Act could apply to this case because the 2011 Act does not have retrospective effect and applies only to future litigation commenced after the commencement date of the 23rd August 2011. Hogan J held that as no question of EU law was raised by these proceedings, the issue of a reference to the Court of Justice simply did not arise.

Hogan J held that he would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 9th day of March 2018

1 This is an appeal from a decision of the High Court (McDermott J.) delivered on the 29th April 2016. In that judgment McDermott J. dismissed the appellant's application for a review of taxation of costs which had been awarded to the plaintiff/respondent: see Byrne v. Ó Conbhuí [2016] IEHC 219. The substantive proceedings themselves had involved an action for damages for personal injuries brought by the plaintiff which he sustained as a five year old boy when playing with other children on a metal shipping container on land occupied by the two defendants (who are brothers) as far back as April 1996. The injuries in question were (fortunately) relatively minor involving as they did a fracture to a left elbow.

2 Although the proceedings themselves were commenced in 1996, they did not come on for trial until May 2004 when Kearns J. found the two defendants jointly and severally liable for the plaintiff's injuries under the provisions of the Occupiers Liability Act 1995, together with an award of costs. Subsequent to the hearing of the substantive action, the first defendant, Mr. Ó Conbhuí made a number of applications to the Supreme Court, including an application to stay the order for costs. An application for an extension of time to appeal to the Supreme Court was ultimately dismissed in January 2011, so it was only at that point that the substantive proceedings finally concluded.

3 A number of orders for costs in favour of the plaintiff were ultimately made against this defendant, Mr. Sean Ó Conbhuí, in the course of the proceedings. A lengthy and complicated taxation of costs ensued. This concluded on the 7th October 2014 with the final ruling of the Taxing Master. (I shall return presently to deal with the Taxing Master's report). Mr. Ó Conbhuí then sought a review by the High Court of the taxation pursuant to the provisions of Ord. 99, r. 38(4) of the Rules of the Superior Courts.

The report of the Taxing Master

4 As McDermott J. recounts in his judgment, the complicated history of the taxation proceedings is set out in the report of Taxing Master Mulcahy dated the 8th May 2015. She recounted how there were numerous adjournments until the plaintiff's bill of costs came before her in June 2012. Among the grounds of objection on the part of Mr. Ó Conbhuí was that he had made an application for a grant of legal advice and representation to the Legal Aid Board which was ultimately unsuccessful. On the 27th November 2012 Taxing Master Mulcahy advised that she would proceed with the taxation.

5 As McDemott J. put the matter in his judgment:

'The Taxing Master did not consider that Mr. Ó Conbhuí would be prejudiced by appearing in person without representation since lay litigants regularly appear in taxations before her. Her practice is to outline the procedure followed in guiding them through the process. She takes care to ensure that a lay litigant is asked for his/her submissions and given an opportunity to comment upon all matters that arise. The Taxing Master states that she carried out a detailed examination of the nature and extent of the work done by the solicitor and counsel and other items irrespective of whether the party opposing a taxation is represented or not. She also considered that the first defendant had experience in appearing on his own behalf and making applications in the Superior Courts and was aware that he had acted as a McKenzie friend on behalf of other lay litigants in High Court proceedings. No issue is taken with the manner in which the taxation process or hearings were conducted by the Taxing Master.'

6 Pausing at this point, it is only fair to record that at the hearing of the before this Court Mr. Ó Conbhuí also acknowledged the fair manner in which the Taxing Master conducted the hearing.

7 McDermott J. then proceeded to summarise the report of Taxing Master Mulcahy in which she highlighted the following matters:

'Liability was an issue throughout the proceedings with both defendants denying any liability for the accident and for the injuries sustained by the infant plaintiff. An engineer was engaged to inspect the locus and to advise on liability. Proof of whether there was reckless disregard for the plaintiff depended on various factors set out in s. 4(2) of the Occupiers Liability Act1995 and it was necessary for the solicitor for the costs to carry out investigations to establish whether the premises was an open space and had been used by children to play on for a significant period prior to the accident; whether children regularly used the container as a climbing frame and whether the container was grossly unsafe and unsuitable for that purpose. The first named defendant denied that he was the owner or occupier of the land and the container and it was necessary for the solicitor to carry out investigations with a view to establishing the ownership of the property on which the accident had occurred. That task was made more difficult because the first named defendant had operated under a number of different aliases with two different addresses and it was necessary for the solicitor to carry out extensive investigations into the identity of the first named defendant. Difficulties were encountered serving papers on the first named defendant. Written statements were taken from several individuals ... setting out their dealings with the defendant and their knowledge of the lands upon which the accident had occurred. A handwriting expert was engaged to compare the first named defendant's handwriting on an executed deed with a view to proving his identity ...'

8 McDermott J. recounted that:

'A further issue in respect of planning permission sought by the first defendant concerning the development of the lands arose and discovery was sought. The defendant declined to make submissions on the solicitor's general instruction fee and counsel's brief fees. Having heard submissions from Mr. McEvoy on behalf of the solicitor, the Taxing Master delivered an ...