Casey v Private Security Appeals Board

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 01 December 2009
• Neutral Citation: [2009] IEHC 547
• Court: High Court
• Date: 01 December 2009

[2009] IEHC 547

THE HIGH COURT

[No. 1448 J.R. 2008]

Casey v Private Security Appeals Board

[2009] IEHC 547

JUDICIAL REVIEW

BETWEEN

ROBERT CASEY

APPLICANT

AND

PRIVATE SECURITY APPEALS BOARD

RESPONDENT

AND

PRIVATE SECURITY AUTHORITY

NOTICE PARTY

NOONAN SERVICES LTD & ORS v LABOUR COURT UNREP SUPREME 14.5.2004 2004/36/8342

O'CONNOR v JUDGE CARROLL 1999 2 IR 160 1998/28/11205

PRIVATE SECURITY SERVICES ACT 2004 S40

CULLEN v EMPLOYMENT APPEALS TRIBUNAL UNREP O'NEILL 14.4.2008 (EX TEMPORE)

PRIVATE SECURITY SERVICES ACT 2004 S6(2)

INDUSTRIAL RELATIONS ACT 1990 S48

F (O) & I (M) v JUDGE O'DONNELL & ORS UNREP O'NEILL 27.3.2009 2009 IEHC 142

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

PRIVATE SECURITY SERVICES ACT 2004 S6

PRIVATE SECURITY SERVICES ACT 2004 S7

PRACTICE & PROCEDURE

Costs

Judicial immunity - No steps - Judicial review - Certiorari - Relief granted - No participation by respondent in proceedings - Application for costs against respondent and notice party - Whether order should be made against respondent - Whether engaged in quasi judicial function - Relevant factors - Noonan Services Ltd v Labour Court (Unrep, SC, 14/5/2004), O'Connor v Judge Carroll [1999] 2 IR 160 and F v O Donnell [2009] IEHC 142 (Unrep, O'Neill J, 27/3/2009) considered - Private Security Services Act 2004 (No 12) , s. 40 - European Convention on Human Rights, article 6.1 and 13 - Order for costs against appeals board refused (2008/1448 JR - Dunne J - 10/12/2009) [2009] IEHC 547

Casey v Private Security Appeals Board and Private Security Authority

Facts the High Court had granted the applicant an order of certiorari by way of judicial review quashing the decision of the respondent to refuse to issue licences to him under the Private Security Services Act 2004. The respondent then argued that no order for costs should be made against it given that it took no part in the proceedings and that no allegation of male fides or impropriety of conduct had been made against the respondent in the proceedings.

Held by Ms. Justice Dunne in making no order for costs against the respondent that the respondent was a quasi-judicial body which was in a similar and analogous position to that of a judge. For the proper functioning of the respondent it was appropriate that it should generally have immunity from costs in circumstances where it had acted without male fides or without impropriety. Cullen v. Employment Appeals Tribunal [2009] IEHC 142 (High Court, O'Neill J., 27th March, 2009, ex tempore) applied.

Reporter: P.C.

1 Ms. Justice Dunne delivered on the 1 day of December 2009

2 An application for judicial review by way of an order of certiorari quashing the decision of the respondent made on 1 ^st October, 2008, affirming the decision of the notice party made on the 31 ^st March, 2008, refusing to issue licences to the applicant under the Private Security Services Act 2004, was sought by the applicant herein. Following the hearing before me, the applicant was successful. During the course of the hearing, the respondent took no part in the hearing and the matter of the entitlement of the applicant to judicial review was contested by the notice party herein.

3 Having granted the applicant the relief sought herein, an application for costs was made by the applicant herein. An issue has now arisen as to the entitlement of the applicant to an order for costs against both the respondent and the notice party. It is conceded by the notice party that costs follow the event and that the applicant is entitled to costs against the notice party. However, the respondent herein has attended the costs application for the purpose of arguing that no order should be made against the respondent given that no part was taken in the proceedings.

4 In advance of the hearing before me, the Chief State Solicitor on behalf of the Appeals Board wrote to the solicitor for the Authority herein, explaining that it was proposed to take no part in the proceedings and indicated the view that the Appeals Board was in a position like the Labour Court analogous to a District or Circuit Judge whose decision is the subject of judicial review challenge. Reference was made in the course of the letter to the decision of the Supreme Court in the case of Noonan Services Limited and others v. The Labour Court and Another (Unreported, Supreme Court, 14 ^th May, 2004). It was further pointed out that there was no allegation of mala fides or impropriety on the part of the Appeals Board and that in those circumstances no order should be made against it where it did not participate in the proceedings even if the decision was quashed. Reliance was placed in that regard on the Supreme Court decision in the case of O'Connor v. Judge Carroll and Bankers Inns Limited, Notice Party [1999] 2 I.R. 160. The letter went on to point out that no allegation of mala fides or impropriety of conduct was made against the Appeals Board in the proceedings.

5 In those circumstances it was requested that in the event that either the applicant or the notice party disagreed with that view then it was requested that the Appeals Board be put on notice for the purpose of making submissions in relation to the issue of costs.

6 Mr. Barron, S.C. on behalf of the applicant made an application for costs against both parties. He argued that the Appeals Board was not in the same position as a judge and that the position whereby a judge is usually immune from costs in judicial review proceedings relates to the constitutional position in relation to the independence of judiciary. It was argued that the Appeals Board is not in same position and that it is in a position which is analogous to that of the Refugee Appeals Tribunal or An Bord Pleanála.

7 Mr. Hogan S.C. on behalf of the Authority took the view that the appeals Board is not entitled to some form of immunity akin to what was described in the course of the hearing before me as judicial immunity. He noted that once the matter comes before the Appeals Board, the Authority is functus officio. It has no role before the Appeals Board save to furnish a report of the proceedings before it to the Appeals Board. He contended that the form of immunity relied on herein does not apply to the Appeals Board.

8 Mr. McDermott on behalf of the Appeals Board argued that in reality what was at issue was not in truth an immunity. His client did not participate in the proceedings and indicated this in advance. It is provided in s. 40 of the Private Security Services Act 2004, as follows:-

9 2 "1. There stands established a body to be known as the Private Security Appeal Board (in this Act referred to as "the Appeal Board"), or in the Irish language An Bord Achomhairc um Shlándáil Phríobháideach, to hear and determine appeals against decisions of the Authority.

10 2. The Appeal Board shall be independent in the performance of its functions."

11 He referred to the decision in the case of Noonan Services v.The Labour Court,referred to above and emphasised that as his client had not participated in the proceedings it was not appropriate to make an order for costs.

12 By way of reply Mr.Hogan pointed out that the bodies at issue in the cases referred to by Mr.McDermott i.e. Noonan Services Limited v. The Labour Court, James Cullen v. Employment Appeals Tribunal Respondent and Connaught Gold, (Unreported, High Court, 14 ^th April, 2008), related to bodies which are similar to a court in that the Labour Court and the Employment Appeals Tribunal are both bodies in which an individual or party appears before the body, the body considers oral evidence and makes a decision thereafter. It was argued that this was akin to the position of a court. He sought to distinguish the position in such a case from that of the body at issue herein.

13 Finally Mr.Barron on behalf of the applicant pointed out that s.6(2) of the Act, also says that the Authority is independent in the performance of its functions. However, that did not put the Authority in the same position as judges. He pointed out that if the respondent's arguments were correct then an applicant who is entitled to judicial review would be left with no remedy as to costs. Applicants in that situation would find themselves left with a costly remedy. The fact that somebody does not participate in the proceedings of itself does not mean that they are...