Cfa v A
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 28 February 2020 |
| Neutral Citation | [2020] IECA 52 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 2018/167 |
| Date | 28 February 2020 |
IN THE MATTER OF A. A MINOR BORN IN 2000
AND
IN THE MATTER OF THE INHERENT JURISDICTION OF THE HIGH COURT
AND
IN THE MATTER OF THE CHILD CARE ACT, 1991 (AS AMENDED)
AND
IN THE MATTER OF ARTICLE 34.3 AND ARTICLE 40.3 OF THE CONSTITUTION
[2020] IECA 52
Whelan J.
Haughton J.
Murray J.
Record Number: 2018/167
THE COURT OF APPEAL
Costs – Plenary hearing – Error in law – Appellant seeking costs – Whether the trial judge erred in law in failing to grant the appellant the costs of the High Court proceedings
Facts: The second defendant/appellant, appealed to the Court of Appeal against a judgment given in the High Court on the 21st February, 2018, making no order in respect of the costs of the appellant incurred in a substantive plenary hearing. The appellant contended that the trial judge erred in law in failing to grant her the costs of the High Court proceedings for the following reasons: (a) he erred in describing her as “a witness as to fact”; (b) he erred in finding that the appellant did not require legal representation; (c) he failed to recognise that the plaintiff/respondent, the Child and Family Agency, had named the appellant as a party to the proceedings; (d) he failed to take due account of the fact that the appellant was a named defendant who had filed a full defence together with legal submissions and therefore was entitled to be treated as a full party to the proceedings; (e) he failed to have due regard to Order 99 Rule 1(1) of the Rules of the Superior Courts; (f) he failed to correctly apply s. 33 of the Civil Legal Aid Act 1995; (g) in determining that the appellant was in receipt of legal aid and fell into a category of case that was entitled to her costs the High Court judge failed to correctly apply the decision in Dunne v The Minister for the Environment [2007] I.E.S.C. 60; (h) in taking into account that the appellant was entitled to legal aid and using that as a consideration in refusing the order as to costs the High Court judge failed to correctly apply the decision in The HSE v O.A. [2013] I.E.H.C. 172; (i) the High Court judge failed to recognise that the appellant was a successful party in defending the claim and therefore the High Court judge incorrectly applied the decision in The Child and Family Agency v. O.A. [2015] 2 I.R. 718.
Held by Whelan J that in the instant case there was no O.A. type continuum and the fundamental principle that costs follow the event applied in accordance with the tenor of Order 99. She held that there was no legitimate basis to deviate from that principle in circumstances where the trial judge was mandated by Statute to make an order for costs in the matter in like manner and to like effect as the Court would otherwise make had the appellant not been in receipt of legal aid and rather had obtained the services of a solicitor and barrister at her own expense. Further, Whelan J held that the order of the Court amounted to a clear and definitive event and that the issues were significant, complex and novel. She held that the decision of MacMenamin J in The Child and Family Agency v O.A. was distinguishable.
Whelan J held that she would accordingly reverse the order of the High Court and grant the appellant the costs of the proceedings, including all reserved costs, when ascertained, against the Child and Family Agency.
Appeal allowed.
This is an appeal against a judgment given in the High Court on the 21st February, 2018 making no order in respect of the costs of the appellant (C.) incurred in a substantive plenary hearing. The proceedings had been heard over five days in December 2017. A written judgment on the substantive issue was delivered in February 2018. The matter was adjourned for redaction of the judgment and further adjourned in respect of the costs of the appellant.
The appellant, C., is the mother of A. who at the time of the commencement of the proceedings before the High Court was a minor and the subject of a care order. C. was joined as defendant to the proceedings by the respondent, the Child and Family Agency (the “CFA”) from the commencement of the proceedings.
As appears from the substantive judgment ( [2018] IEHC 112), the central issue was whether a doctor was entitled to disclose the HIV status of her patient, A., a minor, without his consent and against his wishes to a person with whom the doctor believed he was having unprotected sex and who, as such, was believed to be at risk of contracting HIV. C. throughout the litigation had supported the position adopted by her son and opposed the reliefs being sought by the respondents. The Court held, in light of the evidence before it, that no basis had been established in the circumstances to justify a breach of A.'s confidentiality. The Court concluded on the evidence, that the risk of HIV infection was not such as to justify breaching A.'s right to confidentiality which should only occur in exceptional circumstances. C., a successful defendant, sought her costs against the CFA.
On the 21st February, 2018 an order for costs was made by consent in favour of A., the CFA having conceded that such costs should be awarded against it. The CFA disputed the entitlement of C. to an order for costs contending that there should be no order against the CFA in respect of her costs in circumstances where she was the beneficiary of civil legal aid under the Civil Legal Aid Act, 1995.
In argument the CFA relied on the Supreme Court decision in The Child and Family Agency v. O.A. [2015] 2 I.R. 718. The trial judge had noted that although the facts of the latter case had involved child care orders and legal costs in the District Court and on appeal in the Circuit Court, he could: -
“… see no reason why the principles as set down by MacMenamin J. in that case would not be equally applicable to legal costs incurred in the High Court in a child welfare case, such as the present case. This is particularly so, since it is clear that MacMenamin J. intended these principles to be of general application and not just applicable to the ‘costs event’ before him in that case, which was a part-award of costs on a withdrawn care order application in the District Court.”
Having cited extracts, including paragraph 52, from the aforesaid judgment the trial judge concluded: -
“Applying these principles to the present case, the starting point, per MacMenamin J. is that there should be no order as to costs in favour of C in this case. As regards the exceptions to this general rule, first it is clear that the CFA did not act capriciously, arbitrarily or unreasonably in commencing or maintaining the proceedings in this case, since it was motivated by a genuine desire to protect B from harm, based on expert medical opinion. Secondly, it is clear that this was not a case where the outcome was clear and compelling, particularly as there was no precedent in this country and little if any precedent abroad on the legal points at issue. Thirdly, this Court can see no injustice being visited upon C. if her legal costs are discharged by the Legal Aid Board rather than by CFA. In addition, this Court does not see any injustice being visited on the Legal Aid Board, if it, rather than the CFA discharge the costs.”
The trial judge in his costs determination concluded at para. 7: -
“… when one is ultimately dealing with taxpayers' money (whether the CFA or the Legal Aid Board foots the legal bill), this Court sees one particular advantage attaching to the default rule set down by MacMenamin J. whereby the Legal Aid Board ends up paying its own legal costs.”
The Court refused C.'s application seeking an order for costs against the CFA in her favour.
The appellant contends that the trial judge erred in law in failing to grant her the costs of the High Court proceedings for the following reasons: -
(a) He erred in describing her as “a witness as to fact”.
(b) He erred in finding that C. did not require legal representation.
(c) He failed to recognise that the CFA had named C. as a party to the proceedings.
(d) He failed to take due account of the fact that C. was a named defendant who had filed a full defence together with legal submissions and therefore was entitled to be treated as a full party to the proceedings.
(e) He failed to have due regard to Order 99 Rule 1(1) of the Rules of the Superior Courts.
(f) He failed to correctly apply Section 33 of the Civil Legal Aid Act, 1995.
(g) In determining that C. was in receipt of legal aid and fell into a category of case that was entitled to her costs the High Court judge failed to correctly apply the decision in Dunne v. The Minister for the Environment [2007] I.E.S.C. 60.
(h) In taking into account that C. was entitled to legal aid and using that as a consideration in refusing the order as to costs the High Court judge failed to correctly apply the decision in The HSE v. O.A. [2013] I.E.H.C. 172.
(i) The High Court judge failed to recognise that the appellant C. was a successful party in defending the claim and therefore the High Court judge incorrectly applied the decision in The Child and Family Agency v. O.A.
The CFA opposed the appeal on all grounds contending that the High Court judge was correct and had not erred either in law or in fact in determining that C.'s primary role at the trial was as a “witness as to fact” and that the Legal Aid Board should therefore have been actively considering whether and to what extent it was justified in expending further legal costs on behalf of the appellant which would ultimately have to be funded by the taxpayer. The CFA contended that the...
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