O'Connell v The Taxing Master (Paul Behan)

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian O'Moore
• Judgment Date: 09 September 2020
• Neutral Citation: [2020] IEHC 437
• Docket Number: [2019/717 JR]
• Court: High Court
• Date: 09 September 2020

BETWEEN

JOHN O'CONNELL

APPLICANT

AND

THE TAXING MASTER (PAUL BEHAN)

AND

THE COURTS SERVICE

AND

THE MINISTER FOR JUSTICE AND EQUALITY

THE ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS

[2020] IEHC 437

Brian O'Moore

[2019/717 JR]

THE HIGH COURT

JUDGMENT of Mr. Justice Brian O'Moore delivered on the 9th day of September, 2020.

1 The Applicant, Mr. O'Connell, seeks leave to apply for judicial review in the following terms:-

“a) A Order of Certiorari setting aside the Ruling of July 12th 2019 of the Taxing Master.

b) A Order of prohibition restraining the Taxing Master from further partaking in the Taxing of Costs of the Order between the Parties in this matter.

c) A Order/Declaration that Order 99 rules 38 (1) (2) (3) are Ultra Vires and void requiring the Applicant to proceed way of Appeal/ Objections to the Ruling of the same Taxing Master prior to making a application to the High Court.

d) A Order/Declaration that the above provisions are contrary to the Applicants Rights pursuant to the Constitution/ Rights to Fair Procedures the breach of the requirement of National/ Constitutional Justice. Breach of the Right to a Fair and Public Hearing by a Independent and impartial Decision Maker, pursuant to Article 6 of the Convention ECHR and/or a Unfair/ Unjust Restrictions on the Right of a Effective Remedy contained in Article 13 of the Convention.

e) Damages/ Costs/ Out of Pocket Expenses for Breach of Duty. For Breach of Constitutional Rights, European Charter of Rights/ Conventions Section 3 (2) of the Act of 2003/ Statutory Breach of Duty.”

2 These reliefs are sought on the following grounds:-

“a) That the Order 99 rules 38 (1) (2) (3) are Ultra Vires/ Void. In requiring the Applicant to follow this process by way of Appeal/ Objections to his Rulings of July 12th 2019 to the same Taxing Master prior to making a Appeal to the High Court.

b) The Rule 38 (1)(2)(3) of Order 99 are contrary to the Applicants Rights under the Constitution. (1) Right to Fair Procedures, Article 40.3. In relation that the Applicant must apply to the same Master by way of Appeal/Objections of the Ruling 12th July 2019. The Applicant believes that this is a Breach of the requirement of Natural / Constitutional Justice. The process of Order 99 Rule 38 (1)(2)(3) for the Application to follow prior to an application to the High Court in this matter are a unfair/ unjust impediment to the Applicants access to the High Court contrary to Article 40.3/ Article 34 of the Constitution. Breach of Rights to a Fair Hearing by a impartial Court pursuant to Article 6 of the Convention/ and a unreasonable restriction on the Right of a Effective Remedy conflicting to Article 13 of the Convention.

c) The Applicant was not afforded Reasons or allowed a Copy to view or examine the Evidence/ Master's Notes/ DARR, notwithstanding a requirement to accurately set out his Ruling. The Taxing Master wrongfully failed to give a sufficient explanation/reasons contrary to Article 40.3 of the Constitution and / Article 6 of the European Conventions.

d) The Taxing Master failed/refused to use previous Taxing Masters procedures when referring to disputes making the DAR immediately available to clarify matters.

e) The Taxing Master failed to put on Notice at any time to the Applicant during the Taxing Hearings that his family including himself carried out services of Taxing Accounting for the Defendants over decades. He also failed to inform the Applicant that the 2 Tax Cost Accountants for the Defendants at the Hearing were fellow directors of the Firm Behan's Cost Accountants, to a objective observer such observer would believe that the adjournment/ delays/ decisions in Taxing the Bill of Costs was to facilitate the family's Tax Cost Accountancy long running Client to put a stay on the Taxing Process, the non-rescue of the Taxing Master decision are grounds for objective/ or perceived bias or unfairness for the above reasons, failing to disclose the 2 close relationships to the Applicant(Conflict of Interest) the Taxing Master has acted improper toward the Applicant.”

3 In overview, the proposed judicial review seeks to challenge the validity of a Decision of Taxing Master Behan made on the 12th of July 2019 by which the Taxing Master refused to recuse himself from further involvement in the taxation of costs awarded to Mr. O'Connell in earlier proceedings taken by Mr. O'Connell against BATU. Strangely, the Decision to be challenged was not put before the Court by Mr. O'Connell and was only made available to me as a result of a direction made by me at the conclusion of the hearing. I will return to this unusual feature of the application for leave later in this judgment.

4 The procedural history of the application for leave is important. When the matter was first before the Court on the 10th of October 2019, it was ordered that the application be on notice to the intended Respondents. The application was adjourned to the 24th October 2019 so that the Respondents could appear on that date. On the adjourned date, submissions were made by the intended Respondents to the effect that the proceedings were fundamentally flawed, in that the counterparty to the taxation process (BATU) was not joined as a party to the intended judicial review. Mr. O'Connell was given the opportunity to mend his hand. He did not do so. Mr. O'Connell told me that he did not follow this submission, not least because he could not hear what was being said in court on the adjourned date. However, this does not explain why he did not seek to join BATU to these intended proceedings either in response to correspondence from the Chief State Solicitors Office, or in response to the very clear submissions made to me at the hearing for leave. Had Mr. O'Connell sought even then to adjourn the application for leave in order to reconstitute the intended proceedings, I would have given this very serious consideration (taking into account what might have been said on behalf of the proposed Respondents); no such application to reconstitute the intended proceedings was ever made by Mr. O'Connell.

5 The application for leave came before me on the 10th February last. On that day, I was informed by Mr. O'Connell that he had notified BATU of the application and that he had been told in response that BATU was “not taking part in this judicial review”. In fact, the correspondence from Arthur P. McLean (solicitors for BATU) of the 5th February 2020 reads as...