D.M.P.T. v Moran

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 29 April 2015
• Neutral Citation: [2015] IESC 36
• Court: Supreme Court
• Docket Number: [S.C. No. 422 of 2006],[Appeal No. 422/06]
• Date: 29 April 2015

Between

DMPT

Applicant/Appellant

and

Taxing Master Charles A. Moran, Members for the Time Being of the Superior Rules Committee, The Minister for Justice, Equality and Law Reform, Ireland and the Attorney General

Respondents

C.T.

and

The Human Rights Commission

Notice Parties

[2015] IESC 36

Murray J.

Hardiman J.

O'Donnell J.

Laffoy J.

Dunne J.

[Appeal No. 422/06]

THE SUPREME COURT

JUDICIAL REVIEW

Appeal – Taxation – Costs – Matrimonial Proceedings – Practice and Procedures – Reliefs – Natural Justice – Convention – Taxing Master – Reasoning -

Facts: In this case, the issues on the appeal between the appellant and the respondents (being the Taxing Master and other State parties) had arisen out of the taxation of costs for which the appellant had become liable in matrimonial proceedings between the appellant and the first notice party. At the core of the appellant"s case was a fundamental challenge to the provisions of the Rules of the Superior Courts 1986 which govern the taxation of costs awarded to one party against another party, usually referred to as party and party costs, in civil proceedings in the High Court and the Supreme Court, which provisions are now to be found in Order 99 of the Rules of the Superior Courts 1986.

Held by Justice Laffoy, the other Justices concurring, in light of the available evidence and submissions presented that she would allow the appeal on the ground that, in accordance with the requirement to conduct the taxation process in accordance with fair procedures, there was an obligation on the Taxing Master to give, and he should have given, reasons for his decision dated 8th July, 2004. Consequently, the Court proposed that a declaration be made to that effect. Justice Laffoy also proposed that the matter be re-listed for submissions as to the form of the final order to be made, when the parties had had an opportunity to consider the judgment.

Judgment of Ms. Justice Laffoy delivered on the 29th day of April, 2015

Factual and procedural background

1 The issues on this appeal between the appellant and the respondents (being the Taxing Master and other State parties) have arisen out of the taxation of costs for which the appellant had become liable in matrimonial proceedings between the appellant and the first notice party. There were two orders for costs which were the subject of the taxation process, namely:

(a) an order of the High Court (Lavan J.) dated 28th November, 2001 awarding the first notice party her costs (including reserved costs) against the appellant; and

(b) an order of the Supreme Court dated 15th October, 2002 awarding the first notice party her costs of the appeal against the appellant.

The taxation process in relation to the taxation of the costs of the first notice party under those orders was at hearing before the Taxing Master on 14th October, 2003, on three days in June 2004 and again on 8th July, 2004, on which last date the Taxing Master gave his decision orally as to the costs he was allowing and the costs he was disallowing. Although requested by the appellant's legal cost accountant to give reasons for his decision, the Taxing Master did not do so.

2 Subsequently, on 29th July, 2004, objections as to the level of costs allowed by the Taxing Master in relation to the taxation of the costs pursuant to the High Court order, but not the Supreme Court order, were filed on behalf of the appellant. The objections related to the costs allowed on three items in the High Court bill of costs, namely: the instructions fee; postage and telephone expenses and sundries; and the fee charged by a firm of chartered accountants. Although he initiated the procedure, the appellant did not pursue those objections by way of review before the Taxing Master pursuant to Order 99, rule 38 of the Rules of the Superior Courts 1986 (the 1986 Rules), as he might have. Instead, the appellant applied to the High Court ex parte on 1st November, 2004 for leave to apply by way of judicial review for certain reliefs.

3 By order of the High Court (McKechnie J.) made on 3rd November, 2004, the appellant was given leave to apply by way of judicial review for certain reliefs on the grounds set out in the order. Having regard to the issues which arise on the appeal, it is convenient to record at this juncture the contents of that order. The reliefs which the appellant was given leave to apply for were:

(1) the following declaratory reliefs and reliefs ancillary thereto:

(a) a declaration that Order 99, rules 38(1), (2) and (3) of the 1986 Rules are ultra vires and void insofar as they require the appellant to make application to the Taxing Master by way of objection to the decision of the Taxing Master himself prior to making application to the High Court for review of the said decision, or, alternatively,

(b) a declaration that the said provisions are incompatible with the European Convention on Human Rights (the Convention) pursuant to s. 5(1) of the European Convention on Human Rights Act 2003 (the Act of 2003), and/or

(c) an order of prohibition restraining the Taxing Master from further embarking on an objections procedure in proceedings between the appellant and the first notice party, and/or

(d) an order of certiorari setting aside such proceedings if any as have been conducted on foot of such an objections procedure;

(2) an order by way of mandamus and/or a mandatory injunction requiring the Taxing Master to give reasons for his decision dated 8th July, 2004;

(3) an order of mandamus or, alternatively, a mandatory injunction requiring the Taxing Master to make a written record of his decision dated 8th July, 2004, or, alternatively, an order pursuant to Order 84 of the 1986 Rules; and

(4) subject to the reliefs as aforesaid, damages for breach of duty, including statutory and constitutional duty and/or damages for breach of the Convention pursuant to s. 3(2) of the Act of 2003.

4 By the order of 3rd November, 2004 the appellant was given leave to apply for the foregoing reliefs on the following grounds:

(i) that Order 99, rules 38(1), (2) and (3) of the 1986 Rules are ultra vires and void insofar as they require the appellant to make an application to the Taxing Master by way of objection to the decision of the Taxing Master himself prior to the making of an application to the High Court for review of the said decision by reason of the fact that the said provisions have no or no sufficient statutory basis and are ultra vires the terms of s. 36 of the Courts of Justice Act 1924 (the Act of 1924), s. 68 of the Courts of Justice Act 1936 (the Act of 1936) and ss. 14 and 48 of the Courts (Supplemental Provisions) Act 1961 (the Act of 1961) and/or otherwise not authorised to be made and/or confirmed by the other State parties;

(ii) that the said provisions are contrary to the appellant's rights pursuant to the Constitution, in particular his right to fair procedures pursuant to Article 40.3 of the Constitution, in that they require the appellant to apply to the Taxing Master in the first instance by way of review of the decision of the Taxing Master, in breach of the requirements of natural and/or constitutional justice and, in particular, of the doctrine of nemo iudex in causa sua, or alternatively by reason of the fact that the said provisions require such an application to be made as a pre-requisite to application being made to the High Court by way of review of the Taxing Master's decision on costs and are therefore an unjustified impediment to the appellant having access to the courts, contrary to Article 40.3 and/or Article 34 of the Constitution and that further, or alternatively, the said provisions are incompatible with the Convention pursuant to the Act of 2003 by reason of breaches of the right to a fair and public hearing by an independent and impartial tribunal pursuant to Article 6 of the Convention, and/or as an unjustified restriction on the right to an effective remedy contrary to Article 13 of the Convention;

(iii) that, without prejudice to the foregoing, the appellant at the conclusion of the Taxing Master's decision dated 8th July, 2004 requested reasons for the said decision and, notwithstanding the said request, the Taxing Master wrongfully failed to give such reasons contrary to Article 40.3 of the Constitution and/or Article 6 of the Convention; and

(iv) that the appellant has and/or will suffer loss and damage as a result of being required to submit to the objections procedure as a preliminary requisite in order to have access to the High Court to obtain relief against the decision of the Taxing Master.

5 In his affidavit grounding the application for leave, which was sworn on 29th October, 2004, the appellant averred that the total expense which would be incurred by him in connection with the procedure before the Taxing Master under rule 38(1) would be of the order of €42,350 inclusive of VAT. That assessment has not been disputed. At that stage, the objections and the review application had been listed for hearing for two days in November 2004. The appellant complained of the magnitude of the inconvenience and expense that would be occasioned to him in that process.

6 The dispute the subject of the proceedings was, in reality, a dispute between the appellant, on the one hand, and the Taxing Master and the other State parties who were named as respondents, all of whom were represented by the Chief State Solicitor, on the other hand. The first notice party did not participate in the proceedings, either at first instance or on the appeal. As I understand it, neither did the second notice party.

7 The application for judicial review was heard in the High Court by McGovern J., who delivered judgment on 31st July, 2006. In that judgment, which will be considered later, McGovern J. held that the reliefs sought by the appellant should...