Dowling v Bord Altranais agus Cnaimhseachais na hÉireann
| Jurisdiction | Ireland |
| Judge | Ms. Justice Ní Raifeartaigh |
| Judgment Date | 06 September 2017 |
| Neutral Citation | [2017] IEHC 641 |
| Date | 06 September 2017 |
| Court | High Court |
| Docket Number | [2015 No. 86 S.P.] [2015 No. 87 S.P.] |
[2017] IEHC 641
THE HIGH COURT
Ní Raifeartaigh J.
[2015 No. 86 S.P.]
[2015 No. 87 S.P.]
IN THE MATTER OF SECTION 39 OF THE NURSES ACT 1985
Practice & Procedure – S. 39(3) of the Nurses Act 1985 – Costs – Estoppel – Successful event
Facts: The plaintiffs sought an order for costs of the present proceedings filed by the plaintiffs against the defendant pursuant to s. 39(3) of the Nurses Act 1985. The plaintiffs contended that they had succeeded in the proceedings and accordingly an award of costs should be made in their favour. It was also argued that a normal approach towards exercise of discretion in relation to costs should be taken. The defendant claimed that the Court should not consider making an order for costs against the defendant as it had acted bona fide in discharge of its statutory functions.
Ms. Justice Ní Raifeartaigh granted the desired relief to the plaintiffs. The Court discovered that the plaintiffs were estopped from raising a net point of statutory interpretation, having already failed to raise an objection in the board hearing. The Court also stated that the plaintiffs caused unnecessary delay of the proceedings regarding the existence of a document that set out the procedures of the board. The Court awarded 80% of the costs to the plaintiffs and stated that the remaining 20% of costs could not be awarded due to the plaintiffs' failure on the issues of 'quorum/estoppels' and issues relating to the service of the procedures document. The Court held that there was no clear line of jurisprudence to the effect that costs should not be awarded against a statutory body in relation to the proceedings successfully brought by way of a statutory appeal.
This judgment concerns the issue of the costs relating to proceedings pursuant to s. 39(3) of the Nurses Act 1985 ('the Act of 1985') in which I delivered judgment on the substantive issues on 25th January, 2017; [2017] IEHC 62.
The two plaintiff nurses in the substantive proceedings case did not challenge the findings of the Fitness to Practice Committee of An Bord Altranais ('the board') which found that there had been misconduct on their part. Their s. 39(3) proceedings concerned two matters; first, the question of the sanction imposed, which was the sanction of erasure from the register of nurses; and, secondly the question of whether the board had sat with the appropriate quorum required by statute when imposing sanction. In the judgment concerning these matters, I quashed the sanction of erasure for the reasons set out therein and directed the board to reconsider the question of sanction.
Following that decision, when the matter came before me for a decision on the costs of the s. 39(3) proceedings before this Court, the parties referred to a considerable number of authorities and were in dispute as to the basic approach to be adopted by the court towards costs in a case such as the present one. For that reason, I reserved judgment on the issue of costs.
The plaintiffs, in essence, argued that they had brought their proceedings in accordance with the route indicated by the statute itself, namely s. 39 of the Act of 1985, and had succeeded in their proceedings and that the costs should therefore follow the event. It may be noted that s. 39(3) provides that a person to whom a decision of erasure relates may, within the period of twenty-one days, apply to the High Court for cancellation of the decision and goes on to provide that the High Court 'may direct how the costs of the application are to be borne'. It was submitted on behalf of the plaintiffs that this clearly envisaged that the court had discretion as to the matter of costs. It was argued that the normal position, regarding the exercise of discretion in relation to the issue of costs, should be applied. Anticipating that the defendant would argue that the plaintiffs had failed on some of their arguments and that costs should (at least) be apportioned in accordance with the decision in Veolia Water U.K. plc. v. Fingal County Council (No. 2) [2007] 2 I.R. 81, it was argued that the bulk of their case concerned the issue of sanction and the question of delay and mitigation and that they had been successful in that regard.
Counsel on behalf of the board adopted a fundamentally different approach to the question of costs, arguing that in a case where a body such as An Bord Altranais, which is tasked with a public interest function in ensuring the highest standards on the part of nurses, is unsuccessful in court proceedings, it should not have any award of costs made against it. In this regard, he relied upon what he said was a line of authority to the effect that, where a statutory regulator has carried out their functions bona fide in the public interest without any impropriety or abuse of process, the courts as a matter of policy have tended not to award costs against them. The purpose of this was to prevent regulators being inhibited in the discharge of their statutory functions. In this regard, the court's attention was drawn to the case of Baxendale-Walker v. Law Society [2007] EWCA Civ. 233 (discussed below). The court was also referred to in an ex tempore judgment in the case of T. v. Medical Council [2011] IEHC 352 (also discussed below) in which Kearns P. approved the Baxendale-Walker case. He also referred to ex tempore note of the costs decision in the Hermann v. Medical Council (unreported, High Court, Charleton J., 6th December, 2010) subsequently approved by the court on 10th March, 2011, in which no order for costs was made. He referred to O'Doherty Advertising Ltd. & Companies Acts: Stafford v. Beggs [2006] IEHC 258, which involved a decision to seek a disqualification order in respect of a company director which was unsuccessful. No costs were awarded on the basis that the Office of the Director of Corporate Enforcement was exercising its statutory functions. He also relied on O'D. v. O'Leary [2016] IEHC 757 in this regard. Counsel also relied, in the alternative, for an apportionment of costs on the Veolia principle, on the basis, he said, that a considerable amount of effort in this case had gone into dealing with matters upon which the plaintiffs were ultimately unsuccessful.
The first matter arising is whether the court is 'at large' with respect to the discretion to be exercised under s. 39(3)(c) of the Act of 1985 or whether there is a principle or presumption that costs should not be awarded against the board in proceedings arising out of a decision made by them in the course of the exercise of their statutory functions.
I mentioned above that Counsel on behalf of the board referred to the decision in Baxendale-Walker v. Law Society [2007] EWCA Civ 233, a decision of the English Court of Appeal, on appeal from the divisional court of the Queen's Bench. The case arose from disciplinary proceedings instigated by the Law Society against a solicitor in respect of two allegations of 'unbefitting conduct'. The case was heard by the solicitor's disciplinary tribunal. The first allegation was found not proved while the second was proved, and the Tribunal suspended the solicitor from practice for three years. The Tribunal made an order that the Law Society pay 30% of the solicitor's costs of the proceedings in light of the fact that the first allegation was not proved and in consideration of the fact that a greater proportion of costs had been incurred in defending that allegation. The solicitor appealed his suspension to the divisional court and this appeal was dismissed. The Law Society cross-appealed on the issue of costs and this appeal was upheld, with the court finding that the principles relating to costs in proceedings brought in the public interest by bodies exercising regulatory functions differed from those applicable in ordinary litigation. It was ordered that the solicitor pay 60% of the Law Society costs. In analysing the issue of costs, the court stated at para. 35:-
'...[I]t is self-evident that when the Law Society is addressing the question whether to investigate possible professional misconduct, or whether there is sufficient evidence to justify a formal complaint to the Tribunal, the ambit of its responsibility is far greater than it would be for a litigant deciding whether to bring civil proceedings. Disciplinary proceedings supervise the proper discharge by solicitors of their professional obligations, and guard the public interest...by ensuring that high professional standards are maintained, and, when necessary, vindicated. Although...it is true that the Law Society is not obliged to bring disciplinary proceedings, if it is to perform these functions and safeguard standards, the Tribunal is dependent on the Law Society to bring properly justified complaints of professional misconduct to its attention. Accordingly, the Law Society has an independent obligation of its own to ensure that the Tribunal is enabled to fulfil its statutory responsibilities. The exercise of this regulatory function places the Law Society in a wholly different position to that of a party to ordinary civil litigation. The normal approach to costs decisions in such litigation – dealing with it very broadly, that properly incurred costs should follow the 'event' and be paid by the unsuccessful party – would appear to have no direct application to disciplinary proceedings against a solicitor.'
The court examined a number of...
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