DPP v District Judge McGrath

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 20 December 2019
• Neutral Citation: [2019] IECA 320
• Date: 20 December 2019
• Court: Court of Appeal (Ireland)
• Docket Number: Record Numbers: 2014 349 2014 359 [Article 64 Transfer]

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT IN HIGH COURT PROCEEDINGS/RESPONDENT TO APPEAL

V

DISTRICT JUDGE ELIZABETH MCGRATH

RESPONDENT TO HIGH COURT PROCEEDINGS

AND

JOHN MATTHEWS

FIRST NOTICE PARTY IN THE HIGH COURT PROCEEDINGS/APPELLANT

AND

GERARD GEARTY

SECOND NOTICE PARTY TO THE HIGH COURT PROCEEDINGS

[2019] IECA 320

Record Numbers: 2014 349

2014 359

[Article 64 Transfer]

THE COURT OF APPEAL

Judicial review – District Court Rules 1997 Order 36, Rule 1 – Costs – Appellant seeking to appeal from the judgment of the High Court – Whether Order 36, Rule 1 of the District Court Rules 1997 purported to effect an amendment to s. 59 of the Dublin Police Act 1842

Facts: The appellant, Mr Matthews, the first notice party in the High Court proceedings, appealed to the Court of Appeal from the judgment of the High Court delivered on the 12th of October 2011, and against the related order of the 19th of December 2011, which order was perfected on the 12th of January 2012, in judicial review proceedings brought by the respondent, the DPP, seeking to quash an order for costs made by the District Judge in favour of the notice parties. The DPP was successful in the High Court in obtaining an order of certiorari quashing the said costs order, and the appellant sought to have the Court of Appeal reverse that decision. The High Court judge had gone on to award the appellant 50% of the costs of the judicial review proceedings in the High Court against the DPP, and there was also a cross-appeal on behalf of the DPP in respect of that costs order. The appellant had applied unsuccessfully to the High Court in advance of the substantive hearing in the judicial review proceedings for a protective costs order to facilitate his adoption of the position of legitimus contradictor, in circumstances where the District Judge was the respondent and he was merely a notice party to the judicial review proceedings (albeit one with a significant interest). The Court of Appeal found that the central or core issue for decision in this case was whether Order 36, Rule 1 of the District Court Rules 1997 purported to effect an amendment to s. 59 of the Dublin Police Act 1842, or whether, on the contrary, it was a mere adaptation or modification.

Held by the Court that the purported curtailment in Order 36 Rule 1 of the District Court Rules 1997 of the general jurisdiction to award costs created by s. 59 of the 1842 Act, by effectively exempting the DPP and members of An Garda Síochána acting in the course of their duty, from having costs orders made against them, was ultra vires the delegated power granted to the District Court Rules Committee by s. 91 of the Courts of Justice Act 1924 as adapted and amended. The Court held that this was a measure of such far reaching import as to require that it be given effect to by primary legislation.

The Court held that the appeal should be allowed and that the orders made by the court below should be vacated. The Court held that it would leave over any issues as to costs in these proceedings pending further arguments in the light of the result.

Appeal allowed.

JUDGMENT of Mr. Justice Edwards delivered on the 20th day of December 2019

Introduction

1 Although the title to this judgment precisely identifies the role of each of the parties, it is proposed to refer to them hereafter simply as “the DPP”, the “District Judge”, “the appellant”, “the second notice party” and when referring to the appellant and the second notice party together “the notice parties”.

2 This is an appeal from the judgment of Hanna J. delivered on the 12th of October 2011, and against his related order of the 19th of December 2011, which order was perfected on the 12th of January 2012, in judicial review proceedings brought by the DPP seeking to quash an order for costs made by the District Judge in favour of the notice parties. The DPP was successful in the High Court in obtaining an Order of Certiorari quashing the said costs order, and the appellant now seeks to have this Court reverse that decision.

3 The High Court judge had gone on to award the appellant 50% of the costs of the judicial review proceedings in the High Court against the DPP, and there is also a cross-appeal on behalf of the DPP in respect of that costs order. A relevant contextual detail is that the appellant had applied unsuccessfully to the High Court (Hedigan J) in advance of the substantive hearing in the judicial review proceedings for a protective costs order to facilitate his adoption of the position of legitimus contradictor, in circumstances where the District Judge was the respondent and he was merely a notice party to the judicial review proceedings (albeit one with a significant interest).

Procedural History

4 The notice parties were prosecuted summarily at the suit of the DPP, each having been charged with assaulting the other. The background to the matter is that the appellant is a Wildlife Ranger with the National Parks and Wildlife Service. He had complained to Gardai that, whilst he was carrying out an investigation in the course of his duties at Cloonart, Co. Leitrim on the 28th of April 2008, he was beset and assaulted by the second notice party. The second notice party, in a counter allegation to Gardai, maintained that, on the contrary, he was the one who had been assaulted on the occasion in question.

5 Their cases were heard together in a joint trial which was part-heard in July 2009, and then adjourned to September 2009 for resumption and completion. However, the joint trial did not resume in September because both cases were withdrawn on the DPP's instruction. No reason for this instruction was offered to the District Judge, and she was understandably critical of the lateness of the decision, in circumstances where court time - which is a scarce resource, had been taken up unnecessarily and where two citizens had been put to trouble and expense and had had their good names impugned, albeit that they each retained their presumption of innocence, in a part-heard joint trial which would not then proceed to a conclusion. The appellant objected to DPP's request to withdraw the case against him, contending that he wished to “clear his name”, but the District Judge nevertheless struck out the charges.

6 Both the notice parties then applied for their costs of having had to contest the lately abandoned proceedings up to the point of withdrawal, and on the 16th of September 2009 the District Judge awarded them their costs.

7 On the 1st of February 2010 the DPP successfully obtained leave to apply for judicial review with a view to having the said costs order quashed by Order of Certiorari. In substance the DPP's case was that the District Court had no statutory power to award costs against her in summary criminal proceedings. Accordingly, the District Judge exceeded her jurisdiction in making the order that she had purported to make, having regard to the applicable statutory framework. Suffice it to say that this view of the law is hotly contested by the appellant. The substantive judicial review hearing ultimately took place before Hanna J, resulting in the judgment and order now under appeal.

The statutory background to the issue in the case

8 There was no controversy in the judicial review proceedings as to any matter of fact. The decision in the case required the resolution of an issue of law, and more particularly an issue of statutory interpretation. It is therefore desirable, before describing the arguments of both sides in any further detail, before summarising the judgment of the High Court, and indeed before setting out the grounds of appeal - to set out the relevant statutory provisions.

9 It is necessary to refer in the first instance to s.59 of the Dublin Police Act 1842 (“the Act of 1842”), from which the District Court derives a general power to award costs in criminal cases. Section 59 is in the following terms:

“It shall be lawful for any divisional justice who shall hear and determine any charge or complaint, whether or not a warrant or summons shall have been issued in consequence of such charge or complaint, to award such costs as to him shall seem meet to be paid to or by either of the parties to the said charge or complaint.”

10 The DPP acknowledges the jurisdiction conferred by s.59 of the Act of 1842 and further acknowledges that this is the parent provision on foot of which the current District Court enjoys a general power to award costs. To elaborate on the latter, it is not in controversy that the jurisdiction created by s.59 of the Act of 1842, and which at the time of its enactment applied only to divisional justices of the Dublin Metropolis, was transferred after the foundation of Saorstat Éireann to the then newly established District Court by s. 78 of the Courts of Justice Act 1924 (the Act of 1924); and subsequently to the current District Court, created by the Courts (Establishment and Constitution) Act 1961, by s. 33 of the Courts (Supplemental Provisions) Act 1961.

11 Since the establishment of a District Court shortly after the foundation of the State, rules of court have been made for that court on three occasions: i.e., in 1926, 1948 and in 1997.

12 District Court Rules were made by the Minister for Justice in July 1926. The rules were approved by resolutions of both Dáli Éireann and Seanad Éireann. Rule 37 (a) of those rules provided that a justice had power to award costs against “any party to the said charge or complaint other than the Attorney General or a member of the Garda Síochána in his official capacity”.

13 New District Court Rules replacing the 1926 rules were made in 1948. Rule 67 of those the 1948 rules provided as follows: -

“A justice who makes an order in any case of summary jurisdiction shall have power to order any party to the proceedings other than the Attorney General, or a member of the Garda Síochána...