DPP v District Judge Elizabeth McGrath

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Donnell
• Judgment Date: 21 September 2021
• Neutral Citation: [2021] IESC 66
• Court: Supreme Court
• Docket Number: S:AP:IE:2020:000111

Between/

The Director of Public Prosecutions

Applicant/Appellant

and

District Judge Elizabeth McGrath

Respondent

and

John Matthews

First Notice Party/Respondent to the Appeal

and

Gerard Gearty

Second Notice Party

[2021] IESC 66

Clarke C.J.

O'Donnell J.

Charleton J.

O'Malley J.

Baker J.

S:AP:IE:2020:000111

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Judicial review – Costs – O. 36 of the District Court Rules of 1997 – Appellant seeking judicial review of an order of the respondent – Whether O. 36, r. 1 of the District Court Rules of 1997 precluded the making of an order for costs against the appellant or any member of An Garda Síochána prosecuting on his or her behalf

Facts: The first notice party, Mr Matthews, on the 28th of April, 2009, was involved in an altercation with the second notice party, Mr Gearty, at Cloonart near Roosky, County Roscommon. As a result of complaints made, both Mr Matthews and Mr Gearty were prosecuted in the District Court for assault. The summonses came on for hearing on the 31st of July, 2009, before the respondent District Judge with Superintendent Shields prosecuting the cases on behalf of the appellant, the Director of Public Prosecutions (the DPP). The court did not finish the hearing on that day and it was adjourned to the 16th of September, 2009. Prior to the hearing recommencing on that day, the parties were informed that the DPP had directed that both prosecutions be withdrawn. On the adjourned date, the solicitor for Mr Matthews invited the court either to proceed with the cases or to adjourn them to permit or, perhaps more accurately, require the DPP to provide reasons. After hearing argument, the respondent, the District Judge, struck out the prosecutions and ordered the costs of the prosecution to be paid to both parties by the DPP. After some correspondence, the solicitor on behalf of Mr Matthews delivered a bill of costs to Superintendent Kerrins of Carrick-on-Shannon, copied to Superintendent Shields. This prompted the DPP to apply for judicial review of the order of the District Judge of the 16th of September, 2009, on the grounds that O. 36, r. 1 of the District Court Rules of 1997 precluded the making of an order for costs against the DPP or any member of An Garda Síochána prosecuting on his or her behalf. The High Court made an order of certiorari quashing the order for costs of the 16th of September, 2009. The Court of Appeal allowed Mr Matthews’s appeal. By a determination of the 9th of February, 2021 ([2021] IESCDET 17), a panel of the Supreme Court granted leave to the DPP to appeal to the court against the decision of the Court of Appeal.

Held by the Court that the terms of O. 36 are not within the area of permitted delegation and, instead, intrude both upon an area of decision which is required to be made, if at all, by the Oireachtas if a general rule is sought to be made, and by the courts in individual decisions in particular cases. The Court held that the respondent was correct in distinguishing those cases which applied and upheld the provisions of O. 36 and its predecessors, and that it must be held that the exclusion of the DPP and Gardai prosecuting on her behalf from the possibility of an award of costs was ultra vires the power of the rules making committee.

The Court dismissed the appeal.

Appeal dismissed.

Judgment of Mr. Justice O'Donnell delivered on the 21 ^st day of September, 2021 .

1 . More than 160 years ago in R. v. Beadle (1857) 7 El. & Bl. 492, 119 E.R. 1329, Lord Campbell C.J.Q.B. observed that the law in relation to the award of costs against an official prosecutor (in that case, the Crown) was not in a satisfactory state and was in need of review. If the law had been clarified in the meantime, the news had certainly not reached the District Court in County Leitrim by 2009, and the need for review has led to the appeal to this Court, and some elaborate argument now 12 years later.

Background

2 . The first named notice party (“Mr. Matthews”) is a wildlife ranger for the National Parks and Wildlife Service. On the 28 ^th of April, 2009, he was involved in an altercation with the second named notice party (“Mr. Gearty”) at Cloonart near Roosky, County Roscommon. As a result of complaints made, both Mr. Matthews and Mr. Gearty were prosecuted in the District Court for assault. The summonses came on for hearing on the 31 ^st of July, 2009, before the respondent District Judge with Superintendent Shields prosecuting the cases on behalf of the D.P.P. The case was heard for a number of hours, which included a cross-examination of Mr. Matthews by the solicitor on behalf of Mr. Gearty. However, the court did not finish the hearing on that day and it was adjourned to the 16 ^th of September, 2009.

3 . Prior to the hearing recommencing on that day, however, the parties were informed that the D.P.P. had directed that both prosecutions be withdrawn. On the adjourned date, the solicitor for Mr. Matthews invited the court either to proceed with the cases or to adjourn them to permit or, perhaps more accurately, require the D.P.P. to provide reasons. After hearing argument, the District Judge struck out the prosecutions and ordered the costs of the prosecution to be paid to both parties by the D.P.P. After some correspondence, the solicitor on behalf of Mr. Matthews delivered a bill of costs to Superintendent Kerrins of Carrick-on-Shannon, copied to Superintendent Shields. This prompted the D.P.P. to apply for judicial review of the order of the District Judge of the 16 ^th of September, 2009, on the grounds that O. 36, r. 1 of the District Court Rules of 1997 precluded the making of an order for costs against the D.P.P. or any member of An Garda Síochána prosecuting on his or her behalf.

4 . In the High Court, Hanna J. made an order of certiorari quashing the order for costs of the 16 ^th of September, 2009. The Court of Appeal (Edwards J.; Birmingham P. and McCarthy J. concurring) allowed Mr. Matthews's appeal. By a determination of the 9 ^th of February, 2021 ( [2021] IESCDET 17), a panel of this court granted leave to the D.P.P. to appeal to this court against the decision of the Court of Appeal.

5 . There is little or no dispute between the parties about the relevant provisions of primary legislation, Rules of Court, and even relevant case law that fall for consideration in this case. The dispute between the parties relates to the proper interpretation of these provisions. Accordingly, it may be helpful to set out the relevant provisions before briefly identifying the arguments each party makes and the rival interpretations they advance.

The Legislative Provisions and the Rules

6 . Section 59 of the Dublin Police Act 1842 (“the 1842 Act”) provided that:-

“It shall be lawful for any divisional justice who shall hear and determine any 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.”

It is accepted that the jurisdiction conferred by this Act on a Divisional Justice of the Dublin Metropolis was transferred to the newly created District Court by s. 78 of the Courts of Justice Act 1924 (“the 1924 Act”), which provided:-

“There shall be transferred to the District Court all jurisdiction which at the commencement of this Act was vested in or capable of being exercised by the Divisional Justices … of the Police District of Dublin Metropolis …”

7 . It is also accepted that the jurisdiction so transferred was, in turn, transferred to the District Court created by the Courts (Establishment and Constitution) Act 1961 by the provisions of s. 33 of the Courts (Supplemental Provisions) Act 1961 (“the 1961 Act”).

8 . Both the 1924 Act and the 1961 Act contain provisions permitting the making of rules by the District Court. Thus, s. 90 of the 1924 Act provided for a District Court Rules Committee. Section 91 provided that rules may be made:-

“… for all or any of the following matters, viz., for regulating the sittings and the vacations and the districts of the Justices and the places where proceedings are to be brought and the forms of process, summons, case stated, appeal or otherwise, and the conditions which a party who requires a case stated or an appellant must comply with in civil cases or in criminal cases or in licensing cases as the case may be and the practice and procedure of the District Court generally including questions of costs and the times for taking any step in the District Court, the entering-up of judgment and granting of summary judgment in appropriate cases and the use of the national language of Saorstát Éireann therein and the fixing and collection of fees and the adaptation or modification of any statute that may be necessary for any of the purposes aforesaid and all subsidiary matters.” ( Emphasis added.)

Section 101 of the 1924 Act, as originally enacted, provided that Rules of Court could not come into operation unless and until laid before both Houses of the Oireachtas and approved by resolution of each such House. The rule-making authority (which at that time, pursuant to s. 90 of the 1924 Act, was the Minister for Home Affairs acting with the concurrence of the Minister for Finance and with the assistance of a Committee drawn from the District Court bench and both branches of the legal profession) duly promulgated rules in July, 1926, which were laid before the Houses of the Oireachtas and approved. Rule 37(a) of the 1926 Rules contains the forebear of the provisions in issue in these proceedings and provided that no order of costs could be made against the Attorney General or a prosecuting Garda. The Rule provided that the court had power to award costs against:-

“… any party to the said charge or complaint other than the Attorney-General or a member of the Gárda Síochána in his official capacity.” ( Emphasis added.)

Subrule (b) of r. 37...