DPP v McNicholas (t/a John Joe McNicholas Plant Hire) and Others

 
FREE EXCERPT

[2011] IECCC 2

CENTRAL CRIMINAL COURT

[Bill No. CC0057/10]
DPP v McNicholas (t/a John Joe McNicholas Plant Hire) & Ors
[2011] IECCC 2
MR JUSTICE COOKE
APPROVED TEXT

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTOR

AND

JOHN JOE McNICHOLAS TRADING AS JOHN JOE McNICHOLAS PLANT HIRE, OLIVER DIXON AND OLIVER DIXON (HEDGE CUTTING AND PLANT HIRE) LIMITED
DEFENDANTS

COMPETITION ACT 2002 S3

COMPETITION ACT 2002 S4(1)

COMPETITION ACT 2002 S6

COMPETITION ACT 2002 S8(1)

COMPETITION ACT 2002 S8(6)

RSC O.99

DPP, PEOPLE v BELL & ORS 1969 IR 24 1971 105 ILTR 41

SUPREME COURT OF JUDICATURE ACT (IRL) 1877 S53

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S14(2)

RSC O.99 r1

RULES OF THE SUPERIOR COURTS (COSTS) 2008 SI 12/2008

RSC O.99 r1(1)

RSC O.99 r1(2)

RSC O.99 r1(3)

RSC O.99 r1(4)

DPP v KELLY 2008 3 IR 202 2007/19/3829 2007 IEHC 450

DPP v BOURKE WASTE REMOVAL LTD & ORS UNREP MCKECHNIE 12.3.2010 2010 IEHC 122

DUNNE v MIN FOR ENVIRONMENT & ORS 2008 2 IR 775 2007/16/3368 2007 IESC 60

SHELLY-MORRIS v BUS ATHA CLIATH (DUBLIN BUS) 2003 1 IR 232 2002/25/6368

READE v JUDGE REILLY & DPP 2010 1 IR 295 2009 2 ILRM 467 2009/48/12045 2009 IESC 66

COMPETITION ACT 2002 S4

CRIMINAL LAW

Costs

Acquittal - Anti-competitive behaviour - Central Criminal Court - Jurisidiction - Award costs following acquittal - Whether acquitted persons entitled to costs - Whether the rule that costs follow event applies to acquittal - Whether acquittal confers entitlement to costs - Whether presumption against awards of costs in criminal cases - Nature of Court's discretion to award costs - Whether Court's discretion allows part-award of costs - Whether failure to investigate notes of meeting between contractors amounted to culpable investigative failure - Whether delay in court procedure relevant to award of costs - People (DPP) v Bell [1969] IR 24 followed; DPP v Kelly [2008] 3 IR 202 approved; DPP v Bourke (Unrep, McKechnie J, 12/3/2010) considered; Dunne v Min for the Environment [2008] 2 IR 775 considered; Shelly-Morris v Bus Átha Cliath [2003] 1 IR 232 followed - Courts (Supplemental Provisions) Act 1961 (No 39) s 14(2) - Rules of the Superior Courts 1986 (SI 15/1986), O 99, r 1 (1), (2), (3), (4) - Application allowed in part - (2010/57CC - Cooke J - 20/12/2011) [2011] IECCC 2

People (DPP) v McNicholas

CC57/2010 - Cooke - CCC - 20/12/2011 - 2011 19 4642 2011 IECCC 2

Facts After a trial lasting 8 days, the jury acquitted the defendants on charges of entering into an anti-competitive agreement. The charges related to an invitation to tender for work issued by Iarnrod Eireann/Irish Rail. More specifically it was alleged that following a meeting regarding the tender the defendants instigated a proposal and persuaded other contractors to agree that no tender would be submitted below an agreed sum. Iarnrod Eireann instigated an inquiry, interviewed some of the contractors who had been present at the meeting and then reported the matter to the Competition Authority. In the course of cross-examination during the trial it emerged that following the meeting a number of the contractors had gone to lunch and it was robustly suggested that those contractors conspired to implicate the defendants in the anti-competitive agreement in order to eliminate them from the proposed contracts. At the close of the case, counsel on behalf of the defendants applied for an order directing that the prosecutor bear the costs of the proceedings. In support of that application it was submitted that the prosecution had taken no steps to test the credibility of the witnesses upon whose testimony the price fixing agreement was alleged to be based, the prosecution had not sought full access to or disclosure of the relevant procurement files held by Iarnrod Eireann and further that the prosecution ought not to have proceeded with a prosecution on indictment when it became apparent that a summary trial ought not to have been precluded by the District Court. It was submitted on behalf of the defendants that the usual rule was that costs follow the event, namely the acquittal, and that this rule can only be departed from in exceptional circumstances and any departure from the rule must be reasoned and based on the overall circumstances of the case.

Held by Cooke J. in awarding the defendants 50% of the costs incurred: That this application was governed by rule 1 of Order 99 (as amended) and therefore the issue of costs was within the discretion of the Court. The jurisdiction to award costs was based on the distinction between sub-rules (1) and (2) of Order 99 as compared with sub-rule (3). The fact of an acquittal by a jury did not of itself confer on the defendants a prima facie entitlement to an award of costs. The exercise of the court's discretion was based on an appraisal of all the relevant factors arising in the particular circumstances of this case. The competition authority initially decided to prosecute this case in the District Court. However, the District Court Judge declined to accept jurisdiction and following the entry of a nolle prosequi the case eventually proceeded on indictment some 4 years after the date of the alleged offences. Notwithstanding that the charges were properly laid and the prosecution was justifiably brought and fairly conducted, the imbalance between the length of time taken together with the formality, stress and expense of a jury trial in the Central Criminal Court on the one hand and the essential character of events out of which the charges arose on the other, justified the exercise of the Court's discretion towards a partial acceptance of the defendants' application.

Reporter: L.O'S

1

JUDGMENT of Mr. Justice Cooke delivered the 20th day of December 2011

2

1. On the 27 th May, 2011, at the conclusion of an eight day trial, the jury returned a not guilty verdict on each of the charges preferred against the above defendants. In plain terms the first-named defendant had been charged with entering into an anti competitive agreement under s.3 of the Competition Act 2002, (as amended) by agreeing a minimum tender price to be submitted for an Iarnrod Eireann/Irish Rail tender No. 2060 contrary to s. 4(1) and s. 6 of the Act, an offence to which s. 8(1) of the Act applied. Oliver Dixon (Hedge Cutting and Plant Hire) Limited, had similarly been charged with entering into that anti competitive agreement. The second defendant, Oliver Dixon, had been charged in respect of the same agreement as a director of Oliver Dixon (Hedge Cutting and Plant Hire) Limited with having authorized or consented to that company as an undertaking entering into the anti competitive agreement in question contrary to s. 8(6) of the Act of 2002.

3

2. At the close of the trial, counsel for the defendants applied for an order directing that the Director of Public Prosecutions (DPP) bear the costs of the proceedings. The application was opposed by the DPP. Following an exchange of written legal submissions, the arguments of the parties were heard by the Court on 19 th July, 2011.

4

3. It is now well settled that a judge of the High Court exercising its jurisdiction in the Central Criminal Court has power under O.99 of the Rules of the Superior Courts, to award costs in criminal cases either to the prosecutor against the accused or in favour of an acquitted accused against the prosecutor. The route through the case law by which this conclusion has been reached has been traced in a number of judgments and notably in the learned exposé of the legislative and regulatory history in the judgment of Kenny J. in The People (AG) v. Bell [1969] I.R. 24, as subsequently approved by the Supreme Court on appeal in that case. The position can be summarised as follows:-

5

· - Prior to the enactment of the English Judicature Act of 1873 and the Supreme Court of Judicature Act (Ireland) 1887, it had been assumed or accepted that one of the incidents of the royal prerogative was that the Crown and officers prosecuting on behalf of the Crown could not be ordered to pay costs.

6

· - Section 53 of the Act of 1877 introduced in Ireland a rule making power which might provide that the costs of and incident to every proceeding in the High Court of Justice and the Court of Appeal 'shall be in the discretion of the Court'."

7

· - The English Act of 1873 did not contain a corresponding provision with the result that English case law in the latter half of the 19 th century became authority for the proposition that a court had no power to order costs to be paid by a person who before the Act of 1873, could not have been ordered to bear costs because the effect of the English Act was not to create any new jurisdiction in costs, but only to regulate the mode by which Courts dealt with cost.

8

· - Rules made in 1891 and new rules made in 1905 for this jurisdiction did not contain any provision relating to the award of costs in criminal proceedings.

9

· - S.14 (2) of the Courts (Supplemental Provisions) Act 1961 provided that the jurisdiction vested by that act in the courts newly established by the Constitution (including the High Court and the Central Criminal Court) was to be exercised, "so far as regards pleading, practice and procedure generally, including liability as to costs, in the manner provided by rules of court...".

10

· - This accordingly was the position on the coming into operation of O.99 of the new Rules of the Superior Courts adopted in 1962. Until then the High Court had no power to award cots in criminal cases because, although the rule making power for the purpose existed, no rules had been made.

11

· - In The People v. Bell it was it was held that O. 99, r. 1, of the 1962 Rules did not exclude the exercise of the jurisdiction as to liability to costs from application in criminal cases.

12

4. Accordingly, the current state of the law is that the rule presently in force, namely, rule 1 of Order...

To continue reading

REQUEST YOUR TRIAL