Edward McCoppin v Judge Anthony Kennedy and Terry McHugh t/a Longford Hire Centre

• Jurisdiction: Ireland
• Judge: Mrs. Justice Fidelma Macken
• Judgment Date: 14 April 2005
• Neutral Citation: [2005] IEHC 194
• Docket Number: [2004 No. 408 JR]
• Court: High Court
• Date: 14 April 2005

[2005] IEHC 194

THE HIGH COURT

Record No. 408JR/2004

MCCOPPIN v JUDGE KENNEDY & MCHUGH T/A LONGFORD HIRE CENTRE

BETWEEN

EDWARD McCOPPIN

APPLICANT

AND

HIS HONOUR JUDGE ANTHONY KENNEDY TERRY McHUGH T/A LONGFORD HIRE CENTRE

RESPONDENTS

AND

THE ATTORNEY GENERAL

NOTICE PARTY

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

PRENDERGAST, STATE v ROCHFORD UNREP 1.7.1952

MCILWRAITH, STATE v FAWSITT 1990 1 IR 343

O'CONNOR v CARROLL 1999 2 IR 160

JUDICIAL REVIEW

costs

Certiorari - Whether can award costs against respondent judge - Where there is mala fides or impropriety - Meaning of impropriety - McIlwraith v Fawsitt [1990] 1 IR 343; O'Connor v Carroll [1999] 2 IR 160 and Curtis v Kenny [2001] 2 IR 96 followed - Certiorari granted but order for costs refused

Facts: The applicant sought an order of certiorari by way of an application for judicial review quashing an order of the first named respondent holding the applicant in contempt of court, adjourning the applicant's case and awarding costs against the applicant in favour of the second named respondent on a thrown away basis. The applicant also sought an order for the costs of this application as against the notice party on behalf of the first named respondent and also against the second named respondent. The applicant was the plaintiff in civil proceedings at hearing before the first named respondent, in which the second named respondent was the defendant. During that hearing the plaintiff was removed from court and the hearing was aborted due to the ringing in court of both the plaintiff's and counsel for the plaintiff's mobile phones. The first named respondent adjourned the matter for hearing before another judge so that 'justice could be done'. The applicant submitted that the order was made unfairly, in disregard of his right to a hearing, was irrational in that it was wholly disproportionate to the circumstances in issue, and was ultra vires.

Held by Macken J. in quashing the order in so far as the costs element was concerned: 1. That it was reasonable for the first named respondent to terminate the hearing when he did. The order adjourning the matter was perfectly legitimate and was not made mala fides or through impropriety.

2. That it was not legally correct to award costs against the applicant thrown away on the basis of a finding of contempt of court because the applicant was not given an opportunity to be heard prior to the making of those orders or afforded an opportunity to instruct his counsel. Accordingly the order was ultra vires the first named respondent's powers and was disproportionate.

3. That the applicant failed to establish that he was entitled to costs on the grounds that the first named respondent acted either improperly or through mala fides. Furthermore, the second named respondent was not liable to the applicant for his costs.

Reporter: L.O'S.

1 JUDGMENT delivered by Mrs. Justice Fidelma Mackenon the 14th day of April, 2005

2 The facts in this case are not heavily in dispute, nor are most of the relevant legal principles. It is the application of those principles to the facts in the case which is in issue.

3 On 21st April, 2004 certain civil proceedings between the applicant as plaintiff and the second named respondent as defendant were at hearing before the first named respondent at Longford Circuit Court. The case was one in which there was witness evidence and the first witness for the applicant was being examined by the plaintiff's counsel. In the course of that examination, the first named respondent instructed the witness to stop fiddling with a plastic bag on her lap, in response to which she informed him that the plastic bag contained the hoof of the horse (which had been injured in an accident and in respect of which the civil action was being taken).

4 Shortly thereafter, still in the course of the examination in chief, a mobile phone rang in the courtroom, and the first named respondent asked the garda in the court to remove from court the person whose phone had rung. It was explained to the first named respondent by counsel for the plaintiff (now applicant herein) that in fact it was phone of the plaintiff who was in court listening to the evidence of the witness. Nevertheless, according to the affidavit evidence filed, the plaintiff was then removed from the court, the said respondent indicating that this would remain the position until he was due to be called to give his own evidence.

5 After this interruption, the hearing continued with the examination of the same witness. Very shortly thereafter during the course of cross-examination of the witness, another mobile phone rang in the courtroom. This time it was the mobile phone of the plaintiff's counsel.

6 The first named respondent rose from the bench, and returned a short time later, at which time counsel for the plaintiff in the action apologized profusely for what had occurred stating that he was sorry for any disrespect to the Court and that there would be no recurrence of the problem as he had left his mobile phone outside the courtroom. The first named respondent then stated that the hearing was now "aborted" by reason of the plaintiff's contempt and by reason of the ringing of his counsel's phone, but that he could not, in that respondent's view, be excluded from the courtroom. He adjourned the case to the next sitting of a supplemental judge's list in June, that is to say, to be heard by a judge other than him so that "justice can be done", and awarded costs against the plaintiff in favour of the defendant on a "thrown away" basis.

7 By order of this Court (Quirke, J.), made on 24th May, 2004, leave was granted to the applicant to apply for judicial review seeking an order of certiorari to quash the order of the first respondent, for a declaration that the said respondent was obliged to comply with basic fairness of procedures and with natural and constitutional justice in respect of his purported findings reflected in the above order, and for an order seeking the costs of this application. At the same time, the learned judge directed that the Attorney General be joined as a notice party.

8 By his statement to ground the application for judicial review, the applicant bases his relief sought on the following legal grounds:

9 (a) that the first named respondent acted contrary to natural and constitutional justice and in breach of fair procedures in finding the applicant in contempt of court, in his absence, and without giving him any or any adequate opportunity of being heard in his defence prior to such conviction or in submission prior to the imposition of the penalty of awarding costs thrown away against him;

10 (b) that the said respondent acted injudicially and in breach of basic fairness of procedures in finding the applicant guilty of contempt of court because his mobile phone had sounded during the course of the hearing;

11 (c) that the first named respondent acted injudicially and in breach of the principles of natural and constitutional justice in finding the applicant liable for the alleged contempt of court of the applicant's counsel without affording the applicant or his counsel any or any adequate opportunity of being heard prior to such conviction being imposed or in relation to the penalty contemplated by the said respondent;

12 (d) that the said respondent's finding that the applicant was guilty of contempt of court and liable for the contempt of his counsel, was contrary to fundamental reason and common sense and was not within the range of rational options open to the said respondent upon two mobile phones having sounded in his court room.

13 (e) The said respondent acted in such a fashion as would give rise to a reasonable belief on the part of an onlooker that justice was not being done or in the alternative, that justice was not being seen to be done.

14 By an amended statement to ground an application for judicial review, the applicant sought further, a declaration that the first named respondent had breached Article 6 of the European Convention on Human Rights and Fundamental freedoms, and further a declaration pursuant to s. 5 of the European Convention on Human Rights Act, 2003 that if the applicant is not entitled, in law, to an order for costs against the said respondent, save where mala fides is established, then such a rule of law gives rise to a breach of Article 13 of the said Convention in that it deprives the applicant of an effective remedy for a breach of Article 6 of the said Convention in respect of a fair trial.

15 In support of these additional grounds, the applicant pleaded:

16 (f) That Article 13 of the said Convention provided that everyone whose rights and freedoms as forth therein are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by a person acting in an official capacity.

17 (g) That a person charged with a criminal offence has the right to be informed promptly and in detail of the nature and cause of the accusation against him, to have adequate time and facilities for the preparation of his defence and to defend himself in person or by counsel.

18 (h) In the circumstances pleaded, the first named respondent had denied the applicant his right to a fair trial pursuant to the said Convention.

19 (i) If there was a rule of law whereby the applicant is not entitled to an order for costs against a judge in the absence of mala fides then such rule of law is contrary to the said Convention on Human Rights, for the reasons set out in the additional ground above.

20 By the notice of opposition filed on behalf of the notice party, he pleads that insofar as the...