F (O) and I (M) v Judge O'Donnell and Others

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 27 March 2009
• Neutral Citation: [2009] IEHC 142
• Court: High Court
• Docket Number: [No. 507 J.R./2006]
• Date: 27 March 2009

[2009] IEHC 142

THE HIGH COURT

[No. 507 J.R./2006]

[No. 424 J.R./2006]

F (O) & I (M) v Judge O'Donnell & Ors

Between:-

O.F.

Applicant

And

Judge Hugh O'Donnell, Ireland

And

Attorney General

Respondents

And

T.F.

Notice Party

Between:-

M.I.

Applicant

And

Judge Hugh O'Donnell

Respondent

And

B.H., Ireland, Attorney General, Minister for Justice, Equality and Law Reform

Notice Parties

RSC O.84 r23(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

CONSTITUTION ART 35

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.1

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

RSC O.99 r3

MCILWRAITH v FAWSITT 1990 1 IR 343 1990 ILRM 1 1989/7/1937

O'CONNOR v CARROLL & BANKERS INNS LTD 1999 2 IR 160 1998/28/11205

CURTIS v KENNY 2001 2 IR 96 2001/4/1032

STEPHENS v CONNELLAN & DPP 2002 4 IR 321 2001/16/4544

MCCOPPIN v JUDGE KENNEDY & MCHUGH T/A LONGFORD HIRE CENTRE 2005 4 IR 66 2005/41/8584 2005 IEHC 194

SIRROS v MOORE 1975 QB 118 1974 3 WLR 459 1974 3 AER 776

DESMOND & MCD MANAGEMENT SERVICES LTD v RIORDAN 2000 1 IR 505 2000 1 ILRM 502 1999/10/2317

BEATTY v RENT TRIBUNAL 2006 2 IR 191 2006 1 ILRM 164 2005/4/623 2005 IESC 66

CONSTITUTION ART 35.2

PRENDERGAST, STATE v JUDGE ROCHFORD & JUDGE DURKIN UNREP SUPREME 1.7.1952

KING, REX v JUSTICES OF LONDONDERRY 1912 46 ILTR 105

RSC O.84

KUDLA v POLAND 2002 35 EHRR 11

PODBIELSKI v POLAND UNREP ECHR 26.7.2005 (APPLICATION NO 39199/98)

STANKIEWICZ v POLAND 2007 44 EHRR 47

TOMASIC v CROATIA UNREP ECHR 19.10.2006 (APPLICATION NO 21753/02)

TABOR v POLAND UNREP ECHR 27.6.2006 (APPLICATION NO 12825/02)

BERTUZZI v FRANCE UNREP ECHR 13.2.2003 (APPLICATION NO 36378/97)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(4)(C)

X & Y v NETHERLANDS UNREP EUROPEAN CMSN OF HUMAN RIGHTS 16.3.1975 (APPLICATION NO 6202/73)

DELLO PREITE v ITALY UNREP EUROPEAN CMSN OF HUMAN RIGHTS 27.2.1995 (APPLICATION NO 15488/89)

KAYA v TURKEY 1999 28 EHRR 1

ILHAN v TURKEY 2002 34 EHRR 36

AKSOY v TURKEY 1997 23 EHRR 553

HASAN & CHAUSH v BULGARIA 2002 34 EHRR 55

DORAN v IRELAND 2006 42 EHRR 13

ROBINS v UNITED KINGDOM 1998 26 EHRR 527

R v SALFORD HUNDRED JUSTICES 1912 2 KB 567

DEIGHAN v IRELAND 1995 2 IR 56 1995 1 ILRM 88 1994/9/2504

GARNETT v FERRAND 1827 6 B & C 611

JUDICIAL REVIEW

Costs

Judicial review - Judicial review not opposed - Judicial immunity from suit - Whether extending to immunity from costs - Human rights - Whether recovery of costs essential feature of right of access to justice - Proportionality of rule on prohibiting award of costs against judge - Whether State can lawfully indemnify judges in respect of acts done in discharge of judicial function - European Convention on Human Rights Act 2003 (No 20), ss 2 and 5 - European Convention on Human Rights, articles 6 and 13 - McIlwraith v Fawsitt [1990] 1 IR 343 applied; Stephens v Connellan [2002] 4 IR 321 approved; O'Connor v Carroll [1999] 2 IR 160, Kudla v Poland (Application no 30210/96, ECHR, 26th October, 2000) considered - Application for costs refused (2006/507JR - Ó Neill J - 27/3/2009) [2009] IEHC 142

F (O) v Judge O'Donnell

PRACTICE AND PROCEDURE

Judiciary

Costs - Judicial review - Certiorari - Whether correct to name judge as notice party to judicial review - Absence of allegation of mala fides or impropriety - Judicial immunity from suit - Whether correct to award costs against judge whose decision is quashed - Independence of judiciary - Human rights - European convention - Denial of access to court or tribunal - Denial of effective remedy - Whether ability to obtain order for costs essential aspect of effective remedy - Aksoy v Turkey (App No 21987/93) (1997) 23 EHRR 553; Beatty v The Rent Tribunal [2005] IESC 66; [2006] 2 IR 191; Bertuzzi v France (App. No. 36378/97) (Unrep, ECHR, 12/2/2003); Chahal v The United Kingdom (App No 22414/93) (1997) 23 EHRR 413; Curtis v Kenny [2001] 2 IR 96; Deighan v Ireland [1995] 2 IR 56; Desmond v Riordan [2000] 1 IR 505; Dello Preite v Italy (App No 15488/89) (Unrep, ECHR, 27/2/1995); Doran v Ireland (App No 50389/99) (2006) 42 EHRR 13; Garnett v Ferrand (1827) 6 B&C 611; Hasan and Chaush v Bulgaria (App No 30985/96) (2002) 34 EHRR 55; Ilhan v Turkey [GC] (App No 22277/93) (2002) 34 EHRR 36; Kaya v Turkey (App No 22729/93) (1999) 28 EHRR 1; The King v The Justices of Salford Hundred Division [1912] 2 KB 567; Kudla v Poland (App. No. 30210/96) (2002) 35 EHRR 11; McCoppin v Kennedy [2005] IEHC 194; [2005] 4 IR 66; McIlraith v Fawsitt [1990] 1 IR 343; O'Connor v Carroll [1999] 2 IR 160; Podbielski and PPU Polpure v Poland (App No 39199/98) (Unrep, ECHR, 26/7/2005); Rex (John Conn King) v Justices of Londonderry (1912) 46 ILTR 105; Robins v United Kingdom (App No 22410/93) (1998) 26 EHRR 527; Silver and Others v The United Kingdom (App Nos 5947/72, 6205/73, 7052, 7061, 7107, 7113 and 7136/75) (1983) 5 EHRR 347; Sirros v Moore [1975] QB 118; Stankiewicz v Poland (App No 46917/99) (2007) 44 EHRR 47; The State (Prendergast) v District Justice Rochford and Judge Durcan (Unrep, SC, 1/7/1952); Stephens v Connellan [2002] 4 IR 321; Tabor v Poland (App No 12825/02) (Unrep, ECHR, 27/6/2006); Tomasic v Croatia (App No 21753/02) (Unrep, ECHR, 19/10/2006) and X and Y v The Netherlands (App No 6202/73) (Unrep, ECHR, 26/3/1975) considered - Rules of the Superior Courts 1986 (SI 15/1986) O 84, r 23(2) and O 99, r 3 - European Convention on Human Rights Act 2003 (No 20), ss 2 and 5 - European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, articles 2, 3, 6 and 13 - Declarations refused (2006/507JR & 2008/424JR - O Néill J - 27/3/2009) [2009] IEHC 142

F (O) v Judge O'Donnell

O'Neill J.

1 2 1.1 On the 8^th May, 2006, in the first set of proceedings, leave was granted by this Court (Peart J.) to pursue the following relief, inter alia, by way of judicial review:-

2 An order ofcertiorari quashing the decision of the first named respondent of the 7^th April, 2006, granting a barring order to the notice party against the applicant.

3 1.2 Leave was granted to seek this relief on the grounds that the first named respondent had proceeded to make a determination against the applicant where the facts were in dispute without hearing any evidence and in so doing he actedultra vires the Domestic Violence Act 1996 and in breach of the applicant's right to constitutional justice and fair procedures.

4 1.3 On the 22^nd January, 2007, on foot of a contested motion, the applicant was granted liberty by this Court (Hanna J.) to amend his statement of grounds, pursuant to O. 84 r. 23(2) of the Rules of the Superior Courts, 1986, to include the following additional reliefs and grounds:-

5 1. A declaration that if the applicant is not entitled, in law, to an order for costs against the respondents, save wheremala fides is established, then such a rule of law gives rise to a breach of Article 13 of the European Convention onHuman Rights and Fundamental Freedoms (the Convention) as it deprives the applicant of an effective remedy for a breach of Article 6 of the Convention.

6 2. A declaration, pursuant to s.5 of the European Convention on Human Rights Act2003 (the Act of 2003), that a rule of law prohibiting the applicant from being entitled, in law, to an order for costs against the respondents, save where mala fides is established, is incompatible with the State's obligations under the Convention.

7 3. The applicant is entitled to an order for costs as against the second and third named respondents by virtue of the fact that Article 13 of the Convention provides that everyone whose rights 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.

8 a a. In the circumstances pleaded, the first named respondent has denied the applicant his right to a fair trial and fair procedures pursuant to the said Convention.

9 b b. If the applicant is not entitled, in law, to an order for costs against the respondents, save wheremala fides is established, then such a rule of law gives rise to a breach of Article 13 of the Convention, in that, it deprives the applicant of an effective remedy for a breach of Article 6 of the Convention.

10 4. The second and third named respondents are appropriate bodies to act aslegitimus contradictor in these proceedings, being potential indemnifiers of the first named respondent in relation to a costs order, in guaranteeing to the first named respondent an immunity from suit pursuant to Article 35 of the Constitution of Ireland.

11 5. It is just and necessary in order to vindicate the right of the applicant to a fair hearing and fair procedures pursuant to the provisions of the Constitution of Ireland 1937 and the Act of 2003 that the second and third named respondents are parties to these proceedings and liable to be fixed with the applicant's costs should he be successful in these proceedings.

12 5 1.4 The applicant also introduced grounds relating to Article 41 of the Constitution in the amended statement of grounds but these were not pursued at hearing.

13 2 2.1 In the second set of proceedings, on the 14^th April, 2008, the applicant was granted leave by this Court (McGovern J.) to pursue the following reliefs by way of judicial review:-

14 1. An order ofcertiorari quashing the respondent's order of the 8^th April, 2008, granting guardianship over the child of the applicant and the first named notice party.

15 2. An order ofcertiorari quashing the respondent's order of the 8^th April, 2008, granting access over the said child of the applicant and the first named notice...