O.F. v Oædonnell

• Jurisdiction: Ireland
• Judgment Date: 27 March 2009
• Date: 27 March 2009
• Docket Number: [2006 No. 507
• Court: High Court

O.F. v. O'Donnell

O.F.

Applicant

and

Judge Hugh O'Donnell, Ireland and The Attorney General, Respondents, and T.F., Notice Party

M.I.

Applicant

and

Judge Hugh O'Donnell,Respondent, and B.H., Ireland, The Attorney General and The Minister for Justice, Equality and Law Reform, Notice Parties

[2009] IEHC 142

[2006 No. 507 JR and 2008 No. 424 JR]

High Court

Practice and procedure - Costs - Judicial review - Decision or order of inferior court - Judicial review not opposed - Whether correct to name lower court judge as party to judicial review - Absence of allegation of mala fides or impropriety - Judicial immunity from suit - Whether costs awardable as against judge whose decision is quashed - Independence of judiciary - Rules of the Superior Courts 1986 (S.I. No. 15), O. 84, r. 23(2) and O. 99, r. 3

Human rights - Denial of access to court or tribunal - Denial of effective remedy - Whether ability to obtain order for costs essential aspect of effective remedy - 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.

The applicants in both cases were granted by the High Court (O Néill J.) uncontested orders of certiorari of District Court family law orders which had been made in breach of natural and constitutional justice. The applicants applied for costs against Ireland and the Attorney General (the second and third respondents in both cases) but not against the other respondents and notice parties.

The applicants argued, inter alia, that a failure to grant them an order for costs against the respondents, save wheremala fides was established, would give rise to a breach of article 13 of the European Convention on Human Rights 1950, as it would deprive them of an effective remedy for a breach of article 6 of the Convention and would be incompatible with the State's obligations under the Convention. They submitted that they were entitled to an order for costs against the second and third respondents under article 13 of the Convention and that the second and third respondents were appropriate bodies to act as legitimus contradictors in the proceedings, so that the rights of the applicants to a fair hearing and fair procedures could be vindicated.

Held by the High Court (O Néill J.), in refusing to make the costs orders sought, 1, that a judge should not be joined as a respondent in judicial review proceedings unless there was an allegation of mala fides or impropriety and an order for costs should not be made against a judge.

McIlwraith v. His Honour Judge Fawsitt [1990] 1 I.R. 343, O'Connor v. Carroll [1999] 2 I.R. 160,Curtis v. Kenny [2001] 2 I.R. 96, Stephens v. Connellan [2002] 4 I.R. 321 and McCoppin v. Kennedy [2005] IEHC 194, [2005] 4 I.R. 66 followed.

2. That the exclusion of judges from judicial review proceedings in which their orders were challenged was mandated by a correct compliance with the principle of judicial independence, which required that judges forbear from participating in the proceedings to defend their orders and, as a necessary consequence of this and where there was another potential legitimus contradictor available, the party seeking judicial review could not join the judge.

3. That where an allegation of mala fides or impropriety was made against the judge, it was necessary to join the judge as a respondent but only to afford the judge the opportunity to appear to defend his or her own constitutional rights.

O'Connor v. Carroll [1999] 2 I.R. 160 andStephens v. Connellan [2002] 4 I.R. 321 followed.

4. That, in circumstances where the rights of the applicants to fair procedures were not breached by the notice parties in the proceedings, it was inappropriate to fix the notice parties with a costs order.

5. That the rule excluding a judge from being sued in judicial review proceedings in circumstances where there was no allegation ofmala fides or impropriety preserved, protected and enhanced the independence of the judiciary and, in particular, the public perception of judicial independence and impartiality.

6. That, in the circumstances of the cases, appeals to the Circuit Court would have dealt with all issues between the parties arising from their original disputes, remedied any breach of the applicants' right to a fair hearing and allowed the applicants to recover their costs. This would have satisfied the requirement of article 6.1 of the Convention, that there be access to a court or tribunal, and article 13 of the Convention, that there be an effective remedy in the domestic legal system.

Cases mentioned in this report:-

Aksoy v. Turkey (App. No. 21987/93) (1997) 23 E.H.R.R. 553.

Beatty v. The Rent Tribunal [2005] IESC 66; [2006] 2 I.R. 191; [2006] 1 I.L.R.M 164.

Bertuzzi v. France (App. No. 36378/97) (Unreported, European Court of Human Rights, 13th February, 2003).

Chahal v. The United Kingdom (App. No. 22414/93) (1997) 23 E.H.R.R. 413.

Curtis v. Kenny [2001] 2 I.R. 96.

Deighan v. Ireland [1995] 2 I.R. 56; [1995] 1 I.L.R.M 88.

Dello Preite v. Italy (App. No. 15488/89) (Unreported, European Commission of Human Rights, 27th February, 1995).

Desmond v. Riordan [2000] 1 I.R. 505; [2000] 1 I.L.R.M 502.

Doran v. Ireland (App. No. 50389/99) (2006) 42 E.H.R.R. 13.

Garnett v. Ferrand (1827) 6 B. & C. 611; 108 E.R. 576; [1824-34] All E.R. Rep. 244.

Hasan and Chaush v. Bulgaria (App. No. 30985/96) (2002) 34 E.H.R.R. 55.

Ilhan v. Turkey (App. No. 22277/93) (2002) 34 E.H.R.R. 36.

Kaya v. Turkey (App. No. 22729/93) (1999) 28 E.H.R.R. 1.

Kud³a v. Poland (App. No. 30210/96) (2002) 35 E.H.R.R. 11.

McCoppin v. Kennedy [2005] IEHC 194, [2005] 4 I.R. 66.

McIlwraith v. His Honour Judge Fawsitt [1990] 1 I.R. 343; [1990] I.L.R.M. 1.

O'Connor v. Carroll [1999] 2 I.R. 160.

Podbielski and PPU Polpure v. Poland (App. No. 39199/98) (Unreported, European Court of Human Rights, 26th July, 2005).

Rex. v. Salford Hundred Justices [1912] 2 K.B. 567.

Rex (John Conn King) v. Justices of Londonderry(1912) 46 I.L.T.R. 105.

Robins v. United Kingdom (App. No. 22410/93) (1998) 26 E.H.R.R. 527.

Silver and Others v. The United Kingdom (App. Nos. 5947/72, 6205/73, 7052/75, 7061/75, 7107/75, 7113/75 and 7136/75) (1983) 5 E.H.R.R. 347.

Sirros v. Moore [1975] 1 Q.B. 118; [1974] 3 W.L.R. 459; [1974] 3 All E.R. 776.

Stankiewicz v. Poland (App. No. 46917/99) (2007) 44 E.H.R.R. 47.

The State (Prendergast) v. Rochford (Unreported, Supreme Court, 1st July, 1952).

Stephens v. Connellan [2002] 4 I.R. 321.

Tabor v. Poland (App. No. 12825/02) (Unreported, European Court of Human Rights, 27th June, 2006).

Tomasiæ v. Croatia (App. No. 21753/02) (Unreported, European Court of Human Rights, 19th October, 2006).

X and Y v. Netherlands (App. No. 6202/73) (Unreported, European Commission of Human Rights, 26th March, 1975).

Judicial review

The facts are summarised in the headnote and are more fully set out in the judgment of O Néill J., infra.

In the case of O.F., an order granting the applicant leave to apply for an order of certiorari by way of judicial review was made by the High Court (Peart J.) on the 8th May, 2006. The application was heard by the High Court (O Néill J.) on the 7th and 8th October, 2008.

In the case of M.I., an order granting the applicant leave to apply for an order of certiorari by way of judicial review was made by the High Court (McGovern J.) on the 14th of April 2008. The application was heard by the High Court (O Néill J.) on the 9th October, 2008.

Both cases were dealt with in the same judgment by O Néill J. as they raised issues of law that overlapped in relation to costs orders in judicial review proceedings.

Cur. adv. vult.

O Néill J. 27th March, 2009

Relief sought in the first set of proceedings

[1] On the 8th 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:-

"An order of certiorari quashing the decision of the first respondent of the 7th April, 2006, granting a barring order to the notice party against the applicant."

[2] Leave was granted to seek this relief on the grounds that the first 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 acted ultra vires the Domestic Violence Act 1996 and in breach of the applicant's right to constitutional justice and fair procedures.

[3] On the 22nd 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:-

• 1. A declaration that if the applicant is not entitled, in law, to an order for costs against the respondents, save where mala fides is established, then such a rule of law gives rise to a breach of article 13 of the European Convention on Human Rights and Fundamental Freedoms "the Convention", as it deprives the applicant of an effective remedy for a breach of article 6 of the Convention.

• 2. A declaration, pursuant to s. 5 of the European Convention on Human Rights Act 2003 ("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.

• 3. The applicant is entitled to an order for costs as against the second and third 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:-

• a. in the circumstances pleaded, the first respondent has denied...