Fitzpatrick v Behan

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 24 November 2020
• Neutral Citation: [2020] IECA 324
• Docket Number: Record No.: 2019/101
• Date: 24 November 2020
• Court: Court of Appeal (Ireland)

Between/

Anthony J. Fitzpatrick

Appellant

and

Paul M. Behan (In his Capacity of Taxing Master of the High Court)

Respondent

and

Myles Kirby

Notice Party

[2020] IECA 324

Edwards J.

Donnelly J.

Haughton J.

Record No.: 2019/101

THE COURT OF APPEAL

Judicial review – Taxation of costs – Objective bias – Appellant seeking judicial review of three certificates of taxation of costs granted by the respondent – Whether there was a breach of fair procedures on the basis of objective bias on the part of the respondent

Facts: The appellant, Mr Fitzpatrick, appealed to the Court of Appeal against a decision of O’Regan J ([2018] IEHC 764) in which she refused to grant the appellant orders of certiorari by way of an application for judicial review of three certificates of taxation of costs granted by the respondent, Mr Behan (the Taxing Master). In his submissions, the appellant relied upon the following grounds: (a) that the refusal to grant the appellant an adjournment of the hearing of the taxation appeal and the failure to give reasons was a breach of fair procedures (although the failure to give reasons was not mentioned in the notice of appeal); (b) that there was a further breach of fair procedures on the basis of (i) objective bias on the part of the respondent in hearing the appeal in circumstances where “Behan and Associates” was the name used by the accountant for the notice party, Mr Kirby, and this name was registered to the name of the respondent, the respondent had previously been involved in Behan and Associates and had worked with the cost accountant for the notice party, and the respondent had until December 2017 an interest in the property leased to the cost accountants; (ii) the respondent ought not to have determined the taxation on the 12th July, 2018 as it offended the nemo judex in sua causa principle and lacked basic fairness of procedure; and (c) that no award as to costs of the notice party as against the appellant should have been ordered. The notice party contested the appeal but also cross-appealed against the decision to limit the costs of the notice party as against the appellant to 50% of the costs of the first day of hearing. The Taxing Master contested the appeal on the grounds that the trial judge did not err in law or in fact in her decision. He did so on the basis that the notice party was the legitimus contradictor in respect of any ground of appeal that did not refer to either mala fides or alleged impropriety. He claimed that as Taxing Master he was a quasi-judicial officer who enjoyed immunity from suit in all actions arising from the exercise of his judicial function.

Held by Donnelly J that the onus was on the appellant to establish that the High Court judge erred in refusing relief based upon the refusal to grant the adjournment. Donnelly J was satisfied that the appellant had not established any such error. Donnelly J held that the onus was on the appellant to establish that there was objective bias. Donnelly J was satisfied that this onus had not been discharged. Donnelly J held that whether the Taxing Master enjoyed the limited immunity available to him as a quasi-judicial figure only arose in relation to whether an order for costs could be made against him. Since Donnelly J had found that there was no objective bias on the part of the Taxing Master in this case, this issue fell away. Since the parties had not set out the trial judge’s reasoning in making the costs order, Donnelly J considered that neither party had demonstrated any grounds for interfering with that order.

Donnelly J held that the trial judge was correct in her finding that that the appellant was not entitled to an order of certiorari on the basis of (a) the refusal to grant him an adjournment of the taxation hearing or (b) that the Taxing Master was not objectively biased. Donnelly J therefore dismissed the appeal. As the Taxing Master and the notice party had been entirely successful in the appeal, Donnelly J’s provisional view was that they were both entitled to their costs in the Court of Appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Donnelly delivered on the 24th day of November, 2020

Introduction

1 This is an appeal against a decision of O'Regan J. [2018] IEHC 764 in which she refused to grant the appellant orders of certiorari by way of an application for judicial review of three certificates of taxation of costs granted by the respondent Taxing Master (“the Taxing Master”). Two central issues arise in this appeal. The first arises from a claim by the appellant that the Taxing Master failed to grant him an adjournment of the hearing of the costs appeal. The second issue is whether the Taxing Master was objectively biased because of perceived ongoing links with the firm of cost accountants acting for the notice party. Objective bias is not a claim that a decision maker was actually biased. It is a claim that a reasonable and fair-minded objective observer in possession of all the relevant facts, reasonably apprehends that there is a risk that the decision maker will not be fair and impartial.

2 The proceedings in which the orders for costs arose followed the presentation of a winding-up petition by the Revenue Commissioners in relation to Elm Star Frames Limited (“the company”). The company nominated the appellant to be its voluntary liquidator and he was so confirmed at a creditor's meeting. The appellant opposed the winding-up petition and after a three day hearing, the High Court appointed Myles Kirby (“the notice party”) as the official liquidator.

3 It is unnecessary to set out in detail the earlier history of those proceedings except to note that they resulted in three separate orders for costs being made in favour of the notice party against the appellant personally. When those costs were not discharged, following the issue of three separate summonses on the 16th May, 2018, the matter was heard by the Taxing Master on the 12th July, 2018 and subsequently three certificates of costs issued on the 2nd August, 2018.

Background

4 The issue surrounding the refusal to grant an adjournment is a separate and distinct issue to the ground raised by the appellant of objective bias. Both issues however, as submitted by the appellant, give rise to a breach of fair procedures. An unusual feature of the case is that the Taxing Master, despite claiming quasi- judicial immunity, entered a statement of opposition in the High Court. He engaged in this opposition on a limited basis; primarily related to claims centred on his relationship to the costs accountants who represented the notice party. The Taxing Master himself did not swear an affidavit, but his personal tax agent swore an affidavit on his behalf concerning his (previous) financial relationship with the firm. A Principal Officer in the Department of Justice also swore an affidavit on his behalf. I will give further details of these matters below.

The Taxation Hearing

5 The appellant received three covering letters dated the 16th May, 2018 from Behan & Associates enclosing three Summonses to Tax. Mr. Conlon, the legal cost accountant for the notice party, was listed as one of the seven partners of Behan & Associates on the covering letter. The summonses had “Paul M Behan Taxing Master” stamped on them. The appellant did not raise any concern about a possible connection between the Taxing Master and the cost accountants at this stage.

6 Following receipt of the summons to the taxation hearing, the appellant's solicitor entered into correspondence with the notice party's cost accountant and his solicitor. In the initial letter, he sought an adjournment on the basis that the appellant required an adjournment in order to retain and instruct his own cost drawer. The letter also stated that the entire High Court decision including the costs order in favour of the notice party, was under appeal and was due to be heard in 2019. A subsequent email claimed that the appeal had the effect of staying the personal order of costs against the appellant.

7 In his letter of reply, the cost accountant for the notice party refused to consent to any adjournment of the taxation. The cost accountant stated that a period of eight weeks in advance of the taxation date was more than enough time to instruct a legal cost accountant. A follow-up letter from the cost accountant again indicated that any attempt to adjourn would be strongly resisted.

8 By email dated the 14th June, 2018, the solicitor for the appellant again referred to the issue of liability of costs arising when the Supreme Court reached its determination. He indicated that the Court of Appeal had stayed the personal costs order against the appellant. The solicitor stated that the appellant had instructed him that he would nominate a cost drawer if and when the matter arises. In response to that letter, the solicitors for the notice party pointed out, correctly, that the order of the Court of Appeal referred to an entirely separate costs issue between the appellant and the revenue. It was again robustly stated that they would oppose any application to adjourn the matter of taxation.

9 From the foregoing, it can be seen that there was no substance in the request to stay based upon an outstanding appeal. The appeal referred to by the appellant did not concern the costs orders at issue and furthermore, there was no stay on the orders for costs. This was not an issue that was pursued in the judicial review hearing.

10 In his statement grounding the application for judicial review, the appellant claimed that his solicitor and counsel attended the hearing for the purposes of seeking an adjournment “on the ground inter-alia that the appellant was not in a position to instruct Cost Accountant to act for him”. The grounding statement stated that counsel made various submissions including placing reliance on fair procedures and also...