Fitzpatrick v Behan (in His Capacity of Taxing Master of The High Court)
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 20 December 2018 |
| Neutral Citation | [2018] IEHC 764 |
| Docket Number | [2018 No. 807 J.R.] |
| Court | High Court |
| Date | 20 December 2018 |
[2018] IEHC 764
THE HIGH COURT
JUDICIAL REVIEW
O'Regan J.
[2018 No. 807 J.R.]
Order of certiorari – Adjournment – Damages – Applicant seeking an order of certiorari – Whether the applicant had discharged the burden required to secure an order of certiorari
Facts: Following two separate sets of proceedings three orders for costs were made in favour of the notice party, Mr Carberry, as against the applicant, Mr Fitzpatrick, namely, an order of the Court of Appeal of 24th August 2016 and two High Court orders respectively dated 10th May 2017 and 20th October 2017. Following the issue of three separate summonses on 16th May 2018 the matter was heard by the respondent, Mr Behan, on 12th July 2018 and subsequently three certificates of costs issued on 2nd August 2018. Leave was afforded to the applicant to maintain judicial review proceedings in respect of the certificates of 2nd August 2018 on the basis that: (a) “Behan and Associates” was the name used by the accountant for the notice party and that name was registered to the name of the respondent, so it was argued there was ongoing goodwill in favour of the respondent associated with the name and his ownership of the name could be encashed thereby giving rise to a perception that the respondent had a direct or indirect interest in that accountancy business; (b) the respondent ought not to have determined the taxation on 12th July 2018 as it offended the nemo judex in sua causa principle and lacked basic fairness of procedure; (c) the respondent unreasonably exercised his discretion not to accede to the applicant’s application for an adjournment and therefore the applicant did not have an opportunity to instruct cost accountants; (d) insofar as the refusal of the application for the adjournment was concerned no adequate reasons were furnished and to the objective observer such observer would believe that the adjournment was refused to facilitate an early taxation and higher reward and faster fee collection making a net gain directly or indirectly to the respondent; (e) no comparators were open to the respondent while the applicant’s solicitor and counsel were present accordingly the respondent’s methodology was not in compliance with O. 99 principles of natural and constitutional justice and fairness; (f) the applicant would have requested the respondent to recuse himself on grounds of objective or perceive bias or unfairness if the respondent had disclosed that he had a former professional relationship with the notice party’s cost accountant and was the owner of the business name used by such accountant’s firm.
Held by the High Court (O’Regan J) that the applicant had not disclosed an error of law in the respondent refusing the adjournment sought. O’Regan J held that the applicant had not demonstrated any entitlement to an award of damages. O’Regan J held that the applicant had not discharged the burden required to secure an order of certiorari or any ancillary relief.
O’Regan J held that all of same would be refused.
Relief refused.
Following two separate sets of proceedings three orders for costs were made in favour of the notice party as against the applicant, namely, an order of the Court of Appeal of 24th August 2016 and two High Court orders respectively dated 10th May 2017 and 20th October 2017. Following the issue of three separate summonses on 16th May 2018 the matter was heard by the respondent on 12th July 2018 and subsequently three certificates of costs issued on 2nd August 2018.
Leave was afforded to the applicant to maintain the within judicial review proceedings in respect of the certificates of 2nd August 2018 on the basis that:
(a) ‘Behan and Associates’ was the name used by the accountant for the notice party and this name is registered to the name of the respondent. Accordingly, it is argued there is ongoing goodwill in favour of the respondent associated with the name and his ownership of the name could be encashed thereby giving rise to a perception that the respondent has a direct or indirect interest in that accountancy business;
(b) The respondent ought not to have determined the taxation on 12th July 2018 as it offends the nemo judex in sua causa principle and lacked basic fairness of procedure;
(c) The respondent unreasonably exercised his discretion not to accede to the applicant's application for an adjournment and therefore the applicant did not have an opportunity to instruct cost accountants;
(d) Insofar as the refusal of the application for the adjournment is concerned no adequate reasons were furnished and to the objective observer such observer would believe that the adjournment was refused to facilitate an early taxation and higher reward and faster fee collection making a net gain directly or indirectly to the respondent.
(e) No comparators were open to the respondent while the applicant's solicitor and counsel were present accordingly the respondent's methodology was not in compliance with O. 99 principles of natural and constitutional justice and fairness;
(f) That the applicant would have requested the respondent to recuse himself on grounds of objective or perceive bias or unfairness if the respondent has disclosed that he had a former professional relationship with the notice party's cost accountant and was presently the owner of the business name used by such accountant's firm.
The application is grounded on the affidavit of the applicant and of his solicitor both dated the 8th October 2018.
In the affidavit of Mr. Kilcoyne solicitor on behalf of the applicant it is recorded that the 12th July 2018 the matter was listed before the respondent and an application for an adjournment was made on behalf of the within applicant for reasons that the applicant was in hospital for some of the time since the bill of costs was received. At that date the applicant had not instructed a cost accountant to deal with the matter on his behalf. The application for an adjournment was refused following which Mr. Kilcoyne and his counsel left. It appears that the taxation took place after Mr. Kilcoyne and counsel had left.
Mr. Kilcoyne exhibits an email from him to Mr. Paul Conlon who was the tax accountant acting on behalf of the notice party who had written to Mr. Kilcoyne with the certificates for taxation on 16th May 2018. Mr. Kilcoyne referred to that letter and in his response email of 28th May 2018 requested an adjournment from the 12th July 2018 to enable the applicant to retain his own cost drawer. On the same day Mr. Paul Conlon responded that consent to an adjournment would not be forthcoming and eight weeks (between the date of service of the summons and the date of hearing) was said to be more than enough time to instruct legal cost accounts. In a further letter of 14th June 2018 Mr. Conlon enquired of Mr. Kilcoyne as to the identity of the applicant's legal cost accountants however there was no response to this communication. On 26th June 2018 the notice party's solicitors indicated that any adjournment application would be opposed.
At a date undisclosed following the certificates of the 2nd August 2018 the applicant retained a legal cost accountant Mr. Michael Ryan. Mr. Ryan completed his report on 4th October 2018.
In Para. 4 of the affidavit of the applicant it was indicated that Mr. Paul Conlon opposed the application for an adjournment and was most anxious to proceed.
The foregoing comprises the basis for suggesting that the respondent acted unreasonably in refusing the adjournment.
It is noted that:
(1) The detail in relation to when and for how long the applicant was in hospital was not afforded.
(2) Mr. Kilcoyne had instructions to apply for an adjournment on 28th May 2018 and it was not until the 12th July 2018 that any difficulty was raised, namely, the applicant had been in hospital.
(3) No medical report was produced either before the respondent or before this Court.
(4) It is clear that arguments opposing the adjournment were put forward on behalf of the notice party.
(5) A precise date upon which Mr. Ryan was instructed has not been advised nor has any indication been given by the applicant as to why Mr. Ryan was not instructed in good time to deal with the matter on 12th July, 2018, notwithstanding that he had been in hospital for some of the time, on dates unknown.
(6) Mr. Kilcoyne did not respond to the enquiry made by Mr. Conlon as to the identity of the applicant's cost accountant.
(7) The applicant's arguments appear to be premised on an entitlement to secure an adjournment if during the period between the date of the summons and the hearing, the applicant was in hospital for an undisclosed period of time without otherwise indicating how there was difficulty in appointing a tax accountant on behalf of the applicant.
In the circumstances the applicant has not disclosed an error of law in the respondent refusing the adjournment sought. The issues as to the objective observer are dealt with below.
Damages have been claimed for breach of the applicant's constitutional rights.
In paragraph 7 of the applicant's grounding affidavit it is stated that on 21st August 2018 three judgment mortgages were registered against the applicant and same were published in Stubbs Gazette, reported in the Sunday Business Post and Phoenix Magazine and the notice party reported the matter to the applicant's professional body all of which damaged the applicant's reputational business and staff morale.
On 3rd August 2018 when the notice party furnished the orders of taxation on the applicant a request for discharge was made. An indication was furnished that if...
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