Godsil v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 24 February 2015
• Neutral Citation: [2015] IESC 103
• Docket Number: [S.C. No. 232 of 2014],[S.C. No: 232/2014]
• Court: Supreme Court
• Date: 24 February 2015

BETWEEN

JILLIAN GODSIL

PLAINTIFF/APPELLANT

AND

IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS/RESPONDENTS

[2015] IESC 103

McKechnie J.

[S.C. No: 232/2014]

THE SUPREME COURT

Costs — Litigation conduct — Public interest — Appellant seeking costs — Whether there was culpable delay on the part of the appellant

Facts: The appellant, Ms Godsil, proactively campaigned on social and economic issues, in particular on matters touching individual debt and insolvency. She caused a petition to issue on 7th January, 2014, whereupon she sought an adjudication of personal bankruptcy. Such an order was made on 17th February, 2014. In just under four weeks from that date she first made known to the respondents, Ireland and the Attorney General, her desire to contest the then upcoming European parliamentary elections, which had been scheduled for 23rd May, 2014, with nominations to close on 23rd April, 2014. Realising the existence of a statutory prohibition on the eligibility of un-discharged bankrupts to run in such an election, she commenced proceedings seeking to have the relevant provisions of the electoral statutes stood down. In the weeks which followed, the Houses of the Oireachtas amended the law so that people with this status of insolvency could run in both domestic and European elections. By reason of this amendment, the proceedings became redundant and were eventually struck out. The President of the High Court refused her application for costs but did allow High Court outlay. Against that decision, she appealed to the Supreme Court. She submitted that she was entitled to the entirety of her costs, because the proceedings were rendered moot solely by the actions of the respondents, relying upon Cunningham v The President of the Circuit Court & The Director of Public Prosecutions [2012] 3 IR 222. She further contended that there was a general public interest element to the proceedings at the time when they were initiated, which would also justify the making of such order. The respondents submitted that the decision of the President of the High Court should not be disturbed as it was arrived at after a careful consideration of all relevant circumstances and should therefore be seen, as a correct exercise by the judge, of the discretion which undoubtedly vests in him, on matters regarding costs. The respondents asserted culpable delay on the part of Ms Godsil.

Held by McKechnie J that he could see nothing in the appellant's litigation conduct which should adversely be held against her. He agreed with the general approach to the issue of costs in the circumstances outlined in Cunningham, subject to the reservations and limitations expressed in that judgment. McKechnie J held that the actions of the respondents could only reasonably be understood, in the vastly truncated time period involved, as being in direct response to the proceedings as issued; such could only be regarded as being an explicit acknowledgment and admission of the legal validity of the challenge as mounted. McKechnie J considered that if the claim was unmeritorious, it could hardly be deserving of legislative amendment. Therefore, he was entirely satisfied that there existed an event, by which the issue of costs should be determined. Given those facts and noting the absence of any disqualifying factors or conduct, McKechnie J could not find anything in the case which would justify anything less than a full cost order in this regard. Given this conclusion, McKechnie J held it to be unnecessary to specifically address the argument that the proceedings should also be regarded as having a public interest element to them, and on that basis alone, he held that the appellant should have been awarded her costs.

McKechnie J held that he would allow the appeal and directed that the appellant should be entitled to her full costs of the High Court action.

Appeal allowed.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 24th day of February, 2015

Background:

1 For some time prior to the events next described, the appellant, Ms. Godsil, had been proactively campaigning on social and economic issues, in particular on matters touching individual debt and insolvency. For reasons not relevant to this appeal, she caused a petition to issue on 7th January, 2014, whereupon she sought an adjudication of personal bankruptcy. Such an order was made on 17th February, 2014. In just under four weeks from that date she first made known to the defendants/respondents her desire to contest the then upcoming European parliamentary elections, which had been scheduled for 23rd May, 2014, with nominations to close on 23rd April, 2014. Realising the existence of a statutory prohibition on the eligibility of un-discharged bankrupts to run in such an election, she commenced the within proceedings seeking to have the relevant provisions of the electoral statutes stood down. She did so on many grounds. In the weeks which followed, the Houses of the Oireachtas amended the law so that people with this status of insolvency could run in both domestic and European elections. By reason of this amendment, the proceedings became redundant and were, I presume by consent, eventually struck out. The learned President of the High Court refused her application for costs but did allow High Court outlay. An agreed note of his judgment records these facts. Against that decision, she has appealed to this Court. The issue thus, is purely one of costs.

The Proceedings:

Time Frame:

2 The time sequence of the most important events in these proceedings is as follows:-

• 14th March, 2014: solicitors on Ms. Godsil's behalf write to the Minister for the Environment, informing him of the adjudication order and declaring their client's intention to run in the European election: unless she was given an assurance that the relevant legislation would be amended, she threatened to institute proceedings.

• 20th March, 2014: a plenary summons and statement of claim issues, the service of which is acknowledged on 21st March.

• 21st March, 2014: a notice of motion is served in which the plaintiff seeks directions from the High Court: such are made on the adjourned hearing date, some three days later.

• 28th March, 2014: by that date an appearance has been entered and a defence has been served.

• 31st March, 2014: the High Court fixes 24th July, 2014 as the hearing date for such proceedings.

• 1st April, 2014: the Government approves a Bill, the Electoral (Amendment) (No.2) Bill 2014, to amend the Electoral Act 1992, and the European Parliament Elections Act 1997, so that an un-discharged bankrupt would not, by reason of such status, be ineligible for election to the Dáil or to the European Parliament.

• 7th April, 2014: the Bill is presented to the Dáil.

• 16th April, 2014: the Bill having been passed by both Houses is signed into law by the President.

• 30th April, 2014: by order of that date the proceedings, therein described as 'now moot', are struck out with the learned President of the High Court refusing an application for costs, but agreeing to award the appellant her High Court outlay.

Substantive Claim:

3 By virtue of s. 41(k) of the Electoral Act 1992, a person who is 'an un-discharged bankrupt under adjudication by a court of competent jurisdiction in the State', is disqualified from membership of the Dáil. The provisions of this section, in pretty much identical form, appear in s. 51(2)(c) of the Electoral Act 1923, and have been carried forward in every subsequent re-appraisal of the electoral provisions since then. Being such a disqualified person, the provisions of s. 11(2)(a) of the European Parliament Elections Act 1997, as amended, carried that disqualification through in respect of elections to which that Act applied.

4 As Ms. Godsil was such a person, there was no room for argument but that under and pursuant to these statutory provisions she was not eligible to run for or to become a member of, Dáil Éireann or of the European Parliament. Save for this impediment she otherwise had the capacity to meet all qualifying conditions for such offices.

5 In the proceedings Ms. Godsil alleged that the prohibitions thereby imposed, were in breach of her constitutional rights citing, to that end, inter alia, Article 5, Article 16.1, Article 40.1 and Article 40.3 of the Constitution. In addition, the subject provisions were also impugned as being incompatible with European Union (EU) law, including the Charter of Fundamental Rights of the European Union, and with certain provisions of the European Convention on Human Rights Act 2003. Having pleaded the case in this way, Ms. Godsil sought a number of declarations which, if granted, would have the effect of removing the offending provisions, from the statute book.

6 A full defence was filed denying each and every claim advanced on behalf of Ms. Godsil. No concession on any point was made. Accordingly, at the close of pleadings and by reference thereto, each and every matter, as raised, was contested and thus, was in issue.

Submissions:

7 The principal basis upon which this appeal has been moved, rests on a submission by the appellant that she is entitled to the entirety of her costs, because the proceedings were rendered moot solely by the actions of the respondents. In this regard she relies upon the decision of this Court in Cunningham v. The President of the Circuit Court & The Director of Public Prosecutions [2012] 3 I.R. 222 ('Cunningham'), in which it was stated that, as a general rule, where proceedings have become moot as a result of the unilateral act of one of the parties, costs should be awarded against that party. She further contends that there was a general public interest element to the proceedings, certainly at the time when they were initiated, which would also...