O (H) (an Infant) v Min for Justice & Refugee Applications Cmsr
| Jurisdiction | Ireland |
| Judge | Denham C.J. |
| Judgment Date | 23 October 2013 |
| Neutral Citation | [2013] IESC 41 |
| Court | Supreme Court |
| Date | 23 October 2013 |
and
[2013] IESC 41
Denham C.J.
Murray J.
Clarke J.
THE SUPREME COURT
PRACTICE AND PROCEDURE
Costs
Wasted costs - Immigration - Judicial review - Office of the Refugee Appeal Commissioner - Whether judicial review proceedings bound to fail - Whether solicitor ought to be faulted in proceedings with instructions to bring judicial review proceedings where case bound to fail - Whether High Court erred in failing to make wasted costs order - Whether jurisdiction to make wasted costs order discretionary - Whether actions of solicitor constituted misconduct - Kennedy v Killeen Corrugated Products Ltd [2006] IEHC 385, [2007] 2 IR 561 approved - Kayode v Refugee Appeals Tribunal (Unrep, SC, 28/1/2009); BNN v Minister for Justice [2008] IEHC 308, [2009] 1 IR 719; OJ & TJ (minors) v Refugee Applications Commissioner [2010] IEHC 176, [2010] 3 IR 637; Idris v Legal Aid Board [2009] IEHC 596, (Unrep, Cooke J, 10/12/2009) and Myers v Elman [1939] 4 All ER 484 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 11, r 7 and O 99, r 7 - Directive 38/2004/EEC - Appeal dismissed (360/2012 - SC - 23/10/2013) [2013] IESC 41
O(H) v Minister for Justice, Equality and Law Reform
This case concerned an appeal by the Minister for Justice, Equality and Law Reform and the Refugee Applications Commissioner (the appellants) against a judgment of the High Court. In 2009, HO, the applicant, by way of judicial review, challenged a decision of the Refugee Applications Commissioner refusing her refugee status. Prior to these judicial review proceedings, it had been established that a decision of the Refugee Applications Commissioner was not open to judicial review—appeal to the Refugee Appeals Tribunal being the appropriate remedy, save in exceptional circumstances. The solicitors for the respondent argued via letter in 2009, however, that the case could be distinguished. Throughout the course of proceedings, HO was given opportunities to withdraw the case without incurring costs, but chose not to. When it came to the judicial review, Clark J. determined that no issues in the case had been left undecided. The applicant sought adjournment, which was refused by the High Court. Counsel for the applicant proceeded to withdraw the case and the issue of costs was adjourned. In 2012, the High Court refused to make a wasted costs order. This appeal is against that refusal.
The appellants argued that the High Court judge failed to consider that the solicitor for the respondent was engaged in misconduct via prolonging this action without justification, resulting in an improper incursion of costs. They also argued that the High Court judge failed to consider that the proceedings were ‘wastefully continued’ despite opportunities to withdraw being provided to the respondent; and that the High Court judge failed to account for this case being in a category of cases that rarely succeed, the continuation of it being wasteful and vexatious. It was further contended that the solicitor for the respondent failed to comply with the direction of the High Court in failing to set out the grounds for continuing the case, following which it was allegedly ‘abruptly withdrawn’ with no explanation. Finally, they argued that this supposed failure to comply with the High Court direction resulted in wasting the time and resources of the court, and also that it was in dereliction of the duty to the court of the solicitor.
Following the decision of Finnegan P. in Kennedy v Killeen Corrugated Products Limited, it was held by Denham C. J. that the grant of wasted costs orders was dependent on the solicitor being guilty of misconduct in breach of duty to the court, or of gross negligence in relation to this duty to the court. The case also decided that where a solicitor acts on the advice of counsel, it shall be ‘an answer to the charge of negligence’. Applying this dicta, bearing in mind the 2009 letter, the factual situation, the fact that the solicitors acted on counsel; and that the case concerned a discretionary matter whereby the Supreme Court is reluctant to interfere with the discretion of the High Court judge, who found that there was a factual basis for the finding of no misconduct on the part of the solicitor—it was held that there were no grounds for a wasted costs order.
The appeal was therefore dismissed.
RSC O.11 r7
KAYODE v REFUGEE APPEALS TRIBUNAL UNREP SUPREME 28.1.2009 (EX TEMPORE)
N (BN) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR 2009 1 IR 719 2008/45/9749 2008 IEHC 308
RSC O.99 r7
J (O) & J (T) (MINORS) v REFUGEE APPLICATIONS CMSR & ORS 2010 3 IR 637 2010/24/5929 2010 IEHC 176
IDRIS v LEGAL AID BOARD & MIN FOR JUSTICE UNREP COOKE 10.12.2009 2009/28/6823 2009 IEHC 596
MYERS v ELMAN 1939 4 AER 484 1940 AC 282
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006
EEC DIR 38/2004
KENNEDY v KILLEEN CORRUGATED PRODUCTS LTD 2007 2 IR 561 2006/32/6745 2006 IEHC 385
This is an appeal by the Minister for Justice, Equality and Law Reform and the Refugee Applications Commissioner the respondents/appellants, referred to as "the appellants" against the judgment of the High Court (Hogan J.) delivered on the 13th June, 2012, and the order made on the 20th June, 2012, and perfected on the 4th July, 2012.
HO (an infant suing by her mother and next friend AAO) is the applicant/respondent in this appeal, and is referred to as "the respondent".
At issue is the learned trial judge's decision not to award a wasted costs order under Order 99, rule 7 of the Rules of the Superior Courts against the solicitors for the respondent.
The respondent instituted judicial review proceedings (through her next friend) on the 22 nd April, 2009, challenging a decision of the Refugee Applications Commissioner (the "ORAC") to refuse her refugee status.
At the time of the institution of proceedings, the High Court had established in a number of cases the principle that, absent exceptional circumstances, a decision of the ORAC is not amenable to judicial review and that an appeal to the Refugee Appeals Tribunal was the appropriate remedy. This principle had been approved by this Court in an ex tempore judgment delivered by Murray C.J. in Kayode v. The Refugee Applications Commissioner, (Unreported, Supreme Court, Murray CJ, 28 th January, 2009).
The respondent was given a number of opportunities to withdraw the case, without incurring any costs, but did not do so. When the judicial review came on for hearing at first instance in the High Court, Clark J. indicated that there did not appear to be any issue in the case which had not been decided. Counsel for the respondent sought an adjournment, which was opposed by the appellants, and the High Court refused an adjournment. Counsel for the respondent then withdrew the case. The issue of costs was adjourned.
The issue of costs and the wasted costs application was heard in the High Court on the 20 th April, 2012, by Hogan J. Judgment was delivered on 13 June, 2012, and this appeal is against the judgment and decision on a wasted costs order.
The High Court refused to make a wasted costs order. However, it was ordered that the next friend of the respondent pay to the appellants the costs of the proceedings. It was also ordered that the appellants pay to Burns, Kelly, Corrigan, solicitors for the respondent, such costs as were incurred in respect of the application under Order 99, rule 7 of the Rules of the Superior Courts.
In considering the Court's jurisdiction to make a wasted costs order, the learned trial judge stated:-
"In considering this question, it must be recalled, of course, that it is a pure fallacy to suggest that all (or even a significant majority of) litigants will follow the advice of their lawyers. It is for the lawyer to advise and the client to decide. Once the client has decided to continue with the litigation, it becomes the task of the advocate lawyer - be he or she a solicitor or barrister - to put the best possible case before the court for that client. It is for this reason that the mere fact that a hopeless case is pursued will not in itself justify the making of a wasted costs order: see, e.g., the comments of Sir Thomas Bingham MR in Ridehalgh v Horsegfield [1994] Ch. 205, 234:- 'legal representatives will, of course, whether barristers or solicitors, advise clients of the perceived weakness of their case and of the risk of failure. But clients are free to reject advice and insisted that cases be litigated. It is rarely, if ever, safe for a court to assume that a hopeless case is being litigated on the advice of the lawyers concerned. They are there to present the case; it is.... for the judge and not the lawyers to judge it.'"
Having reviewed some legal principles Hogan J. stated:-
"All of this means that the courts must be especially wary of retrospective endeavours to saddle solicitors with wasted costs orders simply because the case has been lost. Obvious cases such as misconduct, lack of bonafides and a vexatious desire to harass and oppress one's opponent by litigation aside, the jurisdiction to impose a wasted costs order must otherwise be confined to those cases where it is obvious that the litigation is so obviously pointless. The jurisdiction under 0. 99, r. 7 has, of course, been comprehensively examined by Finnegan P. in Kennedy v. Killeen Corrugated Products Ltd. [2006] IEHC 385, [2007] 3 I.R. 561 and by Cooke J. in OJ v....
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