Harrison v Charleton
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mark Heslin |
| Judgment Date | 18 February 2021 |
| Neutral Citation | [2021] IEHC 113 |
| Court | High Court |
| Docket Number | [2020 180 JR] |
| Date | 18 February 2021 |
[2021] IEHC 113
Mark Heslin
[2020 180 JR]
THE HIGH COURT
JUDICIAL REVIEW
The applicant is a member of An Garda Síochána. The respondent is the former chairman of the Tribunal of Inquiry into protected disclosures made under the Protected Disclosures Act 2014 (hereinafter “the Tribunal”). Certain allegations made by the applicant were investigated by the Tribunal. The applicant attended the Tribunal for nineteen days in respect of the Tribunal's terms of reference “N”, which hearings concluded on 24 October 2017. The applicant gave evidence to the Tribunal over three days. The applicant also submitted a statement to the Tribunal together with copies of the applicant's allegations. The respondent's Second Interim Report in respect of modules “N” and “O” was published on 03 November 2017. It was highly critical of the applicant. Further criticism of the applicant is contained in the Third Interim Report which was published on 11 October 2018.
On 04 December 2017, following the publication of the Second Interim Report, the applicant applied to the respondent for his costs. The Tribunal's solicitor wrote to the applicant's solicitors, Messrs. Kilfeather & Company, on 12 December 2017 inviting submissions which would set out the basis and all relevant matters upon which the applicant was relying in making the application for costs. On 21 December 2017, the applicant's solicitors furnished legal submissions on behalf of the applicant. The Tribunal acknowledged receipt of same by letter of 28 December 2017. By letter of 22 May 2018, the applicant's solicitors enquired as to when they could expect the respondent to adjudicate on the issue of the applicant's costs and expenses. This correspondence was acknowledged by the Tribunal in a letter sent on 18 June 2018 which confirmed that the respondent had not fixed a date to deal with costs applications and that as soon as a date had been arranged, the Tribunal would be in contact.
Following the publication of the Third Interim Report, the Tribunal's solicitor wrote to the applicant by letter dated 19 October 2018 stating that the Tribunal was in a position to deal with costs. The Tribunal noted the applicant's submission dated 21 December 2017, referred to the Tribunal's report published on 11 October 2018 and invited the applicant to indicate their position regarding costs and to furnish submissions in that context. On 22 October 2019 the Tribunal again wrote to the applicant's solicitors detailing its proposed approach with regard to costs referring, inter alia, to the issue of whether or not the applicant cooperated with the Tribunal by telling the truth and certain extracts from the Tribunal's report were cited in the said letter. The penultimate paragraph of the 22 October 2019 letter stated that the Tribunal was then considering what, if any, portion of costs should be ordered to be paid to the applicant and the Tribunal invited the applicant to make oral submissions prior to the Tribunal making any decision on the matter. An oral hearing tool place on 01 November 2019, during which the applicant was represented by senior counsel and it was submitted on his behalf that the applicant was entitled to the entire of his costs.
On 04 December 2019, the respondent issued a ruling in relation to the costs application made by the applicant (hereinafter “the Costs Decision”). This comprised a 15–page written decision by the respondent on the application to discharge the applicant's costs from public funds. In the Costs Decision, the respondent ruled that the applicant was entitled to his costs of representation up to and including the opening day of the Tribunal's substantive hearings but was not entitled to any costs beyond that point. The Costs Decision granted costs to the applicant including all preparation up to and including the first day of the Tribunal's public hearings on the relevant module, on a party and party basis, to include counsel's brief fee and such solicitor's fees as that entailed, to be taxed in default of agreement.
In the present proceedings, the applicant seeks to quash the respondent's Costs Decision of 04 December 2019 and the applicant seeks, inter alia, a declaration that he is entitled to his full costs of appearance and representation before the Tribunal.
On 02 March 2020, an ex parte docket was issued on behalf of the applicant grounded on the statement of grounds of the same date and the applicant's verifying affidavit, with the applicant's solicitor also swearing an affidavit of verification on 02 March 2020. On that date, Meenan J. ordered that the respondent be put on notice and, by order made by the President on 08 May 2020, the application for leave was to be treated as the hearing of the substantive application for judicial review. The respondent's statement of opposition was delivered on 12 June 2020, accompanied by an affidavit verifying the contents of same sworn by Mr. Peter Kavanagh, Registrar to the Tribunal. A replying affidavit was sworn by the applicant on 15 July 2020 and, on 24 November 2020, the applicant's solicitors delivered a document entitled “Further Particulars of paragraph 26 of the Statement of Grounds”, being a document to which the respondent objects. I have carefully considered the contents of all the foregoing as well as all the exhibits referred to in the various affidavits and I will comment on the contents of the foregoing during the course of this decision.
The relief sought by the applicant, as is clear from the ex parte docket, the order made on 02 March 2020 and the contents of paragraph D of the applicant's statement of grounds, is as follows: -
“(i) An order of certiorari quashing the costs order of the 4th of December 2019 made in respect of the Applicant's costs before the Tribunal of Inquiry into protected disclosures made under the Protected Disclosures Act 2014 and certain other matters.
(ii) An order of mandamus requiring the respondent to make such orders as are necessary to provide for Applicant's costs of appearance and representation before the Tribunal of Inquiry into protected disclosures made under the Protected Disclosures Act 2014 and certain other matters.
(iii) A declaration that the Applicant is entitled to his costs of appearance and representation before the Tribunal of Inquiry into protected disclosures made under the Protected Disclosures Act 2014 and certain other matters.
(iv) A declaration that the refusal to grant to Applicant the costs of representation in respect of the public hearings of the Tribunal amounted to an impermissible legal effect and is a penalty by imposing financial liabilities on the Applicant.
(v) A declaration that the refusal to grant to the applicant the costs of representation in respect of the public hearings of the Tribunal amounted to penalisation as defined by the Protected Disclosures Act 2014 and is impermissible.
(vi) A declaration that the respondent's ruling in respect of costs was ultra vires and/or in breach of the principles of natural and constitutional justice and/or in breach of the Applicant's rights pursuant to Article(s) 6 and/or 10 of the European Convention on Human Rights.
(vii) An order if necessary extending the time within which to seek the reliefs sought herein.
(viii) Such further or other relief.
(ix) Liberty to apply.
(x) Costs of and incidental to these proceedings”.
The foregoing relief, which is detailed in para. D of the applicant's statement of grounds dated 02 March 2020, is sought on the basis of the grounds set out at para. E thereof.
The applicant's statement of grounds refers to the Tribunal's terms of reference, including “N” and “O” thereof, which comprise the following:-
“[N] To investigate contacts between members of An Garda Síochána and TUSLA in relation to Garda Keith Harrison.
[O] To investigate any pattern of the creation, distribution, and use by TUSLA of files containing allegations of criminal misconduct against members of An Garda Síochána who had made allegations of wrongdoing within An Garda Síochána and the use knowingly by senior members of the Garda Síochána of these files to discredit members who had made such allegations”.
It is common case that the applicant was granted representation in respect of term “N” of the Tribunal's terms of reference. It is not in dispute that the applicant provided a statement to the Tribunal on 13 March 2017 and, on 20 April 2017, provided the Tribunal with a copy of what has been described as a disclosure. It is not in dispute that the applicant's statement and disclosure comprised approximately 40 pages of text containing significant detail of serious allegations. It is not disputed that the applicant was called to give evidence before the Tribunal.
Later in this decision I will look in detail at each paragraph in the applicant's statement of grounds. For present purposes it is appropriate to point out that it contains certain matters which are not in dispute, including the Terms of Reference of the Tribunal, module “N” being of particular relevance. The following is a summary of what the Statement of Grounds contains.
In para. 9 of the statement of grounds it is pleaded that, in contradistinction to two other members of An Garda Síochána who had made protected disclosures, the respondent never sought to have the applicant interviewed by investigators for the Tribunal or by the Tribunal's legal team prior to the applicant being called to give evidence at the public hearing. In para. 10, reference is made to the applicant being...
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