Hussain v Taxing Master Rowena Mulcahy
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 17 May 2018 |
| Neutral Citation | [2018] IEHC 280 |
| Docket Number | 2017 No. 48 JR |
| Court | High Court |
| Date | 17 May 2018 |
[2018] IEHC 280
2017 No. 48 JR
THE HIGH COURT
Practice & Procedure – O. 99, Rule 29(13) of the Rules of the Superior Courts 1986 – Mootness – Costs – Immunity from costs
Facts: The applicant had filed judicial review proceedings against the Taxing Master in relation to a particular taxation process. The Taxing Master retired as a consequence of which the proceedings had became moot. The applicant now sought the costs of those proceedings and also other ancillary orders to the effect of remitting the balance of proceedings before the newly appointed Taxing Master on the basis that the wasted taxation of costs should be measured by the new Taxing Master.
Mr. Justice Max Barrett refused to grant the reliefs to the applicant. The Court made no order as to the costs. The Court held that the proceedings became moot by factors outside the control of the parties and none of the parties was responsible for it. The Court further held that there would be fresh taxation hearing and thus, the costs of previous moot proceedings could not be rolled-up in the new proceedings.
(i) Background.
On 23rd January, 2017, Mr Hussain commenced judicial review proceedings against Taxing Master Mulcahy. Those proceedings concerned certain actions of the Taxing Master in the course of a particular taxation process. On the same day that the judicial review proceedings were commenced, the Taxing Master retired. The effect of that retirement is that all of the reliefs sought in the original judicial review proceedings will be met by the fact that a new taxation process is intended to commence before a new Taxing Master, without need for the application of any of the discretionary reliefs that had been sought of the court in the judicial review proceedings. In short, the judicial review proceedings were barely issued when they were moot through no fault of any of the parties to the judicial review proceedings.
(ii) Costs.
When it comes to the allocation of costs of proceedings that become moot in this manner, the court recalls the observation of Clarke J. in Cunningham v. President of the Circuit Court [2012] IESC 39, para. 4.7:
'[A] court, without being overly prescriptive as to the application of the rule, should, in the absence of significant countervailing factors, ordinarily lean in favour of making no order as to costs in cases which have become moot as a result of a factor or occurrence outside the control of the parties but should lean in favour of awarding costs against a party through whose unilateral action the proceedings have become moot.'
There are no significant countervailing factors in the within proceedings: they became moot as a result of a factor outside the control of the parties. So the court does not see any basis on which there could properly be an order as to costs in the moot judicial review proceedings.
(i) Overview.
Within the context of the moot judicial review proceedings, a notice of motion has issued which seeks related reliefs 1 & 2, related reliefs 3 & 4, and certain ancillary reliefs. The court will deal with the two sets of related reliefs in reverse order.
(ii) Reliefs 3 & 4.
Reliefs 3 & 4 are as follows:
'3. An Order remitting the balance of these proceedings before either of the newly appointed Taxing Masters on the basis that the wasted taxation of costs before the Respondent and the costs of the further taxation be measured by the Taxing Master in accordance with Order 99, Rule 29(13) of the Rules of the Superior Courts 1986 as amended.
4. An Order affirming that Order 99, Rule 29(13) of the Rules of the Superior courts will continue to apply to the costs already incurred by the Applicant.'
As regards relief 3, what the applicant appears to be seeking (in the context of a fresh motion in the context of moot proceedings) is that the costs of the taxation process before Taxing Master Mulcahy be carried forwards into what are de novo taxation proceedings, with the costs (it seems of the moot proceedings) to be measured by the relevant Taxing Master.
The court has indicated above how the costs of the moot proceedings would fall by law to be allocated. However, both reliefs 3 and 4 appear in any event to be predicated on a fundamental misunderstanding of what is now about to occur: if there is not to be a continuation of the existing taxation (in which case the costs incurred before Taxing Master Mulcahy would continue), then there will be (and the court understands that there is to be) a de novo taxation hearing with no connection to the previous hearing in terms of costs or otherwise. There cannot be a rolling-up of costs in the manner contemplated.
For the reasons stated, reliefs 3 and 4 are necessarily declined.
(iii) Reliefs 1 & 2.
A. Overview and Conclusion.
By way of related reliefs 1 & 2, Mr Hussain seeks the following, again in the context of the moot judicial relief proceedings:
'1. An Order directing Ireland and the Attorney General to indemnify the Taxing Master in respect of the costs of these proceedings.
2. If necessary, an Order making Ireland and the Attorney General a party to the proceedings for the purposes of an Order as to costs.'
For the reasons set out hereafter, there is no question of a liability arising on the part of Taxing Master Mulcahy and thus (a) no liability in respect of which the desired indemnity could attach, and (b) no need for the joinder order sought. It follows that related reliefs 1 and 2 fall respectfully to be declined.
B. Rationale for Conclusion as to Reliefs 1 & 2.
Judicial Immunity.
It is long-settled law that judges enjoy personal immunity from suit when acting in the course of their judicial function, which immunity exists equally in respect of orders for costs. (See, inter alia, in this regard Desmond v. Riordan [2000] 1 IR 505, 507; Kemmy v. Ireland [2009] 4 IR 74, 85 and O.F. v. Judge Hugh O'Donnell & ors [2012] 3 IR 483, 501 and the recent consideration by Hogan J. in Kilty v. Judge Cormac Dunne & Campion Property Consultants Ltd (Unreported, Court of Appeal, 22nd March, 2018)). Notwithstanding the now extensive Irish authority in this area, perhaps the best-known statement of judicial immunity and the rationale for same remains that of Lord Denning MR in Sirros v. Moore [1975] QB 118, 132 (as endorsed by Flood J. in Deighan v. Ireland [1995] 2 IR 56, 62):
'Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a writ of error or certiorari, or take some such step to reverse his ruling. Of course, if the judge...
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