Idris (A Minor) v Legal Aid Board & Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice John Cooke
• Judgment Date: 10 December 2009
• Neutral Citation: [2009] IEHC 596
• Docket Number: [No. 483 JR/2009]
• Court: High Court
• Date: 10 December 2009

[2009] IEHC 596

THE HIGH COURT

[No. 483 JR/2009]

Idris (a Minor) v Legal Aid Board & Min for Justice

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

SHERIFAT AJIBADE IDRIS AND SAMAAD ODEYEMI BOLARINWA IDRIS (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND SHERIFAT AJIBADE IDRIS)

APPLICANTS

AND

THE LEGAL AID BOARD AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

RSC O.99 r7

KENNEDY v KILLEEN CORRUGATED PRODUCTS LTD 2007 2 IR 561 2006/32/6745 2006 IEHC 385

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11

PRACTICE AND PROCEDURE

Costs

Solicitors - Wasted costs order - Threshold - Criterion for making of order - Discretion of court - Whether costs incurred to be paid by applicant's solicitors - Whether costs incurred unnecessarily - Conduct of solicitor - Whether proceedings ought never to have been brought - Whether wasted costs incurred - Jurisdiction to be exercised sparingly - Duty of legal practitioners -Whether any valid reason for pursuing application - Whether misjudgment rather than serious misconduct - Kennedy v Killeen Corrugated Papers [2006] IEHC 385, [2007] 2 IR 561 applied- Rules of the Superior Courts 1986 (SI 15/1986), O 99, r 7 - Application refused; but costs awarded against applicant personally (2009/483JR - Cooke J- 10/12/2009) [2009] IEHC 596

Idris (a Minor) v Legal Aid Board

Facts Order 99, rule 7 of the Rules of the Superior Courts 1986 provides, inter alia, that "If in any case it shall appear to the Court that costs have been improperly or without any reasonable cause incurred or that by reason of any undue delay in proceeding under any judgement or order or of any misconduct or default of any solicitor, any costs properly incurred may nevertheless prove fruitless to a person incurring the same, the Court may call on the solicitor of the person by whom such costs have been so incurred to show cause why such costs should not be disallowed as between the solicitor and his client and also, if the circumstances of the case shall require, why the solicitor should not repay to his clients any cost which the client may have been ordered to pay to any other person and thereupon make such order as the justice of the case may require". The applicant had been granted leave to apply for a mandatory injunction directing the first respondent, which had previously represented the applicant in her asylum proceedings, to furnish its client file to her present legal representatives and an injunction restraining the second respondent from deporting her. When the substantive hearing came before the Court the applicant's present solicitors applied to come off record and the respondents applied to have the proceedings dismissed with costs against the applicant on the basis that the substantive application had been set down for hearing and was not proceeding. The first respondent further applied, pursuant to Order 99, rule 7 of the Rules of the Superior Courts 1986, fixing their costs to be paid by the applicant's solicitors upon the ground that the proceedings ought never to have been brought against them or should have been discontinued at an earlier stage.

Held by Mr. Justice Cooke in dismissing the proceedings and awarding the respondents their costs against the applicants and refusing to make the applicant's solicitor liable for those costs that the power of the Court to make an order under O. 99, r. 7 of the Rules of the Superior Courts whether as to the costs between the solicitor and his own client or an order that the solicitor personally bear the costs awarded against his own client depended upon the solicitor being guilty of misconduct in the sense of a breach of his duty to the Court or at least of gross negligence in relation to his conduct to the Court. Kennedy v. Killeen Corrugated Papers [2007] 2 I.R. 561 approved. This was a jurisdiction which should be sparingly exercised and only in imperative cases. There was no obligation on a solicitor to pursue litigation at all costs simply because it was possible to do so, especially when it had no purpose other than that of prolonging the process and postponing a final determination. Despite wasted costs being incurred, it was due to a misjudgment rather than serious misconduct or gross negligence.

Reporter: P.C.

Mr. Justice John Cooke

1 1. By order of Peart J. of the 20^th April 2009, leave was granted to the applicants to apply for: 1) a mandatory injunction directing the first named respondent, ("the Board",) which had previously (through the Refugee Legal Service,) represented the first named applicant in her asylum proceedings to furnish its client file to her present legal representatives); and, 2) an injunction restraining the second named respondent from deporting her.

2 2. When the substantive hearing of that application was called on for hearing before this Court on Friday the 27th November 2009, the positions of the parties had been changed by a series of intervening steps and events with the result that the applications before the Court were effectively as follows:

3 a A. An application by the first named applicantÆs current solicitors, Niall Sheerin & Co., to come off record as her solicitors;

4 b B. In consequence, an application by the Minister to dismiss the application with an order for the costs of the proceeding on the basis that the substantive application had been set down for hearing and was not now proceeding;

5 c C. An application on behalf of the Board that the proceeding against it be dismissed with costs but with a further application, as notified to the applicant's solicitors by a letter of the 23^rd June 2009, for an order pursuant to O. 99, r. 7, of the Rules of the Superior Courts fixing all or some of the costs incurred by the Board to be paid by the applicant's solicitors upon the ground that the proceedings ought never to have been brought or that, at least from the date the Board had transferred its client file, the costs incurred had been wasted because the Board should have been released from the proceeding.

6 3. Having heard the submissions of the parties, the Court indicated its intention to rule as follows: 1) As the application had been proceeded with and listed for substantive hearing and was not now to be proceeded with, the respondents were entitled to have the proceedings dismissed with an order for payment of their costs against the applicants. (The Court was informed that the applicants had been told that the matter was listed for hearing that day; that the legal representatives proposed not to represent them and would apply to come off record; and that the...