Joanna Jordan v Minister for Children and Youth Affairs and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 22 November 2013 |
| Neutral Citation | [2013] IEHC 625 |
| Court | High Court |
| Date | 22 November 2013 |
[2013] IEHC 625
THE HIGH COURT
BETWEEN
AND
THIRTY FIRST AMDT OF THE CONSTITUTION (CHILDREN) BILL 2012, IN RE UNREP MCDERMOTT 18.10.2013 2013 IEHC 458
REFERENDUM ACT 1994 S42
MCCRYSTAL v MIN FOR CHILDREN 2012 2 IR 726 2013 1 ILRM 217 2012/31/9112 2012 IESC 53
REFERENDUM ACT 1994 S43
HANAFIN v MIN ENVIRONMENT 1996 2 IR 321 1996/5/1182
REFERENDUM ACT 1994 S43(1)
REFERENDUM ACT 1994 S53(1)
RSC O.99
SINNOTT & MENIHANE v MARTIN 2004 1 IR 121 2004/47/10723 2004 IEHC 3
ELECTORAL ACT 1992 3RD SCHED RULE 16
DUNNE v MIN FOR ENVIRONMENT 2008 2 IR 775 2007/16/3368 2007 IESC 60
NATIONAL MONUMENTS (AMDT) ACT 2004 S8
CONSTITUTION ART 5
CONSTITUTION ART 10
CONSTITUTION ART 15
CONSTITUTION ART 40
MCKENNA v AN TAOISEACH (NO 2) 1995 2 IR 10 1996 1 ILRM 81
REFERENDUM ACT 1994 S42(4)
REFERENDUM ACT 1994 S42(3)(A)
PRACTICE AND PROCEDURE
Costs
Constitutional law - Petitioner unsuccessfully sought order for annulment of provisional referendum certificate based on previous finding of constitutional breaches in information campaign - Application for costs - Telescoped hearing on consent - Effect of unconstitutional behaviour on result of referendum - Burden and onus of proof in leave applications - Meaning of âÇÿmaterial effect on result of referendum as a whole' - Petitioner successful in leave application - Public interest and importance - Whether broader discretion in relation to costs given to court pursuant to s 53(1) of Referendum Act 1994 - Whether special circumstances existed justifying departure from normal rule - Whether legal issues raised were novel - McCrystal v Minister for Children [2012] IESC 53, [2012] 2 IR 726; Hanafin v Minister for the Environment [1996] 2 IR 321; Sinnott v Martin [2004] IEHC 67, [2004] IEHC 136, [2004] 1 IR 121; Dunne v Minister for the Environment [2008] 2 IR 775 and McKenna v An Taoiseach (No 2) [1995] 2 IR 10 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 99, r 1(4) - Referendum Act 1994 (No 12), ss 42, 43 and 53(1) - Electoral Act 1992 (No 23) - National Monuments (Amendment) Act 2004 (No 22), s 8 - Constitution of Ireland 1937, Arts 5, 10, 15 and 40 - Petitioner awarded one third of her costs (2012/1521A - McDermott J - 22/12/2013) [2013] IEHC 625
Jordan v Minister for Children and Youth Affairs
Facts: The petitioner had sought an order for the annulment of a provisional referendum in respect of a poll to be held in 2012, brought pursuant to the Referendum Act 1994. The application was unsuccessful but the petitioner had sought her costs on the basis of the discretion enjoyed by the High Court and that the petitioner had acted in the public interest and had raised matters of great concern.
Held by McDermott J. that in the interests of justice and having regard to the social circumstances identified and the success of the respondent in defending the petition, the Court would award the petitioner one third of the costs of the proceedings. The issues of fact arising were bound to give rise to questions of public concern. The potential effect of misconduct on the conduct of the Referendum could have been profound. There was no suggestion but that the petitioner acted unreasonably.
JUDGMENT of Mr. Justice McDermott delivered on the 22nd November, 2013
1. The court delivered judgment in this case on 18 th October, 2013 ( [2013] IEHC 458), and adjourned the hearing of an application for costs to 8 th November. The respondents successfully defended the petition but did not seek an order for costs against the petitioner. Counsel on behalf of the petitioner seeks an order against the successful respondents for the entire costs of the proceedings.
2. The petitioner sought an order for the annulment of the provisional Referendum certificate in respect of the poll held on 10 th November, 2012, on ten grounds set out at para. 4 of the petition. Initially, the petitioner sought leave to present a petition pursuant to s. 42 of the Referendum Act 1994, based on the ruling of the Supreme Court in McCrystal v. Minister for Children and Youth Affairs & Ors [2012] IESC 53, delivered on 8 th November, 2012, and the several judgments of the court subsequently delivered on 11 th December. It was established in McCrystal that the information campaign sponsored by the Minister for Children and Youth Affairs in respect of the Children Referendum in advance of the poll constituted a clear disregard of the rights of citizens to a Referendum conducted in accordance with the norms of the democratic process mandated by the provisions of the Constitution. The petitioner contended that the nature and extent of the breaches of the Constitution and the conduct of an information campaign by the Minister and the government as determined in the McCrystal case, had a "material affect" on the outcome of the Referendum poll "as a whole" in that the Supreme Court had determined that an information booklet, a website and advertising campaign conducted by the Minister were publicly funded and favoured a yes vote. Expert evidence was relied upon to support the petitioner's case that an independent poll carried out after the vote on behalf of the Referendum Commission provided evidence that the information campaign had the effect claimed.
3. The initial leave application was adjourned following which affidavits were exchanged, including affidavits from various experts, in respect of the alleged affect or non-affect of the McCrystal breaches of the Constitution on the Referendum result. It was agreed between the parties that the same evidence grounding the application for leave to present the petition would have to be considered by the court on the full hearing of the petition if leave were granted. A telescoped hearing of the leave application together with the substantive application necessitated by any grant of leave afforded the parties full opportunity to canvass all of the issues before the court during the course of a single hearing: both parties conducted the proceedings in as efficient a manner as possible. Ultimately, the matter was heard over a period of fourteen days and additional evidence was adduced which had not been available at the time of the initial application for leave. The central issue in the case was whether the unconstitutional behaviour identified by the Supreme Court materially affected the result of the Referendum as a whole. This involved an interpretation of the provisions of the Referendum Act 1994, and in particular ss. 42 and 43 thereof. It also required the application of the decision of the Supreme Court in Hanafin v. Minister for the Environment [1996] 2 I.R. 321, in which the court considered the scope of relief available under s. 43 of the Referendum Act 1994, and, in particular, held that the words "conduct of the Referendum" in s. 43(1) were sufficiently wide to include unlawful conduct on the part of the government in its referendum campaign and the consequences thereof such as to enable the court to consider whether that behaviour caused an obstruction, interference, hindrance or irregularity in the conduct of the Referendum of such gravity as to vitiate its result. It set out a how a court considering an application under ss. 42 and 43 should conduct the proceedings. In that case, the divisional High Court awarded costs to the unsuccessful petitioner on the basis of a four day hearing without witnesses. On appeal, the Supreme Court, left that order undisturbed and awarded the entire costs of the appeal to the unsuccessful petitioner/appellant, including the costs of a preliminary issue concerning the jurisdiction of the Supreme Court to hear the appeal. The petitioner in that case succeeded on the preliminary point in the Supreme Court and in other legal submissions as to the onus and standard of proof and the interpretation of s. 43(1) referred to above.
4. Counsel on behalf of the petitioner submitted that, notwithstanding that the applicant was ultimately unsuccessful in having the provisional Referendum certificate annulled and obtaining an order for the holding of a further Referendum, she ought, nevertheless, to be awarded costs on the following grounds:-
(i) The High Court enjoys a broader discretion in its determination of a costs application in the context of a petition brought pursuant to the 1994 Act than is normally the case. In particular, the court is not constrained by the usual presumption that costs should follow the event.
(ii) The petitioner was successful in her application for leave to present her petition. In that regard, only very minimal costs were incurred as a result of the petitioner's pursuit of the unsuccessful application on the trial of the petition because, with the consent of the respondents, the hearing in respect of both applications overlapped.
(iii) The petitioner acted in the public interest in bringing this petition.
(iv) The matters raised by the petitioner were of great public significance.
(v) The legal issues raised by the petitioner were of special and general public importance.
(vi) The petitioner approached the conduct of the proceedings in the most expeditious and cost efficient manner possible thereby minimising the disruption to the court and the costs incurred.
(vii) The case became necessary as a result of established constitutional wrongdoing as determined by the Supreme Court in the McCrystal case.
(viii) The...
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