John O'Connell v The Taxing Master (Paul Behan)

JurisdictionIreland
JudgeMr. Justice Murray
Judgment Date01 July 2021
Neutral Citation[2021] IECA 186
Docket NumberCourt of Appeal Record No. 2020/275
Year2021
CourtCourt of Appeal (Ireland)
Between
John O'Connell
Applicant/Appellant
and
The Taxing Master (Paul Behan)

and

The Courts Service

and

The Minister for Justice, Law and Equality; The Attorney General and Ireland
Respondents

[2021] IECA 186

Whelan J.

Murray J.

Pilkington J.

Court of Appeal Record No. 2020/275

High Court Record No. 2019/717 JR

THE COURT OF APPEAL

CIVIL

UNAPPROVED
NO REDACTION NEEDED

JUDGMENT of Mr. Justice Murray dated the 1 st day of July 2021

This appeal
1

. The applicant claims that the High Court ( [2020] IEHC 437) erred in refusing his application for leave to seek judicial review of a ruling of the first respondent of 12 July 2019. That ruling was made in the course of the taxation of costs in proceedings brought by the applicant against inter alia the Building and Allied Trades Union (‘BATU’). The effect of the impugned decision was to refuse the applicant's application that the first respondent recuse himself from further involvement in that taxation.

2

. The applicant applied for leave to seek an order of certiorari quashing this decision (Relief (a)), an order prohibiting the first named respondent from further partaking in the taxation (Relief (b)), declaratory orders to the effect that Order 99 Rules 38(1), (2) and (3) of the Rules of the Superior Courts were ultra vires and void and in breach of the applicant's rights under the Constitution and the European Convention on Human Rights (Reliefs (c) and (d)), together with damages (Relief (e)). He based his claim for this relief upon the contention that the first named respondent failed to give reasons or to make his notes, the Digital Audio Recording or other information or evidence available to the applicant, that he ought to have recused himself because of various conflicts of interest of which, it is said, he ought to have advised the applicant, and that the provisions of Order 99 in question breached provisions of the Constitution and European Convention on Human Rights.

3

. The High Court refused leave on three grounds:

  • (i) That the applicant had failed to establish a good arguable case that the provisions of Order 99 in question were contrary to the Constitution or European Convention on Human Rights.

  • (ii) That as a result of the applicant's failure to join BATU as a party to these proceedings, his application was improperly constituted, and that he had failed to establish that he had an arguable case that he was entitled to the remaining relief claimed by him in the absence of BATU.

  • (iii) In the alternative, that the court would exercise its discretion to refuse leave to the applicant (a) because he had failed to join a necessary party to the intended action, (b) taking account of the fact that he did not put before the court the impugned decision and documents subsequent to that decision and (c) that having failed to put those documents before the court, the applicant made submissions to the court that were not consistent with them and which incorrectly characterised the attitude of BATU to the proceedings.

The pleadings
4

. The statement grounding the application for judicial review records the grounds upon which the relief is sought in five paragraphs also identified as (a) to (e). These (a) assert the invalidity of the impugned provisions of Order 99 on the grounds that (it is claimed) they require the applicant to follow a process of appeal to the same Taxing Master prior to making an appeal to the High Court and (b) posit that these provisions are contrary to the right to fair procedures, an unfair or unjust impediment to the applicant's access to the High Court contrary to Articles 38 and 40.3 of the Constitution, a breach of the right to a fair hearing by an impartial court pursuant to Article 6 of the European Convention on Human Rights and an unreasonable restriction of his right to an effective remedy conflicting with Article 13 of the Convention.

5

. Rolled in to the remaining three paragraphs (c) to (e) are a number of allegations directed to the order of certiorari sought quashing the impugned decision of the first respondent. They encompass three headings of complaint – a failure to give reasons, a failure to grant access to the applicant to certain information, and bias. Broken down, the factual allegations underlying this appear six-fold:

  • (i) The applicant ‘ was not afforded reasons’ and/or ‘ a sufficient explanation’ by the first respondent.

  • (ii) He was not ‘ allowed a Copy to view or examine the Evidence/Master's Notes/DARR [sic].’

  • (iii) The first respondent failed or refused ‘ to use previous Taxing Masters procedures when referring to disputes making the DAR immediately available to clarify matters’.

  • (iv) The first respondent failed to put the applicant on notice ‘ that his family including himself carried out services of Taxing Accounting for the Defendants over decades’.

  • (v) The first respondent failed to inform the applicant ‘ that the 2 Tax Cost Accountants for the Defendants at the Hearing were fellow directors of the firm Behan's Cost Accountants’.

  • (vi) An objective observer would believe that what are described as ‘ the adjournment/delays/decisions in Taxing the Bill of Costs was to facilitate the family's Tax Cost Accountancy long running Client to put a stay on the Taxing Process’.

The evidence
6

. The evidence before the High Court comprised the affidavit verifying the statement of grounds and a variety of documents. None of the documents were formally exhibited in the affidavit, although many of them were referred to in it. No objection appears to have been taken to this before the High Court, and I will proceed, accordingly, as if these documents had in fact been exhibited and duly attested to.

7

. It appears from the grounding affidavit that the applicant had been represented by two firms of solicitors at earlier stages of his case against BATU but that the action itself – and subsequent appeals – were presented by the applicant himself. The proceedings had a lengthy and procedurally complex history, being initiated in 2002. Following a hearing in the High Court ( [2014] IEHC 360), and appeal to this Court ( [2016] IECA 338) they concluded in a decision of O'Connor J. of 21 June 2018 whereby the first defendant (BATU) was ordered to pay damages to the applicant of €15,000 together with certain costs. The Order of that date addressed those costs as follows:

IT IS ORDERED that the first named Defendant do pay to the Plaintiff three days of the costs and expenses of the hearing on the 4th 5th 6th 18th 19th and 20th days of February 2014 the 27th day of March 2014 and the 16th day of May 2014 to be taxed in default of agreement

AND IT IS ORDERED that the first named Defendant do pay to the Plaintiff the costs and expenses of the entire assessment hearing (on the 11th and 12th days of April 2018 and this day) to be taxed in default of agreement.’

8

. The taxation of the costs, expenses and outlay of the applicant pursuant to this Order came before the first respondent on December 4 2018. The affidavit records that BATU then applied that ‘ the matter be struck out’, the reason being ‘ that the Applicant had an Appeal in the Court of Appeal’. This was a reference to the fact that the applicant had appealed the order he was seeking to have taxed (that appeal has since been heard by this Court and judgment reserved). The applicant says that the first respondent said that ‘ he was being unfair to the Defendants’ (seemingly in proceeding with the taxation when the appeal was pending). The applicant avers that the first respondent interpreted the costs order as meaning that the applicant was entitled only to the costs and expenses for attendance on a certain number of days of the hearing while the applicant disputed this and ‘ questioned the Master about the Legal Costs and Expenses for the preparation work and Costs Bill of the two previous solicitors that were on record in this case’.

9

. The applicant explains that the matter was then adjourned on the basis that the applicant would return to the High Court to clarify whether the order for costs allowed a Bill of Costs from (as it is described in the affidavit) ‘ Mr. John O'Connell two previous solicitors who were on record’ and to ‘ Clarify if the Order allowed Mr. John O'Connell Costs, Expenses and Outlays, including Preparation Work that was carried out since previously Solicitors came Off Record’. An application was then brought before O'Connor J. on the same day. The applicant says in his affidavit that, at one point, O'Connor J. confirmed that the previous solicitors were entitled to their costs, whereupon the applicant indicated that it was ‘ an application’ (by which I understand him to mean a date for making the application) that he was seeking. The applicant says that O'Connor J. ‘ stopped … and arranged a date and directed Mr. John O'Connell, as the Taxing Master directed also, to put the other side on notice of the date’.

10

. Included in the book of documents is an e-mail from the applicant to the office of the Taxing Master dated 12 December, in which he stated as follows:

I can confirm that Justice O'Connor will hear the interpretation of the last 2 lines of his order that Master Behan interprets that the meaning of it is that the defendants do pay the Plaintiff the Number of days of the Costs and Expenses only for attending (attendance) of the Hearing. If the Master wishes to attend the hearing to clarify his decision or explain it would be of great assistance as I believe that the Judge may prevent me addressing the Court on the Taxing Master behalf. The hearing will take place tomorrow December 13 at 10.30’

11

. The first respondent's office responded saying that Taxing Masters did not attend Court. The applicant replied questioning whether this was a rule or choice of the Master. The matter then duly proceeded before O'Connor J. on 13...

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2 cases
  • Shields v The Central Bank of Ireland
    • Ireland
    • Court of Appeal (Ireland)
    • 4 Noviembre 2022
    ...that he arguably had locus standi. The respondent relied upon the decision of this Court in O'Connell v Taxing Master Paul Behan [2021] IECA 186 which concerned an appeal against a refusal to grant leave to apply by way of judicial review of a decision of the respondent Taxing Master. The C......
  • John O'Connell v The Taxing Master (Paul Behan)
    • Ireland
    • Court of Appeal (Ireland)
    • 6 Octubre 2021
    ...seeking costs – Whether the applicant was successful on an issue Facts: The Court of Appeal (Murray J), in a judgment of 1 July 2021 ([2021] IECA 186), explained why the applicant, Mr O’Connell, had failed to establish any error in the decision of the trial Judge not to grant the applicant’......

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