Kerins v McGuinness

• Jurisdiction: Ireland
• Judge: Kelly P.,The President,Mr. Justice Noonan,Ms. Justice Kennedy
• Judgment Date: 05 April 2017
• Neutral Citation: [2017] IEHC 217
• Court: High Court
• Docket Number: [2014 No. 431 JR]
• Date: 05 April 2017

BETWEEN

ANGELA KERINS

APPLICANT

AND

JOHN McGUINNESS, MARY LOU McDONALD, SHANE ROSS, AINE COLLINS, PAUL J. CONNAUGHTON, JOHN DEASY, ROBERT DOWDS, SEAN FLEMING, SIMON HARRIS, EOGHAN MURPHY, GERALD NASH, DEREK NOLAN, KIERAN O'DONNELL, THE CLERK OF DÁIL ÉIREANN, THE CLERK OF THE PUBLIC ACCOUNTS COMMITTEE, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2017] IEHC 217

Kelly P.

The President

Mr. Justice Noonan

Ms. Justice Kennedy

[2014 No. 431 JR]

THE HIGH COURT

JUDICIAL REVIEW

DIVISIONAL COURT

Practice & Procedures – O.99, r. 1 of the Rules of the Superior Courts – Costs of the proceedings – Departure from normal rule – Weighty issues – Public importance

Facts: The respondents sought an order for costs against the applicant in the present proceedings. The applicant contended that she should be awarded costs of the substantive proceedings against the first to fifteenth respondents, but not the last two respondents being Ireland and the Attorney General. The applicant contended that despite being unsuccessful in the substantive proceedings wherein she had alleged breach of fair procedures by the Public Accounts Committee (“PAC”), she was entitled for costs as she had raised novel issues of public importance, namely, the legal safeguards available to witnesses who appeared before the PAC voluntarily. The applicant contended that it was duly acknowledged by the Court that the applicant's reputation had been damaged; however, given the privileges enjoyed by the members of the PAC, the Court could not provide any remedy to the applicant. The respondents argued that the normal rule, that is, “the costs should follow the event,” should be adopted by the Court and thus, the respondents being the successful parties were entitled for their costs.

Mr. Justice Kelly P., Mr. Justice Noonan and Ms. Justice Kennedy held that the applicant should be awarded two-thirds of her taxed costs against the first to fifteenth respondents together with 100% of the costs of the transcript. The Court made no order as to the costs against the last two respondents as their involvement in the substantive proceedings was limited. The Court observed that normally, the costs were awarded to the successful party; however, in exceptional circumstances, a departure could be made such as the cases involving weighty issues and seeking clarification on the point of law. The Court found that the applicant had raised novel issues and highlighted lack of procedures for ensuring the protection of witnesses who had appeared before the PAC in voluntary capacity. The Court observed that the applicant had a personal interest in instituting the main proceedings, but that was not fatal, given the extent of damage caused to her personally and professionally. The Court held that the applicant had raised issues pertaining to the freedom of speech in the Parliament and the extent to which judicial scrutiny was permissible in the affairs of the legislature along with the nature of remedy available to the affected party.

JUDGMENT of the Court delivered on the 5th day of April, 2017.

Introduction

1 On 31st January, 2017 the applicant's claim was dismissed.

2 This is the judgment of the court in respect of the costs of these proceedings.

3 All of the respondents seek costs orders against the applicant. She contends that such orders should not be granted but, instead, she should have an order for costs made in her favour against all but the last two respondents. Insofar as those two respondents (Ireland and the Attorney General) are concerned she contends that there should be no order as to costs made by the court.

4 Before considering the merits of these applications it is desirable to identify the principles governing applications of this type.

The Legal position

5 Order 99, rule 1(1) of the Rules of the Superior Courts provides:-

‘The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively.’

6 Order 99, rule 1(4) provides:-

‘The costs of every issue of fact or law raised upon a claim or counterclaim shall, unless otherwise ordered, follow the event.’

7 Thus, while a losing party is usually the subject of an order for costs, the court retains a discretion to depart from the ordinary rule as provided for in Order 99, rule 1(1). This discretion may be exercised in different ways. In some cases the court may make no order as to costs. In others, it may make a costs order in favour of a losing party. The court's discretion falls to be exercised in the particular circumstances and context of a case. The applicant contends that the circumstances of this case justify the court departing from the normal rule and making orders of the type sought by her.

8 As was said by the Divisional Court in Collins v. The Minster for Finance & Others [2014] (IEHC79):-

‘(11) The starting point for any consideration of this question is to be found in the judgment of Murray C.J. in Dunne v. Minister for the Environment [2007] IESC 60 and [2008] 2 I.R. 755 where he observed ( [2008] 2 I.R. 755, 783-784) that:-

“The rule of law that costs normally follow the event, that the successful party to proceedings should not have to pay the costs of those proceedings which should be borne by the unsuccessful party has an obvious equitable basis. As a counterpoint to that general rule of law the Court has a discretionary jurisdiction to vary or depart from that rule of law if, in the special circumstances of a case, the interests of justice require that it should do so. There is no predetermined category of cases which fall outside the full ambit of that jurisdiction. If there were to be a specific category of cases to which the general rule of law on costs did not apply that would be a matter for legislation since it is not for the Courts to establish a cohesive code according to which costs would always be imposed on certain successful defendants for the benefit of certain unsuccessful plaintiffs.

Where a Court considers that it should exercise a discretion to depart from the normal rule as to costs it is not completely at large but must do so on a reasoned basis indicating the factors which in the circumstances of the case warrant such a departure. It would neither be possible or desirable to attempt to list or define what all those factors are. It is invariably a combination of factors which is involved. An issue such as this is decided on a case by case basis and decided cases indicate the nature of the factors which may be relevant but it is the factors or combination of factors in the context of the individual case which determine the issue.”’

9 In Collins the Divisional Court summarised principles which it extracted from the case law concerning the award of costs to unsuccessful litigants in constitutional cases. This is what the court said:-

‘(12) It is true that the pre-existing case law in respect of the award of costs to unsuccessful litigants in constitutional cases can be described as heterogeneous and as revealing a variety of distinct themes. Yet certain principles nonetheless emerge which may now be summarised.

(13) First, costs (either full or partial) have been awarded against the State in cases where the constitutional issues raised were fundamental and touched on sensitive aspects of the human condition. Examples here might include Norris v. Attorney General [1984] I.R. 36 (homosexuality); Roche v. Roche [2006] IESC 10 (the constitutional status of human embryos) and Fleming v. Ireland [2014] (assisted suicide).

(14) Second, costs have similarly been awarded to losing plaintiffs in constitutional cases of conspicuous novelty, often where the issue touched on aspects of the separation of powers between the various branches of government. Examples here include Horgan v. An Taoiseach [2003] 2 I.R. 468 (what constituted participation in war for the purposes of Article 28) and Curtin v. Dáil Éireann [2006] IESC 27 (aspects of the judicial impeachment power).

(15) Third, costs have been awarded where the issue was one of far reaching importance in an area of the law with general application. Examples include TF v. Ireland[1995] (constitutionality of the Judicial Separation and Family Law Reform Act 1989), O'Shiel v. Minister for Education [1999] 2 I.R. 321 (aspects of the State's duty under Article 42.4 to provide for free primary education), Enright v. Ireland [2003] 2 I.R. 321 (constitutionality of the Sexual Offenders Act 2001) and MD (a minor) v. Ireland [2012] IESC 10, [2012] 1 I.R. 697 (constitutionality of legislation making it an offence [for] under-age males only to have sexual intercourse with under-age females).

(16) Fourth, in some cases the courts have stressed that the decision has clarified an otherwise obscure or unexplored area of the law. This point was emphasised by Murray C.J. in dealing with the costs question in Curtin. This was, after all, the first case in which the impeachment provisions of Article 35 had ever been commenced by the Houses of the Oireachtas in respect of a serving judge. As the Chief Justice observed:-

“Article 35.4 is silent as to the procedures to be followed by the Houses of the Oireachtas when considering a motion for the removal of a judge. The adoption of procedures for that purpose was left to each House. No such procedures had been adopted by either House before the question of the appellant's removal had been raised. This was understandable given that since the foundation of the State no substantive question concerning the removal of [a] judge had been brought before the Oireachtas. This meant that to a significant extent all those concerned, the Government, both Houses of the Oireachtas and the appellant were required to address novel but crucial constitutional questions in an uncharted constitutional terrain. In the event it was the...