Kilty v Judge Cormac Dunne

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 22 March 2018
• Neutral Citation: [2018] IECA 80
• Date: 22 March 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 80 Record No. 2016/408

[2018] IECA 80

THE COURT OF APPEAL

Hogan J.

Irvine J.

Hogan J.

Stewart J.

Neutral Citation Number: [2018] IECA 80

Record No. 2016/408

BETWEEN/

BRENDAN KILTY

APPELLANT

- AND -

JUDGE CORMAC DUNNE

RESPONDENT

- AND -

CAMPION PROPERTY CONSULTANTS LIMITED

THIRD PARTY

Costs – Judicial quasi-immunity – Judicial review proceedings – Applicant seeking an order as to costs – Whether respondent could avail of judicial quasi-immunity in respect of costs

Facts: The Court of Appeal, in a ruling delivered on the 17th October 2017, allowed an appeal brought by the applicant, Mr Kilty, against a decision of the High Court to make no order as to costs following the remittal of the issue of those costs from the Supreme Court to that Court. This arose from long-running judicial review proceedings following which a decision of the respondent District Judge Dunne was quashed by the High Court as far back as 2011. The question which arose was whether it would be appropriate to make an award of costs in the Court of Appeal in favour of the applicant in respect of that successful appeal against the respondent judge personally or whether the quasi-immunity in respect of costs enjoyed by judges precludes the making of such an award in the circumstances.

Held by Hogan J that the respondent judge could avail of the judicial quasi-immunity in respect of costs articulated by Finlay CJ in McIlwraith v Fawsitt [1990] 1 IR 343 in that (i) there was no mala fide or impropriety on the part of the judge in the conduct of the appeal and (ii) by participating in the subsequent costs issue, he did not thereby seek to defend the validity of the order which he had made in the District Court and which was subsequently quashed by the High Court in October 2011.

Hogan J held that the Court would make no order as to costs against the respondent judge so far as the costs of the appeal to the Court were concerned. Hogan J stressed that the wider issue of costs in the original High Court proceedings would fall to be determined by the High Court having regard to the Supreme Court order of 22nd February 2016 and the subsequent ruling of the Court of Appeal on 17th October 2017.

Judgment on costs.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 22nd day of March 2018

1 In a ruling delivered on the 17th October 2017 this Court allowed an appeal brought by the applicant, Mr. Kilty, against a decision of the High Court to make no order as to costs following the remittal of the issue of those costs from the Supreme Court to that Court. All of this arises from long-running judicial review proceedings following which a decision of the respondent District Judge was quashed by the High Court as far back as 2011. The question which now arises is whether it would be appropriate to make an award of costs in this Court in favour of the applicant in respect of that successful appeal against the respondent judge personally or whether the quasi-immunity in respect of costs enjoyed by judges precludes the making of such an award in these circumstances. The resolution of this question presents yet a further issue to be determined in an ill-fated saga, the duration and complexity of which brings little credit to the legal system itself.

The background to the present appeal

2 The matter arises in the following way. Following High Court litigation between the applicant, Mr. Kilty, and the notice party, Campion Property Consultants Ltd. ('Campion Property'), Mr. Kilty subsequently sought to object in the District Court to the renewal of Campion Property's auctioneering licence. Those objections were rejected by Judge Dunne who granted the licence. Mr. Kilty then sought to have the order of Judge Dunne quashed in High Court proceedings by reason of what he contended was objective bias and what he maintained were the close connections between the judge and the legal team acting for Campion Property.

3 Mr. Kilty applied for and obtained leave from the High Court to apply for a judicial review of that decision. Before the judicial review application could proceed to a full hearing, Mr. Kilty's counsel brought a motion for directions in the High Court, which motion focused on the role envisaged for the District Judge in the forthcoming judicial review application. Questions raised included:

'1. Is it appropriate to join a District Court judge to judicial review proceedings against him/her?

2. Should a judge be served, and should a judge be struck from the proceedings once leave is granted?

3. Should a judge be joined where the applicant is making an allegation of bias against the judge?'

4 The motion paper set out under each heading, and, by way of submission, quoted from, a number of legal authorities which considered the appropriateness of District Judges' active participation in judicial review proceedings in which their orders had been challenged. In the course of that submission Mr. Kilty's legal advisors acknowledged:

'... The applicant accepts that costs cannot be awarded against a District Judge when he does not take an active part in proceedings. But this rather begs the question, where there is an allegation of bias, should the judge take an active part in proceedings.' (emphasis added)

5 In the words of MacMenamin J., there 'is no doubt that, by then, Mr. Kilty's advisors were alive to the fact that the general question of judicial immunity from costs orders was part of the consideration.'

6 This motion for directions was heard by the High Court on the 14th October 2010. Hedigan J. declined to make any order to the effect that the District Judge should actively participate. The curial part of his order provided in relevant part that: 'The Court doth direct that this matter proceed without the participation of the respondent at this time, and the Court doth reserve the costs of this application.' (emphasis added)

7 One year later, on the 13th October 2011, the judicial review proceedings came on for hearing again before Hedigan J. and by then Mr. Kilty was represented by different counsel. Prior to the full hearing, his counsel sought and obtained a subpoena duces tecum directing the attendance of a District Court Clerk, and the production of the District Court file on the licence application. The file and other documents, including emails, were produced in court. It then emerged from email correspondence on file dated the 19th January 2010, that, as well as granting the renewal application, the District Judge had also placed what MacMenamin J. was later to describe in his judgment for the Supreme Court in the matter ( Kilty v. Dunne [2015] IESC 88) as a 'warning note' on the file. This note apparently purported to warn other District Court judges who might deal with any future renewals of Campion Property's auctioneering licence of Mr. Kilty's role in the application which Judge Dunne had heard. It also emerged that the District Judge had purported to make an Isaac Wunder order both against Mr. Kevin Buggle (one of the two objectors), and Mr. Kilty himself, thereby restricting their right of access to the courts.

8 During the hearing before him, the High Court judge amended the statement of grounds on one point to permit a claim to the effect that the Isaac Wunder order was ultra vires. No other amendment to the statement of grounds was sought or granted. The statement of grounds did not contain any claim that costs should be awarded personally against the District Judge. In the course of an ex tempore ruling Hedigan J. held that there were grounds for finding objective bias on the basis of non-disclosure of the professional relationship between the parties. The judge accordingly granted a declaration that the respondent had breached the applicant's right to fair procedures, and quashed the other orders, which he held to be ultra vires. He made no finding of subjective bias on the part of the District Judge.

9 So far as the issue of costs was concerned, Hedigan J. observed that Campion Property had been effectively 'caught in the crossfire'; that it had not had any knowledge of the 'warning note', and had not had any 'hand, act or part in the so-called Isaac Wunder order that was made'. Hedigan J. then said:

'The order for costs, therefore, will be an order in favour of the applicant [Mr. Kilty] against the respondent [the District Judge], and an order in favour of the third party [Campion Property] also against the respondent in this matter.'

10 This conclusion was reflected in the order of the High Court dated 30th March 2012. As MacMenamin J. observed, Hedigan J. had not been reminded that he had previously made an order to the effect that the District Judge should not (or, at least, need not) participate in the substantive judicial review proceedings. The District Judge then appealed against this costs order and the Supreme Court allowed that appeal on the ground of fair procedures, since he had not been on notice that such an order might be sought against him.

11 As MacMenamin J. observed:

'Taking these principles together, it is clear that, on this occasion, the High Court judge erred in making the costs order. A party potentially affected by a final court order is entitled to be given adequate notice of the possibility of such an order being made. Such an order should not be made, at least in the absence of notice to a party that such application might be made. This is not, of course, to say that by failing to attend a court proceeding, a party, who is on notice, can prevent an adverse order being made. What is necessary in such a context is that a court be satisfied a party is on notice of the application, and the potential orders which might foreseeably be made.

It would be inappropriate for this Court to embark on the form of enquiry which is urged by counsel on behalf of Mr. Kilty. The Supreme Court is not a Court of First Instance. Furthermore, no application was...