Kilty v Judge Cormac Dunne

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 07 December 2015
• Neutral Citation: [2015] IESC 88
• Date: 07 December 2015
• Court: Supreme Court
• Docket Number: [Appeal No. 167/2012] [Record No. 798JR/2010]

Between

Brendan Kilty

Applicant

and

Judge Cormac Dunne

Respondent

And

Campion Property Consultants Limited

Notice Party

[2015] IESC 88

Denham, C.J.

O'Donnell J.

McKechnie J.

MacMenamin J.

Charleton J.

[Appeal No. 167/2012]

[Record No. 798JR/2010]

THE SUPREME COURT

Fair procedures - Costs - Ancillary order - Appellant seeking to appeal against ancillary order for costs - Whether an unrepresented party can be the subject of an adverse costs order

Facts: The respondent, Mr Kilty, in judicial review proceedings, sought to quash certain orders made by the appellant, District Judge Dunne, in an application to renew an auctioneers' licence held by the notice party, Campion Property Consultants Ltd. On the 13th October, 2011, the High Court (Hedigan J) delivered an ex tempore judgment holding that there had been objective bias and decided to quash orders made by the District judge. There was an ancillary order for costs made against the District Judge in the High Court judicial review. The District Judge appealed to the Supreme Court against that order. The appellant submitted that: (i) the High Court judge failed to consider the established rule of law that in the absence of a finding of mala fides or impropriety, costs should not be awarded against a respondent judge; (ii) a principle of immunity of this type applies a fortiori, in circumstances where the District judge did not defend the application for judicial review, and where the notice party was the only legitimus contradictor; (iii) prior to the High Court judge making his award of costs, no submission was made to the High Court judge on the general principle of judicial immunity to costs orders, despite the fact that correspondence from the Chief State Solicitor, written on behalf of the District Judge, and sent to the other parties, had identified the generally applicable principles regarding judicial immunity from costs, and made clear that the judge did not contend to be an active party in the hearing; (iv) the letters referred to at (iii) were not brought to the attention of the High Court judge at the time of the costs application. Mr Kilty argued that the costs order should stand, as having been lawfully made and contended that the Supreme Court should make a wide range of orders in order to ascertain the full circumstances surrounding the making of the impugned District Court orders. He suggested that the Court should order further discovery against the District Court clerk, and against the other parties.

Held by MacMenamin J that an unrepresented party cannot be the subject of an adverse costs order, unless such party is on notice of an application for that purpose, citing Staunton v Toyota [1996] ILRM 171. MacMenamin J held that that the High Court judge erred in making the costs order. MacMenamin J held that it would be inappropriate for the Court to embark on the form of enquiry which was urged by Mr Kilty; the Supreme Court is not a Court of First Instance. Furthermore, MacMenamin J noted that no application was made at any stage to amend the statement of grounds, to seek costs against the District Judge. Citing AP v DPP [2011] IESC 2, MacMenamin J held that it is the duty of an applicant in judicial review to set out, clearly, each of the reliefs claimed against a respondent, or a party who might be affected. MacMenamin J held that it was not open to the Court to make an order amending the statement of grounds; there was no cross-appeal, or notice to vary, filed by the respondent.

MacMenamin J held that the order for costs made against the respondent, having been made in the absence of jurisdiction, could not stand. MacMenamin J therefore allowed the appeal, and remitted the question of the costs award to the High Court.

Appeal allowed.

Judgment of Mr. Justice John MacMenamin dated the 7th day of December, 2015

1 On the 13th October, 2011, the High Court (Hedigan J.) delivered an ex tempore judgment in judicial review proceedings brought by the respondent to this appeal (Mr. Brendan Kilty). In those proceedings Mr. Kilty sought to quash certain orders made by the appellant (the District Judge) in an application to renew an auctioneers' licence held by the notice party herein (Campion Property). The learned High Court judge, holding there had been objective bias, decided to quash orders made by the District judge. The issue now in controversy concerns the ancillary order for costs made in the High Court judicial review. The District judge was not represented in the judicial review hearing. He had been absolved from participation by a direction of the High Court. Nonetheless, the learned High Court judge made costs orders against him. The District judge now appeals that order.

The Appellant's Submissions

2 In summary, counsel for the appellant District judge submits to this Court:

(i) That the High Court judge failed to consider the established rule of law that in the absence of a finding of mala fides or impropriety, costs should not be awarded against a respondent judge;

(ii) That a principle of immunity of this type applies a fortiori, in circumstances where, such as here, the District judge did not defend the application for judicial review, and where the notice party was the only legitimus contradictor;

(iii) That, prior to the High Court judge making his award of costs, no submission was made to the High Court judge on the general principle of judicial immunity to costs orders, despite the fact that correspondence from the Chief State Solicitor, written on behalf of the District judge, and sent to the other parties, had identified the generally applicable principles regarding judicial immunity from costs, and made clear that the judge did not contend to be an active party in the hearing;

(iv) That the letters referred to at (iii) above were not brought to the attention of the High Court judge at the time of the costs application.

Background Circumstances

3 Mr. Brendan Kilty (who is a senior counsel), became involved in a legal dispute with Campion Property. The issues centred around that firm's role in the disposal of properties which Mr. Kilty had owned. Mr. Kilty was concerned that Campion Property had had a conflict of interest and sold at undervalue. Ultimately, Campion Property sued for fees which they said they were owed. Mr. Kilty counter-claimed, claiming the company's directors had acted in breach of duty, and in bad faith. After a 10 day plenary hearing, the auctioneers succeeded in the High Court action. They obtained judgment in the sum of €356,386.99. Mr. Kilty unsuccessfully appealed that judgment to this Court. The District Court licence application, which forms the background to this judicial review, occurred after the High Court plenary proceedings, but before the appeal therefrom to this Court.

The District Court Proceedings

4 The proceedings before District Judge Dunne concerned the renewal of Campion Property's licence. The hearings took place over 3 separate days from October, 2009 to January, 2010. Two men, who were acquaintances of Mr. Kilty, were the original objectors to the licence renewal.

5 The District judge heard and granted the application to renew the licence. He rejected the objections. On the third day of the hearing, Mr. Kilty sought to be added as an objector. The District judge held that his objection came too late.

6 In what follows, I summarise a series of allegations and counter-allegations made in the judicial review. They are a necessary part of the narrative. They are not findings by this Court.

7 In the judicial review, Mr. Kilty deposed that he subsequently found out that there had been a professional and business relationship between the District judge and Messrs. Eversheds O'Donnell Sweeney (EODS), the solicitors firm, which acted for Campion Property in the licensing renewal application. He said the firm had also acted for the District judge in significant commercial litigation in which he, (the judge), was involved. It appears that Mr. Kilty also had concerns as to the manner in which the same firm acted for himself in a commercial/property matter. Mr. Kilty considered there was an undisclosed business relationship between the District judge and EODS which gave rise to a reasonable apprehension of objective bias. He alleged his concern was more acute because he was of the view that Mr. Rory O'Donnell, a senior solicitor and partner in EODS, had ‘ shown support’ for Campion Property's directors during the renewal hearings. Mr. O'Donnell denied that he had acted in any way improperly, or with an intent to influence the District judge. Moreover, Mr. O'Donnell denied that he had ever known the District judge, or that he had been aware that his firm had acted for the latter. The affidavits in the judicial review contain much other material that is irrelevant to the issue.

The Judicial Review Proceedings

8 Later it emerged that the District judge had not only granted the certificate of renewal to Campion Property, but also made a number of further orders which came into focus in the judicial review hearing. It is necessary to set out how this...