Kilty v Judge Dunne

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Malley
• Judgment Date: 20 October 2020
• Neutral Citation: [2020] IESC 65
• Court: Supreme Court
• Docket Number: S:AP:IE:2018:000059
• Date: 20 October 2020

Between/

BRENDAN KILTY

Appellant

and

JUDGE CORMAC DUNNE

Respondent

and

CAMPION PROPERTY CONSULTANTS LIMITED

Notice Party

[2020] IESC 65

O'Donnell J.

Dunne J.

Charleton J.

O'Malley J.

Baker J.

S:AP:IE:2018:000059

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Judicial review – Costs – Principles – Appellant seeking costs – Whether the appellant should be awarded the costs of his appeal to the Court of Appeal

Facts: At issue before the Court of Appeal was that the High Court had made no order as to the costs of the substantive judicial review. The appellant, Mr Kilty, succeeded in his appeal to the extent that the issue of those costs was remitted to the High Court for further consideration. The decision to remit that aspect was not challenged. However, the Court of Appeal made no order as to the costs of the appeal itself. The appellant appealed to the Supreme Court against that decision. The appellant submitted, as part of his case, that the Court of Appeal misinterpreted the decision of the Supreme Court in McIlwraith v Fawsitt [1990] 1 I.R. 343. The respondent, Judge Dunne, submitted that the Court of Appeal applied McIlwraith correctly.

Held by O’Malley J that, given the history of the case, it was not possible for the Court to revisit the McIlwraith principles in this matter. She held that the decision to participate in the appellant’s appeal, against the refusal of the trial judge to make any costs order was a choice that the respondent may have been entitled to make; however, in contesting the appeal, he could only be seen as having acted as a litigant and in that capacity he pursued a line of argument that failed. O’Malley J held that, whether he did so in good faith, and whether his interpretation of the decision of the Supreme Court and the subsequent ruling of Hedigan J could be described as the result of a reasonable error on his part, or whether he conducted his argument in the appeal in proper fashion, was no more relevant to the issue of costs in the Court of Appeal than it would be in the case of any other litigant in any other case; it had nothing to do with the ordinary principles according to which costs are awarded.

O’Malley J allowed the appeal and proposed that the costs of the appellant’s appeal to the Court of Appeal should be awarded to him.

Appeal allowed.

Judgment of Ms. Justice O'Malley delivered the 20 ^th day of October, 2020.

1 This appeal, which has its roots in judicial review proceedings taken by the appellant against the respondent judge, relates only to one aspect of those proceedings. The central issue is whether the Court of Appeal applied the correct legal principles in declining to award the costs of an appeal before it to the appellant against the respondent judge.

2 In very brief summary, the issue before the Court of Appeal was that the High Court had made no order as to the costs of the substantive judicial review. The appellant succeeded in his appeal to the extent that the issue of those costs was remitted to the High Court for further consideration. The decision to remit that aspect is not challenged. However, the Court of Appeal made no order as to the costs of the appeal itself. It is that decision which is now before this Court.

Background

3 The litigation has a long and complex history. In summarising it here, I intend to provide only such details as are necessary to understand the context of the issue before the Court.

4 The notice party's principal, Mr. Campion, is an auctioneer. His firm (“Campion Property”) had acted for the appellant in the disposal of certain property, but a dispute between them led to a refusal by the appellant to pay the professional fees sought by the firm. Part of the dispute related to the role played in the sale by the appellant's then solicitor: Mr. Rory O'Donnell of the firm known, at that time, as Eversheds O'Donnell Sweeney (“Eversheds”). The resulting litigation culminated in Campion Property obtaining judgment in the High Court against the appellant for over €350,000. That result was upheld on appeal to this Court.

5 Under the statutory regime then in place, auctioneers were obliged to apply for the requisite licence to the Revenue Commissioners each year. In order to do so, it was necessary to obtain a certificate of qualification from the District Court. An application for a certificate could be objected to by the Gardaí, or by any person considered by the court to have an interest in the matter.

6 In 2009, two acquaintances of the appellant objected to the grant of a certificate of qualification to Campion Property. The hearing took place over the course of a number of separate days between late 2009 and early 2010. It appears to have been put to one of the objectors in cross-examination on the first day of the hearing that he had, in effect, been influenced by the appellant in making his objection. After the hearing adjourned, the appellant submitted a written objection to the renewal of the certificate. His grounds of objection, which made various allegations against Mr. Campion and Campion Property, included an express allegation of a conflict of interest in relation to Eversheds.

7 At a subsequent hearing, some two and a half months later, Mr. O'Donnell was present in court. He was not there in a representative capacity or as a witness but, as perceived by the appellant, in support of Campion Property's application. (It was subsequently confirmed on affidavit by Mr. Campion and Mr. O'Donnell that the latter was there both to support the firm's application and to hear what might be said about himself.) The appellant was also present, and represented by solicitor and counsel. The respondent ruled that his objection had been lodged too late, that the appellant was not entitled to participate, and that his evidence should not be heard.

8 The respondent ultimately granted the certificate. According to the evidence, when he gave his ruling on the 18th January, 2010, he stated that he was placing a “warning note” on the court file, to warn other District Court judges not to have regard to any objections that the appellant might make about the notice party in future

The Judicial Review Proceedings

9 On the 21st June, 2010, the appellant sought and was granted leave to apply for judicial review. The reliefs sought included an order of certiorari in respect of the grant of the certificate of qualification. He also sought orders quashing the “warning note” on the file and any consequential order, along with declarations to the effect that the respondent had breached his right to fair procedures.

10 The grounds upon which leave was given included claims that the respondent ought to have disqualified himself, by reason of the (alleged) fact that Mr. O'Donnell from Eversheds, who had been present in court, was the respondent's own personal solicitor and that the respondent had failed to disclose this relationship. The appellant's evidence in this regard was that it had come to his attention in February 2010 that the respondent and his son had been defendants in Commercial Court proceedings in 2009, and that Eversheds had represented them in the matter. In making his case on this point, the appellant presumed that the respondent had read the written objection submitted by him in the District Court and argued that it was incumbent on the respondent to disclose his connection with Mr. O'Donnell and Eversheds.

11 It was also claimed that the respondent had acted unfairly in refusing to hear the appellant's objection; and that the respondent had acted improperly and in want or excess of jurisdiction in placing the “warning note” on the court file.

12 The appellant was directed by the leave judge to serve the proceedings on the Chief Clerk of the Dublin Metropolitan District and on the Chief State Solicitor. The latter subsequently corresponded with the appellant's representatives, in July 2010. It was stated that the respondent did not intend to participate in the proceedings and that, having regard to the Supreme Court authorities on the subject, the usual rule regarding judicial immunity from costs should apply. Confirmation was requested that no costs would be sought against the respondent.

13 The appellant does not appear to have answered the letter directly, but instead applied for directions from the court. (This application was on notice to the notice party but not, on the face of it, to the respondent.) He referred in submissions to the content of the letter from the Chief State Solicitor's Office, and argued that the respondent should take part in proceedings where there was an allegation of bias. This submission was made with express reference to the principle that costs of proceedings should not be awarded against a judge who does not take an active part in the proceedings. Hedigan J. directed (on the 14th October, 2010) that the matter should proceed without the participation of the respondent “at this time”.

14 A statement of opposition was then filed on behalf of the notice party. It was pleaded that Mr. O'Donnell was not the respondent's solicitor, and that they did not know each other. It was expressly denied that the respondent had placed a warning note on the file. (Mr. Campion, on this aspect, averred that his solicitor had written to the Chief State Solicitor's Office asking whether or not such a note had been made, but had not received confirmation one way or the other.) The notice party asserted that the judicial review proceedings were an abuse of process and part of a campaign of vilification by the appellant against the Campion family.

15 Mr. O'Donnell swore an affidavit in which he denied knowing the respondent or having ever acted for him. He averred that he had not recognised him in court. However, he confirmed that Eversheds had acted for him “in the past”. The affidavits sworn by the appellant, notice party and Mr....