Landers v Judge Patwell & DPP

• Jurisdiction: Ireland
• Judge: MR. JUSTICE T.C. SMYTH
• Judgment Date: 20 June 2006
• Neutral Citation: [2006] IEHC 248
• Court: High Court
• Date: 20 June 2006

[2006] IEHC 248

THE HIGH COURT

DUBLIN

Record No. 2001/828JR

LANDERS v JUDGE PATWELL & DPP

JUDICIAL REVIEW

PAUL LANDERS

APPLICANT

-and-

JUDGE PATWELL & THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

RSC O.99 r38(3)

ROAD TRAFFIC ACT 1961 S106

LANDERS v DPP 2004 2 IR 363

ADAMS v REILLY 2005 3 IR 190

A(A) v MEDICAL COUNCIL 2003 4 IR 302

TYNAN, STATE v KEANE 1968 IR 348

SWEENEY v BROPHY 1993 2 IR 202

COURTS & COURT OFFICERS ACT 1995 S27(3)

SMYTH v TUNNEY (NO 3) 1999 1 ILRM 211

CRONIN v ASTRA BUSINESS SYSTEMS LTD (NO 2) 2004 3 IR 476

COURTS & COURT OFFICERS ACT 1995 S27(1)

COURTS & COURT OFFICERS ACT 1995 S27(2)

RSC O.99 r27(22)(II)

BEST v WELLCOME FOUNDATION LTD & ORS 1996 3 IR 378 1996 1 ILRM 34

P & F SHARPE LTD v DUBLIN CO MANAGER & ANOR 1989 ILRM 565

SUPERQUINN LTD v BRAY URBAN DISTRICT COUNCIL (UDC) & ORS 2001 1 IR 459

QUINN v SOUTH EASTERN HEALTH BOARD UNREP PEART 30.11.2005 2005 IEHC 399 2005/51/1076

GALLAGHER v STANLEY UNREP KEARNS 23.3.2001 2001/10/2697

GARLAND v DPP UNREP TAXING MASTER (EX TEMPORE)

KENNEDY v INDEPENDENT NEWSPAPERS UNREP TAXING MASTER 14.12.1998 (EX TEMPORE)DOYLE v DEASY & CO LTD & GUINNESS (IRL) GROUP LTD UNREP O CAOIMH 21.3.2003 2003/13/2715

HAROLD v JAMESON UNREP O CAOIMH 31.7.2001 2001/11/3178

Abstract:

Practice & Procedure - Taxation of costs - Judicial Review - Complexity of case -Possibility of a custodial sentence - RSC O. 99 r. 38(3)

: The DPP sought to review the taxation of costs by the taxing Master as to the Applicant’s solicitor instruction fee pursuant to O. 99 r. 38(3) RSC. The Applicant was successful in a judicial review application where he sought to prohibit the first respondent from further conducting the trial on grounds of bias and was awarded his costs in include all reserved costs, to be taxed in default of agreement. The Applicants solicitor’s instruction fee of €75,000 was considered by the Taxing Master, who allowed a fee of €60,000. The DPP contended that the Taxing Master had erred as to the complexity of the work done and to comparative materials.

Held by Smyth J., the Taxing Master had erred in failing to deal with comparative evidence and was unjust to the respondent. A comparative case was in the sum of Eur38,000, with a possibility of a custodial sentence adding a figure of between 5 to 20%. The instruction fee here should properly have been assessed at Eur45,000.

Reporter: E.F.

JUDGMENT OF

MR. JUSTICE T.C. SMYTH DELIVERED ON TUESDAY, 20TH JUNE 2006

1 I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named matter

GWEN MALONE

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APPEARANCES

For the APPLICANT:

MR. D. MCDONALD SC

Instructed by:

MARTIN MORAN & CO.

46 ADELAIDE ROAD

DUBLIN 2.

For the RESPONDENT:

MR. B. KENNEDY BL

Instructed by:

CHIEF PROSECUTIONS

SOLICITOR

4 COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services

5 JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED THE 20TH JUNE 2006

6 MR. JUSTICE SMYTH: In these proceedings the Director of Public Prosecutions ('the Director') seeks to review, pursuant to Order 99, Rule 38(3) of the Rules of the Superior Courts, the taxation of costs in these proceedings by Taxing Master James Flynn, insofar as the same relates to the Applicant's Solicitor's general instruction fee.

7 The Applicant in these proceedings was a member of An Garda Siochána attached to the Special Detective Unit. He was charged with an offence contrary to Section 106 of the Road Traffic Act, 1961 (which relates to a party's obligations on the occurrence of a road traffic accident) and appeared in the District Court before the First Respondent. The Applicant considered the course of the trial to be unsatisfactory and was concerned that the First Respondent did not approach the matter with an open mind and in an impartial fashion. He sought leave to apply by way of judicial review for an order of prohibition restraining the First Respondent from further conducting the trial. The judicial review was opposed by the Respondents and the case proceeded to a plenary hearing (on the basis of conflicting facts in the affidavits and the unwillingness of a solicitor to swear and supply affidavit evidence). The Applicant after a two day hearing was successful. The Applicant was awarded his costs, to include all reserved costs, such costs to be taxed in default of agreement.

8 The Applicant's Solicitor claimed a general instructions fee of €75,000. The Taxing Master on 13th February 2004 allowed a fee of €60,000; the Respondents filed an objection on 26th March 2004 and following the filing of submissions by the parties, the matter came on for hearing before the Taxing Master on 24th January 2005. In a written ruling, dated 15th March 2005, the Taxing Master disallowed the objection. The Director (by Notice of Motion dated 11th April 2005) sought to review the taxation in respect of the general instructions fee.

9 The claim of the Director is that the decision is unjust in that the Taxing Master erred in his examination of the nature and extent of the work done by the Solicitor for the Applicant and, in particular, with regard to its complexity and in his assessment of comparative evidence. Particular reliance was placed on a comparable case of similar "complexity" in which a general instructions fee of €38,000 was agreed.

10 I have had the benefit of reading all the papers in the Judicial Review proceedings (Record No. JR 828/2001), the ex tempore judgment of O Caoimh J., dated 2nd May 2003, who stayed the proceedings in the District Court pending the judicial review application in which he expressed the view: "I believe that the instant case is of a fairly exceptional nature" because "one could only construe what took place" [in the District Court] "as the judge entering into the arena." As no order was sought prohibiting further prosecution, the judicial review proceedings were determined by Kearns J. in Landers v Director of Public Prosecutions [2004] 2 I.R. 363 - he referred to "the conclusion of a lengthy hearing before Judge Patwell," this I understand refers to the events as recorded in the first paragraph of page 373 of the report. The problem that arose in the District Court seems to have centered "during the cross-examination of the applicant, which lasted for approximately 20 minutes." (See affidavit of Inspector Patrick McCarthy sworn on 18th February 2002, paragraph 27).

The passage from the judgment of Kearns J. states:-

11 "In the instance case, it appears that the hearing of the prosecution against the applicant had taken most of the day before the District Court Judge. A large number of civilian and Garda witnesses had been called by the Prosecution and the applicant himself had completed his own evidence and had been cross-examined in respect of same. The interventions by the District Court and the nature of those interventions have already been found by O Caoimh J. to have prevented a trial in accordance with constitutional requirements.

12 Would it be fair in those exceptional circumstances, or a proper exercise of the court's discretion, to remit the matter for a further trial before the District Court? In my view it would not."

13 While judicial review proceedings are generally based on affidavit evidence, they are from time to time, as occasion demands, heard by way of plenary hearing. Whether the circumstances of staying a trial are fairly exceptional or exceptional (an issue considered recently by Macken J. in Adams v Reilly [2005] 3 I.R. 190), they are not normal, nor are they unique. While undoubtedly all that was necessary was one set of judicial review proceedings, the Applicant was not faulted by Kearns J. for failure to do so and the Judge considered that it was reasonable for the Applicant and his legal advisors to take the view based on existing jurisprudence ( A.A. v Medical Council [2003] 4 I.R. 302 Supreme Court decision published 19th December 2003), and the facts of the particular case that a fresh prosecution of the Applicant would not be sought.

14 In his submissions to this Court, Mr. Denis McDonald SC noted that: "… the bill of costs records, the Applicant had a genuine fear (which was shared by his solicitors) that Judge Patwell was intent not only on convicting the Applicant, but upon imposing a custodial sentence." Having closely read the affidavits of the Applicant in the judicial review proceedings, I am satisfied that when before the District Court he was apprehensive of conviction - nowhere in such affidavits or in either the judgments of O Caoimh J. or Kearns J. is there any record of the fear of a custodial sentence. The only references to imprisonment in the judgment of Kearns J. are at:

15 (i) p. 367 where a passage of the judgment of Walsh J. in The State (Tynan) v Keane [1968] I.R. 348 at p. 355 is cited, regarding a submission of counsel

16 (ii) p. 368 where a passage of the judgment of Hederman J. (delivering the judgment of the Supreme Court) in Sweeney v Judge Brophy [1993] 2 I.R. 202 at pp. 211 and 212 which refers to "a length of time in detention."

17 The jurisdiction of the High Court to review a taxation of costs is governed by Section 27(3) of the Courts and Courts Officers Act, 1995 which provides as follows:-

"The High Court may review a decision of the Taxing Master of the High Court … made in the exercise of his …...