M.C v Clinical Director of the Central Mental Hospital

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 07 March 2019
• Neutral Citation: [2019] IECA 80
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2016/472
• Date: 07 March 2019

[2019] IECA 80

THE COURT OF APPEAL

Peart J.

Peart J.

Whelan J.

McGovern J.

Record Number: 2016/472

BETWEEN:

M.C.

APPLICANT/APPELLANT

- AND -

CLINICAL DIRECTOR, CENTRAL MENTAL HOSPITAL

RESPONDENT

- AND -

MENTAL HEALTH (CRIMINAL LAW) REVIEW BOARD

NOTICE PARTY

Costs – Moot proceedings – Public interest – Respondent seeking to cross-appeal part of the order of the trial judge that ordered that the respondent pay 50% of the costs of the appellant in the High Court – Whether the appellant was acting in the public interest

Facts: In the notice of the respondent, the Clinical Director of the Central Mental Hospital (CMH), filed in the Court of Appeal, the CMH cross-appealed part of the order of the trial judge that ordered that the CMH pay 50% of the costs of the appellant in the High Court, notwithstanding that the proceedings had become moot. The respondent submitted that: (i) the case could not be properly regarded as a test case on a public law issue of general importance; (ii) the case could not be properly considered to be a public law challenge and was unlike a number of cases referred to by the authors Delany & McGrath as coming within the meaning of a “public interest challenge”; and (iii) while acknowledging that the High Court enjoys a wide discretion in relation to an award of costs, there was no proper basis in this case for exercising that discretion by awarding the appellant 50% of the costs in the High Court in circumstances where the proceedings had become moot by reason of an external event outside the control of the CMH, and where, therefore, there was no determination of the issues raised by the appellant.

Held by Peart J that the case was not a test case in the sense in which that phrase must be understood. Peart J held that the case did not raise an issue of general public importance. Peart J held that the appellant was not acting in the public interest. Peart J held that the order made could not be said to be in accordance with established principles.

Peart J held that he would vacate the order made. It had been indicated by the respondent that it would be content in all the circumstances that no order would be made against the appellant in relation to the costs in the High Court. Peart J held that he would therefore make that order.

Cross-appeal allowed.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 7TH DAY OF MARCH 2019

1 Following the delivery of this Court's judgment on the 18th January 2019, two issues remain for determination. Firstly, in the respondent's notice filed in this Court, the CMH cross-appealed that part of the order of the trial judge that ordered that the CMH pay 50% of the costs of the appellant in the High Court, notwithstanding that the proceedings had become moot. Secondly, the costs of the unsuccessful appeal itself. It is agreed that the question of the costs of the appeal itself should await the outcome of the respondent's cross-appeal against the costs order made in the High Court.

The cross-appeal

2 The trial judge made an order in favour of the appellant in respect of 50% of her High Court costs notwithstanding that he considered the proceedings to be moot following her absolute discharge from the CMH.

3 The trial judge's reasons for making such an order are set forth at para. 18 of his costs judgment dated 25th July 2016 ( [2016] IEHC 467) as follows:-

‘18. Whilst it is clear in this case that this was an application seeking to provide for the private interests of the applicant, I am also satisfied that the proceedings in this case have raised public law issues which are of great importance. This Court also distinguishes the Supreme Court decision of The Child and Family Agency v. O.A [2015] IESC 52 from the present case on its facts, as that case dealt with District and Circuit Court issues, which had been a cause of concern for some years. In those circumstances I am exercising my discretion on the basis of these factors to require the respondents to pay 50% of the applicant's costs of and incidental to the proceedings.’

4 Immediately prior to so stating, the trial judge, at para. 17 referred to a passage from Delany & McGrath: Civil Proceedings in the Superior Courts, 2nd Ed. (Round Hall, 2005) in relation to certain categories of case considered to be exceptional cases warranting a departure from the normal rule...