Mcdonald, Farrell & Rafferty v Governor of Portlaoise Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Cian Ferriter
• Judgment Date: 14 February 2023
• Neutral Citation: [2023] IEHC 71
• Court: High Court
• Docket Number: Record Nos. 2016/9612P 2016/9610P

Between:

Declan John Rafferty

Fintan Paul O'Farrell and Michael Christopher Mcdonald

Plaintiffs

and

The Governor of Portlaoise Prison, The Minister for Justice, The Attorney General and Ireland

Defendants

[2023] IEHC 71

Record Nos. 2016/9612P

2016/9611P

2016/9610P

THE HIGH COURT

False imprisonment – Costs – Differential costs order – Plaintiffs seeking costs – Whether the plaintiffs were entirely successful in their proceedings

Facts: The High Court (Ferriter J), on 12 January 2023, awarded each of the plaintiffs, Mr Rafferty, Mr O’Farrell and Mr McDonald, damages for false imprisonment of €2,500: [2023] IEHC 13. The plaintiffs sought their full Circuit Court costs, to include a certificate for senior counsel, on the basis that they were entirely successful in their proceedings such as to engage the default rule found in s. 169 Legal Services Regulation Act 2015 that a party who has been entirely successful is entitled to an order of costs against the unsuccessful party. They submitted that the complexity of the issues arising in the proceedings were such as to justify a certificate for senior counsel. In support of their cross-application for a “differential costs order” pursuant to s. 17(5) of the Courts Act 1981, as amended, the defendants, the Governor of Portlaoise Prison, the Minister for Justice, the Attorney General and Ireland, submitted that: (i) it was not reasonable to bring the cases in the High Court, an award of €2,500 was less than 5% of the Circuit Court jurisdiction in false imprisonment cases of €75,000 in damages, it was comprehensively within the Circuit Court jurisdiction and predictably so; (ii) the plaintiffs ought to have known that there was a real risk that they would get very low damages in light of the defences to quantum raised by the defendants; (iii) there was no interconnection between these proceedings and the plaintiffs’ article 40 proceedings which required these proceedings to be issued in the High Court, the cases were eminently suitable for the Circuit Court and could, and should, have been brought there; (iv) the fact that a differential costs letter had not been sent by the defendants was an irrelevant factor and the absence of such a letter did not make the maintenance of the proceedings in the High Court any more justifiable in light of the level of award they achieved; and (v) there was no basis for the proposition that the plaintiffs’ case was a test case as it was never acknowledged or treated as such, certainly not on the defendants’ side, and was run squarely on its own terms.

Held by Ferriter J that this was a case in which the plaintiffs were partially and not entirely successful. In light of the amount of hearing time and written submissions devoted to the issues on which the plaintiffs were successful and the defendants were unsuccessful, he believed an appropriate award of costs would be 75% of the Circuit Court costs. He also believed it would be appropriate to grant a certificate for senior counsel as part of the Circuit Court costs given the complexity and range of the issues involved across liability and quantum. Accordingly, he made an order that the plaintiffs recover 75% of their costs from the defendants, those costs to be assessed on the Circuit Court scale and with a certificate for senior counsel, such costs to be adjudicated in default of agreement.

Ferriter J held that it was not appropriate to grant a differential costs order in favour of the defendants in this case. While the award achieved by each of the plaintiffs was very low, such as to prima facie entitle the defendants to a differential costs order, in his view there were very particular circumstances which amounted to good reason for not making such an order and which led him to the conclusion that it was reasonable of the plaintiffs to have maintained their proceedings in the High Court. Having regard “to the nature of the claim and all the reasons for which the plaintiff’s claim fell within the lower jurisdiction” (being the approach to the application of the statutory test articulated by Murray J in his judgment in the Supreme Court in O’Connor v Bus Átha Cliath [2003] 4 IR 459), Ferriter J refused the defendants’ application for a differential costs order.

Plaintiff’s application granted in part. Defendant’s cross-application refused.

Ruling of Mr. Justice Cian Ferriter on costs, delivered this 14 ^th day of February 2023

Introduction

1 This is my ruling on the plaintiffs' application for costs, and the defendants' cross—application for a “differential costs order” pursuant to s.17(5) of the Courts Act, 1981, as amended, arising from my judgment of 12 January last ( [2023] IEHC 13) in which I awarded each of the plaintiffs damages for false imprisonment of €2,500 (“my judgment”).

The plaintiffs' costs application

2 It is accepted that, in accordance with the terms of s.17(1) Courts Act, 1981, as amended, if I am to award costs to the plaintiffs, those costs can only be on the Circuit Court scale as the Circuit Court was the lowest court which had jurisdiction to make an order for damages of €2,500 for false imprisonment (the District Court has no jurisdiction to hear and determine false imprisonment claims).

3 The plaintiffs seek their full Circuit Court costs, to include a certificate for senior counsel, on the basis that they were entirely successful in their proceedings such as to engage the default rule found in s.169 Legal Services Regulation Act, 2015 (“s.169”) that a party who has been entirely successful is entitled to an order of costs against the unsuccessful party. They submit, further, that the complexity of the issues arising in the proceedings were such as to justify a certificate for senior counsel. The defendants dispute that the plaintiffs were entirely successful within the meaning of s.169 and say that the plaintiffs should be entitled to no more than 50% of their costs on the Circuit Court scale, with no certificate for senior counsel.

4 Section 168 of the 2015 Act addresses the general power of the court to order costs. S.168(1) of the 2015 Act provides that “ a court may, on application by a party to civil proceedings, at any stage in, and from time to time during, those proceedings (a) order that a party to the proceedings pay the costs of or incidental to the proceedings of one or more other parties to the proceedings.” S.168(2)(d) empowers a court, where a party is partially successful in proceedings, to order costs relating to the successful element or elements of the proceedings. S.169 provides that “ A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties…”

5 These provisions were considered by Murray J. in his judgment in the Court of Appeal in Higgins v Irish Aviation Authority [2020] IECA 227. When considering the proper approach to the question of assessing whether a party was “entirely successful” within the meaning of s.169, Murray J. said (at para. 16) that he was inclined to agree with what Simons J. described as the “pragmatic conclusion” reached by him (Simons J.) in Náisiúnta Leichtreach Contraitheoir Éireann v the Labour Court [2020] IEHC 342 namely that in determining whether a party has been successful for the purposes of s.169 (1), “ the correct approach is to look beyond the overall result of the case and to consider whether the proceedings involve separate and distinct issues.”

6 As is clear from my judgment, these proceedings involved a number of separate and distinct issues on both liability and quantum. The defendants mounted a vigorous defence on liability, claiming that the Governor was protected by the defence of justification when acting on foot of the warrants which resulted in the plaintiffs' unlawful detention in Portlaoise prison and that, as a fall-back, the plaintiffs were not entitled to succeed on the grounds of consent, waiver, acquiescence and/or estoppel. The defendants lost on those issues. In relation to quantum, the defendants maintained that the plaintiffs were entitled to no damages, or next to no damages, on the basis of the doctrine of contemptuous damages. The defendants lost on that issue. However, the defendants did succeed in defeating the plaintiffs' principal contention in support of their claim for substantial damages, namely that a period of some 4 years of actionable false imprisonment entitled them to substantial damages notwithstanding their underlying conduct in the commission of the offences for which they were convicted and notwithstanding that they had been validly sentenced to a period of imprisonment in England which was longer than the period of imprisonment in fact served in Ireland.

7 In my view, this is accordingly a case in which the plaintiffs were partially and not entirely successful. In...