McGee and Another v Governor of Castlerea Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 14 June 2023
• Neutral Citation: [2023] IEHC 308
• Court: High Court
• Docket Number: 2023 No. 642 SS

In the Matter of an Inquiry Pursuant to Article 40.4.2° of the Constitution of Ireland

Between

Michael Joseph McGee

Thomas Michael Dignam

Applicants

and

The Governor of Castlerea Prison

Respondent

[2023] IEHC 308

2023 No. 642 SS

THE HIGH COURT

Appearances

The first and second named applicants appeared as litigants in person

James B Dwyer SC and Grainne O'Neill for the respondent instructed by the Chief State Solicitor

JUDGMENT of Mr. Justice Garrett Simons delivered on 14 June 2023

INTRODUCTION

1 The principal judgment in these proceedings was delivered on 19 May 2023, McGee v. Governor of Castlerea Prison [2023] IEHC 248. This supplemental judgment addresses the allocation of legal costs.

2 The within proceedings take the form of an application for an inquiry pursuant to Article 40.4.2° of the Constitution of Ireland. The application was refused for the reasons set out in detail in the principal judgment. The order of the court was drawn up shortly after the delivery of the judgment, and in advance of any determination on costs, so as not to delay the applicants in pursuing any appeal.

SUBMISSIONS

3 The parties were directed to exchange written submissions in relation to the allocation of legal costs. The respondent filed written submissions on 20 May 2023. The first applicant filed a statutory declaration dated 26 May 2023 which addresses, amongst other matters, the question of legal costs.

4 It is submitted on behalf of the respondent that costs should follow the event, i.e. that the respondent, having been successful in resisting the application, is entitled to recover his legal costs as against the applicants. The respondent relies in this regard on the provisions of Section 169 of the Legal Services Regulation Act 2015.

5 In reply, it is submitted on behalf of the applicants that no order for costs should be made. It is submitted that it would be inappropriate to make an order for costs in circumstances where the procedure under Article 40.4.2° is a “ fundamental national right” intended to vindicate the right to liberty of an individual. It is also submitted that this is why stamp duty is not levied on such applications.

DISCUSSION AND DECISION

6 It is correct to say, as the respondent does, that the default position in relation to the legal costs of civil proceedings is that a party who has been “ entirely successful” will ordinarily be entitled to their costs. This is subject to the overarching discretion of the court to make a different form of costs order for stated reason. The types of consideration which can be taken into account in this regard are enumerated in a non-exhaustive list under Section 169 of the Legal Services Regulation Act 2015. Further guidance as to the exercise of the statutory discretion has been provided in recent case law of the Court of Appeal including, in particular, the judgments in Chubb European Group SE v. Health Insurance Authority [2020] IECA 183 and Lee v. Revenue Commissioners [2021] IECA 114.

7 It may be open to question whether these principles apply with full force to an application under Article 40.4.2°. Such proceedings are sui generis and are intended to protect one of the most fundamental of all constitutional rights, namely an individual's right to liberty. In this regard, I respectfully agree with the observations of the High Court (Phelan J.) in H.B. v. Governor of Mountjoy Prison [2022] IEHC 313 (at paragraphs 29 and 30) as follows:

“It seems to me that the costs considerations in an Article 40.4.2 inquiry may not be precisely the same as in other types of proceedings. One difference is that an application for an inquiry into detention may be made by any person if there appear to be grounds for so contending. More fundamentally, the application is rooted in the provisions of the Constitution itself and is unique in this regard. It reflects the primary importance attached in our constitutional order to the protection of liberty and guarding against arbitrary detention and imprisonment without warrant. The central importance of personal liberty under the Constitution means that the detainer has to stand over the detention in law. Given the importance of the Article 40.4.2 inquiry application in safeguarding the constitutional right to liberty, it is essential that cost rules are not developed or applied in a manner which undermines the effectiveness of that great remedy. It is a given that for the remedy to be effective, the Courts must be accessible in a real way and for this it is necessary that lawyers be prepared to act, a position which will only prevail where they are paid for the services they provide. Absent provision for payment for legal services, legal assistance cannot be assured to a person in unlawful detention who wishes to establish that unlawfulness through a court enquiry.

Indeed, it is presumably in recognition of the importance of access to...