Michael O'Callaghan v Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 08 October 2021
• Neutral Citation: [2021] IESC 73
• Court: Supreme Court
• Docket Number: [Supreme Court Record No. 118/2020] [High Court Record No. 1675P/2015]

Between:

Michael O'Callaghan

Plaintiff/Appellant

and

Ireland and The Attorney General

Defendants/Respondents

[2021] IESC 73

Clarke C.J.

O'Donnell J.

MacMenamin J.

Dunne J.

Baker J.

[Supreme Court Record No. 118/2020]

[Court of Appeal Record No. 207/2019]

[High Court Record No. 1675P/2015]

THE SUPREME COURT

Damages – Remittal – Costs – Appellant seeking full costs of the High Court and costs of appeal – Whether a partially successful litigant should be awarded only those costs relating to the successful elements of the proceedings

Facts: The Supreme Court, in a judgment delivered on the 30th September, 2021, held that the appellant, Mr O’Callaghan, was entitled to a declaration that his constitutional right under Article 38 of the Constitution to a trial with due expedition had been infringed, and that this infringement should be marked by an award of €5,000 arising from the constitutional violation. In the course of written submissions on the question of costs, the appellant submitted that it had been expected that the assessment of damages would be remitted to a lower court, should his argument for liability be established. In the Court of Appeal, Ní Raifeartaigh J held that the costs attributable to each of the three issues which had been litigated by the appellant had been (a) delay and right to a fair trial – 45%; (b) miscarriage of justice – 45%; (c) the European Convention on Human Rights (ECHR) cross-appeal – 10%. The appellant submitted that he was entitled to full costs of the High Court and costs of appeal. He suggested that in the Supreme Court he succeeded on the fundamental issue, that is, the establishing of systemic delay, giving rise to the constitutional violation. He submitted that the evidence was not unduly prolonged in the High Court. It was also submitted that the appellant’s conduct before, and during, the proceedings had been “without fault”.

Held by MacMenamin J that remittal would involve unnecessary allocation of court time on what, in the circumstances, would have been, in any case, a redundant and unnecessary “remittal”, because of the nature of the limitation in damages. MacMenamin J rejected the application.

MacMenamin J held that there were no factors in the case which would dislodge the general rule that a partially successful litigant should be awarded only those costs relating to the successful elements of the proceedings. MacMenamin J noted that the claim under common law for miscarriage of justice was rejected both in the Court of Appeal, as, earlier, judges held in the High Court, and the claim under the ECHR was held to be time barred. MacMenamin J found that the question of costs was carefully analysed by Ní Raifeartaigh J and that the allocation of costs which was held appropriate in the Court of Appeal should be applied. MacMenamin J noted that the allocation of time was used in order to calculate what reduction there should be in the respondents’ costs, as, in the Court of Appeal, the appellant was unsuccessful. MacMenamin J would not interfere with the allocation of time in the Court of Appeal order, and applied that formula to the costs to be awarded to the appellant. MacMenamin J held that the appellant was entitled to the full costs of the appeal to the Supreme Court, and 45% of the High Court and Court of Appeal hearings.

Application for remittal rejected. Costs awarded to appellant.

Ruling of the Court delivered by Mr. Justice John MacMenamin dated the 8th day of October, 2021

1 This is a ruling in relation to matters arising consequent upon the judgment, delivered on the 30th September, 2021, in the above appeal. In that judgment, it was held that the appellant was entitled to a declaration that his constitutional right under Article 38 to a trial with due expedition had been infringed, and that this infringement should be marked by an award of €5,000 arising from the constitutional violation.

Damages

2 In addressing the issue of damages, the judgment observed that this question could only be measured on the basis of a period during which the appellant had actually sustained a denial of his right to a trial with due expedition. (para. 116 et. seq.). The judgment made clear that the appellant's detention had been lawful. There was no breach of his constitutional right to liberty, or anything said to flow from such alleged miscarriage or wrongful imprisonment. What was in issue was simply the measurement of a remedy for a specific constitutional tort, that tort being the denial of a right to a trial and appeal with due expedition, which contravened Article 38 of the Constitution.

3 The judgment observed that this was an instance where ECtHR jurisprudence, on the right to a trial within a reasonable time, set out considerations and criteria which were of assistance in assessing the nature and essence of the constitutional right to a trial and appeal with due expedition, derived from Article 38. Thus, it followed, that the level...