Minister for Justice v McPhilips

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton,Mr. Justice John Murray
• Judgment Date: 18 May 2015
• Neutral Citation: [2015] IESC 47
• Docket Number: [Appeal Nos. 217/11 & 410/12],[S.C. Nos. 217 of 2011 & 410 of 2012]
• Court: Supreme Court
• Date: 18 May 2015

[2015] IESC 47

THE SUPREME COURT

Murray J.

MacMenamin J.

Charleton J.

[Appeal Nos. 217/11 & 410/12]

Between

Minister for Justice, Equality & Law Reform

Appellant

and

Noel McPhilips

Respondent

Minister for Justice, Equality & Law Reform

Appellant

and

Gerry McGinley

Respondent

Crime & sentencing – Extradition – European Arrest Warrant –Refusal of surrender applications – Whether costs order could be made against respondent Minister – S 16 European Arrest Warrant Act 2003

Facts: Both respondents were the subject of European Arrest Warrants seeking their surrender to Belgium. The applications by the appellant for surrender had been refused and the respondents had applied for costs against the appellant. The Court at first instance had granted the costs orders and the appellant now brought the matter before the Supreme Court

Held by Murray J, MacMenamin J concurring, that a preliminary issue arose as to whether the appellant could appeal solely the portion of the judgments below that related to the costs orders. Having considered the restriction in s 16 of the European Arrest Warrant Act 2003 on appeals, the Court was satisfied that the costs orders formed part of the ‘decision’ in the case. Accordingly, s 16 restricted any appeals on a decision to those cases where the High Court had issued a certificate under 16. The High Court had not done so in this case, and the appeal would be struck out. Canty v Private Residential Tenancies Board and another [2008] IESC 24 applied.

Charleton J handed down a dissenting judgment.

JUDGMENT of Mr. Justice John Murray delivered the 18th day of May, 2015

1 These two appeals were heard together involving as they do an appeal by the Minister raising essentially the same legal issue in each case. In each case the Minister had applied to the High Court, pursuant to s.16 of the European Arrest Warrant Act, 2003, for the surrender of each of the respondents to Belgium. Belgium had issued separate European Arrest Warrants in respect of each of the respondents. Otherwise the offences, the subject matter of the separate warrants are connected, although the surrender of the respondent, Gerry McGinley, was in respect of significantly more offences than in the case of the respondent, Noel McPhilips. However, any connection between the offences alleged against the respondents is not material to the issues in this appeal. The relevant matter which is common to both cases, and the reasons why both appeals have been heard together, is that in each case the respective trial judges, having refused the appellant's applications for surrender, made an order for costs in each case against the appellant in favour of the respondent. The Minister has appealed against the order for costs made by the High Court in each case consequent upon the refusal or dismissal of his applications pursuant to s.16. In the case of Noel McPhilips that application was simply refused, and in the case of Gerry McGinley the Belgian government decided not to pursue any further its request for surrender on foot of the warrant. Accordingly, the court decided to refuse the application and made an order striking it out.

2 The essence of the Minister's contention on appeal is that the respondents having, at the outset of the EAW proceedings, respectively indicated that they wished to benefit from the Attorney General Scheme as to their costs, were not entitled to subsequently resile from this commitment so as to seek and obtain an order for costs in the ordinary way from the Court, following the decision not to make an order for surrender in either case. The facts and circumstances of each case are referred to in summary form hereunder.

Preliminary Issue

3 As is explained later in this judgment an issue arises in this appeal, which the Court has treated as a preliminary issue in the light of the statutory restrictions on an appeal in s.16(11) of the Act of 2003, as to whether the appellant is entitled to appeal the decisions of the High Court in each of these cases on a question of costs only.

Background Facts in the Case of Noel McPhilips

4 A European Arrest Warrant in respect of Mr. Noel McPhilips was endorsed for execution by the High Court on the 2nd June, 2010, which led to that respondent being arrested and brought before the High Court on the 19th June, 2010, pursuant to the provisions of s.13(5) of the European Arrest Warrant Act, 2003, as amended. At that point it is accepted that an indication was given to the High Court by the respondent's counsel that the respondent would be seeking a recommendation concerning costs of legal representations pursuant to the Attorney General's Scheme. This was in accordance with the requirements of that scheme, where a litigant must indicate his or her intention to apply for the scheme at the outset of proceedings.

5 Subsequently, this particular case was listed for mention in the High Court on multiple dates without any indication being given by the respondent or his counsel that they did not wish to rely on the Attorney General's Scheme. By letter dated the 17th November, 2010, and prior to the hearing of the application, pursuant to s.16 of the Act, the solicitor for the respondent wrote to the Chief State Solicitor conveying that he did not propose to rely on the Attorney General Scheme. This was the first such indication.

6 The EAW proceedings in respect of Mr. McPhilips were heard in the High Court on the 24th November, 2010. Having heard the appellant's application for the respondents surrender, the learned trial judge refused to order the surrender. He adjourned the question of costs to a later date, and gave his ruling on the question of costs on the 30th March, 2011. An issue raised in the High Court, on behalf of the appellant, was his contention that once a litigant had indicated they were opting to rely on the Attorney General's Scheme in particular proceedings, they could not then resile from that option under the terms of the Scheme as properly understood, or alternatively they were estopped from resiling from it.

7 The learned trial judge awarded costs to the respondent against the appellant, to the effect that the costs up to the date of hearing, 24th November, 2010, were not to exceed the level of costs and fees under the Attorney General Scheme, and the costs thereafter were on the normal party and party basis.

8 In his ex tempore judgment the learned trial judge, Peart J., ruled as follows:

‘ I have reached the conclusion that there is no estoppel, if you like, which arises from the fact that the Attorney General's Scheme was sought at the outset. It was inevitable in extradition matters, European Arrest Warrant matters, that when a person is first brought before the court following arrest, there would not be sufficient time between the arrest and his being brought before the court for all the issues that might arise in the proceedings to be known and considered at that point. It would be a wiser caution, in my view, for a Respondent who may feel it necessary to avail of the Attorney General Scheme to so indicate at the outset. But I don't feel that the Respondent should be precluded from altering that course at some stage, should legal advice to that effect be given to them.’

Background Facts in the Case of Gerry McGinley

9 Mr. McGinley was also brought before the High Court on foot of a European Arrest Warrant on the 20th January, 2011. An indication was given at that time to the court by his counsel that he would be relying on the Attorney General's Scheme as regards the costs of legal representation. Subsequently, the respondent filed his points of objection in the proceedings on the 8th March, 2011, which included a statement that he would not be availing of the Attorney General's Scheme. The application for an order directing his surrender, pursuant to s.16 of the 2003 Act, remained pending before the High Court until 19th July, 2012. On that date the application for his surrender, pursuant to s.16 of the Act, was refused and struck out by the High Court in the light of a decision of the Belgian authorities not to pursue its request for surrender.

10 On the 30th July, 2012, the learned trial judge in that case granted an order for costs to the respondent against the appellant. Again in that case the appellant had argued that once a respondent in proceedings such as this indicated to the High Court that he was opting to avail of the Attorney General Scheme, he was not entitled to subsequently withdraw from that position and seek costs against the Minister.

11 The ruling of the High Court by Mr. Justice Edwards on the order for costs was in the following terms:

‘ That the Respondent do recover his costs against the Applicant on the following basis:

(a) From the date of arrest to the 8th day of March, 2011, such costs to be limited to so much as he would have recovered on foot of a recommendation under the Attorney General's Scheme;

(b) From the 8th day of March, 2011 to date, full costs on a party and party basis to be taxed in default of agreement;

(c) In the event of an appeal, payment out on account in respect of the costs at (a) and (b) above limited to so much as would have been recovered on foot of a recommendation under the Attorney General's Scheme, said amount to be paid within three months of presentation of bill;

(d) Stay on the difference between the amount paid out on account pursuant to (c) above and full costs recoverable on a party and party basis to be taxed in default of agreement, until the hearing of any such appeal.’

12 Apparently the reason for the stay was that the appellant had indicated his intention to appeal against the order for costs awarded in this case.

13 One would note in passing that historically the Attorney General Scheme required that the party seeking to rely on it should indicate to the...