Patrick Taaffe v Judge Mcmahon and Others

JurisdictionIreland
JudgeMR. JUSTICE BIRMINGHAM
Judgment Date26 April 2012
Neutral Citation[2012] JILL-IEHC 042601
CourtHigh Court
Date26 April 2012

[2012] JILL-IEHC 042601

THE HIGH COURT

Taaffe v Judge McMahon & Ors
DUBLIN
PATRICK TAAFFE
Applicant
JUDGE MCMAHON, COMMISSIONER OF AN GARDA SÍOCHÁNA, DIRECTOR OF PUBLIC PROSECUTIONS
Respondents

RSC O.99 r5

RSC O.99 r37

RSC O.99 r10

MR. JUSTICE BIRMINGHAM
1

Gwen Malone stenography Services certify the following to be a true and accurate transcript of the stenographic notes in the above-named action.

APPEARANCES

For the Applicant:

MR. F. McDONAGH SC

Instructed by:

FH O'REILLY

NORTH CIRCULAR ROAD

PHIBSBORO

DUBLIN 7

For the Respondent:

MR. P.A. MCDERMOTT BL

Instructed by:

CSSO

LITTLE SHIP STREET

DUBLIN 8

2

COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services

3

MR. JUSTICE BIRMINGHAM: The circumstances in which I am delivering these two rulings are somewhat unusual and I think it is appropriate that I offer some context, not least the unusual aspect and indeed in my experience unique, the question of whether this is a case that there should be a reserved judgment as distinct from a summary ruling is itself the subject of controversy and sharp disagreement between the parties.

4

The matters now in issue arise from the fact that both Mr. Taaffe and Mr. O'Connell brought judicial review proceedings successfully. In the case of Mr. Taaffe he had been charged with a public order offence arising out of an alleged failure to pay a taxi fare. He was released on station bail to appear at a particular sitting of the District court but it transpired that he was going to be out of the jurisdiction on the day in question, he is an airline pilot.

5

Contact was made with the prosecuting garda who agreed that he as the prosecuting garda wouldn't seek a warrant in the absence of the Applicant from court if the Applicant was represented at the District Court hearing. However when the matter was listed in the District Court a bench warrant was issued by the Judge presiding. This was issued without any evidence of arrest, charge or caution being heard, without any application on behalf of the prosecution and in a situation where the prosecuting garda had agreed that the Defendant need not attend.

6

In the Leigh O'Connell case the Applicants sought orders prohibiting a judge in the District Court from expanding an application to consider activating a suspended sentence into one involving the forfeiture of a number of probation bonds that had been entered into in relation to wholly separate and distinct charges. Hardly surprisingly in both cases the DPP did not resist the applications.

7

The controversy relates to the Applicant's entitlement to costs. That controversy developed in a situation where in 2010 and 2011 in a number of cases judges had agreed to a suggestion from the DPP to measure costs. It may be noted that in those cases where costs were measured the figures arrived at were a fraction of the figures that might have been expected to have been achieved if the matter went to taxation and was dealt with in the traditional way.

8

However something of a divergence of approach began to emerge. A number of judges were prepared to measure costs and did so summarily but others balked at the suggestion. Mr. Justice Peart by way of example indicated his lack of enthusiasm for the practice in the case of Murphy and the Governor of clover Hill, 8th July 2011. In these circumstances the appropriateness or otherwise of the High Court measuring costs was the subject of a hearing before the President, Mr. Justice Kearns, in July 2011 who delivered a reserve judgment on the 28th October 2011. The judgment is entitled Taaffe and the Governor of Clover Hill but I have been told by counsel that both the Taaffe case and the O'Connell case were argued together before the President.

9

In the course of his judgment the President concluded that he was quite satisfied that order 9952A confers the power on judges of the High Court to measure costs and he indicated that he proposed to measure costs in that case, the Taaffe case, and in a number of other cases of a similar type that were pending. He concluded his judgment by indicating he was allowing a period of 28 days from the judgment to allow the parties consider the position on the basis that that period could be utilised either to agree costs or to prepare an appeal to the Supreme Court. Subsequently the President decided that having regard to the amount of information that he had been given about the figures that were under discussion between the parties that he would recuse himself.

10

In a situation where there has already been a detailed written judgment counsel on behalf of the DPP says that a further written judgment in the same case would be inappropriate. Indeed he says that what the Applicants are about is that they are in fact seeking to appeal the judgment of the President. In contrast the Applicants categorise the judgment of the 28th October 2011 as an interim judgment and say the matter now before the Court is in the nature of a test case and that a judgment setting out in detail the approach to be adopted would be helpful.

11

I am satisfied that the question of whether costs should be measured has been determined by the President and that it would not be appropriate for me to reopen that issue. I am of that view, although cognizant of the fact that the President of the call over had clarified for the Applicants that the judge to whom the case was going to be assigned was not precluded from remitting the matter to taxation. But fundamentally I don't believe it appropriate that the same issue should be argued twice in the same case before different judges of the same jurisdiction.

12

In deciding to measure costs, which is what I propose to do, I am conscious that costs have been measured in a number cases and that costs have also been agreed in a larger number of cases. I am also conscious of the practice direction of the 23rd February 2012 and that practice direction would make little sense unless it was expected that measuring costs would be commonplace in straightforward judicial review proceedings.

13

At the heart of the dispute between the Applicant and the Respondent is as to how one is to interpret Order 99 Rule 5 to...

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