O'Regan v Taxing Master ; O'Driscoll (A Minor) v Taxing Master ; Lambert v Mulcahy ; McCutcheon v Taxing Master
| Jurisdiction | Ireland |
| Judge | Mr. Justice White |
| Judgment Date | 16 November 2017 |
| Neutral Citation | [2017] IEHC 840 |
| Date | 16 November 2017 |
| Court | High Court |
| Docket Number | [2014 No. 263 J.R.] [2014 No. 264 J.R.] [2014 No. 384 J.R.] [2015 No. 685 J.R.] [2015 No 685 JR] |
[2017] IEHC 840
THE HIGH COURT
JUDICIAL REVIEW
White Michael J.
[2014 No. 263 J.R.]
[2014 No. 264 J.R.]
[2014 No. 384 J.R.]
[2015 No. 685 J.R.]
[2015 No 685 JR]
AND
AND
Practice & Procedure – Judicial review – Order of mandamus – Order for costs – Taxation of costs – Art. 40.3 of the Constitution – O. 99 of the Rules of the Superior Courts, 1986 – Public importance – Live issues
Facts: Four cases were clubbed on the issue of taxation of costs. The issues were now moot and the only issue that remained to be answered was as to whether there existed exceptional circumstances that would allow the hearing of the outstanding issues between the parties. The respondent wished to have the remaining issues determined by the Court, particularly about her reputation.
Mr. Justice White held that the issues were moot and there were no issues of exceptional public importance that the Court would consider. The Court, however, observed that certain live issues needed to be determined by the Court before finalising any order for costs wherein the propriety of bringing the applications, the nature of the allegations made by the applicants, and the conduct of both the parties, would be an issue.
This application relates to four separate judicial review proceedings on the taxation of costs in medical negligence proceedings.
The reliefs sought in each judicial review application are broadly similar. In O'Regan, the leave order was granted on 1st May, 2014. the Applicant sought an order of mandamus that the first named Respondent shall without further delay adjudicate on the allowances to be made on the taxation proper and conclude the taxation of costs on foot of an order of the High Court of 20th May, 2011, in proceedings entitled James O'Regan (Plaintiff) v. Faud Aftab & Health Service Executive (Defendants), Record No. 2009/3931P. A declaration was sought that the Applicant was entitled to have the costs awarded to him by order of the High Court taxed pursuant to statute and the rules of this honourable court within a reasonable time, and in the manner and form prescribed by statute and the rules of this honourable court, and that there has been a breach of the Applicant's said right.
The grounds upon which the relief was sought were:-
(i) The first named Respondent's failure to conduct the said taxation in accordance with the requirements of O. 99, RSC 1986 and the established practice of the Taxing Master's Court and the taxation of costs.
(ii) The delay in the conclusion of the said taxation is in breach of the Applicant's rights under Article 40.3 of the Constitution, Article 6.1 of the European Convention on Human Rights and s. 3(1) of the European Convention on Human Rights Act 2003.
The reliefs sought in O'Driscoll were the same except they related to an order for costs of the High Court of 20th February, 2013, in proceedings between Michael O'Driscoll (a minor suing by his mother and next friend, Breda O'Driscoll) v. The Health Service Executive [2010 No. 10916P]. The leave order was granted on 1st May, 2014.
In Lambert, leave was granted on 7th July, 2014, seeking similar reliefs on similar grounds in respect of an order for costs of 8th October, 2013, Nicola Lambert v. Health Service Executive [2012 No. 3358P].
Louise McCutcheon was granted leave to bring an application for judicial review on 7th December, 2015, seeking:-
(i) An order of mandamus directing and requiring the Respondent to fix a date for the hearing of, and to conclude the taxation of costs on foot of the order of the High Court of 11th March, 2014, in proceedings entitled Louise McCutcheon v. Andrew Curtin, South Infirmary Victoria University Hospital and Johnson & Johnson (Ireland) Ltd [2010 No. 6097P].
(ii) A declaration that the Applicant is entitled to have the costs awarded to her by order of the High Court taxed within a reasonable time and alleging a breach of the applicant's said right.
(iii) A declaration that the delays in the taxation of the applicant's costs are in breach of Article 40.3 of the Constitution, Article 6.1 of the European Convention on Human Rights and s. 3(1) of the European Convention on Human Rights Act 2003.
The grounds upon which relief was sought was similar to the other three judicial review applications.
In each application there is a dispute about the factual chronology of the process of taxation and the judicial review proceedings.
In the first application the taxation of costs and ruling on objections were completed on 12th October, 2015. The Applicant subsequently issued a motion to this Court to review the final orders on taxation and ruling on objections.
In the second application the taxation and ruling on objections were completed on 12th October, 2015. The Applicant has issued a motion to this Court seeking to review the final order on taxation of costs.
In the third application the taxation of costs and ruling on objections were finalised on 2nd November, 2015.
The fourth Applicant's taxation of costs had not been finalised as of the date of hearing before this Court on 23rd March, 2017. The first Respondent has ceased to hold the office of Taxing Master.
The Applicants in all four judicial review applications have submitted that they are now moot, as the taxation process in the first three applications has concluded, and in the fourth application the taxation cannot be concluded by the first Respondent.
There is dispute between the parties on what transpired at hearings of this Court in respect of the first three applications on 9th and 10th June, 2015, before the then President, Kearns J., and on 30th June, 2016, in respect of all four applications before Noonan J.
All four applications were listed for hearing before this Court on 14th December, 2016. It was agreed between the parties that this Court would have to determine the consequences of the court hearings on 9th and 10th June, 2015, and 30th June, 2016, and to decide if the applications are moot, and if they are moot, are there exceptional circumstances which would allow the hearing of outstanding issues which the Respondent wishes to have litigated.
The first three applications came before the President for hearing on 9th June, 2015, he stated:-
'Before proceedings get underway, I should perhaps indicate that I am aware that time was sought from this Court and talks between the parties have taken place. The court would be disposed to postpone commencing this case until two o'clock in the context of encouraging the parties to see if differences, however, intractable they may appear to be can be resolved before things are said that cannot be unsaid, so to speak and this case will last, it seems to me some considerable time......I would therefore encourage the parties in the strongest possible terms to persevere with and hopefully bring these discussions to a fruitful conclusion if that was possible.'
Discussions continued between the parties until the following day, 10th June, 2015, when Mr. McGarry on behalf of the three Applicants informed the court that discussions had taken place but they were not able to agree to resolve everything.'
On 10th June, 2015, the President was anxious to ensure that the taxation of the costs in the three applications were finalised and an indication was given that this could be completed by either before the end of July 2015, or the end of September 2015.
The President then stated:-
'The court is strongly of the view that this remedy first in terms of the actual citizens who are entitled to have their costs tax be undertaken. I am told that can be done and I am told that the Taxing Master who is the Respondent here is willing to do it and the Plaintiff's advisers are willing that she should do it. There are obviously other matters that will have to be addressed in the aftermath of that exercise insofar as matters in the background are concerned and assertions that have been made but I think they are more easily dealt with against the background of this matter having been concluded than they are now.'
He went on to state:-
'I mean nobody is going to shut out anybody from saying what they want at a later stage. I can understand a strong sense of injustice being felt on both sides of this divide.'
The matter was then adjourned to 13th October, 2015, and further for mention to 3rd November, 2015, when the Applicants in the first three applications contended the matters were now moot save for the issue of costs. The Respondent disputed this and contended outstanding matters had to be listed and accordingly the President allocated a hearing date of 15th March, 2016.
The conclusion this Court draws from those hearings is that the Court was anxious that the underlying central issue in the dispute the taxation of costs be finalised but that there were other issues outstanding to be dealt with. There was no ruling by the court on any of these occasions that the applications were moot, and the first three Applicants could not have been in any doubt from those hearings, that the Respondent wished to have outstanding issues particularly about her reputation determined by the court.
The fourth Applicant applied for judicial review and the...
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O'Regan v Taxing Master
...– Taxing master Facts: Several judicial review applications had been settled substantively in an earlier judgment in 2017 (see [2017] IEHC 840). 6 separate matters were now before the Court to determine in respect of costs. Held by the Court, that 6 separate orders in respect of costs would......