O'Regan v Taxing Master
| Jurisdiction | Ireland |
| Judge | Mr. Justice White |
| Judgment Date | 05 February 2018 |
| Neutral Citation | [2018] IEHC 854 |
| Date | 05 February 2018 |
| Court | High Court |
| Docket Number | [2014 No. 263 J.R.] [2014/384JR.] [2015 No 685JR] |
AND
AND
[2018] IEHC 854
White
[2014 No. 263 J.R.]
[2014 No. 264 J.R.]
[2014/384JR.]
[2015 No 685JR]
THE HIGH COURT
JUDICIAL REVIEW
Administrative & constitutional law – Judicial review – Costs of proceedings – 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 be made. Commenting generally, the Court deprecated the fact the that certain matters were not brought to the attention of the High Court judge when bringing an ex parte leave to seek judicial review application.
The court has already delivered judgment on the substantive issue on 16th November, 2017. Subsequently, the court heard an application for costs on 11th April, 2018, and reserved its ruling.
There are four separate judicial review proceedings in being, with a complicated history. When all proceedings were referred to this Court for hearing on 13th of December, 2016, it was agreed by the parties that the issue of possible mootness or if there were exceptional circumstances even if the proceedings were moot, would be determined by the court as a discreet issue. That application was heard on 23rd March, 2017, and judgment was delivered on 16th November, 2017.
There are six separate matters where the issues of costs arise.
(i) Costs of the discreet hearing on mootness of 23rd March, 2017.
(ii) The judicial review proceedings, James O'Regan, applicant and Taxing Master Rowena Mulcahy 2014/263JR.
(iii) The judicial review proceedings Michael O'Driscoll (a minor) suing by his mother and next friend, Breda O'Driscoll, applicant and Taxing Master Rowena Mulcahy, respondent [2014 No. 264 J.R.]
(iv) Judicial Review proceedings Nicola Lambert, applicant and Taxing Master Rowena Mulcahy, respondent, [2014 No. 384 J.R.]
(v) Judicial review proceedings, Louise McCutcheon, applicant v. Taxing Master Rowena Mulcahy, respondent, [2015 No. 685 J.R.]
(vi) Costs of the costs hearing of 11th April, 2018.
As the judicial review proceedings did not go to full hearing, the court has already set out in paras. 43 and 44 of the judgment of 16th November, 2017, some of the issues it would consider in exercise of its discretion on costs.
The submission on behalf of the Applicants in respect of all four sets of proceedings that an event has occurred, namely that the proceedings are moot, and thus costs must follow the event is incorrect. That has already been stated by the court at para. 43 of its judgment of 16th November, 2017, when it stated as follows:-
“It is not the case as the Applicants contend that an order for costs follows the decision that the applications are moot and exceptional circumstances do not apply. There are live issues which have to be determined by the court in finalising any order for costs.”
The court has considered the Supreme Court decision of Cunningham v. President of the Circuit Court and Director of Public Prosecutions [2012] IESC 39, a decision of Clarke J. of 21st June, 2012. The decision of the Respondent to complete the taxation of costs in O'Regan, O'Driscoll and Lambert arose as a result of the court hearings before the President of the High Court on 9th and 10th June, 2015. I have already referred to this matter in the judgment on the substantive issue on 16th November, 2017, and have decided that during that hearing the Respondent did not concede that the issues were finalised. It was her understanding at that time that the concerns about her reputation would be dealt with in the course of the further hearings on the judicial review even though she had decided to tax the costs without prejudice to those issues. The McCutcheon proceedings became moot because her term of office had expired. In those circumstances, the Respondent did not unilaterally bring about the circumstances where the judicial review proceedings were moot and therefore the Cunningham case does not have application to the issues before the court.
The court will deal with each application for costs individually. It is not open to the court to determine the matters in issue arising on these judicial review proceedings. It is sufficient, however, for the court to identify the nature of the justiciable dispute, determine if the proceedings were vexatious or unnecessary and whether a real issue of a prima facie nature arose to be determined by the court.
In that discreet issue, there has been an event where an order for costs should follow. The Respondent was unsuccessful in the arguments put forward to the court on her behalf, thus the costs of that discreet application will be awarded to the consolidated Applicants in the judicial reviews. The costs are confined to the hearing on 23rd March, 2017, the preparation for same and attendance for the reserved judgment. It does not cover any of the pleadings in the original individual judicial review applications.
The court has considered the pleadings in the action. It does not accept the submission of the Respondent that these proceedings were improperly brought or premature and unnecessary. The court is satisfied that there was a prima facie dispute between the parties on the issue of the methodology of the approach to the taxation of these costs and the issue of delay and obviously a subsequent issue which developed on the decision of the Respondent to recuse herself. It was not necessary in the affidavits grounding the application for judicial review to refer specifically to the provisions of s. 27 of the Court and Court Officer's Act 1995, or the decision of the Supreme Court in Sheehan v. Corr delivered on 15th June, 2017. The fact that Mr. O'Sullivan Solicitor and Mr. Fitzpatrick Legal Costs Accountant agreed to provide a breakdown of the global fees charged by counsel and a breakdown of the solicitor's instructions fees did not preclude a challenge by way of judicial review to the propriety of that demand by the Respondent. The Applicant did not have a responsibility to refer to the original taxation before Taxing Master O'Neill and the subsequent decision of the Applicant through a solicitor to object to Taxing Master O'Neill dealing further with this matter and an application being made to transfer to the Respondent. The allegations made by the Applicant relate to the period of time in which the Respondent had seisin of the taxation matter. The court accepts that the Applicant did not stand up the allegations of wrongdoing by the Respondent, and accepts that some of the wording in the grounding documentation filed on behalf of the Applicant was intemperate. There was a genuine justiciable dispute which was open to be determined by way of judicial review. From my examination of the papers, it was open to the trial judge to decide the issue either in favour of the Applicant or the Respondent on the merits. The matter did not proceed to hearing so the appropriate and fair order to make is one of no order as to costs.
The court has considered the pleadings. The same situation arises in this application as did in the O'Regan application. The court is satisfied that there was a genuine justiciable dispute between the parties and the matters referred to by the court in the O'Regan decision apply in this decision also. The nature of the dispute was specifically identified in the affidavit of Stephen Fitzpatrick sworn on 30th April, 2014, which deals with issues of methodology and delay. It was open to a court if this application was heard in full to decide the matter either in favour of the Applicant or the Respondent. The judicial review proceedings were not ultimately determined and the fair order to make is one of no order as to costs. The fact that the Law Society joined the proceedings as an amicus curiae is not relevant to the determination of the issue of costs.
The issue of costs in this judicial review is more complicated and less straightforward than those in O'Regan and O'Driscoll. The Respondent submitted to this Court on 11th April, 2018 that no taxation had taken place, that it appeared before her but was adjourned because of queries raised by the Defendant in the original professional negligence proceedings and that in the intervening period between the adjournment and the adjourned date the...
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