Sherlock v Clare County Council
| Jurisdiction | Ireland |
| Judge | Mr Justice Garrett Simons |
| Judgment Date | 16 October 2019 |
| Neutral Citation | [2019] IEHC 676 |
| Docket Number | 2017 No. 690 J.R. |
| Court | High Court |
| Date | 16 October 2019 |
[2019] IEHC 676
THE HIGH COURT
JUDICIAL REVIEW
Garrett Simons
2017 No. 690 J.R.
Costs – Judicial review – Moot proceedings – Applicants seeking costs – Whether the making of an offer of alternative accommodation could be properly characterised as an event of the proceedings for the purposes of the costs rules under Order 99 of the Rules of the Superior Courts
Facts: This judgment of the High Court addressed the question of the appropriate costs order to be made in respect of judicial review proceedings. The judgment arose against a background where the proceedings were, in effect, rendered moot by the making of an offer of alternative residential accommodation to the applicants, Mr and Ms Sherlock, by the respondent, Clare County Council. This offer was made very shortly before the hearing date. Both sides were broadly in agreement that the judicial review proceedings were moot, in that the applicants could not have achieved an outcome to the proceedings more favourable than the offer of alternative accommodation. However, the parties were in dispute as to whether the making of this offer could be properly characterised as an event of the proceedings for the purposes of the costs rules under Order 99 of the Rules of the Superior Courts.
Held by Simons J that the event giving rise to the proceedings becoming moot was a unilateral action on the part of the respondent, namely the carrying out of a housing needs assessment and the offer of alternative accommodation. Therefore, applying the principles in Cunningham v President of the Circuit Court [2012] IESC 39 and Godsil v Ireland [2015] IESC 10, Simons J held that the applicants were, in principle, entitled to an order for costs in their favour insofar as they had succeeded in obtaining a tangible benefit from having brought the proceedings. Simons J noted that the offer of alternative accommodation was only made days before the trial date. Had the offer been made earlier, he would have considered applying a discount of the type applied in J. C. Savage Supermarkets Ltd. v An Bord Pleanála [2011] IEHC 488. As the offer of alternative accommodation only crystallised on the eve of the trial, Simons J held that no discount could be allowed on that basis. Simons J found that there were certain aspects of the manner in which the case was presented which should be reflected in the detail of the costs order: first, the approach taken on behalf of the applicants both in the pre-litigation correspondence and their subsequent pleadings tended to obscure rather than identify the real issues in controversy; secondly, the statement of grounds did not comply with the requirements of Order 84 of the Rules of the Superior Courts; thirdly, the written legal submissions filed did not comply with the Practice Direction HC68 (Written Submissions); and fourthly, the case should not have been called on for six days as it was at the very most a two-day case, once the legal issues were properly identified.
Simons J held that the applicants were entitled to a limited costs order as against the respondent; more specifically, the applicants were to recover the costs of the proceedings measured on the basis that the full hearing would have taken two days only. Simons J held that the costs for counsel were to be confined to a single counsel. He held that no costs were recoverable in respect of the costs associated with: (i) the statement of grounds; (ii) the written legal submissions; and (iii) the motions in respect of cross-examination.
Applicant awarded costs.
This judgment addresses the question of the appropriate costs order to be made in respect of the within judicial review proceedings. The judgment arises against a background where the proceedings were, in effect, rendered moot by the making of an offer of alternative residential accommodation to the Applicants by the Respondent, Clare County Council. This offer was made very shortly before the hearing date.
The determination of the appropriate costs order turns largely on the application of the principles set out by the Supreme Court in Cunningham v. President of the Circuit Court [2012] IESC 39; [2012] 3 I.R. 222 and Godsil v. Ireland [2015] IESC 103, [2015] 4 I.R. 535.
The proceedings had been listed for hearing for six days commencing on Tuesday 8 October 2019. On the second day of the hearing, the parties indicated to the court that they had reached an agreement whereby the proceedings could be struck out. This agreement did not, however, extend to the issue of costs.
The Applicants submit that they are entitled to their costs in circumstances where they say that Clare County Council (“ the Local Authority“) has now offered to do the very thing which the Applicants had brought the proceedings to compel the Local Authority to do. More specifically, the Applicants submit that the principal relief sought in the proceedings had been an order of mandamus directing the Local Authority to assess their housing needs, and that an offer made last week to provide them with alternative accommodation means that the objective underlying this relief has now been achieved. In response, the Local Authority suggests that the offer of alternative accommodation came about in the ordinary discharge of its duties under the Housing Acts, and is not directly related to the judicial review proceedings.
The position is, therefore, that both sides are broadly in agreement that the judicial review proceedings are moot, in that the Applicants could not have achieved an outcome to the proceedings more favourable than the offer of alternative accommodation. However, the parties are in dispute as to whether the making of this offer can be properly characterised as an event of the proceedings for the purposes of the costs rules under Order 99 of the Rules of the Superior Courts.
The principles governing the approach to be taken to costs in moot proceedings have been considered in detail by the Supreme Court in Cunningham v. President of the Circuit Court [2012] IESC 39; [2012] 3 I.R. 222 ( “Cunningham”), and Godsil v. Ireland [2015] IESC 103, [2015] 4 I.R. 535 (“Godsil”).
The judgment in Cunningham indicates that the court should consider the nature of the event which had caused the proceedings to become moot, and drew a distinction between (i) factors external to the parties, and (ii) unilateral action by one of the parties. See paragraphs [24] and [25] of the judgment as follows.
“[…] a court, without being overly prescriptive as to the application of the rule, should, in the absence of significant countervailing factors, ordinarily lean in favour of making no order as to costs in cases which have become moot as a result of a factor or occurrence outside the control of the parties but should lean in favour of awarding costs against a party through whose unilateral action the proceedings have become moot. […]
It must, of course, be acknowledged that some cases which have become moot may not fit neatly into the category of proceedings which have become moot due to entirely external events, on the one hand, or due to the unilateral action of one of the parties, on the other hand. In particular there will be cases where the immediate reason why proceedings have become moot is because a statutory officer or body has decided not to go ahead with a threatened course of action (such as the criminal prosecution in this case). However, the reason why it may have been necessary or appropriate for that statutory officer or body to adopt a changed position may, to a greater or lesser extent, be due to wholly external factors. […]”
The judgment in Cunningham recognises that a public authority may be under an obligation to keep its decision under review, and that the mere fact that a public authority adopts a changed position which renders judicial review proceedings moot does not necessarily mean that it is appropriate to characterise the proceedings as having become moot by reason of a unilateral act of one party. The change in position may have been as the result of external events. If a public authority wishes to assert that there has been an external event, then there is an onus on the public authority to put evidence to that effect before the court. See paragraph [28] of the judgment.
“It does, however, seem to me that, where the immediate or proximate cause of proceedings becoming moot is the action of such a statutory officer or body but where it is sought to argue that the true underlying reason is an external factor outside the control of that officer or body, it is incumbent on the officer or body concerned to place before the court sufficient evidence to allow the court to assess whether, and if so to what extent, it can fairly be said that there was a sufficient underlying change in circumstances sufficient to justify, in whole or in part, it being appropriate to characterise the proceedings as having become moot by reason of a change in external circumstances. Against those general observations it is necessary to turn to the circumstances in which these proceedings became moot.”
The principles in Cunningham were subsequently endorsed by the Supreme Court in Godsil. The gravamen of the complaint in Godsil had been that a statutory prohibition which precluded an undischarged bankrupt standing as a candidate for election to the European Parliament was invalid. Within two weeks of the proceedings having been instituted, the Government had introduced draft amending legislation, and same was soon passed by the Oireachtas and signed into law by the President. The effect of the amending legislation was to remove the statutory...
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