Taaffe v Judge McMahon and Others

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 28 October 2011
• Neutral Citation: [2011] IEHC 408
• Docket Number: [No. 1587 J.R./2010]
• Court: High Court
• Date: 28 October 2011

[2011] IEHC 408

THE HIGH COURT

[No. 1587 J.R./2010]

Taaffe v Judge McMahon & Ors

JUDICIAL REVIEW

BETWEEN

PATRICK TAAFFE

APPLICANT

AND

JUDGE McMAHON, THE COMMISSIONER OF AN GARDA SÍOCHÁNA AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S14(2)

RSC O.99

RULES OF SUPERIOR COURTS (COSTS) 2008 SI 12/2008

RSC O.99 r5(2)

RSC O.99 r10(2)

RSC O.99 r3

RSC O.99 r5(2)A

RSC O.99 r5(2)B

RSC O.99 r 5(2)C

LEARY v LEARY 1987 1 AER 261

RSC O.63 r6

MITSUBISHI ELECTRIC EUROPE BV v DESIGN AIR LTD UNREP HONOHAN 22.5.2007 2007/41/8603 2007 IEHC 203

CONSTITUTION ART 40

ROSTAS v GOVERNOR OF MOUNTJOY PRISON 20.4.2010 2010/641SS

CONNORS v JUDGE DUNNE & DPP 10.3.2010 2010/275JR

BAO v GOVERNOR OF CLOVERHILL PRISON 03.12.2010 2010/2230SS

O'BRIEN v CONNELLAN & DPP 15.10.2009 20091053JR

RSC O.99 r37(22)(II)

PRACTICE AND PROCEDURE

Costs

Jurisdiction - Uncontested application - No agreement as to costs - Jurisdiction of court to measure costs - Sum in gross in lieu of taxed costs - Whether sum in gross paid in substitution for taxed costs - Whether sum in gross calculated with regard to level of likely taxed costs - Purpose of measuring costs - Rules of the Superior Courts 1986 (SI 15/1986), O 99, rr 1, 1A, 2, 5 and 37 - Rules of the Superior Courts (Costs) 2008 (SI 12/2008) - Courts (Supplemental Provisions) Act 1961 (No 39), s 14(2) - Costs awarded (2010/1587JR - Kearns P - 28/10/2011) [2011] IEHC 408

Taaffe v Judge McMahon

Facts The first named respondent had issued a bench warrant for the arrest of the applicant for his non-appearance before the District Court. The applicant's solicitor contended that it had been agreed that the case could be adjourned on consent once the applicant had a legal representative in court. Ultimately the applicant was detained on foot of the bench warrant and remanded in custody to appear before the first-named respondent. It was indicated that judicial review proceedings would be brought in respect of the bench warrant. The respondents had indicated that no opposition would be raised to the making of a habeas corpus order or to the grant of certiorari and a sum had been offered in respect of legal costs. Counsel for the applicant argued that the court had no jurisdiction to measure costs in the absence of an agreement to that effect, save by reference to a proportion of a taxed sum. The State contended that the court did have jurisdiction and that it was one which could be properly exercised in such cases, thereby avoiding unnecessary inconvenience and additional expense to the State and, by obvious implication, the taxpayer.

Held by Kearns P in finding in favour of the respondents. While judges should not be expected to act as bean counters in deciding the various aspects of any claim for costs, there were many simple and uncomplicated cases such as the present one which lend themselves to easy assessment of costs in terms of work done, time taken and effort expended. Order 99 (5)(2)(a) of the Rules of the Superior Courts clearly contemplated that judges have power to measure costs. A reluctance or failure on the part of judges to exercise that jurisdiction, notably in the present circumstances of the current financial crisis, could be regarded as a failure to exercise judicial responsibility. There would be cases where the sheer complexity of the issues arising would discourage any judge from attempting to measure costs. This could arise where expert evidence was involved or where the issues were of a complex financial nature such as those which frequently arise in the Commercial Court.

Reporter: R.F.

Kearns P.

1 This judgment deals with the issue as to whether or not this Court has jurisdiction to measure costs in uncontestedhabeas corpus or judicial review proceedings where, following the granting of leave, the respondents in any given case indicate that no opposition will be raised to the making of a habeas corpus order or the quashing by way of certiorari of some order of the District or Circuit Court.

2 It is contended on behalf of the applicant that the Court has no jurisdiction to measure costs in the absence of an agreement to that effect, save by reference to a proportion of a taxed sum.

3 The State for its part contends that the Court does indeed possess such a jurisdiction and that it is one which may be properly exercised in cases of this nature, thereby avoiding unnecessary inconvenience and additional expense to the State and, by obvious implication, the taxpayer.

4 This is a recurring issue and the parties have requested that the Court give some guidance on the matter.

5 It is perhaps important to stress that the respondents emphasise that the Court is being asked, and will only be asked, to measure costs where the legal issue involved is net and where the matter has been quickly resolved without the necessity for any contested hearing. It is submitted on behalf of the State that, in such circumstances, the trial judge is in a particularly good position to assess the net legal issue involved, the work carried out by the parties involved in the proceedings, and the fact that the matter has been resolved quickly by the Director of Public Prosecutions. It has also been pointed out that the kind of case where the Court is being invited to measure costs are cases where the only pleadings filed generally involve a single grounding affidavit and, in the case of a judicial review, a short statement of grounds. The cases in which such a request is advanced are, in general, cases where a simple technical error has been made and where, it is argued, it would be both undesirable and disproportionate if the expense of a full taxation process was undergone thereafter.

6 The judgment also is confined to cases where resort has not been had to the Attorney General scheme which is generally available to applicants who bringhabeas corpus applications as well as judicial review applications that are concerned with criminal matters where an applicant is unable to discharge his legal costs.

7 In this case the first named respondent issued a bench warrant for the arrest of the applicant for his non-appearance before the District Court on 10^th November, 2010. The applicant had been released on station bail to appear before the District Court on that date charged with a public order offence. However, prior to that date, the applicant's mother made contact with the prosecuting garda to explain that the applicant was scheduled to be in Rome on the date in question. The applicant's solicitor deposes that it was agreed between the applicant's mother and the prosecuting garda that the case could be adjourned on consent once the applicant had a legal representative in court on 10^th November, 2010.

8 However, on 10^th November, 2010, notwithstanding the presence of counsel on behalf of the applicant in court, Judge McMahon stated that the accused should have been present and that there was no excuse for his absence. He then proceeded to issue a bench warrant. All of this occurred before the prosecuting garda gave evidence. Counsel for the applicant did not see a certificate of arrest, charge and caution being handed into court.

9 The applicant came to the attention of An Garda Síochána in respect of a different matter at a subsequent time and was brought to a garda station. He was then detained on foot of the bench warrant, the subject matter of these proceedings. He was then remanded in custody to appear before Judge McMahon on 13^th December, 2010.

10 On that date, counsel for the applicant indicated to the court that the bench warrant which had been executed would be subject to judicial proceedings. Counsel clarified to the court that the reason why this course was being adopted was because of the agreement made between the prosecuting garda and the accused's mother. Judge McMahon was dissatisfied with this explanation and requested that the prosecuting garda attend before court in that same day. The prosecuting garda was unable to do so, but it was indicated to the court, through his garda sergeant, that he had told the applicant's mother that he would not seek the issue of a bench warrant once the applicant had legal representation in court on 10^th November, 2010.

11 Leave to bring the present judicial review proceedings was granted by the High Court (Peart J.) on 20^th December, 2010.

12 The grounds upon which relief was sought were:

13 2 "(1) the decision of the respondent dated 10^th November, 2010 to issue a bench warrant for the arrest of the applicant was made in breach of the rules of natural and constitutional justice in that it was explained to the respondent that the applicant's non-attendance was as a direct result of a communication from the prosecuting garda, Ronan Judge, representing that the charges against the applicant would be adjourned once the applicant was legally represented in court on the date of the first appearance, 10^th November, 2010.

14 3 (2)Further or in the alternative, the respondent erred in law and exceeded his jurisdiction in issuing the said bench warrant without receiving into court prima facie evidence that an offence had been committed by the applicant."

15 On 13^th April, 2011, the respondents having previously indicated in open court that they would not oppose the making of an order granting the relief sought, the issue of costs was then discussed. Counsel for the respondent indicated that an open letter had been sent to the applicant's legal advisers offering a sum of €4,000 plus VAT towards their costs. The court was informed that this offer had been rejected.

16 Counsel for the applicant argued that the court had no jurisdiction to deal with costs in this way. He also objected to the way in which the DPP was bringing cases in this manner before...