He v Governor of Castlerea Prison
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 20 October 2015 |
| Neutral Citation | [2015] IEHC 854 |
| Date | 20 October 2015 |
| Court | High Court |
| Docket Number | [2014 No. 2074 SS] [2014 No. 2075 SS] |
[2015] IEHC 854
THE HIGH COURT
McDermott J.
[2014 No. 2074 SS]
[2014 No. 2075 SS]
IN THE MATTER OF AN APPLICATION PURSUANT
TO ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND
Constitution – Art. 40.4.2 of the Constitution – Practice & Procedures – O. 99, r. 7 of the Rules of the Superior Courts – Wasted costs order – Duty of legal practitioners
Facts: In both proceedings, the respondents sought a wasted costs order against the new solicitors representing each applicant. The respondents alleged that the said solicitors representing the applicants in the Court had initiated an inquiry under art. 40.4.2 of the Constitution without making prior inquiries in relation to the case of the applicants, giving rise to the circumstances under which the sentence and conviction of the applicants were suspended subject to the production of airline tickets and travel documents for being deported to the home country.
Mr. Justice McDermott granted a wasted costs order to the respondents only to the extent that the respondents should recover one-day costs of hearing from the solicitors in lieu of fulsome apology rendered by the solicitors and withdrawal of application at an early stage by them. The Court, however, warned the solicitors to refrain from making such errors in future. The Court observed that the legal practitioners had a dual duty, which was to protect the legitimate interests of their clients as well as to ensure that there was no abuse of the process of law by means of wasteful and speculative litigation. The Court held that in the present case, there was a serious breach of duty by the solicitors as they had failed to make adequate inquiries in relation to the progress of the case before initiating concerned applications and thus wasted the expenses and time of the respondents unnecessarily.
The respondents seek a wasted costs order against the solicitors representing each applicant pursuant to Order 99 Rule 7 of the Rules of the Superior Courts the relevant part of which provides:-
‘If in any case it shall appear to the court that costs have been improperly or without any reasonable cause incurred, or that by reason of… any misconduct or default of the solicitor, any costs properly incurred have nevertheless proved fruitless to the person incurring same, the court may call on the solicitor of the person by whom such costs have been so incurred to show cause why such costs should not be disallowed as between the solicitor and his client and also (if the circumstances of the case shall require) why the solicitor shall not repay to his client any costs which the applicant may have been ordered to pay any other person, and thereupon may make such order as the justice of the case may require…’
On the 16th December, 2014 this court directed an inquiry into the detention of the applicants pursuant to Article 40.4.2 of the Constitution. It was ordered that the Director of Public Prosecutions be joined as a notice party because the issue raised concerned orders of convictions and sentence by the Circuit Criminal Court in Mullingar which issued Committal Warrants authorising the imprisonment of the applicants following conviction and sentence. The Governor of Castlerea Prison had no evidence to offer concerning the factual circumstances of the cases which culminated in the making of the orders.
The applicants both pleaded guilty to offences contrary to Section 17 of the Misuse of Drugs Act 1977 (as amended) involving the cultivation of cannabis plants and were each sentenced on the 30th September, 2014 (by his Honour Judge Hunt as he then was) to four years imprisonment. In the case of Zhong He it was ordered that part of the sentence would be suspended on certain conditions set out in the Committal Warrant as follows:-
‘The Court Doth Order that the Accused be imprisoned for a period of four years, on count number 3, such sentence to date from 21/10/2013 with the balance to be suspended on Production to the Prison Governor of an airline ticket and travel documents for return to his home country. To enter a bond before the Prison Governor in the sum of €300.00 when these documents are produced, to leave the country and not return for a period of ten years. He is to be released into the custody of the Garda National Immigration Bureau.’
The warrant in respect of Xue Hong Zhong was similar in its terms save that the sentence was to date from 5th September, 2013.
An application for an inquiry under Article 40 was made by Keith Spencer BL instructed by Mr. Donal Quigley, solicitor in the case of Zhong He, and instructed by Mr. Niall O'Connor in the case of Xue Hong Zhong. In was clearly the intention of the learned trial judge that each applicant would be credited with the terms served on remand prior to sentence and that they would be released upon compliance with the terms set out in the order.
Having recited a short history of the case and the relevant part of the Committal Warrant, Mr. Quigley states that the applicant wished to avail of the suspended portion of the sentence but that it was impossible for him to purchase a one-way ticket to China from prison. It was stated that he had no access to the internet for that purpose or any facilities whereby it could be arranged for him. It was stated that he was not in possession of his passport which was necessary in order to book the flight. It was suggested to the court that a “State authority” was in possession of his passport.
Mr. Quigley stated that the applicant made contact with the Garda National Immigration Bureau (GNIB) and requested that its officers visit him in prison. Though it was accepted that GNIB officers attended the prison, the affidavit states that they informed the applicant that they were not in a position to assist in ‘deporting’ him from Ireland.
The central point made in respect of the warrant is set out at paragraph 10:-
‘I say and believe and am advised by Counsel that by making the purchase of a ticket a precondition of the Applicant's release and not a condition of the sentence that could be complied with post-release the learned Circuit Judge has imposed an impossible and unworkable precondition on a suspended sentence that will result in the Applicant not being able to avail of the suspended sentence and his continued imprisonment for the entire period of four years.’
Mr. Quigley was also instructed that the applicant was not in a position to pay for an airline ticket to China and that he would be required to serve an additional three years imprisonment because a travel ticket had not been provided for him. This, it is claimed, gave rise to a disproportionate, unjust and unfair consequence. It is stated that the applicant was willing to comply with all terms of the suspended sentence that it was within his power to fulfil.
Mr. Quigley states that he did not represent the applicant prior to the imposition of sentence but that:-
‘a fellow Chinese national requested that I act on behalf of the Applicant and I then took instructions from him. I say that the Applicant was of the view that his sentence had been suspended, however, he does not know how to give effect to this suspended portion.’
Mr. O'Connor's affidavit contains substantially the same averments as those set out in Mr. Quigley's affidavit. It also states that it was impossible for the applicant to purchase a ticket to China from prison, that he did not have access to the internet for that purpose or the facilities to arrange it, and that he did not have his passport.
Mr. O'Connor also states that this applicant made contact with GNIB officers requesting a visit but was similarly informed that they were not in a position to assist in his deportation. He was willing to leave Ireland if provided with a ticket by the authorities. The same point was made on his behalf as set out in paragraph 10 of Mr. Quigley's affidavit. It was also claimed that he was impecunious and not in a position to pay for a ticket to China.
Mr. O'Connor also stated that he did not represent Mr. Xue Hong Zhong at any stage of the criminal proceedings which led to the imposition of the sentence.
The respondent and notice party sought time on the return to the Order directing the Inquiry under Article 40 to take full instructions concerning the hearing before his Honour Judge Hunt. A transcript of the sentencing hearing was obtained. On the 18th December, 2014 the applicants' counsel indicated to the court that the applications were withdrawn because the solicitors had been ‘deprived of information’.
The transcript of the sentencing hearing indicates that Zhong He was represented by solicitor, junior and senior counsel and that Xue Hong Zhong was represented by solicitor and junior counsel. As set out in the orders the sentence imposed was one of four years imprisonment in each case, the balance of which would be suspended on fulfilment of the conditions set out.
It is clear form the transcript that the learned trial judge sought to address the practical difficulties that might arise from the making of the order and invited counsel for the applicants and the prosecution to address him on these matters. Defence counsel informed the court that an issue had arisen in relation to travel documentation. The solicitor acting for Xue Hong Zhong had spoken with the Chinese Embassy and the court was...
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The Estate of George Moore Deceased
...that the court should make a wasted costs order against the notice parties’ solicitors. Citing Zhong He v Governor of Castlerea Prison [2015] IEHC 854, the applicant submitted that the notice parties’ solicitors were bound to seek all reasonable and necessary instructions in order to ensure......