White v Bar Council of Ireland

• Jurisdiction: Ireland
• Judgment Date: 23 February 2018
• Docket Number: [C.A. No. 185 of 2017]
• Court: Court of Appeal (Ireland)

Barry White,

Applicant

and

The Bar Council of Ireland, The Minister for Justice and Equality, Ireland and The Attorney General,

Respondents

[2018] IECA 48

[C.A. No. 185 of 2017]

Court of Appeal

Costs — “Order over” — Civil proceedings — Judicial review — Liability of unsuccessful respondent for costs of successful respondent — Whether judicial review proceedings constituting “civil proceedings” — Whether “order over” costs order appropriate where causes of action different or distinct — The Rules of the Superior Courts 1986 (S.I. No. 15), O. 99 — Courts of Justice Act 1936 (No. 48), s. 76.

Practice and procedure — Appeal — Leave to argue new point on appeal — Issue of jurisdiction — Administration of justice — Whether appropriate to permit new argument to be raised on appeal.

Section 78 of the Courts of Justice Act 1936 provides:

“Where, in a civil proceeding in any court, there are two or more defendants and the plaintiff succeeds against one or more of the defendants and fails against the others or other of the defendants, it shall be lawful for the Court, if having regard to all the circumstances it thinks proper so to do, to order that the defendant or defendants against whom the plaintiff has succeeded shall (in addition to the plaintiff's own costs) pay to the plaintiff by way of recoupment the costs which the plaintiff is liable to pay and pays to the defendant or defendants against whom he has failed.”

In judicial review proceedings concerning the regulation of a barrister who was the former holder of judicial office, the High Court (Barrett J.) granted the applicant an order of certiorari and declarations sought in respect of a decision taken by the second respondent. The court refused the relief sought against the first respondent and dismissed the proceedings against it (see [2016] IEHC 406, [2017] 1 I.R. 249).

The High Court (Barrett J.) made an order in favour of the applicant that he recoup from the second, third and fourth respondents, in addition to his own costs, the further costs that he was liable to pay to the first respondent (see [2017] IEHC 200). The second respondent appealed to the Court of Appeal.

The second respondent argued that a judicial review proceeding was not a “civil proceeding” within the meaning of s. 78 of the 1936 Act. The second respondent further argued that even if judicial review proceedings were considered to be civil proceedings, the section did not apply on the facts and circumstances of the case, as the applicant's claims against the first respondent were entirely different and distinct from those brought against the second, third and fourth respondents, such that they were in effect different causes of action. The second respondent further argued that the trial judge had wrongly exercised his discretion under s. 78 of the 1936 Act.

The applicant argued that the mere fact that the reliefs sought against the first respondent and against the second, third and fourth respondents were different did not take the matter outside s. 78 of the 1936 Act, as the section did not specify any requirement that the reliefs sought against the different defendants were the same or interlinked. The applicant further submitted that the section made no reference to joint or concurrent wrongdoers, or to joint and several liability. The applicant also argued that even if the section did not apply, the court had a jurisdiction to make an order pursuant to its inherent jurisdiction.

Held by the Court of Appeal (Ryan P., Peart and Irvine JJ.), in allowing the appeal, 1, that the court could only make an order under s. 78 of the 1936 Act that a plaintiff recoup from a defendant against whom he had succeeded the costs to which he was liable to pay to a defendant against whom he had failed where the claims against both defendants involved the same cause of action and arose from the same set of facts. Where the claims made against the defendants were distinct and different, and the relief sought against one defendant could not have been granted against the other defendant, there was no jurisdiction to make an order under the section.

2. That it would have been an absurdity and a manifest injustice that could not have been intended by the Oireachtas in enacting s. 78 of the 1936 Act if party A against whom a plaintiff succeeded in a claim could be required to pay the costs of party B in respect of a separate claim brought in the same proceedings, but for which party A had no responsibility, simply because of some factual background in common to both claims.

3. That s. 78 of the 1936 Act existed in order to provide the court with a statutory jurisdiction to make an “order over” where there were two defendants who might have had a liability either jointly or severally in respect of the same wrong, and where the plaintiff was entitled on the known facts not to be certain which of those defendants would ultimately be found liable.

4. That while judicial review proceedings, not being criminal proceedings, were civil in nature, the usage of the terms “plaintiff” and “defendant” in s. 78 of the 1936 Act indicated that it referred to plenary proceedings where there was joint or several liability, involving the same cause of action against defendants, arising from the same set of facts, and not to a judicial review-type claim.

5. That it was appropriate and important for the administration of justice to permit a new ground to be argued where it pertained to an issue of jurisdiction of the trial court to make the order under appeal.

Irwin v. Deasy[2011] IESC 11, [2011] 2 I.R. 752 considered.

6. That there was no injustice in allowing a party to advance a new argument on appeal where it related to the statutory interpretation of the same section that had been considered in the trial court, particularly where there was no prejudice to the other party in meeting the argument.

Movie News Ltd. v. Galway County Council (Unreported, Supreme Court, 25 July 1977) and K.D. (otherwise C.) v. M.C.[1985] I.R. 679 considered. Lough Swilly Shellfish Growers Co-Op Society Ltd. v. Bradley[2013] IESC 16, [2013] 1 I.R. 227 and ACC Bank plc v. Lynn[2015] IESC 100, [2015] 2 I.R. 688 followed.

Cases mentioned in this report:

ACC Bank plc v. Lynn[2015] IESC 100, [2015] 2 I.R. 688.

Byrne v. Lancaster and Gartland[1958] Ir. Jur. Rep. 51.

Cussens v. Brosnan (Inspector of Taxes)[2015] IESC 48, (Unreported, Supreme Court, 20 May 2015).

K.D. (otherwise C.) v. M.C.[1985] I.R. 679; [1987] I.L.R.M. 189.

Irwin v. Deasy[2011] IESC 11, [2011] 2 I.R. 752; [2012] 1 I.L.R.M. 12.

Koger Inc. v. O'Donnell[2013] IESC 28, (Unreported, Supreme Court, 18 June 2013)

Lough Swilly Shellfish Growers Co-Op Society Ltd. v. Bradley[2013] IESC 16, [2013] 1 I.R. 227.

Movie News Ltd. v. Galway County Council (Unreported, Supreme Court, 25 July 1977).

O'Keeffe v. Russell and AIB plc[1994] 1 I.L.R.M. 137.

White v. Bar Council of Ireland[2017] IEHC 200, (Unreported, High Court, Barrett J., 31 March 2017).

White v. Bar Council of Ireland[2016] IECA 363, [2017] 1 I.R. 249.

Appeal from the High Court

The facts have been summarised in the headnote and are more fully set out in the judgment of the Court of Appeal delivered by Peart J., infra.

By judgment dated 31 March 2017 and order dated 5 April 2017, the High Court (Barrett J.) determined the costs of the proceedings ([2017] IEHC 200).

By notice of appeal dated 17 April 2017, the second respondent appealed to the Court of Appeal.

The appeal was heard by the Court of Appeal (Ryan P., Peart and Irvine JJ.) on 22 January 2018.

Eoghan Fitzsimons S.C. (with him Eoin McCulloughS.C. and Thomas O'Malley) for the second respondent.

John Rogers S.C. (with him Cian FerriterS.C. and Siobhán PhelanS.C.) for the applicant.

Cur. adv. vult.

Ryan P. 23 February 2018

[1] I have read the judgment about to be delivered by Peart J. and I agree with it.

Peart J.

[2] By judgment dated 31 March 2017 and order dated 5 April 2017 of the High Court (Barrett J.), the applicant's claims against the first respondent were refused, but certain reliefs which he sought against the second respondent were granted (see [2017] IEHC 200).

[3] By the same order, the first respondent was awarded its costs against the applicant, who in turn was awarded his costs against the second, third and fourth respondents. This order was made under O. 99 of The Rules of the Superior Courts (S.I. No. 15) (“the RSC”) and on the usual basis that costs follow the event. There is no appeal against that part of the costs order.

[4] However, by the same order, the applicant, who made an application in this regard, was granted an “order over” against the second respondent that he recoup from the second respondent, in addition to his own costs, the further costs which he is liable to pay, and does pay, to the first respondent. This particular order was sought, and was granted, pursuant to s. 78 of the Courts of Justice Act 1936 (“the 1936 Act”) which provides:

“78. Where, in a civil proceeding in any court, there are two or more defendants and the plaintiff succeeds against one or more of the defendants and fails against the others or other of the defendants, it shall be lawful for the Court, if having regard to all the circumstances it thinks proper so to do, to order that the defendant or defendants against whom the plaintiff has succeeded shall (in addition to the plaintiff's own costs) pay to the plaintiff by way of recoupment the costs which the plaintiff is liable to pay and pays to the defendant or defendants against whom he has failed” (emphasis added).

[5] It is only the “order over” against the second respondent that is the subject of the second respondent's appeal herein. The second respondent's submission is that the s. 78 jurisdiction in relation to an “order over” is not applicable to these judicial review proceedings, and that the trial judge erred in his conclusion that it was.

Summary of the parties'...