White v The Bar Council of Ireland
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE MICHAEL PEART |
| Judgment Date | 23 February 2018 |
| Neutral Citation | [2018] IECA 48 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2018] IECA 48 |
| Date | 23 February 2018 |
[2018] IECA 48
THE COURT OF APPEAL
Peart J.
Ryan P.
Peart J.
Irvine J.
Neutral Citation Number: [2018] IECA 48
Record Number: 2017 No. 185
AND
Costs – Judicial review – Section 78 of the Courts of Justice Act 1936 – Appellant seeking to appeal against ‘order over’ – Whether the jurisdiction of s. 78 of the Courts of Justice Act 1936 in relation to an ‘order over’ was not applicable to these judicial review proceedings
Facts: The High Court (Barrett J), on 5th April 2017, refused the claims of the applicant/respondent, Mr White, against the first respondent, the Bar Council of Ireland, but granted certain reliefs which he sought against the second respondent/appellant, the Minister for Justice and Equality. By the same order, the Bar Council was awarded its costs against Mr White, who in turn was awarded his costs against the Minister, and the third and fourth respondents, Ireland and the Attorney General. That order was made under Ord. 99 of the Rules of the Superior Courts and on the usual basis that costs follow the event. By the same order, Mr White was granted an ‘order over’ against the Minister that he recoup from the Minister, in addition to his own costs, the further costs which he was liable to pay, and did pay, to the Bar Council. That particular order was sought, and was granted, pursuant to s. 78 of the Courts of Justice Act 1936. The Minister appealed to the Court of Appeal against the ‘order over’, submitting that the s. 78 jurisdiction in relation to an ‘order over’ was not applicable to these judicial review proceedings, and that the trial judge erred in his conclusion that it was. The Minister argued that even if a judicial review proceeding is within the meaning of ‘a civil proceeding’ in s. 78, the section still did not apply on the facts and circumstances of the case where Mr White’s claims against the Bar Council were entirely different and distinct from those brought against the Minister, and depended on different facts. Mr White submitted that the mere fact that the reliefs sought against the Bar Council were different from those sought against the Minister did not take the case outside the section, since the section specifies no requirement that the reliefs sought against the different defendants must be the same, and/or that the reliefs sought against each must be interlinked.
Held by Peart J that the section only makes sense and avoids an absurdity if it is construed as applying to the type of plaintiff/defendant litigation involving the same cause of action against the defendants, arising from the same set of facts. Noting that the claims against each respondent were completely different, and that the relief sought against the Bar Council could never have been granted against the Minister, and vice versa, Peart J considered that the trial judge’s conclusion that he had jurisdiction under s. 78 to make the ‘order over’ in these proceedings was erroneous.
Peart J held that since it was clear from the trial judge’s judgment that he made the order under s. 78 of the Act, he would allow the appeal, and vacate that part of the order made by the High Court dated 5th April 2017 whereby it was ordered that Mr White recoup from the Minister the costs which he was liable to pay, and did pay, to the Bar Council.
Appeal allowed (against costs order).
By order of the High Court (Barrett J.) dated 5th April 2017, Mr White's claims against the Bar Council of Ireland were refused, but certain reliefs which he sought against the Minister were granted.
By the same order, the Bar Council was awarded its costs against Mr White, who in turn was awarded his costs against the Minister, Ireland and the Attorney General. This order was made under Ord. 99 of the Rules of the Superior Courts and on the usual basis that costs follow the event. There is no appeal against that part of the costs order.
However, by the same order, Mr White, who made an application in this regard, was granted an “order over” against the Minister that he recoup from the Minister, in addition to his own costs, the further costs which he is liable to pay, and does pay, to the Bar Council. This particular order was sought, and was granted, pursuant to s. 78 of the Courts of Justice Act, 1936 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 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 provided]
It is only the “order over” against the Minister that is the subject of the Minister's appeal herein. The Minister'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.
While the Minister argued in the High Court that s. 78 was not applicable to the present case, an argument that a judicial review proceeding is not “a civil proceeding” within the meaning of s. 78 was not advanced in the High Court. Rather, it was argued that the section did not apply because the claims made against the Bar Council were entirely different and distinct from those brought against the Minister and where no question of potential joint liability could arise.
It is accepted by the Minister that the “civil proceeding” argument was not advanced below, and that the Court's leave to argue the point on this appeal is required. I should address that application at the outset.
The traditional approach to be taken to permitting a new ground of appeal to be argued is that stated by Henchy J. in Movie News Limited v. Galway County Council (unreported), Supreme Court, 15th July 1977, namely that only in an exceptional case ought it be permitted in the interests of justice, since it effectively deprives the other party of a right of appeal to which he/she has a constitutional entitlement. That principle was reiterated by Finlay C.J in K.D v. M.C [1985] I.R. 679 where he stated:
‘It is a fundamental principle, arising from the exclusively appellate jurisdiction of this Court in cases such as this that, save in the most exceptional circumstances, the Court should not hear and determine an issue which has not been tried and decided in the High Court. To that fundamental rule or principle there may be exceptions, but they must be clearly required in the interests of justice.’
This question has been the subject of further consideration more recently in the Supreme Court in Lough Swilly Shellfish Growers v. Bradley [2013] 1 IR 227. In his judgment in that case O'Donnell J. stated at para. 28:
‘There is a spectrum of cases in which a new issue is sought to be argued on appeal. At one extreme lie cases such as those where argument on the point would necessarily involve new evidence, and with a consequent effect on the evidence already given (as in K. D. (otherwise C) v. M.C. [1985] I.R. 697) for example); or where a party seeks to make an argument which was actually abandoned in the High Court (…) or, for example where a party sought to make an argument which was diametrically opposed to that which had been advanced in the High Court and on the basis of which the High Court case had been argued, and perhaps evidence adduced. In such cases leave would not be granted to argue a new point on appeal. At the other end of the continuum lie cases where a new formulation of argument was made in relation to a point advanced in the High Court, or where new materials were submitted, or perhaps where a new legal argument was sought to be advanced which was closely related to arguments already made in the High Court, or a refinement of them, and which was not in any way dependent upon the evidence adduced. In such cases, while a court might impose terms as to costs, the court nevertheless retains the power in appropriate cases to permit the argument to be made.’
In ACC Bank plc v. Lynn and another [2015] 2 I.R. 688, Charleton J. had to consider this question. In that case a new point was sought to be argued on appeal. t was a point which arose for argument in the light of a judgment of the Supreme Court in another case which was delivered after the decision in the High Court, and which concluded that there was no jurisdictional basis for making the type of order that was the subject of the appeal in ACC v. Lynn. Charleton J. in allowing that new ground to be argued in such circumstances stated that ‘the effect of not allowing this point to be argued was responsibly accepted by ACC Bank as meaning that an order of the High Court would be upheld by this court where the original order was made without jurisdiction’. Echoing O'Donnell's reference in Lough Swilly, to ‘a continuum’ of such cases Charleton J. stated also at p. 694:
‘[10] The argument of points on appeal not considered at first instance encompasses circumstances that point to potentially extreme contrasts between the factors which enable the exercise by this court of what is a broad discretion. There is a continuum between lack of merit in bringing fresh points on appeal simply because they have occurred to the parties or their lawyers...
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