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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Martin & Anor -v- Legal Aid Board & Ors [2007] IEHC 448 (13 December 2007) URL: http://www.bailii.org/ie/cases/IEHC/2007/H448.html Cite as: [2007] IEHC 448 |
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Judgment Title: Martin & Anor -v- Legal Aid Board & Ors Composition of Court: Laffoy J. Judgment by: Laffoy J. Status of Judgment: Approved |
Neutral Citation Number: [2007] IEHC 448 THE HIGH COURT RECORD NO. 2003 No. 6150 P BETWEEN/CATHERINE MARTIN AND DIARMUID DOORLEY PLAINTIFFS AND THE LEGAL AID BOARD, IRELAND AND THE ATTORNEY GENERAL DEFENDANTS Judgment of Miss Justice Laffoy delivered on 13th December, 2007.On 23rd February, 2007 I delivered judgment on the substantive issues in this case in which the plaintiffs sought the following declaratory reliefs: (a) a declaration that the decision of the first defendant (the Board) to permit, by itself and/or by its authorised officers, an unfettered right of access to case files is void, ultra vires and in breach of the provisions of the Constitution and the European Convention on Human Rights; and (b) if necessary, a declaration that s. 32(2) of the Civil Legal Aid Act, 1995 is invalid and repugnant having regard to the provisions of the Constitution and, in particular, Articles, 34, 38 and 40 thereof. For the reasons set out in the judgment I have found that the plaintiffs were not entitled to either declaration and ordered that the plaintiffs’ claim be dismissed. Subsequently, on 23rd March, 2007, the matter was re-listed to deal with the issue of costs. On that occasion counsel for the Board and counsel for the second and third defendants (the State parties) each applied for costs against the plaintiffs. Counsel for the plaintiffs submitted that, while the plaintiffs had lost substantially, their case concerned important points of principle and they were in part successful. He submitted that, because of the special circumstances of the case, the plaintiffs should be allowed one day’s costs. Having been informed at the hearing that the Supreme Court had heard an appeal on the issue of costs in Dunne v. Minister for the Environment & Ors., subsequently I decided to postpone the determination on costs pending the judgment of the Supreme Court. The judgment of the Supreme Court ([2007] IESC 60) was delivered on 6th December, 2007. In view of the lapse of time since I heard the parties’ submissions on costs, I think it proper to record them in some detail. Counsel for the plaintiff advanced three alternative bases on which the court might approach the issue of costs, namely: (1) That the defendants, the Board and the State parties, should not get two sets of costs. (2) That no order for costs should be made in favour of the Board or the State parties because the court had found for the plaintiffs in holding that the matter was not a moot, that the plaintiffs had locus standi and the plaintiffs had a bona fide concern about the issues involved. It was submitted that the case touched profoundly on the administration of justice, that the judgment set out valuable guidelines on the issues raised, and clarified the position, including the application of the impugned decision in the context of the in camera rule. It was also submitted that the plaintiffs brought the proceedings as conscientious members of the legal profession and they had no personal proprietary interest in the matter. (3) On the authority of the decision of the Supreme Court in Curtin v. Clerk of Dáil Éireann & Ors. (6th April, 2006), that it was open to the court to award some costs to the plaintiffs against the defendants. It was pointed out that in the Curtin case, the plaintiff, though unsuccessful, was awarded half of his costs. Counsel for the plaintiffs, while accepting that the issues in this case are not as profound as the issues in the Curtin case, submitted that this case is of considerable practical importance. On that basis, he submitted the court has a discretion to award some costs, suggesting that one day’s costs should be awarded. In response, counsel for the Board submitted that, in order for the court to properly exercise its discretion to depart from the normal rule that costs follow the event, the case must be exceptional. Usually there is a public law issue involved of general importance. He referred to the decision of this Court (Kelly J.) in Sinnott v. Martin [2004] 1 I.R. 158, emphasising para. 193 of the judgment. In order to raise a public law issue of general importance, the plaintiff must point to some uncertainty in the law, it was submitted. Usually the exceptional jurisdiction to depart from the normal rules in relation to costs is invoked where there is a new statutory provision, or an important constitutional issue, or some aspect of the common law is unclear. In this case, counsel submitted, what was at issue was the interpretation of s. 32(2) which was absolutely clear, as was its purpose and intent. In fact, it was submitted, the plaintiffs were suggesting that s. 32(2) did not mean what it said, in arguing that access to case files was only permissible when supervised by a solicitor. The plaintiffs had lost. The Board, in its defence, had set out its position clearly and it did not change in the course of the case. Yet the plaintiffs pursued the case. Counsel pointed out that the Board is a statutory body which uses taxpayers’ funds and submitted that it is entitled to its costs in the ordinary way. Counsel for the State parties adopted the submissions made by counsel for the Board. He queried whether the plaintiffs were supported by a trade union or by the Law Society or had some other indemnity in respect of costs, which the plaintiffs’ counsel confirmed was not the case. As to what would constitute exceptional circumstances which would justify the court from departing from the normal rules as to costs, counsel referred to the decision of the Supreme Court in T.F. v. Ireland [1995] I.R. 321, the outcome of which was likely to affect a lot of pending proceedings. Counsel for the State parties submitted that there was no evidence before the court in this case that any client has expressed concern in relation to the matter in issue. Finally, counsel for the State parties submitted that there was no basis for not awarding two sets of costs. In reply, counsel for the plaintiffs submitted that it was not correct to say that s. 32(2) was a straightforward statutory provision. It went to the heart of the solicitor and client relationship, he submitted. In delivering the judgment in the Supreme Court in the Dunne case, with which the other four judges concurred, Murray C.J. outlined the nature of the court’s discretion to depart from the normal rule as to costs, having considered the rationale underlying the normal rule in the following passage:
Where a Court considers that it should exercise a discretion to depart from the normal rule as to costs it is not completely at large but must do so on a reasoned basis indicating the factors which in the circumstances of the case warrant such a departure. It would neither be possible nor desirable to attempt to list or define what all those factors are. It is invariably a combination of factors which is involved. An issue such as this is decided on a case by case basis and decided cases indicate the nature of the factors which may be relevant but it is the factors or combination of factors in the context of the individual case which determine the issue. Accordingly any departure from the general rule is one which must be decided by a Court in the circumstances of each case …” In allowing an appeal against a decision of the High Court in the Dunne case to award costs to the plaintiff and in setting aside the decision of the High Court, Murray C.J. stated as follows:
(1) While this case involved the construction of a statutory provision in the context of its impact on legal professional privilege, which is recognised as having a constitutional dimension, and the validity of that provision having regard to the provisions of the Constitution, I cannot find that it raised issues of law of special and general public importance so as to warrant a departure from the general rule that costs follow the event. (2) While the defences of lack of locus standi and mootness which were raised by both the Board and the State parties were not upheld, it could not be found that the fact that those issues were raised affected the duration of the proceedings and the attendant costs in any material respect. (3) The Board is a statutory body separate and distinct from the State parties. As I stated in my judgment the issues in relation to the declaration referred to at (a) above arose between the plaintiffs and the Board, whereas the issues in relation to the declaration sought at (b) arose between the plaintiffs and the State parties. The Board and the State parties required and had separate legal representation. There is no basis on which one or the other should be deprived of costs. Accordingly, in my view, this is a case in which the normal rule, that costs follow the event, should apply. There will be an order for costs in favour of the Board and the State parties against the plaintiffs. |
