Costs orders against District Judge to be remitted to High Court

About this case:

• Judgment:
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When the judicial review proceedings arrived, it emerged that the District Judge had made a number of additional orders when granting the license, including placing a ‘warning note’ on the file, warning other judges about Mr Kilty’s role in the proceedings, and issuing an ‘Isaac Wunder’ order against one of the objectors in the license hearing, and Mr Kilty himself.

The High Court amended the statement of grounds in the judicial review to include a claim that the Isaac Wunder order was ultra vires. He then granted a declaration that the Judge had breached Mr Kilty’s right to fair procedures, and quashed the other orders as ultra vires.

He then ordered costs against the District Judge, despite having made the early finding that the District Judge need not participate in the judicial review.

The primary issue before the Supreme Court was therefore whether those cost orders could stand. Counsel for the District Judge submitted that the order should not have been made in his client’s absence, and referred to decided authority on judicial immunity for costs.

Counsel for Mr Kilty argued that the costs should stand, or alternatively, that the Supreme Court should made a range of orders to ascertain the full circumstances surrounding the District Judge’s orders.

However, the Court noted that it was the Court of Final Appeal under the Constitution, and that such ascertainment of issues of fact and law should be dealt with by the High Court.

Turning to the issue of costs, the Court noted that an unrepresented party cannot be the subject of an adverse costs order, unless the party is on notice of an application for that purpose. The Court citedStaunton v. Toyota ILRM 171 in support of this position.

It also noted the observations of O’Hanlon J. in S v. S I.R. 75, at 81, that the combined effect of Articles 34.1, 38.1 and 40.3 of the Constitution, gives rise to a constitutional right to fair procedures in court proceedings

Following these principles, it was found that the High Court Judge erred in making the costs order, as a party potentially affected by a final court order is entitled to be given adequate notice of the possibility of such an order being made.

While noting the question of judicial immunity, and citing McIlwraith v. Fawsitt 1 I.R. 343; and O’Connor v. Carroll 2 I.R. 160, the Court expressed no view on the issue, as it was a matter to be determined by the High Court.

The Court concluded that by remitting the matter, “neither party will be debarred from a right of appeal on a matter, potentially, of some gravity”.

Thus, it was found that the “order for costs made against the respondent District judge, having been made in the absence of jurisdiction, cannot stand” and the issue was remitted to the High Court.