Court of Appeal: District Court judge not liable for costs in saga which brought ‘little credit to the legal system’

About this case:

• Judgment:
  External link
• Judge:
  Mr Justice Gerard Hogan

Finding that an award of costs could not be made against District Court Judge Cormac Dunne in this particular appeal, Mr Justice Gerard Hogan said that the “resolution of this question presents yet a further issue to be determined in an ill-fated saga, the duration and complexity of which brings little credit to the legal system itself”.

Background

The present proceedings arose from litigation between Brendan Kilty and Campion Property Consultants, which included Mr Kilty objecting to the renewal of Campion’s auctioneering licence. In the District Court, Judge Cormac Dunne rejected Mr Kilty’s claim and granted the licence.

In the High Court in 2011, citing objective bias, Mr Kilty sought to have Judge Dunne’s order quashed. Mr Kilty maintained that there were close connections between Judge Dunne and the legal team acting for Campion. Notably, in the statement of grounds there was no claim that costs should be awarded personally against Judge Dunne.

Costs order

In a motion before the High Court, Mr Justice Hedigan declined to make an order as to whether Judge Dunne should actively participate in the Judicial review proceedings. At the hearing, it became apparent that Judge Dunne had placed a “warning note” on the auctioneering licence case file, purporting to warn other judges of Mr Kilty’s role in the application; and purported to make an Isaac Wunder order against him, thereby restricting his right of access to the courts.

Mr Justice Hedigan said that the order was ultra vires; held that there were grounds for objective bias; granted a declaration that Judge Dunne had breached Mr Kilty’s right to fair procedures; and quashed the other orders. Justice Hedigan then continued to award costs against Judge Dunne.

Remitted back to the High Court

The award of costs against Judge Dunne was successfully appealed in the Supreme Court on the basis that he was not notified that such an order might be sought against him. Setting aside the order, the matter was remitted to the High Court for consideration - however Mr Justice Hedigan mistakenly considered that he was bound by the Supreme Court order to make no order as to High Court costs.

In October 2017, the Court of Appeal held that Mr Justice Hedigan was in error - with the effect that the issue of costs in the original proceedings was remitted to the High Court for consideration.

Court of Appeal

In the present proceedings, the Court of Appeal had to consider the question of costs of Mr Kilty’s successful appeal. Delivering the judgment of the Court, Justice Hogan stated that, ordinarily, costs would have been awarded against the losing party (i.e. Judge Dunne) as per Order 99, Rule 1 of the Rules of the Superior Court. The issue however was whether it was appropriate to apply the quasi-immunity from costs long enjoyed by the judiciary.

According to the principles enunciated in R v Justices of Londonderry (1912) 46 ILTR 105, State (Prendergast) v Rochford , McIlwraith v Fawsitt 1 IR 343, and Miley v Employment Appeals Tribunal IESC 20; Mr Justice Hogan explained that costs orders cannot be made personally against members of the judiciary unless:

Mr Justice Hogan said that it was unnecessary to consider whether these requirements were singular or cumulative in nature, as he considered that Judge Dunne could meet both tests.

Mr Justice Hogan said that there was no question of any mala fides on the part of Justice Dunne so far as this appeal was concerned.

Furthermore, Mr Justice Hogan held that by participating in the subsequent costs issue, he did not thereby seek to defend the validity of the order which he had made in the District Court and which was subsequently quashed by the High Court in October 2011

Mr Justice Hogan said that, although in the course of ordinary justice, costs would naturally have been awarded to Mr Kilty; it followed from judicial quasi-immunity that the Court of Appeal would make no order as to costs against Judge Dunne.