Supreme Court: Man entitled to Court of Appeal costs against judge

Andrew McKeown BL

About this case:

• Citation:
  [2020] IESC 65
• Judgment:
  External link
• Court:
  Supreme Court

District Court

Campion Property Consultants (Campion), the notice party, acted for Mr Kilty in the disposal of property, but he refused to pay the professional fees, due to a dispute partly related to the role played in the property’s sale by his then solicitor, Rory O’Donnell of Eversheds.

Under the Act then in place, auctioneers were obliged to apply for an annual licence to the Revenue Commissioners. It was necessary to obtain a certificate of qualification from the District Court. An application for a certificate could be objected to by any person deemed to have an interest in the matter.

In 2009, acquaintances of Mr Kilty objected to the grant of a certificate of qualification to Campion. Mr Kilty submitted a written objection. Judge Dunne subsequently ruled that his objection had been lodged too late, that he was not entitled to participate, and that his evidence should not be heard. Judge Dunne granted the certificate. He stated that he was placing a “warning note” on the court file, to warn other judges not to have regard to any objections that Mr Kilty might make about Campion in future.

High Court

Mr Kilty initiated judicial review proceedings, seeking orders of certiorari quashing the certificate of qualification, and the “warning note”, and certain declaratory orders that the judge had breached his rights. He argued the judge ought to have disqualified himself, alleging that Mr O’Donnell was Judge Dunne’s personal solicitor and that he failed to disclose this. He said Judge Dunne and his son had been defendants in Commercial Court proceedings in 2009, and that Eversheds had represented them.

The leave judge directed Mr Kilty to serve proceedings on the Chief Clerk of the Dublin Metropolitan District and on the Chief State Solicitor’s Office (CSSO). The CSSO told him that Judge Dunne would not participate in the proceedings and that the usual rule regarding judicial immunity from costs should apply. Confirmation was requested that no costs would be sought against him.

Mr Kilty did not answer, applying instead for directions from the court, on notice to the notice party, but not to Judge Dunne. He argued the judge should take part in proceedings where there was an allegation of bias, noting the rule that costs should not be awarded against a judge who doesn’t actively take part in proceedings. Mr Justice John Hedigan directed the matter should proceed without Judge Dunne’s participation “at this time”.

Campion pleaded that Mr O’Donnell was not Judge Dunne’s solicitor, and that they did not know each other. It expressly denied that Judge Dunne had placed a warning note on the file.

The case came on before the High Court in October 2011. Neither Mr Kilty nor Campion had sight of the District Court file. Mr Kilty served a subpoena duces tecum on the District Court Chief Clerk with responsibility for the licensing office, who attended court with the file, including an email from the court official who had sat with Judge Dunne at the hearing. The court accepted that as demonstrating that Judge Dunne had purported to make an Isaac Wunder order against Mr Kilty.

Counsel for Campion made it clear that he was not in a position to contest this issue further, and suggested that Judge Dunne ought to be notified about the change in the nature of the case. Mr Justice Hedigan said Judge Dunne had chosen not to participate, and that this was the price to be paid for that choice.

The court said that there was “a very strong case” for granting the order sought, finding there was a clear case of objective bias in that a reasonable person would have had strong grounds for concern as to Judge Dunne’s impartiality, given his close professional relationship with a firm of solicitors who were central to Mr Kilty’s allegations.

He ruled that Judge Dunne, a District Court judge, had no power to make an Isaac Wunder order and accordingly granted an order of certiorari. The court also made a declaration that Judge Dunne had breached Mr Kilty’s right to fair procedures, and quashed the certificate of qualification. The justice said that Campion had been “caught in the cross-fire”, and had had nothing to do with the purported Isaac Wunder order. He awarded the costs of both Mr Kilty and Campion against Judge Dunne.

The CSSO only became aware of the High Court order in 2012, when it received bills of costs from both Mr Kilty and Campion. An appeal was lodged, against the order of costs. Despite the express statement that the appeal was limited to the costs, it was also pleaded that the High Court had erred in making a declaration that Mr Kilty had a reasonable apprehension of bias by reason of the relationship between Judge Dunne and Mr O’Donnell, contending that there was no evidence to support that finding.

The Supreme Court (First Appeal)

The Supreme Court delivered its judgment in 2015, referring to McIlwraith v Fawsitt [1990] 1 IR 343 and O’Connor v Carroll [1999] 2 IR 160, which dealt with whether costs may be awarded against judges. The judges found the High Court’s cost order had breached fair procedures, and that a court should not make an adverse order against an absent or unrepresented party who was not put on notice of the application. The question of costs was remitted to the High Court.

In a further hearing in July 2016, the High Court refused to hear further submissions. He said the Supreme Court had effectively directed him that he was to make no order on costs.

Court of Appeal

Mr Kilty appealed, arguing the judge misunderstood the Supreme Court judgment, and that he erred in refusing to hear submissions. The Court of Appeal, per Mr Justice Gerard Hogan, said that the judge had erred, and ordered that the issue of costs should again be remitted to the High Court.

A dispute about the costs of the appeal, in which the Attorney General participated as amicus curiae at the court’s invitation, followed. The Court issued a further judgment. The authorities on judicial immunity from costs were considered in detail, including Chief Baron Christopher Palles’s judgment in R (King) v Justices of Londonderry (1912) 46 ILTR 105, where it was stated that magistrates ought not to be obliged to pay costs “unless they were acting in some way that was not bona fide, or unless they took it upon themselves to put forward and support a case that was wrong in point of law”.

King was approved in State (Prendergast) v District Justice Rochford (Unreported, Supreme Court, 1 July 1952) where Chief Justice Conor Maguire stated that the principle continued to apply where the District Justice or Circuit Court judge had been guilty of no impropriety and had not shown cause in the proceedings.

The court said Judge Dunne was entitled to avail of the quasi-immunity. The court made no costs order.

Supreme Court (Present judgment)

Mr McKilty appealed, arguing that the court misinterpreted McIlwraith, and that the common law quasi-immunity was incompatible with constitutional jurisprudence such as Byrne v Ireland [1972] IR 241 and Webb v Ireland [1988] IR 353.

Judge Dunne’s counsel argued that if costs cannot be awarded against a judge in substantive matters absent mala fides, the same principle must be applied to necessary procedural steps. He accepted that the “decision” under consideration in the Court of Appeal was that of the High Court, and not his decision in the District Court, but argued that he had an interest in upholding it. The question, therefore, was whether it was a reasonable error made in good faith.

The Supreme Court said McIlwraith is concerned with the decision or conduct of a respondent judge acting qua judge, not qua litigant. The judges held that Judge Dunne, in contesting the appeal, “can only be seen as having acted as a litigant. In that capacity, he pursued a line of argument that failed. Whether he did so in good faith, and whether his interpretation… could be described as the result of a reasonable error on his part, or whether he conducted his argument in the appeal in proper fashion, was no more relevant to the issue of costs in the Court of Appeal than it would be in the case of any other litigant in any other case. It had nothing to do with the ordinary principles according to which costs are awarded.”

Conclusion

Mr Kilty’s appeal was allowed.