High Court of Ireland Decisions

1. The relief thus sought is unusual in that what is sought as an Order for costs against a party who has not been a party to these proceedings hitherto.

2. This matter came before me on the 31st July, 2001 for the hearing of a preliminary application, in which the Plaintiff sought a ruling to the effect that I was the appropriate Judge to hear and determine the issues raised in the Notice of Motion, and Counsel for the Royal and Sun Alliance Insurance Group applied to me to disqualify myself from such hearing on the grounds of objective bias.

3. The background to the matter is as follows.

4. The proceedings were commenced by a Plenary Summons issued on the 8th February, 1995 in which the Plaintiff sought damages from the Defendant in respect of injuries which he suffered as a result of a fall at the Defendants shop premises in Cork. The matter came on for trial before Mr. Justice O’Donovan on the 25th November, 1997 and was at hearing for 11 days. In the course of that trial, liability was in issue and on the damages side the principle issue was whether or not the Plaintiffs multiple sclerosis had been aggravated by the fall. Judgment was delivered on the 27th March, 1998 in which Mr. Justice O’Donovan found for the Plaintiff on the issue of liability, and then further found that she had sustained herniated intervertebral thoracic disk injury and other less serious injuries. He found however, that the Plaintiff had not established any aggravation of her pre-existing condition of multiple sclerosis. The Plaintiff was awarded a sum of £100,000.00 for damages and costs of the action based on the 7 day trial together with the costs of a commission.

5. The Plaintiff appealed the refusal on the part of the learned trial Judge to award damages for aggravation of the Plaintiffs multiple sclerosis. The Plaintiff was successful in that appeal and the Supreme Court directed a retrial on all issues relating to damages.

6. That retrial commenced before me on the 27th October, 1999 and was at hearing on the 28th and 29th October, 1999, the 1st, 2nd, 3rd, 4th, 8th, 9th, 10th and 11th February, 2000 and the 28th and 29th March, 2000, a total of 13 days. I delivered Judgment on the 29th January, 2001 in favour of the Plaintiff holding that inter alia , the Plaintiff had sustained an aggravation of her pre-existing condition of multiple sclerosis and I awarded her the sum of £329,158 as damages in respect of the same, together with the whole of the costs of the first trial and of the commission and the whole of the costs of the second trial. No appeal has been taken against my Judgment and Order.

7. By a letter dated 7th March, 2001 Messrs. Timothy J. O’Hegarty & Sons Solicitors, who were acting in the proceedings on behalf of the Defendant wrote to the Solicitors for the Plaintiff enclosing two cheques. The first of these was to satisfy the amount of the sum for damages and was in favour of the Plaintiff. The second was in the amount of £170,842 in favour of the Plaintiffs Solicitor. This latter of the two letters disclosed the following:-

8. There ensued correspondence from the Solicitor for the Plaintiff in which he vehemently rejected the assertion quoted above that the amount of the costs recoverable on foot of the Orders made by me and the Supreme Court could be limited in the manner contended for by Messrs. Timothy O’Hegarty & Co. Solicitors.

9. The matter not being resolved through correspondence this Motion was brought.

10. As indicated earlier on this preliminary application two issues arise;

11. On the first issue, Dr. White for the Plaintiff submits that the question of costs at the end of the trial should always be dealt with by the trial Judge, that the relief sought as against the Royal and Sun Alliance Insurance Group is in the nature of a supplementary Order in relation to costs and as such falls within the time honoured rule that the trial Judge should hear and determine that matter. In support of this submission he points to a number of cases in which this has been done in the jurisdiction of the Courts of England and Wales in applications for Orders for costs against parties who are non-parties to the proceedings, under Section 51 of the United Kingdom Supreme Court Act, 1981. Specifically in this regard he refers the cases of Aiden Shipping Company Limited -v- Interbulk Limited, the Vimeira (1986) 2 All ER 409, Murphy -v- Young & Company Brewers PLC (1997) 1 All ER 518, Tharros Shipping Company Limited -v- Bias Shipping Limited (1997) 1 Lloyd’s Report 246, Pendennis Shipyard Limited -v- Magrathea (Pendennis) Limited (1998) 1 Lloyd’s Report 315, Bahai -v- Rashidian & Anor (1985) 1 W.L.R. 1337.

12. In all of these cases except one, that is to say, the case of Bahai -v Rashidian no issue was raised as to the correctness or otherwise of the trial Judge dealing with an application for costs against a non-party. In the Bahai case issue was taken on the grounds of bias on the basis that in his Judgment the learned trial Judge had been extremely critical of the party, i.e., the Solicitor for the Plaintiff against whom the Order for costs was sought. The Court of Appeal upheld the correctness of the trial Judge dealing with the matter.

13. For the Royal and Sun Alliance Insurance Group, Mr. Counihan submitted that the Orders of the Courts already referred to as to costs otherwise were final Orders and that I as the trial Judge was now a functus officio . In this regard he relied upon the Judgments of the Supreme Court in the case of Belville Upholdings -v- The Revenue Commissioners [1994] ILRM 29 and the case of Michael: Geoffrey McMullen Plaintiff -v- Noel Clancy Defendant, unreported Ruling of McGuinness J. delivered on the 3rd November, 1999. He further submitted that neither Section 53 of the Judicature Act, 1877 nor Orders 99 and 125 of the Rules of the Superior Court created or permitted a jurisdiction in this Court to award costs against a party who is not a party to the proceedings. He pointed to the fact that in the English jurisdiction the terms of Section 51 of the English Supreme Court Act, 1981 expressly provided a jurisdiction in the Court to decide by whom the costs were to be paid and his provision was not limited to parties to the proceedings. No such provision has been enacted into our law. He further pointed out that in the English jurisdiction there were no rules of Court dealing with Section 51 applications and hence it was necessary to issue a separate summons to make such an application.

14. In reply Dr. White contended that the procedure adopted here by Notice of Motion in these proceedings was the least expensive and most expeditious way of litigating the issue raised. He contended what he was seeking was a supplementary Order in relation to costs under the provisions of Section 53 of the 1877 Act and that this section was broad enough in its scope so as to create a jurisdiction to award costs against a party who was a non-party to the proceedings. He submitted that Order 99 of the Rules of the Superior Court was in similar terms to Section 53 of the 1877 Act and he further submitted that the definition of “party” in Order 125 was in very broad terms and manifestly included in the Royal and Sun Alliance Insurance Group so far as this case was concerned.

15. It is a well settled principle that the Judge who deals with the trial of an action should deal with all questions of costs arising from that action. Thus it would seem to me that the only basis upon which the Royal and Sun Alliance Insurance Group could succeed on this issue if it were to demonstrate that I was functus officio . That would arise of course, if what was sought by the Plaintiff in this case was an amendment to the Order for costs which I have already made which clearly are of a final nature.

16. However, in my view, what is sought is not an amendment of the Order I have already made. No change is required to the Orders I have already made in relation to costs and these will stand notwithstanding any relief claimed in this Notice of Motion. In my view what is sought by Dr. White is an additional Order or a supplementary Order based on the new evidence which has been deposed to in the Affidavits.

17. Thus I have come to the conclusion that the issue that is raised in this Notice of Motion against the Royal and Sun Alliance Insurance Group is one which appertains to the costs of the action and as such, in my view, I am the appropriate Judge to deal with it. In the light of the fact that what is sought is an additional Order and does not involve any change or amendment of the Order for costs already made, it is my view that I am not a functus officio in relation to the relief which is now claimed. I am fortified in this conclusion by the authorities which were opened to me from the English jurisdiction in which similar relief was sought under Section 51 of the English Supreme Court Act, 1981 and in virtually all of these cases it was the trial Judge who also dealt with the Order for costs against a non-party. There is manifestly a great deal of sense in this, in that an issue of costs is inextricably linked with the conduct of the trial and all of the evidence heard at the trial. Were it to be the case that a different Judge should deal with an aspect of the costs issue, it would probably be necessary for the parties to revisit much of the matter that may have in contention in the trial. Clearly this would be very onerous on the parties and the wholly undesirable procedure.

18. For all of these reasons I have come to the conclusion that I am the appropriate Judge to hear and determine the issues raised in the Notice of Motion. Whether or not there is jurisdiction under Section 53 of the Act, 1877 or under Order 99 of the Rules of the Superior Court to make an Order for costs against a non-party and whether if, such a jurisdiction exists, the Courts discretion should be exercised in favour of making such an Order are matters to be fully argued on and determined on the hearing of the Motion itself.

19. The second issue raised on this preliminary application is whether or not I should disqualify myself on the grounds of objective bias.

20. The ground put forward by Mr. Counihan to support his application in this regard is that I as Counsel appeared in an action entitled Superwood Holdings PLC and Ors -v- Sun Alliance and Ors , in which case I appeared for the Plaintiffs against the Sun Alliance. Mr. Counihan submitted that because of the very unusual and notorious nature of those proceedings, that, that could give rise to a reasonable apprehension on the part of the Royal and Sun Alliance Insurance Group of bias against them. Mr. Counihan stressed that he was not attempting to make out a case of actual bias. In support of his submission in this regard he referred to the cases of Dublin Wellwoman Centre Ltd. & Ors. -v- Ireland & Ors. [1995] ILRM 408 and the case of O’Reilly -v- Cassidy (No. 2) [1995] 1 ILRM 311. Dr. White submitted that if Mr. Counihan’s application was to be acceded to, that it would make it impossible for Judges to function, that Insurance Companies were part of the furniture and were encountered in practice at the Bar on a daily basis. He submitted that there was no merit in Mr. Counihan’s application in this regard.

21. I accept that the test which is to be applied to determine whether there is a reasonable apprehension of bias is as set out in the authorities referred to by Mr. Counihan. However in my view the test could not be met on the basis which is submitted by Mr. Counihan. As was pointed out by Dr. White insurance companies are an integral part of modern litigation and it is the daily experience of Counsel in practice at the Bar to either appear for the parties suing other parties indemnified by Insurance Companies or to appear for the indemnifiers. To say that there would be a reasonable apprehension of bias on the part of a particular Judge because he had appeared in a long running action in which the Defendant was an Insurance Company, is in my view, not sustainable. Insurance Companies, who on a daily basis are in the business of attending at Court for the purposes of dealing with claims against their insured and of seeing cases heard and determined by the Courts and whose experience of contact with the Courts is on a professional or commercial basis, would in my view, be very unlikely to have such an apprehension of bias. In the case which is advanced by Mr. Counihan as the basis of their apprehension of bias, namely, the “ Superwood” case there were in fact four Insurance Company Defendants, namely the Sun Alliance, the Prudential Insurance Company, the Church and General Insurance Company and Raymond P. McGovern as the Lloyd’s representative in Ireland. Is it to be taken that all of these insurers could object to my hearing a case against them on the basis of such alleged apprehension of bias? If that were to be the case, the State, and indeed all insurance companies could pick and choose, the judges, they wanted to hear cases against them. I mention the State for the obvious reason that every member of the Bench has undoubtedly, while in practise at the bar, acted as counsel in cases against it.

22. Lest it be said that a distinction should be drawn, between the State and Insurance Companies on the basis that the State is invariably a party to proceedings, whereas Insurance Companies are invariably indemnifiers of defendants, I would be of opinion that in the context of a contention of - objective - bias, the distinction is immaterial, as the existence and identity of the indemnifying Insurance Company is invariably well known to Counsel acting for the Plaintiff.

23. I agree with Dr. White that were it to be the case that objection could be taken to a Judge hearing a case against a particular Insurance Company on the basis that at the Bar he had appeared in a case against that Insurance Company, that would greatly circumvent and inhibit the proper functioning of the judiciary.

24. However, while that is a significant factor which must be taken into account, it is not the central issue which is as the authorities say, whether there is a risk of a reasonable apprehension of bias in the circumstances which have occurred. I am satisfied having regard to the reasons set out above that it is highly unlikely that a reasonable insurer would be a prey to such an apprehension on the basis which is put forward in this case.

25. Accordingly, I must refuse Mr. Counihan’s application to me to disqualify myself from hearing this Motion.

26. In the result then, I have come to the conclusion that I should continue to hear and determine this Motion.