High Court of Ireland Decisions

1. This application for judicial review arises out of the imprisonment of the applicant (Mr. Curtis) by the respondent (Judge Kenny) for an alleged but unspecified contempt of court. In moving the application, counsel described the circumstances in which Mr. Curtis was committed to prison as bizarre. That was no misdescription. The procedures which lead to the committal of Mr. Curtis and the committal itself represented a regrettable departure from the standards of justice and fairness which ought to have applied.

2. Mr. Curtis is a former employee of the first named notice party (Mr. Higgins). He was employed by Mr. Higgins as a lorry driver. He was involved in a road traffic accident in the course of that employment. Arising out of that accident civil proceedings were commenced in the Circuit Court against both Mr. Curtis and Mr. Higgins. They were brought at the suit of Mr. Thomas Vesey. The proceedings were personally served on Mr. Curtis. He passed them on to his then employer Mr. Higgins whom he believed sent them to a solicitor. Mr. Curtis heard no more of these proceedings until the 8th of March, 2000, by which time he had left the employment of Mr. Higgins and was working for himself.

3. On the 8th of March, 2000, a brother of Mr. Higgins left messages at Mr. Curtis’s home which were replied to at 9 o’clock that evening when Mr. Curtis finished his work. He spoke by telephone to Mr. Higgins at that time. Mr. Higgins requested him to attend court the following morning because the proceedings instituted by Mr. Vesey were due for hearing. Mr. Curtis indicated that this was not convenient but after discussion there was an agreement between them for the payment of a sum of money by Mr. Higgins to Mr. Curtis in respect of his attendance at court. The sum was to be paid by a bank draft which was to be ready for Mr. Curtis on his arrival at court. On the making of this agreement Mr. Curtis made the necessary arrangements concerning work on the following day so as to enable him to attend court.

4. He arrived at Galway Circuit Court at 9.45 a.m. on the 9th of March, 2000. Mr. Higgins arrived 25 minutes later. He did not have the bank draft giving as an excuse the fact that the banks would not be open until 10.30 a.m. Mr. Curtis corrected that error. Mr. Higgins then spoke with his solicitor, returned to Mr. Curtis and said he would not pay him anything. At that stage Mr. Curtis said that he was cutting his losses and left.

5. About half an hour later, Mr. Higgins telephoned Mr. Curtis. He told him that he had to come back to court. Mr. Curtis said he would do nothing until the agreement for the payment of expenses had been honoured. A little later there was another telephone call received by Mr. Curtis from Mr. Higgins. In the course of that telephone conversation Mr. Higgins suggested that if Mr. Curtis returned to court he would look after him but Mr. Curtis did not believe this. A further phone call was received by Mr. Curtis’s wife from a Mr. McDarby, a solicitor, who indicated that he wanted him to return to court. Mr. Curtis’s wife indicated that he would not do so until Mr. Higgins kept his promise. A further phone call was received by Mr. Curtis’s wife by a person who purported to be a police officer who said that the judge had indicated that Mr. Curtis had to be in court. Mr. Curtis’s wife did not believe that this was an authentic call because the caller display on the mobile phone indicated that all of these telephone calls came from the same telephone number.

6. Subsequently, police officers made enquiries at one of Mr. Curtis’s shops and his wife became aware of the fact that a warrant had been issued for him. By arrangement with the police he attended court on Thursday the 23rd of March, in the company of his wife.

7. On that day, the case was called on at 12.45 p.m. Mr. Curtis went to the witness stand and attempted to explain the position and indicated that he had no intention of being disrespectful to the court. Judge Kenny suggested that he should return in the afternoon with a solicitor, having first enquired as to whether Mr. Curtis had any children.

8. Mr. Curtis procured the services of a solicitor, a Mr. Carr. In the afternoon, evidence was taken from Mr. McDarby, solicitor. He gave evidence that a witness summons had been issued against Mr. Curtis but had not been served or, if it was, had not be correctly served. Mr. Curtis never received any witness summons. Mr. McDarby was cross-examined by Mr. Carr. At this stage it was known that the civil proceedings which had been brought against Mr. Curtis and Mr. Higgins had been settled on the 9th March, 2000. In the course of ruling the settlement counsel on behalf of Mr. Higgins had complained to the judge that he was obliged to settle the case and could not proceed with a counter-claim because of the absence of Mr. Curtis. When this was put to Mr. McDarby in cross examination he confirmed that he could not be sure that Mr. Higgins would have won his case if Mr. Curtis had been present to give evidence. At this juncture, the hearing on 23rd March was adjourned briefly to allow for the attendance of Mr. Higgins. Then a most extraordinary thing happened.

9. A Mr. O’Connor, barrister, stood up in Court and produced a cheque apparently drawn by Mr. Curtis in favour of Mr. Lynch, a solicitor, the second named notice party. Mr. O’Connor remarked that this cheque, which was apparently dishonoured, demonstrated how honourable Mr. Curtis was. This was a cheque in respect of matters quite separate and distinct from the civil action taken at the suit of Mr. Vesey. The cheque was handed to Judge Kenny. He in turn handed it down to Mr. Curtis and enquired of Mr. Carr the solicitor as to what Mr. Curtis was going to do about it. Judge Kenny appeared to know something about the cheque before it was produced.

10. Meanwhile Mr. Higgins arrived. He gave evidence to the effect that he had offered Mr. Curtis £500.00 expenses for his attendance in court but that this was not acceptable because Mr. Curtis alleged it would not cover the expenses. The judge then indicated that Mr. Higgins had lost £17,500.00 because of the lack of evidence from Mr. Curtis. This was apparently the amount for which Mr. Vesey’s proceedings had been settled.

11. Judge Kenny then spoke generally about the obligations of witnesses to attend court and the fact that they were not to entitled to make a profit from expenses. The judge then held Mr. Curtis in contempt of court saying that Mr. Curtis knew the value of a pound and that the cheque which had been produced would have to honoured. The judge enquired as to whether Mr. Curtis had children and on hearing that he had three, aged thirteen, fourteen and twenty, indicated that the twenty year old could come down from college and look after the other two and Mr. Curtis was then taken into custody.

12. Between 4 p.m. and 6.30 p.m., Mr. Carr, solicitor, made an application to Judge Kenny and indicated that if Mr. Curtis was given 21 days he would be in a position to honour the cheque for £1,000.00 which had been produced, but the judge said that he was not interested. At 6.30 p.m. Mr. Curtis was brought back to court and Mr. Carr pleaded for his release. The judge’s response was to say that he might fine Mr. Curtis or put him in prison. He then said he was imprisoning him for contempt. The judge then turned to Mr. Curtis’s wife and enquired as to whether she wished to join him in prison saying “ I know you were the instigator ”. Mrs. Curtis stood and said nothing.

13. The cheque for £1,000.00 which had been produced by Mr. O’Connor was made out in favour of Mr. Lynch. It was in respect of professional services rendered by him in a matter quite unrelated to the civil proceedings brought at the suit of Mr. Vesey. It had not been honoured because of a disagreement with Mr. Lynch about how much he should be paid for his professional services and the nature and the quality of the service offered.

14. Following this quite extraordinary performance Mr. Curtis was taken into custody. A warrant for committal was drawn up and signed by the County Registrar. It was addressed to the “ Superintendent in charge of the Garda Síochána in County Galway ” and required that officer to take Mr. Curtis to the Governor of Castlereagh Prison. The Governor was then authorised and required to keep Mr. Curtis in prison until such time as he purged his contempt and was discharged by due process of law. The warrant quite wrongly does not specify the contempt. Despite attempts to do so, Mr. Curtis’s solicitor has been unable to obtain copies of the orders made by Judge Kenny. I have had exhibited in an affidavit a draft but unexecuted order made by the judge. It gives no clue as to the contempt of Court for which Mr. Curtis was being punished.

15. Not alone did Mr. Curtis not know what his contempt of court was but neither did he know what was required of him to purge his contempt. Despite his solicitor, Mr. Carr, pressing Judge Kenny to indicate what was required to purge the contempt, the judge would not reveal this information.

16. Mr. Curtis was taken to Castlereagh Prison on the 24th of March, 2000. On the following day he was admitted to the Coronary Care Unit of Roscommon County Hospital complaining of chest pains. His cardiac enzymes were elevated and changes were noticed on ECG examination. On the 27th of March, he was still complaining of chest pain and Roscommon County Hospital went about organising a coronary angiogram to be carried out in Dublin.

17. On the following day, an application was made to Judge Kenny on the basis of a medical report prepared by a doctor in the County Hospital. The judge said that he would suspend that balance of the sentence until further order but that when Mr. Curtis was fit and well he would have to return to the court at that time to purge his contempt. The solicitor who appeared for Mr. Curtis on that occasion says on affidavit that he was not aware from what was said by Judge Kenny on that occasion what Mr. Curtis had to do in order to purge his contempt.

18. On the uncontroverted evidence before me it is quite clear that Mr. Curtis was never at any time in contempt of the Circuit Court. Insofar as the proceedings brought at the suit of Mr. Vesey were concerned it was accepted at all times that he had not been served with a witness summons to attend court to give evidence in those proceedings. Neither was he served with any court order requiring him to do so. How then could there have been a contempt of court? Clearly, there was none and the applicant ought not to have been dealt with as though he was a contemnor.

19. The procedure whereby the second notice party, who was extraneous to the proceedings brought by Mr. Vesey, was permitted to appear in court represented by counsel and to make complaint concerning a dishonoured cheque, is one not known to the law. That such a matter should have been raised before Judge Kenny and apparently utilised as a basis for committing Mr. Curtis to prison is beyond comprehension.

20. There was not a scintilla of evidence to support, nor the slightest semblance of a legal basis for the committal of Mr Curtis to prison.

21. Both the Orders finding Mr. Curtis to be in contempt of Court and committing him to prison were clearly made ultra vires and in beach of natural and constitutional justice. They cannot stand. It is to be noted that in these proceedings neither Judge Kenny, Mr. Higgins nor Mr. Lynch have sought to argue otherwise.

22. A considerable injustice was done to Mr. Curtis and indeed to his family in this case. He has succeeded in this judicial review and seeks his costs against Judge Kenny, Mr. Higgins and Mr. Lynch. The normal rule is that costs follow the event and I see no basis for not awarding costs against both Messrs. Higgins and Lynch. They participated fully in what occurred in the Circuit Court and appeared to support the committal. If anything, I think that Mr. Lynch is the more responsible of the two since he, as a solicitor, must have known that the question of the £1,000.00 allegedly due to him should not even have been brought to the attention of Judge Kenny, still less utilised as a basis for the imprisonment of Mr. Curtis.

23. The position in relation to an award of costs against the judge is of course subject to special rules which have been laid down by the Supreme Court in two recent decisions. The first is McIlwraith v His Honour Judge Sean Fawsitt [1990] 1 I.R . 343 . The second is O’Connor v Carroll (Unreported,Supreme Court, 26th May, 1998). In the McIlwraith case, Finlay C.J. quoted with approval the principles applicable in cases of this sort laid down by Palles C.B., in Rex (John Conn King) v Justices of Londonderry (1912) 46 I.L.T.R. 105, in the following terms:

24. Having referred to that principle, the then Chief Justice went on to say that:-

25. The Chief Baron went on in the Londonderry case to say:-

26. The decision in McIlwraith’s case was followed and applied by the Supreme Court in O’Connor’s case. That was an appeal from a decision of mine where I granted certiorari against an order made by His Honour Judge Carroll in the Dublin Circuit Court but declined to make an order directing him to pay the costs of the proceedings. My decision was affirmed and in the course of his judgment in the Supreme Court Murphy J. cited and applied McIlwraith’s case. He concluded his judgment as follows

27. In the present case counsel on behalf of the applicant urges me to make an order for costs against Judge Kenny. He does so because he says that, although Judge Kenny has not sought to come to this Court to stand over the orders in suit, he has demonstrated impropriety of the type contemplated in the Londonderry case. He says that that form of impropriety is identified by Murphy J. as amounting to bias, prejudice or ill-will. He says that the conduct of the proceedings in the Circuit Court was indicative of bias, prejudice and ill will on the part of Judge Kenny. In particular, the failure to specify what was required in order to purge contempt even when pressed to do so by the solicitor appearing for Mr. Curtis is instanced as a demonstration of ill-will.

28. There are two difficulties which confront the applicant in seeking to recover costs against the Circuit Judge on this basis. First, nowhere either in the original or the amended grounds upon which leave was granted to mount this judicial review was there a suggestion that Judge Kenny had made his order by reference to bias, prejudice, ill-will or mala fides on his part. Judicial review proceedings may only be conducted within the four corners of the leave granted. Mr. Gageby S.C. on behalf of the applicant says that, notwithstanding that, I can still consider those questions when dealing with costs. He says they are so obvious from the affidavit evidence placed before me that it would be permissible for me to take them into account even though not the subject of the leave granted. I do not think that is open to me. Had such a case been made in the papers served on Judge Kenny he might well have sought to controvert such assertions, but has not had the opportunity to do so since the case is made by inference.

29. Secondly, and perhaps more importantly, while there is no doubt but that what went on the Circuit Court in this case was highly irregular it does not appear to me that I would be entitled to infer from the evidence that the judge was in fact guilty of wrong doing of the type identified in McIlwraith’s case and in O’Connor’s case to justify me in making an order for costs against him.

30. Accordingly the costs of these proceedings will be awarded in Mr. Curtis’s favour as against Messrs. Higgins and Lynch but I refuse to make an order for costs against the Circuit Judge having regard to the two decisions of the Supreme Court which are binding upon me.