Supreme Court of Ireland Decisions

1. This is an appeal brought by the Minister for Agriculture, Food and Forestry against the terms of an order made by Mr. Justice Barron of the High Court on the 11th November 1996 and portion of the judgment delivered by him on the 12th March 1996. It is not necessary for me in the course of this judgment to set out in detail or at all the facts which led to the proceedings brought by the Plaintiffs in these proceedings in which they sued the Trustees and the Minister for Agriculture, Food and Forestry for the relief set forth in the special endorsement of claim attached to the Special Summons issued herein.

2. The matter came before the learned trial judge and he heard the evidence of certain parties who had made affidavits and who were cross-examined on the affidavits before him. As I say he delivered the judgment on the 12th March 1996 from which it appears that he made certain findings but he refused to make any order as he considered that the issues in dispute between the parties were essentially a matter for the people of Gorey and the Department to reorganise the administration of the Trust.

3. He adjourned the matter for six months and when the matter was re-entered before him on the 11th day of November, the order which he made on that date, recites that the Court was on that occasion informed that the issues between the parties had been resolved save as to the costs of these proceedings.

4. The essential appeal brought by the Minister in this case is against the order for costs made by the learned trial judge and it appears in the terms of the said order that he ordered that the Plaintiffs do recover against the sixth named Defendant, who is the Minister, the costs of these proceedings when taxed and ascertained. He also directed that the second to fifth named Defendants recover against the Minister the costs of these proceedings when taxed and ascertained and he also ordered that the first named Defendant do recover against the Minister his costs of these proceedings but in this case limited it to costs for

5. But he then went further and provided at Par. 5 of the order that these Defendants recover against the Minister the costs which had been awarded to them in respect of those orders and which had been reserved and in which the Minister was not in any way a party to the relevant proceedings. Basically the issue that arises in this appeal is whether the learned trial judge was correct in making the order for costs which had been challenged in this appeal by counsel for the Minister.

6. Normally costs are at the discretion of the trial judge and this Court would be very reluctant to interfere with the exercise of such discretion by a trial judge who has heard and decided all the matters relevant to the proceedings before him.

7. However, it would appear in this case that so far as the Minister is concerned the order for costs made by the learned trial judge can be properly described as draconian. He is made liable for the costs of all the parties, the

8. Plaintiffs, the Defendants, and has awarded to the Defendants their costs over against the Minister.

9. The position in this case is that the Defendants, other than the Minister were administering a Trust which had been created by a deed of trust dated the 5th August 1943 and it was submitted on behalf of the Minister by his Counsel, Mr. Ó Caoimh, that insofar as this trust scheme was concerned the Minister was in no different position to that of an ordinary settlor in a usual deed of trust whereby the property, the subject matter of the trust would be transferred to trustees and they would have the responsibility of administering the trust in accordance with the terms of the trustee and that the settlor, namely, the Minister in this case, would have no responsibility for the administration of the trust. In this Deed it is provided that the power to appoint trustees is that of the Minister and the power to remove trustees is vested in the Minister.

10. But apart from that, the Minister has no role to play in the administration of the property, the subject matter of the trust, and having considered all the documents in this case including the affidavits and the transcript of the evidence whereby certain deponents were cross-examined. I can find no grounds good, bad or indifferent, and I go that far, to find any liability on the Minister for the costs of these proceedings.

11. Matters in dispute related to the alleged administration of the trust by the Trustees and the only allegation of fault on the part of the Minister contained in the submissions is that fault lay in the failure of the Minister to, in effect, terminate the appointment of the trustees and appoint other ones. While he has the power he is under no obligation to terminate the appointment of any trustee and his alleged failure to do it in this case does not in any way provide the basis for a finding of fault on the part of the Minister and consequently I am satisfied that there is no basis for the order made by the learned trial judge vesting responsibility for the costs of all parties on the Minister.

12. I can only think that the learned trial judge must have been influenced by the fact that the trustees were probably trying to do the best they could and they should not be made personally liable for any decisions made by them in the course of the administration of the trust and that possibly the Minister had a broad back with plenty of funds available to him and that he would be in a position to discharge the costs of all the parties.

13. Consequently, I would allow the appeal and strike out the portion of the order made by the learned trial judge whereby he ordered that the Plaintiffs recover against the Minister their costs of these proceedings when taxed and ascertained, to strike out the portion of the order that directed that the second to

14. With regard to the motions for discovery, the Minister is not involved in the primary order which provides that the Plaintiffs do recover against the second to the fifth named Defendants the costs reserved by orders made on the 13th June 1994 and the 28th July 1995 when taxed and ascertained. The Court will amend that order by putting in the words “as trustees” after the fifth named Defendant and will set aside the order made at 5 whereby the said Defendants were awarded these costs over against the Minister. So the Court will make an order to that effect, allowing the appeal and amending the order as I have suggested.

15. The Court will make no order on the costs of the appeal.