JUDGMENT of Mr. Justice William M. McKechnie delivered on the 24th day of February, 2015
Background:
1. For some time prior to the events next described, the appellant, Ms. Godsil, had been proactively campaigning on social and economic issues, in particular on matters touching individual debt and insolvency. For reasons not relevant to this appeal, she caused a petition to issue on 7th January, 2014, whereupon she sought an adjudication of personal bankruptcy. Such an order was made on 17th February, 2014. In just under four weeks from that date she first made known to the defendants/respondents her desire to contest the then upcoming European parliamentary elections, which had been scheduled for 23rd May, 2014, with nominations to close on 23rd April, 2014. Realising the existence of a statutory prohibition on the eligibility of un-discharged bankrupts to run in such an election, she commenced the within proceedings seeking to have the relevant provisions of the electoral statutes stood down. She did so on many grounds. In the weeks which followed, the Houses of the Oireachtas amended the law so that people with this status of insolvency could run in both domestic and European elections. By reason of this amendment, the proceedings became redundant and were, I presume by consent, eventually struck out. The learned President of the High Court refused her application for costs but did allow High Court outlay. An agreed note of his judgment records these facts. Against that decision, she has appealed to this Court. The issue thus, is purely one of costs.
The Proceedings:
Time Frame:
2. The time sequence of the most important events in these proceedings is as follows:-
• 14th March, 2014: solicitors on Ms. Godsil’s behalf write to the Minister for the Environment, informing him of the adjudication order and declaring their client’s intention to run in the European election: unless she was given an assurance that the relevant legislation would be amended, she threatened to institute proceedings.
• 20th March, 2014: a plenary summons and statement of claim issues, the service of which is acknowledged on 21st March.
• 21st March, 2014: a notice of motion is served in which the plaintiff seeks directions from the High Court: such are made on the adjourned hearing date, some three days later.
• 28th March, 2014: by that date an appearance has been entered and a defence has been served.
• 31st March, 2014: the High Court fixes 24th July, 2014 as the hearing date for such proceedings.
• 1st April, 2014: the Government approves a Bill, the Electoral (Amendment) (No.2) Bill 2014, to amend the Electoral Act 1992, and the European Parliament Elections Act 1997, so that an un-discharged bankrupt would not, by reason of such status, be ineligible for election to the Dáil or to the European Parliament.
• 7th April, 2014: the Bill is presented to the Dáil.
• 16th April, 2014: the Bill having been passed by both Houses is signed into law by the President.
• 30th April, 2014: by order of that date the proceedings, therein described as “now moot”, are struck out with the learned President of the High Court refusing an application for costs, but agreeing to award the appellant her High Court outlay.
Substantive Claim:
3. By virtue of s. 41(k) of the Electoral Act 1992, a person who is “an un-discharged bankrupt under adjudication by a court of competent jurisdiction in the State”, is disqualified from membership of the Dáil. The provisions of this section, in pretty much identical form, appear in s. 51(2)(c) of the Electoral Act 1923, and have been carried forward in every subsequent re-appraisal of the electoral provisions since then. Being such a disqualified person, the provisions of s. 11(2)(a) of the European Parliament Elections Act 1997, as amended, carried that disqualification through in respect of elections to which that Act applied.
4. As Ms. Godsil was such a person, there was no room for argument but that under and pursuant to these statutory provisions she was not eligible to run for or to become a member of, Dáil Éireann or of the European Parliament. Save for this impediment she otherwise had the capacity to meet all qualifying conditions for such offices.
5. In the proceedings Ms. Godsil alleged that the prohibitions thereby imposed, were in breach of her constitutional rights citing, to that end, inter alia, Article 5, Article 16.1, Article 40.1 and Article 40.3 of the Constitution. In addition, the subject provisions were also impugned as being incompatible with European Union (EU) law, including the Charter of Fundamental Rights of the European Union, and with certain provisions of the European Convention on Human Rights Act 2003. Having pleaded the case in this way, Ms. Godsil sought a number of declarations which, if granted, would have the effect of removing the offending provisions, from the statute book.
6. A full defence was filed denying each and every claim advanced on behalf of Ms. Godsil. No concession on any point was made. Accordingly, at the close of pleadings and by reference thereto, each and every matter, as raised, was contested and thus, was in issue.
Submissions:
7. The principal basis upon which this appeal has been moved, rests on a submission by the appellant that she is entitled to the entirety of her costs, because the proceedings were rendered moot solely by the actions of the respondents. In this regard she relies upon the decision of this Court in Cunningham v. The President of the Circuit Court & The Director of Public Prosecutions [2012] 3 IR 222 (“Cunningham”), in which it was stated that, as a general rule, where proceedings have become moot as a result of the unilateral act of one of the parties, costs should be awarded against that party. She further contends that there was a general public interest element to the proceedings, certainly at the time when they were initiated, which would also justify the making of such order.
8. The appellant makes the point that at no time prior to the government’s approval of the Bill on 1st April, 2014, was she, or the High Court for that matter, which by then had seisen of the case, made aware that such an amendment was either under consideration by or in the contemplation of, the respondents. This knowledge she obtained from her solicitor prior to the matter being the subject of a press release. Furthermore, it seems quite evident, the appellant argues, that the government would not have introduced the relevant legislation without the threat and indeed without the subsequent issue of, such proceedings. On either or both grounds, she should be entitled to her costs.
9. The respondents in the instant case submit that the decision of the President of the High Court should not be disturbed as it was arrived at after a careful consideration of all relevant circumstances and should therefore be seen, as a correct exercise by the judge, of the discretion which undoubtedly vests in him, on matters regarding costs. Whilst they agree that, as a general rule, costs will be awarded against a party whose unilateral actions have rendered the proceedings moot, this will not always necessarily be the situation, particularly, where there are sufficient countervailing circumstances such as those which exist, in the instant case.
10. In addition to Cunningham, the decision in Mansouri v. The Minister for Justice, Equality and Law Reform [2013] IEHC 527 (“Mansouri”) has been opened, where the Court considered that the reasonableness of the plaintiff’s actions was a significant factor in determining the issue of costs where the substantive action had become moot. McDermott J., in so stating, cited the decision of S.G & N.G. v. The Minister for Justice, Equality and Law Reform [2006] IEHC 371 (“S.G. & N.G.”), where Herbert J. noted matters of relevance to the cost issue, such as: was the decision to commence proceedings a proportionate reaction to existing circumstances: was any alternative course of action reasonably open which would not have exposed the respondent to incurring legal costs and whether the applicant had afforded the respondent before commencing the proceedings, with a reasonable opportunity to address the issues. Mansouri it is claimed, also clarified that the litigation conduct of both parties is highly relevant to cost matters. In support of this particular proposition the judgment in Lofinmakin (A Minor) & Ors v. the Minister for Justice, Equality and Law Reform & Ors [2013] IESC 49 at para. 79 (“Lofinmakin”) (McKechnie J.), was referred to.
11. The respondents make a number of complaints about the timing of these proceedings: firstly, they assert culpable delay on the part of Ms. Godsil by reference to her failure to ventilate any concerns about the then existing legislation, prior to 14th March, 2014, particularly when the adjudication order was made almost four weeks before that date. Secondly, the originating letter of that date was not in fact received until Tuesday, 18th March as the preceding day was St. Patrick’s Day. Thirdly, the letter unreasonably requested a reply by return. Finally, there was simply insufficient time to deal with the issues as raised, before 20th March, 2014, which saw the institution of the proceedings.
12. In contrast to these actions the respondents state that they acted expeditiously in approving the amending Bill in only eleven days after the commencement of the proceedings and in so informing the appellant of this step by letter dated 3rd April, 2014. They also draw the Court’s attention to the fact that she was able to run for election in the European Parliament Election of May, 2014 and in fact, that she did so run. Furthermore, despite their said letter of 3rd April, it is claimed that the appellant continued to accumulate legal costs, unlike the respondents who attempted to reduce, or even save costs, by for example, not serving a request for discovery.
13. With regard to the Bill and in particular its timing, the respondents contend that it was introduced for policy reasons and that its approval should not in any way be understood as implying that the action would have been successful on its merits. They say in conclusion that, all of these are matters amount to “significant countervailing factors”, as understood in the Cunningham sense, and as a result, the appellant should not be awarded any further costs.
14. Having considered the position adopted by the respondents, the appellant sought and was given permission to file supplementary submissions, which she did. Therein Ms. Godsil argues that there was no evidence to suggest that the Electoral (Amendment) (No.2) Bill 2014 was introduced for policy reasons, but rather as she contends, it was initiated only as a direct result of both the threat and fact of the proceedings which she issued.
15. Even however, if the Court should find that the relevant amendment was introduced for policy reasons, Ms. Godsil still argues that she should be entitled to her costs up to 1st April, 2014, as she could not have known before that date, of the respondents plan to address the obvious deficiencies in the existing legislation. She goes further and states that logically she should be awarded her costs up to 16th April, 2014, which is the date on when the President signed the Bill. These submissions were without prejudice to her primary position which is one seeking full costs.
16. Dealing with the allegation of delay, she states that prior to the adjudication order on 17th February, 2014, she did not have locus standi to bring these proceedings. Following such adjudication, she consulted quickly with her legal advisers meeting them for the first time on 7th March. Immediately thereafter she proceeded as expeditiously as possible. Even with the arrival of the letter dated 3rd April, 2014, she could not have been certain that the amendment would have passed into law in time for her nomination which closed on 23rd April, 2014. Furthermore, she highlights the fact that the respondents served a full defence to her claim as late as 28th March, 2014.
17. Applying the test outlined in S.G & N.G., Ms. Godsil alleges that apart from instituting the proceedings she had no other course of action available to her and accordingly, her actions in this regard were entirely proportionate. Moreover, there was no precedent which would have led her to believe that the existing legislation would have been amended by the government in response to the originating request to do so. Consequently, her appeal should be allowed.
18. Finally, she also complains, as a discreet point, that the President of the High Court did not clearly state his reasoning for the decision which he arrived at regarding the question of costs.
Costs in our Legal System:
19. Inter partes litigation for those unaided is, or can be, costly: certainly it carries with it that risk. It is therefore essential in furtherance of the high constitutional right of effective access to the courts on the one hand and the high constitutional right to defend oneself, having been brought there, on the other hand, that our legal system makes provision for cost orders. This is also essential as a safeguarding tool so as to regulate litigation and the conduct and process thereof, by ensuring that it is carried on fairly, reasonably and in proportion to the matters in issue. Whilst the importance of such orders is therefore clearly self evident, nevertheless some observations in that regard, even at a general level, are still worth noting.
20. A party who institutes proceedings in order to establish rights or assert entitlements, which are neither conceded nor compromised, is entitled to an expectation that he will, if successful, not have to suffer costs in so doing. At first, indeed at every level of principle, it would seem unjust if that were not so, but it is, with the “costs follow the event” rule, designed for this purpose. A defendant’s position is in principle no different: if the advanced claim is one of merit to which he has no answer, then the point should be conceded: thus in that way he has significant control over the legal process including over court participation or attendance. If however, he should contest an unmeritorious point, the consequences are his to suffer. On the other hand, if he successfully defeats a claim and thereby has been justified in the stance adopted, it would likewise be unjust for him, to have to suffer any financial burden by so doing. So, the rule applies to a defendant as it applies to a plaintiff.
21. In identifying a sense of equity as a basis for this rule, I am conscious that many successful litigants feel aggrieved, at least from time to time and perhaps more readily in some type of cases rather than others, that at the conclusion of a taxation process there will still remain a deficit, sometimes substantial, which they and their legal advisers genuinely feel could not have been averted, if their presentation or defence of the issues was to succeed. However, this case is not the context for further comment on this issue, troublesome as it may be: this matter must therefore await another occasion. Here I am simply pointing out what I consider to be an important rationale for the existence of the costs jurisdiction, which when exercised by appropriate court order, can play such a key role in the availability of justice.
22. There is a second justification, again at the level of principle, for this jurisdiction: it was mentioned in Farrell v. Bank of Ireland [2012] IESC 42, Clarke J. at para. 4.12. This justification is that in the absence of such a mechanism, both the bringing and defending of proceedings could be used for abusive purposes. In effect, the financial weight of a litigant could determine the extent to which, if at all, a particular claim or defence could be pursued, and certainly in some circumstances, could exercise an overly controlling influence on the process. Such of course would be inimicable to justice and could seriously disable the judicial role, as ultimately issues which should be determined, may never even reach the point of adjudication. This would be highly undesirable. Accordingly, it is crucial to have such a means available so that the Court, where appropriate, can dissuade and if necessary even punish, exploitative conduct and unprincipled parties.
The Rules and General Principles of Costs:
23. The general rule is that costs follow the event unless the court otherwise orders: O. 99, r. 1(3) and (4) of the Rules of the Superior Courts (“RSC”). This applies to both the original action and to appeals to this Court (Grimes v. Punchestown Developments Co. Ltd & Anor [2002] 4 IR 515 (“Grimes”) and S.P.U.C. v. Coogan & Ors (No.2) [1990] 1 I.R. 273). Although acknowledged as being discretionary, a court which is minded to dis-apply this rule can only do so on a reasoned basis, clearly explained, and one rationally connected to the facts of the case to include the conduct of the participants: in effect, the discretion so vested is not at large but must be exercised judicially (Dunne v. The Minister for the Environment, Heritage and Local Government & Ors [2008] 2 IR 775 at 783-784) (“Dunne”). The “overarching test” in this regard, as described by Laffoy J. in Fyffes plc v. DCC plc & Ors [2009] 2 IR 417 (“Fyffes”) at p. 679, is justice related. It is only when justice demands, should the general rule be departed from. On all occasions when such is asserted the onus is on the party who so claims.
24. Following recent case law, it has been suggested and indeed it may be possible in certain instances, to loosely group together some cases for the purposes of either the rule or the exceptions, nevertheless it remains very much the situation that one cannot rigidly define or prescriptively describe the type, kind or category of case which by virtue of such classification, will always fall within the rule or within the exception, as the case may be. Cases will inevitably be borderline some of which will sit either side of the rule. To so determine, as Murray C.J. said in Dunne, will require a case by case analysis.
25. The jurisprudence on this topic has developed more by reference to the exceptions rather than the rule, with the courts discussing this issue under a number of headings, such as, the conduct of the parties: “test cases” that is, where the decision is expected to have significant “knock on” effects, in particular for other existing cases but also on future conduct and a variety of other proceedings said to involve public interest challenges (see Delaney & McGrath, Civil Procedure in the Superior Courts Dublin; Thomson Reuters; 2013; 3rd ed.; paras. 725-730). In addition, there have been other cases where miscellaneous points have arisen but in the main, arguments have focused in the areas mentioned. There arguments essentially relate to either an unsuccessful defendant resisting an application for costs, or himself or herself seeking such costs.
26. An example of conduct strongly disapproved of, is Mahon & Ors v. Kenna & Anor [2009] IESC 78 (“Mahon v. Kenna”) where by reason of their conduct the appellants, even though successful on appeal, were obliged to discharge the respondent’s costs in both courts. In that case Mr. Kenna a journalist and his fellow appellant, were found to have committed or approved of a deliberate act of destruction, in shredding documents so as to protect journalistic sources which had the effect of depriving the Mahon Tribunal of such evidence in its inquiry, as to who was responsible for leaking confidential documents from the Tribunal.
27. Another category of cases where the rule has not been followed has been discussed under the heading of “Test Cases”. T.F. v. Ireland & Ors (The Supreme Court; unreported; 27th July, 1995; Hamilton C.J.) can be regarded as a proper “test case” in this context as the Court’s judgment on the constitutionality of certain provisions of the Judicial Separation and Family Law Reform Act 1989 had potential ramifications for at least 3,000 other cases. For different types of reasons but still no less valid: Curtin v. Dáil Éireann & Ors [2006] 2 IR 556 and Cork County Council v. Shackleton & Ors [2011] I.R. 443 also fall into this category.
28. Although some passing reference has been made on behalf of Ms. Godsil, that the within proceedings might be considered loosely as some form of test case, in reality I do not believe that such can be so termed. I do however, accept that an argument can be advanced that the challenge made has a public interest element to it. Therefore, in addition to this point there remains for consideration a number of issues which I propose to deal with in the following order:-
• Firstly, whether the litigation conduct of the appellant should have adverse consequences for her on the cost issue,
• Secondly, how does the rule of mootness apply to this application and in particular whether it is necessary to resort to the principles in Cunningham, to decide the point,
• Thirdly, whether there is an “event” in this case by reference to which the general principle can apply, and
• Fourthly, whether the within proceedings can be said to involve a public interest element as that term is understood in the present context.
Litigation Conduct:
29. The respondents allege that there was a delay on the part of the appellant in giving notification of her intention to institute proceedings, which should have adverse consequences for her application regarding costs. They have done no more than described this objection at the most basic level with no detail or rationale given to support it. They also say that the proceedings were premature in that they were not given a reasonable opportunity of assessing and thus of answering, the asserted claim. Both points need consideration.
30. At first blush I was attracted by this argument as the timeframe involved was undoubtedly very tight. However, as with many situations, once the facts are carefully scrutinised, I do not believe that whatever validity the point may once have had, can survive such examination.
31. At the outset it should be noted that this complaint is far removed from what occurred in Mahon v. Kenna (para. 26 supra) or in Shelley-Morris v. Bus Átha Cliath [2003] 1 IR 232, where it was said that a grossly and deliberately exaggerated claim in a personal injury action, could have serious consequences in terms of costs, even where some award was made in favour of the plaintiff. Likewise, and for obvious reasons the case does not lend itself to any argument that the length or cost of the action, for whatever reason, has been increased or added to, by the conduct of Ms. Godsil. None of these possibilities feature in this case. Furthermore, it has not been suggested, although it is formally put in issue in the defence, that either the stated reasons for or the presentation of the Petition itself, or the timing thereof, were otherwise than entirely bona fides. It would take some remarkable analysis to suggest that these events were undertaken solely with the intention of supporting these proceedings. That was not the motivation behind the bankruptcy application. Therefore one must proceed on the basis that the appellant is entirely genuine in the steps which she has taken.
32. The first point therefore to make, a point which is strikingly self evident, is that in a case such as this, the moving party must have “standing” to mount the action. Having the status of an undeclared bankrupt as so declared by a competent court, is thus in my view, essential before such can be said to exist. Whilst perhaps a person who has presented the petition, but before adjudication, might make an argument on standing, I doubt very much if such would be successful. Therefore, if the appellant had moved before the 17th February, 2014, she would have had no answer to a standing denial, which one must assume, the respondents behaving rationally, would have asserted. This equally applies to the issue of the originating letter. Accordingly, the existence of that status which is critical must be regarded as the start point in considering this question of delay.
33. From her uncontradicted evidence it seems that she first met her legal advisers on 7th March, 2014, with notification of her complaint issuing one week later. That seven days was reasonable to take instructions and formulate the claim, cannot be doubted. Proceedings followed on 20th March: the pleadings were effectively closed within about one week thereafter. Discovery would have added nothing to the issues. A trial date was obtained on 31st March, 2014. All of these steps were therefore taken within a period of six weeks from the date of adjudication. Given this timeframe, the delay argument is simply unsustainable.
34. In the same breath and without any sense of self contradiction, the respondents also claim that she moved with undue haste. This despite the fact that as the deadline for nominations was the 24th April, 2014, there was from the adjudication date, a period of only six weeks in which to progress the issues which she complained of. Time was of the essence from her point of view. In such circumstances if there was any chance of getting a court hearing and a decision, she had to move swiftly. Even then she evidently ran a major risk of not getting her action on in time: in fact as things transpired the earliest trial date available was in July of that year. If the case therefore had run its course she could have had no complaint for missing both the nomination and the election dates. That was an inherent risk in the timeframe which she engaged in. If that situation had come to pass, she and no other would have had to suffer the consequences. But if she was to try at all, she had to do so when she did.
35. As part of this general submission, the respondents further say that they were not given sufficient time to answer the letter of complaint or to address the proceedings. By 29th March, 2014, they had had two weeks to consider the initiating letter and somewhat short of that, to assess the claim, as pleaded: the defence as filed can be taken as their response to both. It must therefore be assumed that if the appellant had waited until that date for a reply to her correspondence, it would in substance have been in the same form. Furthermore, in the defence as filed, there is no plea or complaint of undue time pressure. Therefore, I do not accept this suggestion of the respondents. Moreover, their most commendable expedition in issuing the Bill and in having it enacted, is an entire answer to the “no opportunity” point. I see nothing therefore in her litigation conduct which should adversely be held against her.
Mootness - General:
36. The case law, by which an action or an appeal, or an issue in either, can correctly be classified as moot, has developed substantially in recent times. Goold v. Collins & Ors [2004] IESC 38 is a leading authority in this regard. That decision draws heavily from Borowski v. Canada [1989] 1 S.C.R. 342. This rule is grounded on judicial policy as is the residual discretion to proceed and determine a point even if correctly so classified. See O’Brien v. The Personal Injuries Board (No.2) [2007] 1 IR 328, Irwin v. Deasy [2010] IESC 35 and Okunade v. Minister for Justice, Equality and Law Reform & Ors [2013] 1 ILRM 1.
37. Having reviewed these and other authorities at para. 51 of my judgment in Lofinmakin, I summarised as follows what the legal position is:-
“(i) A case, or an issue within a case can be described as moot when a decision thereon can have no practical impact or effect on the resolution of some live controversy between the parties and such controversy arises out of or is part of some tangible and concrete dispute then existing.
(ii) Therefore, where a legal issue has ceased to exist, or where the issue has materially lost its character as a lis, or where the essential foundation of the action has disappeared, there will no longer be in existence any discord or conflict capable of being justiciably determined.
(iii) The rationale for the rule stems from our prevailing system of law which requires an adversarial framework, involving real and definite issues in which the parties retain a legal interest in their outcome. There are other underlying reasons as well, including the issue of resources and the position of the court in the constitutional model.
(iv)It follows as a direct consequence of this rationale, that the court will not - save pursuant to some special jurisdiction - offer purely advisory opinions or opinions based on hypothetical or abstract questions.
(v) That rule is not absolute, with the court retaining a discretion to hear and determine a point, even if otherwise moot. The process therefore has a two-step analysis, with the second step involving the exercise of a discretion in deciding whether or not to intervene, even where the primary finding should be one of mootness.
(vi) In conducting this exercise the court will be mindful that in the first instance it is involved in potentially disapplying the general practice of supporting the rule, and therefore should only do so reluctantly, even where there is an important point of law involved. It will be guided in this regard by both the rationale for the rule and by the overriding requirements of justice.”
The passage then goes on at subpara. (vii) - (a) to (s) inclusive, to highlight several matters which will influence a court in deciding whether or not to determine a point even if otherwise moot.
38. As can be seen from the above extract, the same deals rather more with the effect or consequence of mootness, rather than with the individual circumstances by which that result may come about. In other sections of Lofinmakin that precise issue is addressed, in particular at para. 34 where several examples are given. These include where an entire statute or the impugned provisions thereof have been repealed - either within the context of the relevant proceedings or quite separate and independent of them - thus leaving no live issue between the parties, and also where the underlying dispute has been resolved, by agreement or other circumstance.
39. By any reference to these principles it is clear and in fact it has never been doubted, but that the issue of substance in the instant case is now correctly designated as moot. However, it will be necessary to further discuss, later in this judgment, the circumstances by which that result has come about and the effect thereof on the cost issue.
Mootness - Costs:
40. The concentration of this rule for costs purposes is focused on the reasons leading to such a conclusion, rather than the conclusion itself, which in many instances will not be in issue. This distinction is of importance because the court in a substantive hearing is searching to see if the action, appeal or issue is moot, whereas for costs purposes the point is not that, but rather is as to why that is so. Evidently, the nature and purpose of the inquiry is therefore different: accordingly, it by no means follows that even if moot, a follow on issue of costs will have to be determined as in Cunningham.
41. Cunningham is a case which each party relies upon in support of their respective positions. Rather unusually, both say that when applied, it would, from the appellant’s point of view, lead to an order granting her full costs, whereas from the respondents’ point of view, it would lead to an order dismissing the appeal. Before considering those submissions however, it would be helpful to note the facts of the case so as to understand the legal discussion which followed.
42. Having been charged with a number of offences alleging responsibility for contaminating blood products in 1977, Dr. Cunningham, shortly after her return for trial to the Circuit Criminal Court, embarked upon judicial review proceedings in November, 2003 which had the effect of staying the prosecution against her. Those proceedings were heard in January/February, 2007 with judgment being delivered in July of that year. The judge refused to prohibit the continuation of the trial, which was the essential relief claimed, on the basis that justice favoured the bringing of such prosecution to finality: this notwithstanding a finding that there had been prosecutorial delay. However, in view of such finding, and having regard to other relevant matters, he made no order as to costs. From that decision, the applicant appealed to the Supreme Court: there was no cross appeal by the Director of Public Prosecutions (“DPP”) with regard to the cost order.
43. During the course of the hearing the Court was informed that the DPP had entered a nolle prosequi in respect of those charges in December, 2008, and therefore the essential relief claimed, namely an order of prohibition regarding the trial, did not require determination: in effect, that issue had become moot. There was no disagreement as to correctness of this designation: the only issue remaining was therefore the question of costs.
44. In Dr. Cunningham’s submission, the appeal had become moot by the act of the DPP in entering a nolle prosequi, with the result that she had been deprived of an opportunity to demonstrate on appeal, that the decision of the trial judge was erroneous on a point of law. She claimed that if successful in this regard the Supreme Court would have awarded her costs of both the original proceedings and the appeal. However, in the absence of an assessment on the merits, one will never know what the actual result of a contested appeal would have been. Accordingly, it became necessary for the Court to discuss how in such circumstances the issue of costs should be dealt with.
45. In his judgment, with whom the other members of the Court agreed, Clarke J. stated that in normal circumstances where a case or an appeal had become moot by reason of the unilateral act of one party, then costs should be awarded against that party. Where that result followed from circumstances outside the control of either party, then ordinarily there should be no order for costs. Obviously there will be cases which do not fit comfortably into either of these categories: such, in the Court’s view, will require individual consideration.
46. The learned judge pointed out that his remarks were to be regarded as general in nature and that, as applies not only in situations of mootness but in all matters dealing with costs, the Court should not be over prescriptive in setting out rules of general application which thereafter, as a matter of routine would feed into individual cases. There will be many situations displaying multiple and variable factors all calling for separate evaluation.
47. These observations were qualified in two important respects: firstly, the generality of what was outlined was to apply “in the absence of significant countervailing factors”, and secondly, it was explained that the reason why such type of analysis might be required in the first instance, was that the provisions of O. 99, r. 1(3) or r. 1(4) of the RSC could not be applied, as in reality, in the circumstances under review in such cases, there will “be no event which those costs have to follow” (para. 4.5 of judgment)
48. The discussion in Cunningham, regarding external factors and unilateral acts, instanced a situation where a statutory officer or body, with an ongoing obligation to review the course of say, a prosecution, might correctly decide to terminate the proceedings by the entry of a nolle: accordingly, on one view it could be said that the case law had been rendered moot by a unilateral act. That will not necessarily always be the correct conclusion. On occasions the reality will be that such a course might have been forced upon that officer, by reason, for example, of the death of an essential witness. In those circumstances the court thought that a careful analysis would be necessary so as to decide whether mootness was brought about truly by a unilateral act, or more accurately by factors outside the control of such office holder.
49. I can easily visualise a situation where the entry of a nolle may well be secondary to an event or happening which has occurred within, and which thereby impacts on, the prosecution side of a case. Indeed, such is much more likely to occur than one resulting from the defence side or from purely third party sources which lead to the same result. Take the example as given, that is where a crucial witness has died and assume that without his evidence the continuation of the prosecution would not meet the DPP’s guidelines. A nolle prosequi must therefore be entered. In such circumstances, the DPP quite evidently is not responsible for that death and in common parlance the same can rightly be regarded as a matter entirely outside his control.
50. How a trial judge in such circumstances would deal with the question of costs, if such ever arose, does not require resolution. However, the nolle may also have had the effect of rendering moot judicial review proceedings in which the only relief sought, was an order prohibiting the continuation of such prosecution. Evidently, the applicant would have obtained the precise result which he or she prayed for, yet on the other hand, one will never know what the court’s decision on the merits might have been. That of course is not in any way the responsibility of the accused person/applicant. In such circumstances should the entry of the nolle be correctly regarded as an external factor for the purposes of determining costs in the civil proceedings, which of course by reason thereof, have by then become moot?
51. Such an outcome, I feel, would be harsh and in my view, is one which is not required so as to sustain the suggested effects of truly external circumstances; which ordinarily I would accept, should absolve both parties from any obligation to pay costs. It seems to me that in the example given, it would only be just for the prosecution to bear the consequences of being evidentially deprived of an individual whether by reason of illness, death or otherwise, which has the unfortunate effect of terminating the trial before its conclusion. The witness, for the purpose under consideration, must be identified with the prosecution and his/her unavailability should not in my view be considered as an external factor to it. The contrary view would, I am satisfied, be grossly unfair to an accused person in his capacity as a lay litigant in the type of civil proceedings mentioned. Whilst these circumstances will be rare when they do occur this in my view is the just solution. Accordingly, subject to that caveat, I would agree with the general approach to the issue of costs in the circumstances outlined in Cunningham, subject to the reservations and limitations expressed in that judgment.
Costs Follow the Event:
52. The overriding start point on any question of contested costs is that the general principle applies that namely, costs follow the event. All of the other rules, practises and approaches are supplementary to this principle and are designed to further its application or to meet situations where such application is difficult, complex or indeed even impossible.
53. For the rule to apply quite evidently there must be an “event(s)”, which is capable of identification. In most cases that will not cause a difficulty, but in some it might. There may be situations which it can be said involve numerous issues, sometimes discreet and sometimes inter-related. The Veolia Water Consortium v. Fingal County Council (No. 2) [2007] 2 IR 81, gives assistance in this regard. When a multiple issue case requires assessment in light of the decision, the courts in more recent times have become more discerning and nuanced in their approach, sometimes awarding less than full costs and sometimes determining costs relative to issues which have been won or lost as the case may be. Such an approach, as well as perhaps being fairer can also be considered as part of the court’s function to regulate in an expeditious and cost effective manner, complex litigation which ever increasingly now appears before it. Care however, must be taken: not all cases will be suitable for such analysis and even when applied, the overall picture must not be lost sight of.
54. There has also been some debate about what might constitute an “event” for the purpose of O. 99, r. 1(4) of the RSC: r. 1(3) is in the same form but applies to jury trials. In Roache v. News Group Newspapers Ltd & Ors [1998] E.M.L.R. 161, Bingham M.R. at p. 166 equated the event with “who is really the winner and who is really the loser or, as it is sometimes put, to identify the event which costs are to follow”. Several Irish cases have likewise adopted such an approach: see Mangan v. Independent Newspapers (Ireland) Ltd [2003] 1 IR 442, Fyffes (para. 23 supra) and Grimes (para. 23 supra), to name but a few.
55. In some of the cases mentioned in argument, the issue of costs seems to have been determined in a number of ways or on occasions, even within the same case, by a variety of means. In S.G. & N.G., the applicants in judicial review proceedings sought to assert an entitlement to remain in the State and to that end applied to quash deportation notices. After some considerable time, the Minister granted them leave to remain in the State and quashed not only the impugned notices, but also the preceding deportation orders. This resolved all live issues in controversy between the parties and so, apart from costs, the proceedings had become redundant. In dealing with the applicants’ claim for costs, Herbert J. asked whether they had acted reasonably and proportionately in instituting the proceedings when they did, and whether or not they had afforded to the Minister a reasonable opportunity to respond. The learned judge was satisfied that they had in both respects, and in addition, also found that the Minister had in effect, by his actions, conceded the claim. Costs were awarded as per the application made. In Mansouri, McDermott J. followed the approach adopted in this case but in addition, carried out a searching examination for the existence of “countervailing factors”, as described in Cunningham.
56. The point further arose for consideration in Nearing v. Minister for Justice, Equality and Law Reform [2010] 4 I.R. 211. In that case, judicial review proceedings had been instituted seeking an order of mandamus to compel the Minister to make a decision on an application for naturalisation under the Irish Nationality and Citizenship Act 1956. The grounds for so doing were based on an allegation that there was a systematic delay in the administrative scheme established by the Minister, under which such applications were assessed and by which outcomes were determined. Mansouri was also based on an allegation of delay in ministerial decision making, but in that case, as well as urgency and hardship existing, the underlying scheme was statutory in origin. In any event, by the time Mr. Nearing’s application came on for hearing, the Minister had made such a decision and accordingly, the substantive point did not require determination. As with the other cases mentioned, the outstanding issue was therefore costs.
57. Rejecting the assertion that in view of the Minister’s decision, the applicant must be taken as having won the “event”, the learned judge, Cooke J., at para. 17 of the judgment stated:-
“The event which gives rise to an entitlement to costs under the general rule is the establishment of the legal right asserted as the basis for the relief sought from the court. Where litigation does not proceed to trial because, for practical purposes, the relief is no longer needed, an applicant can only be said to have “won the event” if the matter has become moot by the withdrawal of a defence in recognition and concession that the claim made was well-founded and was entitled to succeed.”
This manner of describing what an “event” is for cost purposes would seem to suggest a more strict or technical approach than the more straightforward query as to “who won the event”.
58. It seems to me that even where the substantive point has become moot, the first inquiry which a court must make on a follow on cost application is to decide whether or not there exists an “event” to which the general rule can be applied. If such can be identified there will be no necessity to resort to the principles discussed in Cunningham. In fact, it was precisely because of the absence of such event, that it was necessary in Cunningham to assess the cost issue by reference to some other criteria. The question which therefore arises is, whether by an examination of the circumstances of this case, an “event”, in the sense understood by O. 99 r. 1(4), can be identified by reference to which the cost issue can be determined. In my view, there is.
59. It will be recalled that the essential aim of these proceedings was to achieve a situation whereby the appellant would not be barred, solely on the basis of her un-discharged bankruptcy status, from being nominated for or running in the European Parliamentary Elections of 2014. She asserted a legal right to do so in defiance of the statutory provisions above referred to which, ex facia and in a way permitting of no argument, prevented her from so doing.
60. The method by which she sought to achieve this, was in the first instance to ask the respondents to repeal the legislation in question; in the event of them refusing or failing to so do, she asked the High Court to declare that the provisions were unconstitutional, were in breach of general principles of EU law, as well as being incompatible with the European Convention of Human Rights Act 2003. These were the only possible steps which she could have taken so to achieve the purpose which she had in mind. If successful with either approach, the end result would be exactly the same.
61. As it happened, the Houses of the Oireachtas enacted amending legislation which had the effect of repealing the relevant provision of the 1992 Act. If this had not occurred, and if the appellant had been successful in the High Court, she would have obtained a Declaration that the provisions in issue were, inter alia, unconstitutional, with the effect that they would have been erased from the statute book; giving rise to precisely the same legal result as in fact happened.
62. By 24th April, 2014, she was in a position to legally hand in her nomination papers and to run in the election, held four weeks later. This came about solely because the legal impediments complained of were removed. Therefore, not only did she obtain the precise relief sought but she did so in the only manner by which that could be done, namely an alternation in the law. Whilst it is entirely accurate to say that this situation did not result from a court’s determination on the merits, such in my view is not in any way essential, before there can be said to exist an “event” upon which costs can attach.
63. The actions of the respondents, despite their protestations that the same were driven by policy considerations, can only reasonably be understood, in the vastly truncated time period involved, as being in direct response to the proceedings as issued. It is difficult to recall any other comparable example, where by combination of the executive and legislative branches of government, a constitutional challenge has been so responded to. Such can only be regarded as being an explicit acknowledgment and admission of the legal validity of the challenge as mounted. In effect, if the claim was unmeritorious, it could hardly be deserving of legislative amendment. Therefore, I am entirely satisfied that in this case, there exists an “event”, by which the issue of costs should be determined.
64. For the reasons above stated, but subject to what follows, I cannot see any reason why costs should not follow that event; on the contrary the appellant has been directly instrumental in bringing about a change in the law as it has stood since at least 1923. Such a result, although not without precedent, must surely be quite unusual. Given these facts and noting the absence of any disqualifying factors or conduct, I cannot find anything in the case, which either in justice or in logic, would justify anything less than a full cost order in this regard.
65. The caveat mentioned stems from the fact that this is an appeal from a type of order which can be described as “discretionary”. At stated at para. 23 above, such discretion is not one at large but must be exercised judicially and in accordance with well recognised principles. Disregarding the 33rd amendment to the Constitution, it was established in In the Goods of Giuseppina Morelli, Deceased; Vella v. Morelli [1968] I.R.11, and it has never been doubted since, that the Supreme Court has full appellate jurisdiction in respect of such orders. This jurisdiction is not dependent on having to establish an error of law or otherwise on proving that in the exercise of such discretion the trial judge acted erroneously. No such precondition or requirement exists: the jurisdiction is rooted in the express provisions of the constitution itself (Art. 34.4.3). Therefore, subject only to its terms, any rule of law which inhibits this Court from interfering with a discretionary order of the High Court, is incompatible with the Constitution. I cannot therefore accept any type of prescriptive approach which would tend to trammel or circumscribe the exercise of such jurisdiction.
66. It has of course always been the case, that an appellate court will attach considerable weight to the views of the trial judge: this, which I readily accept, results largely from the constitutional structure of the judiciary. Despite the various ways in which this approach has been expressed over the years, all tend to have the same meaning.
67. What differs however is the nature of the order under appeal. Geoghegan J, had this to say on the point in Desmond v. M.G.N. Ltd, [2009] 1 IR 737 at p. 743 (“Desmond”):
“The expression ‘discretionary order’ can cover a huge variety of orders, some of them involving substantive rights and others being merely procedural in nature including mundane day to day procedural orders, such as orders for adjournments etc. I think that in reality over the years since In bonis Morelli; Vella v. Morelli this Court has exercised common sense in relation to that issue. The court would be very slow indeed to interfere with the High Court Judge’s management of his or her list, but in a case such as this particular case where much more substantive issues are at stake the court, while having respect for the view of the High Court Judge, must seriously consider whether in all of the circumstances and in the interests of justice it should re-exercise the discretion in a different direction”.
I respectfully fully agree with these comments, recognising as they do the enormous width and scope of orders, which not always accurately or indeed even with the same meaning, have been labelled “discretionary”.
68. What the learned judge said in Desmond was of course general in nature; at a much more specific level was the decision in Dunne, a case which as stated above, involved an appeal from the High Court’s decision to grant costs to an unsuccessful party who pleaded in aid of the application, the public interest element of the proceedings. Murray C.J., when speaking unanimously for the Supreme Court, was of the view that undue weight had been given to this particular element and accordingly, was satisfied that the Court was required to review the manner in which the High Court Judge had exercised her discretion. Having done so, the decision was reversed and an order made that costs should follow the event.
69. In the instant case, I am similarly of the view that greater weight should have been given to the various factors above mentioned; when so considered and applied, the order which should follow the correct exercise of the court’s discretion is that as I have suggested.
70. Given this conclusion it is not necessary to specifically address the argument that the proceedings should also be regarded as having a public interest element to them, and on that basis alone, the appellant should have been awarded her costs.
71. Accordingly I would allow the appeal and direct that the appellant should be entitled to her full costs of the High Court action.
