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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Minister for Justice Equality & Law Reform -v McPhilips and Minister for Justice Equality & Law Reform -v- McGinley [2015] IESC 47 (18 May 2015)
URL: http://www.bailii.org/ie/cases/IESC/2015/S47.html
Cite as: [2015] IESC 47
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Judgment
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THE SUPREME COURT [Appeal Nos. 217/11 & 410/12]
Murray J.
MINISTER FOR JUSTICE, EQUALITY & LAW REFORM Appellant v.
NOEL McPHILIPS Respondent AND MINISTER FOR JUSTICE, EQUALITY & LAW REFORM Appellant v.
GERRY McGINLEY Respondent
JUDGMENT of Mr. Justice John Murray delivered the 18th day of May, 2015
1. These two appeals were heard together involving as they do an appeal by the Minister raising essentially the same legal issue in each case. In each case the Minister had applied to the High Court, pursuant to s.16 of the European Arrest Warrant Act, 2003, for the surrender of each of the respondents to Belgium. Belgium had issued separate European Arrest Warrants in respect of each of the respondents. Otherwise the offences, the subject matter of the separate warrants are connected, although the surrender of the respondent, Gerry McGinley, was in respect of significantly more offences than in the case of the respondent, Noel McPhilips. However, any connection between the offences alleged against the respondents is not material to the issues in this appeal. The relevant matter which is common to both cases, and the reasons why both appeals have been heard together, is that in each case the respective trial judges, having refused the appellant’s applications for surrender, made an order for costs in each case against the appellant in favour of the respondent. The Minister has appealed against the order for costs made by the High Court in each case consequent upon the refusal or dismissal of his applications pursuant to s.16. In the case of Noel McPhilips that application was simply refused, and in the case of Gerry McGinley the Belgian government decided not to pursue any further its request for surrender on foot of the warrant. Accordingly, the court decided to refuse the application and made an order striking it out. 2. The essence of the Minister’s contention on appeal is that the respondents having, at the outset of the EAW proceedings, respectively indicated that they wished to benefit from the Attorney General Scheme as to their costs, were not entitled to subsequently resile from this commitment so as to seek and obtain an order for costs in the ordinary way from the Court, following the decision not to make an order for surrender in either case. The facts and circumstances of each case are referred to in summary form hereunder. Preliminary Issue Background Facts in the Case of Noel McPhilips 5. Subsequently, this particular case was listed for mention in the High Court on multiple dates without any indication being given by the respondent or his counsel that they did not wish to rely on the Attorney General’s Scheme. By letter dated the 17th November, 2010, and prior to the hearing of the application, pursuant to s.16 of the Act, the solicitor for the respondent wrote to the Chief State Solicitor conveying that he did not propose to rely on the Attorney General Scheme. This was the first such indication. 6. The EAW proceedings in respect of Mr. McPhilips were heard in the High Court on the 24th November, 2010. Having heard the appellant’s application for the respondents surrender, the learned trial judge refused to order the surrender. He adjourned the question of costs to a later date, and gave his ruling on the question of costs on the 30th March, 2011. An issue raised in the High Court, on behalf of the appellant, was his contention that once a litigant had indicated they were opting to rely on the Attorney General’s Scheme in particular proceedings, they could not then resile from that option under the terms of the Scheme as properly understood, or alternatively they were estopped from resiling from it. 7. The learned trial judge awarded costs to the respondent against the appellant, to the effect that the costs up to the date of hearing, 24th November, 2010, were not to exceed the level of costs and fees under the Attorney General Scheme, and the costs thereafter were on the normal party and party basis. 8. In his ex tempore judgment the learned trial judge, Peart J., ruled as follows:
9. Mr. McGinley was also brought before the High Court on foot of a European Arrest Warrant on the 20th January, 2011. An indication was given at that time to the court by his counsel that he would be relying on the Attorney General’s Scheme as regards the costs of legal representation. Subsequently, the respondent filed his points of objection in the proceedings on the 8th March, 2011, which included a statement that he would not be availing of the Attorney General’s Scheme. The application for an order directing his surrender, pursuant to s.16 of the 2003 Act, remained pending before the High Court until 19th July, 2012. On that date the application for his surrender, pursuant to s.16 of the Act, was refused and struck out by the High Court in the light of a decision of the Belgian authorities not to pursue its request for surrender. 10. On the 30th July, 2012, the learned trial judge in that case granted an order for costs to the respondent against the appellant. Again in that case the appellant had argued that once a respondent in proceedings such as this indicated to the High Court that he was opting to avail of the Attorney General Scheme, he was not entitled to subsequently withdraw from that position and seek costs against the Minister. 11. The ruling of the High Court by Mr. Justice Edwards on the order for costs was in the following terms:
(a) From the date of arrest to the 8th day of March, 2011, such costs to be limited to so much as he would have recovered on foot of a recommendation under the Attorney General’s Scheme; (b) From the 8th day of March, 2011 to date, full costs on a party and party basis to be taxed in default of agreement; (c) In the event of an appeal, payment out on account in respect of the costs at (a) and (b) above limited to so much as would have been recovered on foot of a recommendation under the Attorney General’s Scheme, said amount to be paid within three months of presentation of bill; (d) Stay on the difference between the amount paid out on account pursuant to (c) above and full costs recoverable on a party and party basis to be taxed in default of agreement, until the hearing of any such appeal.” 13. One would note in passing that historically the Attorney General Scheme required that the party seeking to rely on it should indicate to the relevant court his or her intention to do so at the commencement of the substantive hearing of the issues on the merits. It would seem that in more recent times that has been changed so as to require such a party to indicate their wish to rely on the Attorney General Scheme at the earliest opportunity, at or after the commencement of proceedings. If clarity is required as to how the Attorney General Scheme should function, and under what conditions it must be accepted, (provided it does not unduly impinge on a person’s constitutional right to have free legal assistance at the appropriate time in certain cases) this could be achieved by amending the rules of the scheme. The Preliminary Issue in the Appeal 15. Section 16(11) provides as follows:
17. An issue was raised in these appeals on behalf of the respondents as to whether the appellant was entitled to appeal only that part of the decision of the High Court which concerned the question of costs, notwithstanding the provisions of sub-section (11) and the absence of any certificate. Arguments of the Parties 19. Counsel for the appellant submitted that the phraseology of s.16(11) was materially different than s.50A(7) of the Planning & Development Act, 2000, which was the section considered in the Browne case. Accordingly, it was submitted, the reasoning applied in that case was not applicable to the interpretation of s.16(11) in this case. Accordingly, s.16(11) should not be interpreted as restricting an appeal from the High Court in these cases on a question of costs alone. The costs decision should be treated as a separate matter to the substantive decision in these cases. 20. It was further submitted, as regards the case of Mr. McGinley, that s.16(11) only applied to a decision to grant or refuse an application to surrender, and in that case there was no decision to refuse a surrender. That application was struck out because the Belgian authorities decided not to pursue their application for surrender on foot of the warrant. Since there was no decision to grant or refuse surrender, the restrictive terms of s.16(11) does not apply to an appeal regarding costs only in that particular case. 21. Counsel for the appellant submitted that in deciding this issue that it is a well established principle of construction that any statutory restriction on a right of appeal from the High Court should be strictly construed. Decision 23. The restriction in s.16(11) on an appeal is quite broad and emphatic. It says that an appeal may be brought against the High Court “decision”, “if, and only if” the High Court certifies for an appeal. The provision, enacted in 2003, enjoys the presumption of constitutionality. As indicated, the Oireachtas clearly intended to preclude an appeal, even for important questions of law, unless such questions also fell into the category of being a point of law of “exceptional public importance”. Even that is not enough in itself, it must also be “desirable in the public interest” that an appeal should be brought. This is for the High Court to decide. Can it be said that the Oireachtas contemplated that insofar as the High Court decision included a decision related to costs in one form or another that there could be separate litigation and a distinct appeal without any of the limitations in the section on an issue concerning only the legal costs aspect of the decision, important as that may be in itself? 24. The same, or similar, issue was considered in a judgment (ex tempore) of this Court delivered on the 24th March, 2014 (Unreported) in Browne v. Kerry County Council. In that case the provision in question was s.50A, sub-section 7, of the Planning & Development Act, 2000, as inserted by s.13 of the Planning & Development (Strategic Infrastructure) Act, 2006.
25. That provision provides:
29. What is relevant in the judgment of Kearns J. in the Canty case, even though it was done by way of obiter dicta, is the consideration and interpretation given by the Court to the terms of s.50(4)(f)(i) of the Planning & Development Act, 2000, which does have a comparative restriction on the right of appeal from a “decision” of the High Court. That provision in the Act of 2000 is in following terms:
32. In this case the relevant provision, s.16(11) of the Act of 2003, refers to an appeal against “an order under sub-section (1) or (2), or a decision not to make such an order”. (emphasis added) This latter phrase cannot be ignored. Thus, the appeal only lies if there is a certificate given in respect of the order or “decision”. Here there was a decision, within the meaning of s.16(11) in each case for different reasons, not to make an order for surrender and to award costs. 33. In any application for surrender coming before the High Court, pursuant to s.16 of the Act of 2003, it is inherent in any decision of the court that such a decision includes a decision in one form or another related to costs. If the respondent in such proceedings is in fact relying on the Attorney General’s Scheme, and seeks a recommendation from the High Court concerning the payment of costs under such a scheme, the court will by order make such a recommendation, or refuse it. Otherwise, the question of costs is a matter for the trial judge’s discretion in the ordinary way. In this case, having concluded and made a decision that no order would be made under s.16(1), the court made an order of costs in each case in favour of each respondent. 34. Although s.16(11) differs in wording from s.50A(7) of the Act of 2006, and s.50(4)(f)(i) of the Act of 2000, it has core elements in common with the latter two sections. These are that s.16(11) imposes a severe and express restriction on the bringing of an appeal from a “decision” of the High Court, and confines the right of appeal to cases in which the High Court certifies that there is a point of law of “exceptional public importance”, which it is “desirable in the public interest” to appeal. For these reasons I consider that s.16(11) must be given a similar interpretation as the Court did to the two other sections in the Browne case, namely, s.50A(7) of the Act of 2006 and s.50(4)(b)(i) of the Act of 2000. Accordingly, a determination on the question of costs consequent on a decision of the High Court on an application before it pursuant to s.16 of the Act of 2003 is an intrinsic and inherent part of those proceedings. The particular reference in s.16(11) to the “decision” of the court encompasses the decision of the court on the application, including the question of costs. Accordingly, an appeal can only lie from the decision of the High Court on any issue of law, including costs, if the High Court issues a certificate under s.16(11). 35. Moreover, one can, in any event, examine and interpret s.16(11) solely by reference to its own terms and meaning without the need to refer to the preceding judgments of this Court in the Browne case or in the Canty case concerning the similar statutory provisions. 36. Section 16(11) does not prohibit an appeal specifically in relation to “an order under sub-section (1) or (2)”. A proper citation of the section must include the phrase which follows those words, namely, “or a decision not to make such an order”. So taking the section in its ordinary meaning by reference to its own terms, it says that an appeal may be brought against “a decision” not to make an order for surrender, “if, and only if” the certificate specified in the sub-section has been granted. Absent that certificate no appeal lies. The express restriction is against appeals from any “decision” on an application under s.16. In other words, a universal or broad exclusion is clearly adopted. Such an interpretation of the section flows from its own terms. Neither is it dependent on whether there was some pre-proceedings administrative process involved in relation to the matters in issue. Accordingly, taking s.16(11) purely on its own terms, its plain meaning ineluctably leads to the conclusion that any appeal from a decision of the High Court under s.16, or any element of the decision (including costs) may only be appealed if the appropriate certificate has been granted. 37. Counsel for the appellant did argue that the issue of costs was a distinct matter from any decision on the merits. Also, he pointed out that the decision on the question of costs was adjourned and dealt with after argument on a separate day to the decision on the substantive proceedings. This tended to highlight, it was submitted, the distinct and separate nature of the question of costs. In my view, the fact that the issue of costs is dealt with separately on a separate day does not affect the interpretation which I have given to the meaning of “decision” in s.16(11). A decision on costs is an intrinsic part of the court’s decision. It is determined, in one form or another, in conjunction with the other issues on the merits, in each case. The question of costs is not the only matter which can be dealt with on a different and separate day to the handing down of a decision on a substantive aspect of proceedings. It is not unusual for the form of an order, or a particular aspect of an order, which is to be made consequent upon a decision in proceedings to be adjourned for argument on a separate date. Adjourning part of a decision for final determination at a later date does not mean that such part could be treated as not forming part of the court’s “decision” in the proceedings, within the meaning of s.16(11). 38. As regards the submission on behalf of the appellant that s.16(11) does not apply to the High Court decision in the case of Mr. McGinley because there was no decision to either grant or refuse a surrender, it must be emphasised again that the terms of s.16(11) refer to an appeal “against an order under sub-section (1) or (2), or a decision not to make such an order”. Where a person is arrested pursuant to s.13 of the Act, on foot of a European Arrest Warrant endorsed under that section, sub-section (5) requires that the person so arrested be brought before the High Court. Sub-section (5) then requires the High Court, once satisfied that the person is the person in respect of whom the warrant was issued, to “fix a date for the purpose of s.16”. Thereafter, the matter remains pending before the court for a decision pursuant to s.16, namely, for a decision as to whether or not an order should be made for the individual’s surrender on foot of the warrant endorsed by the High Court. As indicated above, s.16(11) applies not only to an order under sub-section (1) or (2) for surrender, but a decision not to make such an order. It is clear that the decision in the case of Mr. McGinley was a decision not to make an order for surrender in respect of the application pending before it, pursuant to s.16. The fact that the reason for not making such an order arose from a decision by Belgium not to pursue their application for surrender does not affect the substance of the decision, namely, a decision not to make an order for surrender, on foot of an application to the High Court to that effect. In short, the fact that it was decided not to pursue the application at a particular point does not alter the essential nature of the decision made by the High Court. 39. Counsel also referred to the provision of the Constitution which gives a right of appeal subject to such limitations as may be imposed by law (other than an issue concerning the validity of any law). He correctly pointed out that it is a well established principle of construction that any statutory provision which restricts a right of appeal from the High Court should be strictly construed. 40. As pointed out earlier, the Oireachtas has expressly restricted any right of appeal to certified questions of law which is of “exceptional” public importance, and where it is also “desirable in the public interest” for such an appeal to be brought. Thus, no appeal may be taken from a decision of the High Court under s.16, even though it may involve an important question of law, or indeed be one of public importance, but not exceptionally so, and so forth. Applying the principle of strict construction of the Act I think it is clear that the Oireachtas had in mind any appeal from the ‘decision’ including all elements of the decision, of the High Court, and it is impossible to conceive that with such a broad restriction it was envisaged that an issue confined to the costs only should be litigated further on some separate form of appeal to this Court to the exclusion of all other components of the High Court decision. That would be writing into the sub-section an exception which simply is not there. 41. For the foregoing reasons, I would hold that the appellant is not entitled to appeal the decisions of the High Court in either of these cases by reason of s.16(11), and would propose that the appeal be struck out accordingly. Judgment of Mr Justice Peter Charleton delivered the 20th day of May 2015
1. A different view is possible as to the restriction on appeals from decisions of the High Court that is imposed by section 16 of the European Arrest Warrant Act 2003, as amended. Central to this appeal was the desire of the Attorney General to clarify if it was ever possible for a person arrested under the Act of 2003 for the purpose of extradition to another European Union country and whose legal representatives had opted at the first appearance of the requested person to ask the judge to note that they would be seeking a recommendation for the form of legal aid known then as the Attorney General’s scheme, to later disavow that request and to instead seek costs as a successful respondent. A preliminary point, however, intervened as to the jurisdiction of this Court to hear such an appeal. In these cases, the respondents were sought on extradition applications, applied for the Attorney General’s scheme and at a time proximate to the ultimate decision announced that they were no longer seeking to rely on that scheme. This meant that costs in the ordinary way were sought when they succeeded, each in different circumstances, in not being extradited.
2. At the time relevant to the two decisions made to award costs to the requested persons, consequent in one case on the requesting country withdrawing the application for extradition and in the other to a decision against extradition, the Court of Appeal had yet to be established. Consequently, the relevant Articles of the Constitution were Article 34.4.1º, which provided that the court of final appeal in our court system should be “called the Supreme Court”, and Article 34.4.3º, which gave to the Supreme Court “appellate jurisdiction from all decisions of the High Court” but “with such exceptions and subject to such regulations as may be prescribed by law”. A regulation, in this context, will order the form of an appeal, for example, when it may be brought or through what form of pleading. An exception to the appellate jurisdiction of the Supreme Court from all decisions of the High Court is an exclusion from the general rule of the complete entitlement under the Constitution of a litigant to appeal High Court decisions to the Supreme Court. Thus far, in these circumstances, a rule of law that here requires something akin to strict construction has not been identified; a cannon invariably applied in this jurisdiction to criminal statutes or legislation which impacts on the liberty of the citizen. This exclusion is, nonetheless, a deviation from the ordinary rule, as set out in the Constitution, that decisions of the High Court are appealable.
3. As Murray J states in the majority judgment, exclusions from appellate jurisdiction have commonly been incorporated in legislation dealing with planning and with refugee status. In the field of planning, the exclusion may be presented in argument, without now deciding the point, to be near universal in respect of all decisions of the High Court. Section 50 of the Planning and Development Act 2000, as amended, requires the speedy initiation of a judicial review claim of any “question” as to “the validity of any decision made or other act done” by either a planning authority or An Bord Pleanála. Section 50A (7) thereof excludes appeals to the Supreme Court without certification of a point of law of “exceptional public importance”. When it comes to claims of refugee status, section 5 of the Illegal Immigrants (Trafficking) Act 2000 also requires most applications to be by way of judicial review and excludes appeals except by leave of the High Court on an exceptionally important point of law. That legislation appears to be less universal in its scope. In providing a list of 14 decisions subject to such restrictions, that Act makes a decision of the High Court final in relation to the making of a deportation order but refusal to revoke a deportation order under section 3(11) of the Immigration Act 1999 is not included and may, notwithstanding that it is apparently anomalous, be appealed in the ordinary way. What both those instances have in common, and it is to be wondered if this is a defining characteristic, is that prior to any High Court hearing, an enquiry followed by the right to a quasi-judicial appeal will ordinarily have held in respect of the impugned decision. Hence, there may be reasons for the Oireachtas to restrict further appeals. This is, as Murray J for the majority so carefully reasons, a matter of statutory construction. The planning code does not appear to treat decisions as to costs as separate, indeed it could be argued that the restriction is against appeals “from decisions” in those cases. In other words, a universal exclusion could be argued to have been adopted. Under the legislation dealing with applications for refugee status, in apparent contrast, the restriction is in respect of particular decisions; listed “as aforesaid” is how the legislation puts it.
4. Neither sets of legislation mentions or separately deals with any question of costs. It is easily to be appreciated that it could be argued to be incongruous to allow appeals on issues of costs while at the same time excluding the substantive issue. Normally, both travel together but that may not be the determining factor. The trouble of especially legislating for or excluding an appeal on costs in our system, where costs under Order 99 rule 1(4) of the Rules of the Superior Courts ordinarily “follow the event”, could be argued to be unnecessary. Nonetheless, it must come down to a question of construction as to whether the legislature has chosen, by failing to exclude an appeal on costs chosen, to allow such an apparently anomalous situation.
5. While respecting both the majority judgment of Murray J and the earlier decisions cited therein, this question appears to not to have previously arisen in this different legislative context; Canty v Private Residential Tenancies Board [2008] 4 IR 592; (Unreported, Supreme Court, 24th March, 2014).
6. Here, on the way the matter is put in the Act of 2003, the wording does not specifically exclude an appeal as to costs. Reasoning from what is in fact excluded, where another aspect of what the High Court may decide is not covered by wording that is sufficiently specific, the general right of appeal as provided for in Article 34.4.3º is not displaced.
7. In that regard, the wording of section 16(11) of the Act of 2003, quoted in full in the judgment of Murray J, only permits an appeal to the Supreme Court on a certificate. However, that prohibition is specifically in relation to “an order under subsection (1) or (2)”; meaning a negative or positive order to allow surrender to a requesting country. Turning to those subsections, these specifically allow the High Court to “make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her”, in the instance of subsection (1), or, as to subsection (2) in identical wording, the only difference being to the subsection directing the setting of the date for such surrender. In referencing “a decision not to make such an order”, as well as “an order” of surrender, what subsection 16(11) contemplates is not any decision of the High Court but, instead, only those two specific decisions.
8. There may also be reasons why the Oireachtas would not bar an appeal in respect of costs. Moving from State funded legal aid, a recommendation in that regard having been sought, to the hazard of perhaps recovering costs in the ordinary way under the Rules of the Superior Courts, has serious implications for the funding of such schemes. Cherry picking can destroy a universal benefit. In the ordinary way, further, costs operate as a separate application upon the delivery of judgment in High Court cases. Costs are often urged not to “follow the event” because this rule is not automatic; costs being as Order 99 rule 1(1) states “in the discretion of those Courts”. Sometimes, where an application for a restriction order in respect of the directors of a failed company seems justified under section 150 of the Companies Act 1990, as amended, costs may not follow the event even though the application fails: Re Doherty Advertising [2006] IEHC 258. Similarly, in criminal cases an accused who is not legally aided but in respect of whom the burden of proof beyond reasonable doubt is not displaced, may not necessarily be awarded costs: The People (Director of Public Prosecutions) v Kelly [2008] 3 IR 202; The People (Director of Public Prosecutions) v Bourke Waste Removal Limited & Others [2011] 1 ILRM 126; The People (Director of Public Prosecutions) v McNicholas [2011] IECCC 2; The People (Director of Public Prosecutions) v Ryan [2014] IECC 1. Even decisions that clearly go against an applicant can sometimes result in a loosing party achieving an award, usually against the State, of some small portion of their costs; Dunne v The Minister for Environment [2008] 2 IR 775, but this is a genuine rarity. Had the Oireachtas wished to exclude all appeals to the Supreme Court in respect of all decisions under the Act of 2003, were not clear forms of wording available to achieve this result? That intention is not apparent from the wording of this legislation, especially read in the light of the provision in the Constitution.
9. Since the Act of 2003 does not specifically exclude an appeal as to costs and since costs is a matter which would not necessarily automatically follow as an integral part of an order, the doubt that arises as to the meaning of the prohibition on appeals to the Supreme Court requires resort to the Constitution to find the fundamental rule. That rule is as stated Article 34.4.1º and has not here been displaced.
10. Hence, the reasoning for this dissent from the majority.
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