High Court quashes judge's costs order for improper conduct but remits legal issues for review.

2005 IEHC 194

THE HIGH COURT

Record No. 2004 408JR

BETWEEN

EDWARD McCOPPIN

APPLICANT

AND

HIS HONOUR JUDGE ANTHONY KENNEDY

TERRY McHUGH T/A LONGFORD HIRE CENTRE

RESPONDENTS

AND

THE ATTORNEY GENERAL

NOTICE PARTY

Judgment delivered by Mrs. Justice Fidelma Macken on the 14th day of April, 2005

1. The facts in this case are not heavily in dispute, nor are most of the relevant legal principles. It is the application of those

principles to the facts in the case which is in issue.

2. On 21st April, 2004 certain civil proceedings between the applicant as plaintiff and the second named respondent as defendant

were at hearing before the first named respondent at Longford Circuit Court. The case was one in which there was witness evidence

and the first witness for the applicant was being examined by the plaintiff’s counsel. In the course of that examination, the first

named respondent instructed the witness to stop fiddling with a plastic bag on her lap, in response to which she informed him that

the plastic bag contained the hoof of the horse (which had been injured in an accident and in respect of which the civil action was

being taken).

3. Shortly thereafter, still in the course of the examination in chief, a mobile phone rang in the courtroom, and the first named

respondent asked the garda in the court to remove from court the person whose phone had rung. It was explained to the first named

respondent by counsel for the plaintiff (now applicant herein) that in fact it was phone of the plaintiff who was in court listening to

the evidence of the witness. Nevertheless, according to the affidavit evidence filed, the plaintiff was then removed from the court,

the said respondent indicating that this would remain the position until he was due to be called to give his own evidence.

4. After this interruption, the hearing continued with the examination of the same witness. Very shortly thereafter during the course

of cross-examination of the witness, another mobile phone rang in the courtroom. This time it was the mobile phone of the plaintiff’s

counsel.

5. The first named respondent rose from the bench, and returned a short time later, at which time counsel for the plaintiff in the

action apologized profusely for what had occurred stating that he was sorry for any disrespect to the Court and that there would be

no recurrence of the problem as he had left his mobile phone outside the courtroom. The first named respondent then stated that the

hearing was now “aborted” by reason of the plaintiff’s contempt and by reason of the ringing of his counsel’s phone, but that he could

not, in that respondent’s view, be excluded from the courtroom. He adjourned the case to the next sitting of a supplemental judge’s

list in June, that is to say, to be heard by a judge other than him so that “justice can be done”, and awarded costs against the

plaintiff in favour of the defendant on a “thrown away” basis.

6. By order of this Court (Quirke, J.), made on 24th May, 2004, leave was granted to the applicant to apply for judicial review seeking

an order of certiorari to quash the order of the first respondent, for a declaration that the said respondent was obliged to comply

with basic fairness of procedures and with natural and constitutional justice in respect of his purported findings reflected in the above

order, and for an order seeking the costs of this application. At the same time, the learned judge directed that the Attorney General

be joined as a notice party.

7. By his statement to ground the application for judicial review, the applicant bases his relief sought on the following legal grounds:

(a) that the first named respondent acted contrary to natural and constitutional justice and in breach of fair procedures

in finding the applicant in contempt of court, in his absence, and without giving him any or any adequate opportunity of

being heard in his defence prior to such conviction or in submission prior to the imposition of the penalty of awarding

costs thrown away against him;

(b) that the said respondent acted injudicially and in breach of basic fairness of procedures in finding the applicant guilty

of contempt of court because his mobile phone had sounded during the course of the hearing;

(c) that the first named respondent acted injudicially and in breach of the principles of natural and constitutional justice

in finding the applicant liable for the alleged contempt of court of the applicant’s counsel without affording the applicant

or his counsel any or any adequate opportunity of being heard prior to such conviction being imposed or in relation to the

penalty contemplated by the said respondent;

(d) that the said respondent’s finding that the applicant was guilty of contempt of court and liable for the contempt of his

counsel, was contrary to fundamental reason and common sense and was not within the range of rational options open to

the said respondent upon two mobile phones having sounded in his court room.

(e) The said respondent acted in such a fashion as would give rise to a reasonable belief on the part of an onlooker that

justice was not being done or in the alternative, that justice was not being seen to be done.

8. By an amended statement to ground an application for judicial review, the applicant sought further, a declaration that the first

named respondent had breached Article 6 of the European Convention on Human Rights and Fundamental freedoms, and further a

declaration pursuant to s. 5 of the European Convention on Human Rights Act, 2003 that if the applicant is not entitled, in law, to an

order for costs against the said respondent, save where mala fides is established, then such a rule of law gives rise to a breach of

Article 13 of the said Convention in that it deprives the applicant of an effective remedy for a breach of Article 6 of the said

Convention in respect of a fair trial.

9. In support of these additional grounds, the applicant pleaded:

(f) That Article 13 of the said Convention provided that everyone whose rights and freedoms as forth therein are violated

shall have an effective remedy before a national authority notwithstanding that the violation has been committed by a

person acting in an official capacity.

(g) That a person charged with a criminal offence has the right to be informed promptly and in detail of the nature and

cause of the accusation against him, to have adequate time and facilities for the preparation of his defence and to

defend himself in person or by counsel.

(h) In the circumstances pleaded, the first named respondent had denied the applicant his right to a fair trial pursuant to

the said Convention.

(i) If there was a rule of law whereby the applicant is not entitled to an order for costs against a judge in the absence of

mala fides then such rule of law is contrary to the said Convention on Human Rights, for the reasons set out in the

additional ground above.

10. By the notice of opposition filed on behalf of the notice party, he pleads that insofar as the decision of the first named

respondent is concerned, the said respondent did not act improperly. In particular, the applicant is not entitled to costs against the

notice party in the absence of any finding of bad faith or impropriety against the said respondent. Further, said notice party opposed

the grant of the additional reliefs sought pursuant to the said Convention or pursuant to the said Act of 2003, in pleading:

(a) that the matters of which the applicant complains did not fall within Article 6 of the said Convention;

(b) that the applicant was not charged with a criminal offence for the purposes of the said Article;

(c) that if they were within the said article, there was no breach of the same;

(d) that there being no breach, the adequacy of any remedy does not arise;

(e) that the rule of law complained of in the amended statement of ground is not incompatible with the obligations arising

under article 13 of the said Convention;

(f) the applicant had not established that no legal remedy other than a declaration of incompatibility is adequate and

available.

11. While no notice of opposition was filed on behalf of the second named respondent, an affidavit was sworn on his behalf by his

solicitor, Mr. Padraig Kelly on 15th July, 2004, in which he avers that that respondent had been joined as a notice party but had no

role in the proceedings in that all of the reliefs sought in reality are against the first named respondent.

12. This affidavit was sworn in response to an affidavit of the applicant’s solicitor, Mr. Kevin Kilrane, in which he had averred that the

said respondent had indicated he would not oppose the relief sought by the applicant, and that he had sought from the second

named respondent an agreement to waive the order for costs thrown away made in his favour, but that this had been refused, and he

exhibited copies of correspondence passing.

13. In the course of that correspondence, it had been stated on behalf of the second named respondent that the etiquette applying

in the court would have been apparent to all parties attending, because there are clear signs on the court door entrance stating that

all mobile phones should be turned off, and further that the judge’s tipstaff announces the request to turn off such phone every time

the judge enters the court room which occurred frequently throughout the opening day of the sitting, so that everyone attending was

or should be well aware of the prohibition against the use of such phones in court.

14. Mr. Kelly avers in his affidavit that his client was not in a position to waive the costs or to interfere in any way with the order,

since this was a contempt order made by the first named respondent exclusively as against the applicant. He avers that the second

named respondent was in no way responsible for the order which had been made. On the contrary, the making of the order had

disadvantaged him. Mr. Kelly avers that any order for costs against the second named respondent would be an unjust order in that it

would penalize that respondent in circumstances where he had no hand, act or part in the making of the original order.

Legal Submissions

15. Counsel for the applicant, Mr. McDonagh, S.C. indicated that none of the parties was objecting to the making of the order of

certiorari sought. He argued that the first named respondent acted beyond jurisdiction in making the order and that the order made

was also irrational in that it was made by way of a response which was wholly disproportionate to the events which had occurred,

namely permitting a telephone to ring in the course of a hearing in court.

16. Moreover, counsel argued that the applicant should not have had any contempt finding or any order for costs made against him

without his being in court, and without his counsel having an opportunity to take his instructions, to argue against any such result,

and therefore to be heard in a real and appropriate way. In the present case it was submitted that since the order was made in his

absence, and even without his knowledge that such a finding and order might be or was going to be made, his right to be heard in his

defence was infringed, including his right to a fair trial pursuant to Article 6 of the European Convention on Human Rights and

Fundamental Freedoms, and the Human Rights Act of 2003 by which that Convention was adopted into Irish law.

17. Further, counsel contended that when the first event was exacerbated by the unfortunate additional factor of the applicant’s

own counsel’s mobile phone ringing in the course of cross-examination of a witness, the first named respondent should not have

penalised the applicant for a wrongdoing or perceived contempt not of his making. In the circumstances, and having regard to the

fact that this was also done without his having been heard, the applicant’s right to be heard was thereby further infringed, with the

same legal consequences as above contended for.

18. In view of the foregoing, the order actually made, according to counsel for the applicant, was one made unfairly, in disregard of

the applicant’s right to a hearing, was irrational in that it was wholly disproportionate to the circumstances in issue, and was ultra

vires as being beyond what the first named respondent is entitled to do by way of appropriate remedy.

19. It was further submitted that what occurred before the first named respondent was outrageous, and that the said respondent

could not possibly have thought that his Order was a legitimate exercise of his judicial function. Counsel argued that the conduct of

the said respondent amounted to the wilful ignoring of fair procedures. The impugned order was not, according to the applicant, the

result of an understandable difference of opinion as to the law or as to the jurisdiction of the court in question.

20. Having regard to the foregoing, the order was made by the first named respondent acting injudicially. Counsel argued that, that

being so, the applicant is entitled not only to have the order set aside, but also to have an order for the costs of this application as

against the notice party on behalf of the first named respondent, and also, because of the circumstances of the case, against the

second named respondent.

21. In support of his claim as to the costs of this application, counsel for the applicant invoked the decisions in the cases of State

(Prendergast) v. Rochford, unreported, 1st July, 1952 and the case of McIlwraith v. Fawsitt [1990] 1 I.R. 343.

22. As to the position of the second named respondent, he said that after the events giving rise to the order, and after the order was

made, the applicant’s solicitor had asked that respondent not to rely on the order for costs made in his favour, but this had been

refused. In the circumstances the said respondent was properly joined as a legitimus contradictor in the proceedings, and the

applicant should be entitled, if successful, to have his costs also against him.

23. Counsel for the second named respondent, Mr. McNally, B.L., submitted that the position concerning costs in the impugned order

was misunderstood by the applicant, in particular as to its legal status. Since the order made by the first named respondent was in

respect of an alleged contempt of the applicant, it was not for his client to take any part in the dispute between those parties, and

this had been clearly indicated, in the affidavit of the solicitor for the second named respondent. Further, the second named

respondent had been in no way responsible for the order made by the first named respondent, had not sought costs and was now

party to the proceedings, without having in anyway contributed to the position of the applicant, or to the making of the costs order.

24. In the circumstances, any application for costs against the second named respondent would be quite unjustified, and on the

contrary, the second named respondent should have the costs of this application either against the applicant or against the Notice

Party.

25. For the Notice Party, Mr. Devlin, B.L., submitted that while the actions of the first named respondent may have been described by

counsel for the applicant as being harsh, it could not be said his decision was made through any impropriety, or in bad faith, and

therefore the applicant had, in law, no entitlement to the costs of this application against the notice party on behalf of the first

named respondent, as the solid jurisprudence of the courts makes it clear that no costs may be awarded against a judge except in

very narrow circumstances, which did not apply here, and that the case law cited on behalf of the applicant supported this approach.

In that regard, he invoked also the decision in the case of O’Connor v. Carroll [1999] 2 I.R. 160 in which the Supreme Court had again

held that in the absence of impropriety or mala fides costs should not be awarded against a deciding judge who had not opposed the

proceedings.

26. Further, counsel said he was struck by the use of the term “injudicially” by counsel for the applicant, who had indicated he would

explain this, but had not done so. He submitted that there was no question of the first named respondent acting through mala fides

or in any way which would give rise to an entitlement to costs.

Conclusions

27. In this case it was agreed between the parties, with the consent of the Court that, due to time constraints, the grounds invoked

by the applicant in his amended Statement to Ground an Application for Judicial review, arising pursuant to Articles 6 and 13 of the

European Convention on Human Rights and Fundamental Freedoms, and pursuant to Section 5 of the European Convention on Human

Rights Act 2003, should be left over for detailed argument on a later occasion, and this judgment, although reciting the reliefs sought

and the grounds therefor, as well as the response of the notice party, does not deal with this related but discrete issue, and I will

make the necessary orders in that regard at the end of this judgment.

28. In this case, the main bone of contention, as is clear from the submissions made, and it is the only real issue between the parties,

apart from the legal issues raised pursuant to the above Convention and the Act of 2003, is whether the applicant is entitled to have

the costs of this application against the notice party on behalf of the first named respondent in respect of the alleged impropriety or

mala fides of that respondent, and/or as against the second named respondent. This in turn depends on the correct interpretation of

the facts and of the order made in respect of those facts, and on the application of the jurisprudence on the issue of such costs to

the facts in the present proceedings.

29. It is undoubtedly the case that in this age of mobile technology, when people carry mobile phones in ever increasing numbers,

they will ring when least expected, even in the course of a court hearing and despite the fact that there may be notices on

courtroom doors or announcements made. We have all, whether as judges or as ordinary citizens, had experiences of mobile phones

ringing in the most unsuitable places. It is therefore quite understandable that when mobile phones ring, particularly in the course of

the examination of a witness in a court case, any presiding judge will not be happy about it. When two phones ring, one a short time

after the other, it is even more understandable that a presiding judge, who has already had to caution one person and required him to

leave the courtroom temporarily, will be exasperated. And this is particularly so when every effort will have been made and should be

made to ensure that a court hearing – an event dealing with legal issues which may be, indeed are likely to be, of serious concern to

all parties – will not be interrupted, wrongly and without an exceptional reason by the carelessness of those owning and carrying

mobile phones.

30. The real question which arises is whether, legally, such activities giving rise to an interruption or interference with the court

hearing, and regardless of how exasperating it may be to the presiding judge, should lead to the orders made, including the order for

costs “thrown away” against the applicant, and whether the judge in assessing the events leading to the order, or making such an

order, has acted mala fides or through impropriety.

31. It is clear from the jurisprudence that an order for costs, which is always within the discretion of the court, may be made even

against a judge acting wrongly, but only in limited circumstances. It is not the case that such an order can never be made. In the

case of O’Connor v. Carroll, supra, one of the more recent judgments of the Supreme Court, the unanimous decision of that court

was that, where, as here, a judge has not opposed the proceedings in question, an order for costs may not be made against him or

her in the absence of mala fides or impropriety, adopting earlier jurisprudence of that court in support of the decision.

32. In an even more recent decision of the High Court, in which the latter case as well as the case of McIlwraith v. Fawsitt, supra.,

was also considered, Kelly J. specifically adopted and applied the established jurisprudence of the Supreme Court in the cases cited

above.

33. It is the application of the principles found in this jurisprudence which really gives rise to the dispute here, as the applicant argues

that what occurred was clearly within the ambit of mala fides and/or impropriety, while the notice party argues that the events do

not demonstrate either impropriety or mala fides.

34. I am satisfied that it was reasonable for the first named respondent to terminate the hearing when he did, even if that was not a

choice which might be made by a different judge. It might even be considered to be a prudent approach on his part in view of the

fact that the ringing of the mobile phones had so exasperated him. From what the solicitor for the applicant averred to in the affidavit

to ground the application for leave to issue these proceedings, the adjournment to a different judge was indicated by the first named

respondent as being intended to ensure that “justice was done”. It seems to me clear from this that the said respondent took the

view that the hearing should be before a judge other than himself, thus indicating that he fully appreciated that even if the case

could continue before him, it would be preferable, so as to ensure that justice was not only done but was also seen to be done, that

this should be before another judge who had not experienced the above events. To that extent I find that the order of the first

named respondent adjourning the matter was a perfectly legitimate order which cannot be considered as having been made mala fides

or through impropriety.

35. As to the question whether the said respondent was, consequent upon the events which occurred, legally correct to award costs

against the applicant “thrown away”, on the basis of a finding of contempt, I am not satisfied that he was. Before any such finding or

any such order could be lawfully made, since the order for costs was in effect a form of sanction for the contempt, the applicant had

a right to be heard, both on the alleged contempt and on the costs sanction, and had a right, if he wished, to instruct his counsel in

that regard. That is so, whether what was being considered was the ringing of the mobile phone of the applicant or of his counsel. In

either case, the costs awarded against the applicant was the sanction imposed in respect of the finding of contempt.

36. Moreover, a finding of contempt, without any hearing and the costs order on a “thrown away” basis without any hearing were

ultra vires the first named respondent’s powers. They were also disproportionate as a remedy for the events which had occurred,

even if I accept that the first named respondent was entitled to be exasperated at the interruptions. For the purposes of this

judgment, it is not necessary for me to consider whether in any particular circumstances a finding of contempt could have been made

against the applicant in respect of the ringing of his counsel’s mobile phone. In the circumstances which are described, the response

was also irrational in the legal sense, in that it was beyond what a reasonable judge would determine to be an appropriate response

to the events.

37. I therefore consider that on both grounds, namely a failure to afford the applicant his right to be heard and represented, and on

the ground or irrationality as that term is understood and applied legally, the order was ultra vires and ought to be quashed insofar as

it awarded costs against the applicant in favour of the first named respondent on a thrown away basis.

38. As to the question of costs claimed by the applicant in respect of this application, I find against the applicant in that regard, and

I now deal with the legal arguments made pursuant to the above jurisprudence. As mentioned above, costs have always been

awarded at the discretion of the Court, and although frequently – or indeed in most cases – costs will “follow the event”, this is not

invariably the case, as is clear from the above jurisprudence including McIlwraith, supra, and O’Connor v Carroll, supra. However, in

the particular circumstances of an order made by a judge acting mala fides or through impropriety or bias or ill will, there will or may

be an award of costs in favour of an applicant, depending always on the circumstances of the case..

39. Here the plea is made that the second named respondent acted both unjudicially and improperly. The first of these is explained in

the pleadings and affidavits as being constituted by the finding of contempt for the ringing of the mobile phones, and by finding the

applicant liable for contempt without being afforded an opportunity of being heard before the imposition of the costs sanction. The

allegation of having acted “improperly” is explained or particularised as having occurred by reason of the first named respondent

declining to exercise the judicial function entrusted to him because a mobile phone rang in his courtroom room.

40. Neither of these pleas constitute either mala fides or impropriety, as these are understood in the jurisprudence, and no facts

adduced in the affidavits filed bring the pleas further. The first set relate to matters in respect of which the first named respondent

was quite simply wrong in law, by inter alia depriving the applicant of his right to be heard. The second is explained by a submission

that the first named respondent dealt with the incident in a manner which was not proper, which I understand as not legally proper.

But the allegation that a judge has acted “improperly” requires more than a complaint of the nature found here, encompassing as it

does something in the nature of a deliberate decision not to apply the law, or deliberately to ignore a ruling of a higher court, for

example. I am satisfied that the above case law of this court and of the Supreme Court makes it clear that costs are not to be

awarded in the face of events of the type giving rise to the within proceedings and the impugned order, even though it may be said

that the costs element of the decision as well as of the order made was highly unusual and was not legally permissible. The applicant

has not made out a case that he is entitled to the costs on grounds that the first named respondent acted either improperly of

through mala fides.

41. In the foregoing circumstances, I will quash the order of the first named respondent made on 21st April, 2004 in the proceedings

entitled “Edward McCoppin Plaintiff and Gerry McHugh trading as Longford Hire Centre Defendant and bearing Record Number

270/2002” in so far as the costs element of that order is concerned.

42. As to costs of the applicant in these proceedings, in view of my findings, I refuse the applicant an order for costs against the first

named respondent or against the Notice Party on his behalf. As against the second named respondent, I am not satisfied that he

should be found in any way liable to the applicant for his costs. His involvement in these proceedings did not cause or contribute in

any way to any of the applicant’s costs. As to the costs of the second named respondent, while he is listed as being a notice party

to the proceedings, it was not, in my view, necessary for him to have taken an active part in the proceedings, and therefore, as he

has chosen to do so, I am of the view that the appropriate approach is to make no order for his costs, either against the applicant or

the notice party. Nor will I make any order as to costs in favour of notice party against any other party.

43. In so far as concerns the pleas in the amended statement to ground an application for judicial review, and the legal argument in

respect of the same, it seems to me that these pleas raise discrete legal grounds which may, in certain circumstances, have a

significant effect on the existing jurisprudence of this court and of the Supreme Court, which require to be argued and considered in

detail. I will direct that those issues, which I have set forth adequately above and which are found set out in the said amended

statement and amended notice of opposition, should be remitted to an appropriate Judicial Review List, and I will direct that written

submissions be filed and delivered on behalf of the Applicant and the Notice Party on those issues alone, and that the same to be

determined by a judge at a future date.