High Court allows judicial review application but denies costs due to prosecution's unreasonable conduct.

Neutral Citation Number: [2009] IEHC 539

THE HIGH COURT

JUDICIAL REVIEW

2008 289 JR

BETWEEN

T. McG.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Herbert delivered on the 8th day of December 2009

Section 14(2) of the Courts (Supplemental Provisions) Act 1961, provides that the jurisdiction of the High Court as

regards pleading, practice and procedure generally, including liability to costs, shall be exercised in the manner provided

by the Rules of Court. Order 99, r. 1(1) of the Rules of the Superior Courts provides that:-

“The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts.”

An application for leave to seek judicial review and the subsequent application for judicial review come within the terms of

this sub-rule (Veolia Water U.K. plc. v. Fingal County Council (No. 2) [2007] 2 I.R. 81: McEvoy v. Meath County Council

[2003] 1 I.R. 208).

By O. 99, r. 1(4) as substituted by Statutory Instrument 12/2008, Rules of the Superior Courts (Costs) 2008, it is

provided that:-

“Subject to sub-rule (4A), the costs of every issue of fact or law raised upon a claim or counterclaim shall, unless

otherwise ordered, follow the event.”

In this context “claim” means an assertion of a right and clearly encompasses an application for leave to seek judicial

review and, an application for judicial review is clearly a “claim”.

In Dunne v. The Minister for the Environment, Heritage and Local Government and Others [2008] 2 I.R. 775, Murray C.J.

delivering the judgment of the Supreme Court held that:-

“. . . the Act of 1961 and the Rules of the Superior Courts adopt and incorporate the procedure and practice which

applied in our courts for a very long time. There has been no fixed rule or principle determining the ambit of that

discretion and in particular no overriding principle which determines that it must be exercised in favour of an

unsuccessful plaintiff in specified circumstances or in a particular class of case. In Hewthorn & Company -v-

Heathcott (1905) 39 I.L.T.R. 248 Kenny J. stated

‘It is well settled law, as is shown by the authorities cited to me, that when costs are in the discretion

of a judge he must exercise that discretion upon the special facts and circumstances of the case before

him and not be content to apply some hard and fast rule.’”

Murray C.J. [p. 281] further pointed out that decisions of other common law jurisdictions concerning matters of their

practice and procedure, must, because of their very nature, be considered with caution and he referred to the

observations of Kennedy C.J. in Little v. Dublin Tram Co. and Another. [1929] I.R. 642 at p. 657.

At pp. 783, 784, of the judgment in Dunne v. Minister for the Environment (above cited) Murray C.J. stated the law as

follows:-

“The rule of law that costs normally follow the event, that the successful party to proceedings should not have to

pay the costs of those proceedings which should be borne by the unsuccessful party has an obvious equitable

basis. As a counterpoint to that general rule of law, the Court has a discretionary jurisdiction to vary or depart from

that rule of law if, in the special circumstances of a case, the interests of justice require that it should do so. There

is no predetermined category of cases which fall outside the full ambit of that jurisdiction. If there were to be a

specific category of cases to which the general rule of law on costs did not apply that would be a matter for

legislation since it is not for the Courts to establish a cohesive code according to which costs would always be

imposed on certain successful defendants for the benefit of certain unsuccessful plaintiffs.

Where a Court considers that it should exercise a discretion to depart from the normal rule as to costs, it is not

completely at large but must do so on a reasoned basis, indicating the factors, which in the circumstances of the

case, warrant such a departure. It would neither be possible or desirable to attempt to list or define what all those

factors are. It is invariably a combination of factors which is involved. An issue such as this is decided on a case by

case basis and decided cases indicate the nature of the factors which may be relevant but it is the factors or

combination of factors in the context of the individual case which determine the issue.

Accordingly any departure from the general rule is one which must be decided by a Court in the circumstances of

each case.”

In Veolia Water UK plc v. Fingal County Council (No. 2) [2007] 2 I.R. 81, Clarke J. at p. 85 held as follows:-

“. . . it seems to me that two matters traditionally taken into account by the courts in the award of costs remain of

the highest significance and require to be re-emphasised.

The first is that costs always remain discretionary and anything which is said concerning the principles which ought

normally to apply in considering the award or refusal of costs should be subject to the caveat that the court always

remains open to the suggestion that, by virtue of special or unusual circumstances, it is appropriate to depart from

what otherwise might be the normal course in respect of an order for costs in a particular case. . . .

Secondly the overriding starting position should remain that costs should follow the event. Parties who are required

to bring a case to court in order to secure their rights are, prima facie, entitled to the reasonable costs of

maintaining the proceedings. Parties who successfully defend proceedings are, again prima facie, entitled to the

costs to which they have been put in defending what, at the end of the day, the court has found to be

unmeritorious proceedings.”

In Shelly-Morris v. Bus Atha Cliath [2003] 1 I.R. 232, Denham J. at p. 264, held that the burden lies on the party claiming

it to show why costs should not follow the event.

In the instant case the applicant who was unsuccessful in his application for judicial review is not seeking costs but

instead invites the court to make no order as to costs in what he claims are the special and unusual circumstances

connected with the institution and conduct of the application. These alleged special and unusual circumstances are set

out as follows by Senior Counsel representing the applicant in their most helpful written submission:-

“The very late disclosure of the psychiatric material.

The fact that the bulk of the material came in unpaginated and unindexed form and frequently involved illegible or

hand written entries.

The fact that considerable efforts were made by the applicant’s legal advisers to deal with the disclosure/Braddish

issue through correspondence, in the hope of avoiding the necessity for judicial review.

The responsible way the judicial review was mounted (reference is made to the very lengthy letter sent to the DPP

during the Christmas Holidays setting out the applicant’s position) and, it is submitted, the manner in which the

judicial review itself was argued.

The fact that the applicant’s legal advisors agreed to postpone the launch of the proceedings to enable the DPP

consider the issues raised.

The particular duties facing the legal advisers of an accused person, when faced with a situation of late disclosure

of a substantial body of relevant material, showing up infirmities or potential infirmities in the garda investigation and

in the disclosure process.

The fact that, even now, the Garda Síochána in this case have not identified any particular impediment to their

taking an additional statement from the complainant and from the other witnesses mentioned in the course of the

hearing.

The fact that the applicant’s legal advisors were precluded by Court Order (the validity of which was not

contested) from relying on material relating to the complaint dealing with the Residential Institutions Redress Board.

The fact that the applicant is a person of modest means, enjoying the benefit of a legal aid certificate for the

purposes of his criminal trial.

The fact that the respondent failed to respond in any substantive way in correspondence, to the concerns raised

by the applicant’s legal advisors and instead simply responded to offer of further time from the defence by seeking a

trial date in the Central Criminal Court.

The fact that the applicant was able, unlike some other judicial review applications, to demonstrate the relevance

of the unobtained material and the degree to which the applicant engaged with the prosecution case.

The onerous duty on an accused person’s legal advisers to ensure that all reasonable steps are taken to ensure

that the accused is not subjected to the possibility of an unfair trial.

Where, as occurred in the present case, the applicant’s legal advisers received late disclosure of a substantial body

of material, which on one viewing disclosed infirmities in the Garda investigation, it was reasonable in the

circumstances for the applicant’s legal advisers to write to the DPP in the manner indicated and, when that letter

did not prompt a substantive and detailed response, to seek the leave of the High Court to issue the present

proceedings.”

By letter dated the 19th January, 2007, the solicitors for the applicant wrote to the prosecution solicitor in the following

terms:-

“Dear Sirs,

As you will be aware this case has been assigned a hearing date of the 21st May, 2007.

We still await disclosure in this case. You provided us with additional evidence by letter dated the 18th December,

2006, but disclosure remains outstanding.

In the Statement of Evidence from the Complainant, . . . the Complainant states:-

‘This rape has really upset and traumatised me, because of the flashbacks and nightmares, I am having

and it brings back the bad memories of rapes and sexual and physical assaults, I was subjected to

between the age of four and seven years, while in care and between seven and sixteen by neighbours.

Two of them are now dead. I am trying to deal with those as best I can. I am attending counselling and

a Psychologist, . . .’

Apart from any general disclosure that might be made, we should be obliged if you would make arrangements for this

office to be provided with all documents, notes, memoranda, records and charts in the Director’s possession and

procurement relating to the following;

(i) Documents pertaining to all of the Complainant’s previous allegations of rape or sexual assault;

(i) Any notes compiled by the Complainant’s Psychologists and Treating Counsellors and/or Social

Workers including without prejudice to the generality of the foregoing, (names of specific persons).

(ii) Reports from the Complainant’s Treating Psychiatrist(s) and/or Doctor(s) and/or Counsellor(s) and/or

Social Worker(s).

Please also confirm whether the aforesaid complaints of sexual and physical assault resulted in charges being

brought, the results of same and the background details relating to each complaint including the identity of the

alleged wrongdoer and the date of commission of each alleged incident.

Please also provide us with copies of the mobile telephone records of the Complainant’s daughter . . . for the period

covering the incident the subject matter of these proceedings on the 6th November, 2005.

We await hearing from you.”

Reminders in respect of this request for general and specific disclosure were sent by the Solicitors for the applicant to the

prosecution solicitor on the 1st March, 2007, 23rd July, 2007, 26th July, 2007, 19th October, 2007 and 21st November,

2007. The initial trial date set for the 21st May, 2007, had been vacated on the 8th May, 2007, because the disclosures

sought had not been furnished and because a date for the taking of the evidence of the complainant’s daughter on

Deposition before the District Court had not been notified. A new trial date was fixed for the 3rd December, 2007. The

applicant had been sent forward for trial at the Central Criminal Court by order of the District Court made on the 6th

December, 2006, the applicant having been arrested on the 27th February, 2006.

In the judgment of this Court delivered on the 30th June, 2009, [p. 7] the court found as follows:-

“Under cover of a letter dated the 2nd December, 2007, the defence was furnished with a very considerable body

of material comprising of, medical and psychiatric notes and records relating to the complainant, counselling notes

relating to the complainant and, other documents relevant to the complainant’s psychiatric history, and life

circumstances including previous claims of sexual and physical abuse made by her. The trial was adjourned by

consent of the parties to enable the defence to deal with this disclosure. The defence contended, and this was not

denied, that this large volume of material was not indexed, was not in any order, that handwritten portions of the

material were extremely difficult to decipher and that the author and provenance of some of the documents was

entirely unclear.

By a letter dated the 27th December, 2007, the solicitors for the applicant informed the Director of Public

Prosecutions that they intended to seek an Order of Prohibition by way of Judicial Review within 21 days unless the

Director in the meanwhile decided to discontinue the trial of the applicant. This very extensive letter, - it ran to 21

pages, - set out in detail the reasons why the defence considered that it would be unjust for the Director to

continue with the trial of the applicant. By letter dated the 4th January, 2008, the Director indicated that the

matter was under consideration. Meanwhile, Counsel for the defence was asked by Counsel for the prosecution to

defer applying for an order granting leave to seek judicial review. On the advice of his legal advisors the applicant

agreed to give the Director time to consider the matter.

By letter dated the 13th February, 2008, the solicitors for the applicant wrote to the Director of Public Prosecutions

emphasising that other Disclosure sought by them remained outstanding. When the matter was listed for mention

before the Central Criminal Court on the 25th February, 2008, Counsel for the Director of Public Prosecutions

informed the Court that the case was ready for hearing and sought a new trial date. Counsel for the applicant

informed the Court that responses to several requests for Disclosure were still outstanding. By order of this Court

made on the 14th March, 2008, the applicant was granted leave to seek judicial review by way of an injunction

restraining the Director of Public Prosecutions from prosecuting the applicant in the Central Criminal Court on the

charge of rape.”

I think it is important to set out the terms of the letter of the 13th February, 2008, referred to in the passage from the

above judgment, which letter is in the following terms:-

“Dear Director,

We refer to previous correspondence herein.

You will recall that you wrote to us seeking further time to consider the matters raised in our letter (the 21 page

letter of 27th December, 2007).

On the basis that the matters raised in our letter covered a wide range of time and invoked a number serious issues,

we are quite satisfied that it was appropriate to grant you this extra period. However, we would respectively have

thought that, at this point, enough time would have elapsed for you to fully inform yourself of the position and to

check that the version put forward by us was accurate and reliable.

Therefore, we are requesting that you give us your decision as soon as is practicable.

You will note that, in the event that you continue with the prosecution, there are a number of matters in our letter,

which require your response. Again, we would respectively suggest that these matters need to be dealt with before

a Trial date should be obtained.”

DECISION

The decision of the court in this case was that neither individually nor collectively could the matters pleaded in the

application for judicial review give rise to a real or serious risk that the applicant would not receive a fair trial. The large

volume of material disclosed to the defence two days prior to the commencement of the trial on the 3rd December, 2007,

was both directly and, indirectly insofar as it impacted on other aspects of the prosecution case which in themselves

might not have provoked the application, undoubtedly the catalyst for the application for judicial review seeking to

prohibit the trial. But of significance also is the fact that it could reasonably be argued that the disclosure of these notes

and records to the defence was very material to a fair trial in the alternative event of the trial continuing.

In my judgment, the disclosure of this material, and in the form in which it was disclosed as found by the court,

immediately prior to the commencement of the trial was an act of serious prosecutorial oppression calculated to defeat or

delay justice. I am not deciding, - since there was absolutely no evidence to support such a conclusion, - that this was

done intentionally. However, there must have been a clear and conscious awareness on the part of the prosecution that

the result of this action would be that the trial would have to be postponed yet again, or that otherwise justice in the

course of the trial could be seriously compromised. This material had been specifically identified and disclosure of it sought

on the 19th February, 2007. No satisfactory explanation for the long delay in procuring and furnishing this important

material was forthcoming either in correspondence or during the course of this application.

Despite failing to respond in any way to the long and detailed letter of the 27th December, 2007, from the applicant’s

solicitors, despite failing to address the request for other disclosure contained in their letter of the 21st November, 2007,

and despite, through Counsel, having sought time to consider these matters, the prosecution authorities by their Counsel

on the 25th February, 2008, nevertheless informed the presiding judge in the Central Criminal Court that the case was

ready for hearing and sought a new trial date. This in my view was a further indication of unreasonable and oppressive

conduct on the part of these Authorities in the course of this serious criminal prosecution.

I do not hold that but for this behaviour on the part of the prosecution authorities, this case for judicial review would not

have been brought. I do not hold that there was some conduct on the part of the respondent in the course of this

application for judicial review which should deprive the respondent though successful of the costs to which he has a

prima facie right. I do however hold, that though not a part of the criminal trial the application to this Court for an order

prohibiting the trial is so closely bound up with the institution and conduct of the prosecution and with the pending trial

that it would be altogether unjust and absurd to hold that this Court in exercising its discretion to award costs may not or

should not have regard to the foregoing conduct on the part of the prosecution authorities.

As has been adverted to by Senior Counsel for the applicant in the course of their submission in relation to costs, the

Court was very concerned at what appeared to be an unnecessary and inappropriately rigid and totally inflexible attitude

adopted by An Garda Síochána to the concerns expressed by the defence in writing and, on affidavit. Though fully

conscious of the fact that neither the respondent nor this Court may, under our system of criminal justice, direct An

Garda Síochána as to how they should carry out an investigation, it seemed to the Court that what appeared to be a,

“point blank refusal” on the part of An Garda Síochána to address any of the defence concerns could only encourage

further litigation, delay and expense. For this reason the Court adjourned the hearing of the application for judicial review

for a period to give An Garda Síochána an opportunity of considering the defence complaints concerning the adequacy of

the investigation and the disclosure made by them and to take such steps (if any) as they considered appropriate to deal

with these complaints. This resulted in some of the matters of concern to the defence being addressed but sufficient

serious issues remained such as required a hearing and determination by the court. I think it is important to point out that

in my judgment this reticence on the part of An Garda Síochána would not necessarily be sufficient in itself to deprive the

respondent of the costs to which he is prima facie entitled.

I am satisfied that the foregoing matters taken together constitute special and unusual circumstances, making it

appropriate for the court to depart from the normal rule that the successful party should be entitled to costs. The

unsuccessful applicant does not seek costs. The court will therefore make no order as to costs as regards the application