Court dismisses appeal on costs in consultative case stated where party did not request the case.

THE COURT OF APPEAL

[2015/93]

Kelly J.

Irvine J.

Hogan J.

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF GARDA MARY GALLAGHER)

PROSECUTOR/RESPONDENT

AND

MARTIN PARKER

ACCUSED/APPLICANT

Ex tempore Judgment of Mr. Justice Kelly delivered on the 19th day of October 2015

1. The background to this case is a prosecution which took place in Castlebar District Court in April 2012. On that occasion, Mr.

Martin Parker was charged in respect of an allegation of drunk driving. It was demonstrated by a Certificate of Analysis that he was

showing a concentration of 252 milligrams of alcohol per 100 millilitres of blood.

2. The solicitor acting on his behalf raised two legal questions during the course of the prosecution. The District Court judge decided

that, insofar as those questions were concerned, she would state a consultative case for the opinion of the High Court.

3. That she did and the consultative case stated was heard and determined in January of this year by Donnelly J. She answered both

questions in a manner adverse to Mr. Parker.

4. On the question of costs, the judge made no order. An appeal has been taken against that by Mr. Parker and there is a cross-

appeal by the Director of Public Prosecutions.

5. I should say that the original High Court order which was drawn up had to be amended subsequently because it recited that the

case stated had been stated at the request of Mr. Parker. That was not the case. He undoubtedly, through his solicitor, raised these

two legal questions but the decision to state the case was that of the District Judge. Any person, of course, who decides to raise

legal issues before the District Court has to be alert to the fact that there is always the possibility that the judge will decide to state

a case.

6. In any event, it is said that Donnelly J. was incorrect in the order which she made on the costs question i.e. no order as to costs.

It is argued that Mr. Parker should have obtained his costs even though the two points raised by him which gave rise to the

consultative case stated were found to be without any legal validity.

7. I should say at the very outset that there is no rule and has never been, to my knowledge, any rule or practice that in a

consultative case stated the party who has brought about, although did not request, but nonetheless has brought about the stating

of the case, should have their costs paid by the Director of Public Prosecutions irrespective of outcome and even when the case

stated is decided in a manner adverse to them.

8. It is always a matter for the discretion of the Court. In this case we have the transcript of what took place before Ms. Justice

Donnelly on the question of costs. For my part, I can find no fault or flaw in her approach to the matter. Consequently, in my view,

the order which she made is without any legal deficit and ought to lead to the dismissal of this appeal and cross appeal.

Irvine J.

9. For the reasons which have been outlined by Mr. Justice Kelly, I would also dismiss this appeal. The judge exercised her discretion.

She did so lawfully and explained why she exercised her discretion in the manner in which she did. So, I would dismiss the appeal.

Hogan J.

10. I would agree with the judgment of Mr. Justice Kelly and the comments of Ms. Justice Irvine. I would emphasise, like Mr. Justice

Kelly, that there never has been, to my knowledge, a practice in the High Court whereby by reason of a consultative case stated

under s. 52 of the Courts Supplementary Provisions Act, 1961, the private individual who appeared in the High Court as the result of a

case stated was entitled to costs irrespective of the outcome. So, I fully agree with the comments of Mr. Justice Kelly and Ms.

Justice Irvine regarding the manner in which Donnelly J. exercised her discretion.