Judicial review costs awarded to applicant when criminal proceedings terminated by prosecution's unilateral nolle prosequi.

THE SUPREME COURT

[Record No: 233/07]

Denham C.J.

Hardiman J.

Clarke J.

Between/

Cecily Cunningham

Applicant/Appellant

and

The President of the Circuit Court and

The Director of Public Prosecutions

Respondents

Judgment of Mr. Justice Clarke delivered the 21st of June, 2012.

1. Introduction

1.1 These proceedings have, as their backdrop, the issues in relation to the contamination of blood products which were the subject

of the Finlay Tribunal in 1996-1997. Arising out of those events the applicant/appellant ("Ms. Cunningham") was, in July 2003, charged

with seven offences contrary to s.23 of the Offences Against the Person Act, 1861 which alleged that she was one of the persons

responsible for contaminating blood products in 1977, insofar as four of the alleged offences were concerned, and in 1991 so far as

the other three offences were concerned.

1.2 Subsequent to her return for trial to the Circuit Criminal Court in September, 2003 Ms. Cunningham commenced these judicial

review proceedings seeking to prohibit or prevent her prosecution on the grounds of delay. Leave to seek judicial review was given by

the High Court (O'Sullivan J.) in November, 2003. The substantive judicial proceedings were heard in February, 2007 with judgment

being delivered by McKechnie J. on the 6th July, 2007. In brief terms McKechnie J. determined that, while there had been

prosecutorial delay, the balance of justice favoured the prosecution being brought to finality in all the circumstances of the case. No

order as to costs was made. Ms. Cunningham appealed that decision. There was no cross appeal by the Director of Public

Prosecutions ("the D.P.P.") on the finding of prosecutorial delay.

1.3 While the appeal to this court was pending a significant development occurred in that the D.P.P., in December, 2008, notified Ms.

Cunningham that he intended entering nolle prosequi in the criminal proceedings. Those nolle prosequi were actually entered on the

12th January, 2009. It follows that the question of whether it would have been appropriate to prohibit the criminal trial on the

grounds of prosecutorial delay is now moot. Against that backdrop the only issue which remains for consideration by this court is the

question of costs.

1.4 In those circumstances it is appropriate to turn to certain aspects of the procedural history both of these proceedings and of the

criminal proceedings which might, on at least one view, be relevant to the question of costs.

2. Procedural History

2.1 In addition to the brief outline referred to above a number of other aspects of the process relevant both to the underlying criminal

prosecution and these judicial review proceedings require to be noted. The first is to note that, not long after the report of the Finlay

Tribunal was published, it appears that the D.P.P. took a decision not to prosecute Ms. Cunningham. It seems that the matter then

under consideration was a possible prosecution for manslaughter rather than the offences with which Ms. Cunningham was ultimately

charged. It was accepted that the D.P.P. was entitled, nonetheless, to bring the relevant charges against Ms. Cunningham in 2003.

2.2 The next matter of note requires reference to Professor J.J. Hoppe, who was, it would appear, an intended expert witness (and

also partly a witness as to fact) on the part of the prosecution. A statement from Professor Hoppe was included in the book of

evidence served on Ms. Cunningham prior to her return for trial. It will be recalled that Ms. Cunningham was returned for trial in

September, 2003 but that the criminal process was arrested when these judicial review proceedings commenced in November of the

same year. In June, 2004, some nine months after Ms. Cunningham had been returned for trial and some seven months after the

commencement of these judicial review proceedings, Professor Hoppe unfortunately died.

2.3 It would also appear that, immediately before the commencement of the substantive hearing of the judicial review proceedings in

the High Court, counsel for Ms. Cunningham was informed by counsel for the D.P.P. of the death of Professor Hoppe but was also

informed that it remained the intention of the D.P.P. to continue with the criminal proceedings.

2.4 It should also be noted that, when an appeal to this court was lodged, a subsequent application gave rise to a stay on the

criminal trial pending the hearing of the appeal in this court.

2.5 It also needs to be noted that, in the light of the entering of nolle prosequi, an application was brought before this court on

behalf of Ms. Cunningham, by motion returnable on the 4th May last, in which it was sought to adduce further evidence being an

affidavit of William Egan, solicitor, dated the 28th February of this year. The reason for seeking to adduce that additional evidence

was because the principal issue which would have been the subject of the appeal, i.e. the question of whether the criminal trial

should be prohibited, had become moot and the only issue which remained was as to costs. Mr. Egan's affidavit was directed towards

the circumstances in which, to his knowledge, nolle prosequi were entered. There was no opposition on the part of the D.P.P. to the

filing of that additional evidence. However, in response, an affidavit was filed by Det. Sergeant Sean Hogan of the National Bureau of

Criminal Investigation. It is next necessary to turn to the circumstances surrounding the entry of nolle prosequi as appear from those

affidavits.

3. The Nolle Prosequi

3.1 At paragraph 3 of his affidavit Det. Sergeant Hogan states that An Garda Síochána only became aware of the death of Professor

Hoppe during the course of the judicial review proceedings in February, 2007 and conveyed that information immediately to counsel

for the D.P.P. who in turn informed both the court and his opposite number. It is confirmed that the view of the D.P.P. at the relevant

time was that the death of Professor Hoppe did not necessarily mean that the prosecution should be dropped.

3.2 Next it is said that, subsequent to the judgment of the High Court in these judicial review proceedings, a review of the case was

conducted and amongst the matters decided on was that inquiries should be conducted in Germany (where Professor Hoppe resided)

with a view to ascertaining if there were any witnesses available "who could replicate the evidence that it had been anticipated

Professor Hoppe would give at the criminal trial". Details are then given of further inquiries which took place with interested parties,

experts and authorities in Ireland, Germany, Canada and France. While details of the various inquiries engaged in are not given it is

said that, as a result of those inquiries, a report was produced which was considered by the D.P.P. It is said that, on consideration of

that report, the D.P.P. decided that the criminal proceedings should not go ahead and, as previously noted, Ms. Cunningham was

informed of that fact and nolle prosequi were ultimately entered.

3.3 It should be noted that counsel for the D.P.P., in oral argument, suggested that it should not be inferred from the affidavit of Det.

Sergeant Hogan that problems associated with the death of Professor Hoppe were the only matters which were investigated by An

Garda Síochána subsequent to the hearing of these judicial review proceedings in the High Court. On that basis it is suggested that it

should not be inferred that the problems associated with the unavailability of Professor Hoppe were the only matters which led the

D.P.P. to decide to enter nolle prosequi in the criminal proceedings. The stated basis for the entry of the nolle prosequi is contained in

a letter of the 5th January, 2009 from the D.P.P. to Mr. Egan. In that letter the following is stated:-

"In relation to your letter of the 15th December, 2008 the Director is not willing to discharge our client's costs in this

matter. The Director is satisfied that the prosecution was properly brought, that the evidential basis of the prosecution

was kept under review in accordance with the Director's Guidelines and that when in the Director's view changes in the

evidential basis of the charge were such that the prosecution could not be further sustained a decision was made that

the prosecution could not continue."

3.4 As I understood it the submission of counsel for the D.P.P. was that that letter, taken together with the affidavit evidence of Det.

Sergeant Hogan, give rise to the inference that the inquiries referred to in Det. Sergeant Hogan's affidavit (including, but not limited

to, inquiries concerning whether it would be possible to replicate the evidence of Professor Hoppe from another expert) led to the

D.P.P. forming the view that there was no longer a sufficient evidential basis to sustain a prosecution.

3.5 While it will be necessary to return to this aspect of the case it does need to be noted that, with the exception of the inquiries

relating to Professor Hoppe, no further details of the sort of questions which were the subject of the relevant garda investigation and

the subsequent consideration by the D.P.P. were put in evidence by the D.P.P. One piece of evidence may, however, cast some light

on those inquiries. In his affidavit Mr. Egan made reference to a communication which he had received unsolicited from a Dr. Terence

Snape. The communication came in the form of an email in October, 2008 from which it would appear that Dr. Snape had been

contacted as part of a garda inquiry with a view to giving expert evidence as to what a bio-chemist working in the relevant field in

the 1970s, 1980s and 1990s would have known about the potential risks to those to whom relevant blood products might be

administered. It seems obvious that those inquiries were concerned with attempting to establish the knowledge which Ms.

Cunningham either had or should have had at the relevant time. Dr. Snape sent Mr. Egan a copy of a statement which he had

prepared for the gardaí. That draft statement was exhibited in Mr. Egan's evidence. It is, I think, fair to say that Dr. Snape's

evidence, if it were tendered at a criminal trial, would have tended to favour the defence rather than the prosecution on the question

of the level of knowledge which it might have been expected Ms. Cunningham would have had at the relevant time.

3.6 Given that, as already noted, the evidence tendered on behalf of the D.P.P. on this application is silent as to the extent of the

relevant investigations beyond those connected with Professor Hoppe and as to the considerations which led to the D.P.P.'s decision

to enter nolle prosequi, it might be inferred that the draft statement from Dr. Snape played some role in those considerations. It is

against the background of those facts that the issue of costs needs to be assessed. It is, therefore, necessary to turn to the

principles applicable to the award of costs.

4. Costs principles

4.1 There can be little doubt but that the normal rule is that costs follow the event. This stems from Order 99 (Rule 4) of the Rules of

the Superior Courts and has been the subject of many judicial comments such as that of Denham J. in Grimes v. Punchestown [2002]

4 I.R. 515. It also appears clear that the rule is equally applicable to the costs of appeals. See for example SPUC v. Coogan (No.2)

[1991] I.R. 273.

4.2 It is, of course, the case that there are exceptions to that general rule. A somewhat different approach is sometimes taken in

cases involving points of law of exceptional public importance or test cases or the like. There also may be difficult cases where the

question of who has won the "event" may not be as clear cut as might arise in more straightforward proceedings. However, none of

those issues seem to me to have any application to the facts of this case.

4.3 It must be recalled that the trial judge made no order as to costs rather than awarding costs against Ms. Cunningham which might

(given that she had failed to prohibit her trial) have been seen to have been the result which would have derived from a

straightforward application of the practice that costs follow the event. However, the trial judge had regard to the fact that there

had, in the trial judge's view, been prosecutorial delay and felt it appropriate to deal with that situation by making no order as to

costs. However, it might well have been the case that, had the appeal in these proceedings come to be determined on the merits,

this court would not have seen any reason, at the least so far as the costs of the appeal were concerned, to depart from the

ordinary rule such that either Ms. Cunningham or the D.P.P. would have obtained the costs of the appeal depending on who won.

Likewise, in the event that Ms. Cunningham won the appeal, it is difficult to see that there would have been any basis for declining an

order in her favour in respect of the costs of the High Court.

4.4 Of course the problem with which this court is now confronted is that the appeal will not now proceed on the merits. It seems to

me that it could only be in wholly exceptional circumstances that the very limited time available for the conduct of appeals in this

court (where the list of cases requiring appeal hearings is ever-lengthening and the difficulty in accommodating all appeals is growing)

could be used to determine issues of substance which were moot and not within any of the generally recognised exceptions to the

mootness rule, and which issues were being determined solely for the purposes of deciding who should pay and who should obtain

costs.

4.5 The problem in dealing with the costs of proceedings which have become moot is that there will, in reality, be no event which

those costs have to follow. This is not a case where it is suggested that McKechnie J. was wrong in making no order as to costs on

the basis of his findings. Rather it is a case where Ms. Cunningham argues that, had she won the appeal, the normal consequence

would have been that this court would have, in addition to awarding her the costs of the appeal, also awarded her the costs in the

High Court. That statement is correct at the level of principle. The fact that this court will be slow to interfere with the exercise by a

judge of the High Court of any discretion properly arising in relation to costs does not mean that this court does not regularly overturn

orders for costs made in the High Court not because the relevant order is found to have been wrongly made in the light of the

judgment on the merits of the case made by the High Court but rather because this court has taken a different view of those

substantive merits which leads to a necessary change in the appropriate order as to the costs of the High Court.

4.6 However, in this case there never will be a decision on the substantive merits of the appeal and there never will, therefore, be a

decision as to whether, in the light of the result of an appeal on the merits, it is appropriate to award the costs of the High Court to

Ms. Cunningham. This case fairly and squarely raises the question of the proper approach to costs of proceedings which have become

moot.

4.7 In that context counsel for Ms. Cunningham places reliance on my decision in the High Court case of Telefonica 02 Ireland Ltd v.

Commission for Communications Regulation [2011] IEHC 380. Section 6 of that judgment concerns the proper principles to be applied

by the courts in relation to the costs of a moot issue. I see no reason to differ from the views which I expressed on that occasion. In

summary, and for the reasons set out in Telefonica, a court, without being overly prescriptive as to the application of the rule,

should, in the absence of significant countervailing factors, ordinarily lean in favour of making no order as to costs in cases which

have become moot as a result of a factor or occurrence outside the control of the parties but should lean in favour of awarding costs

against a party through whose unilateral action the proceedings have become moot. At para. 6.4 of my judgment in Telefonica I

noted that a similar approach had been adopted by this court in respect of the costs of a challenge to certain intended procedures of

the Commission to Inquire into Child Abuse where the issues in the case had become moot by reason of a change of policy of that

commission subsequent to the decision of the High Court in Murray & anor v. Commission to Inquire into Child Abuse [2004] 2 I.R.

222, and while an appeal was pending to this court.

4.8 It must, of course, be acknowledged that some cases which have become moot may not fit neatly into the category of

proceedings which have become moot due to entirely external events, on the one hand, or due to the unilateral action of one of the

parties, on the other hand. In particular there will be cases where the immediate reason why proceedings have become moot is

because a statutory officer or body has decided not to go ahead with a threatened course of action (such as the criminal prosecution

in this case). However, the reason why it may have been necessary or appropriate for that statutory officer or body to adopt a

changed position may, to a greater or lesser extent, be due to wholly external factors. To take a simple example, one might envisage

a criminal prosecution which was, on any view, wholly dependent on the evidence of an individual who unfortunately had died before

the case could commence. If there had been a challenge, on judicial review grounds, to that prosecution which was not finalised, and

if, as here, the D.P.P. were to enter a nolle prosequi because of the death of the only real witness, then it might superficially be said

that the judicial review challenge had become moot by reason of the unilateral action of the D.P.P. but in truth the real reason why

the judicial review challenge had become moot would have been because of the death of the witness which made it necessary for the

D.P.P. to bring the criminal process to an end.

4.9 In that context it is, of course, important to note that statutory officers and bodies have an obligation to exercise their powers in

a proper manner. If circumstances change then it is, of course, not only reasonable but necessary for such officers and bodies to

reflect the new circumstances by adopting a position (even if different) which takes into account the circumstances as they have

come to be. The mere fact, therefore, that a statutory officer or body adopts a changed position which renders judicial review

proceedings moot does not, of itself, necessarily mean that it is appropriate to characterise the proceedings as having become moot

by reason of a unilateral act of one party.

4.10 If there were no change in underlying circumstances and if the statutory officer or body had simply changed his or its mind or

adopted a new and different view, then such a characterisation might be appropriate. Where, however, there is an underlying change

of circumstance, it is necessary to consider the extent to which it can properly be said that the proceedings have become moot by

reason of the unilateral act of one party, on the one hand or, in reality have become moot by reason of a change in underlying

circumstances outside the control of either party, on the other hand. The result of any such analysis should play an important role in

the court's consideration of the justice of where the costs of proceedings rendered moot should lie.

4.11 It does, however, seem to me that, where the immediate or proximate cause of proceedings becoming moot is the action of such

a statutory officer or body but where it is sought to argue that the true underlying reason is an external factor outside the control of

that officer or body, it is incumbent on the officer or body concerned to place before the court sufficient evidence to allow the court

to assess whether, and if so to what extent, it can fairly be said that there was a sufficient underlying change in circumstances

sufficient to justify, in whole or in part, it being appropriate to characterise the proceedings as having become moot by reason of a

change in external circumstances. Against those general observations it is necessary to turn to the circumstances in which these

proceedings became moot.

5. Why did these proceedings become moot?

5.1 The real problem with which this court is faced is that there is a virtual absence of evidence as to the true reasons why the

D.P.P. came to the view that the criminal proceedings against Ms. Cunningham were no longer sustainable. It is true, of course, as

was noted by counsel for the D.P.P. in oral argument, that the well established jurisprudence of this court makes clear that the D.P.P.

cannot be obliged to give reasons for decisions as to whether or not to prosecute. However, it seems to me that counsel for Ms.

Cunningham was also correct when she suggested that there was no barrier, in an appropriate case, to the D.P.P. giving reasons and

that it also followed that there may be consequences of an absence of reasons being given.

5.2 It is, of course, the case that it is entirely appropriate for the D.P.P. to keep pending criminal proceedings under review and it is

equally appropriate for the D.P.P. to discontinue such proceedings in the event that circumstances change in a way which leads the

D.P.P. to the view that the proceedings should no longer go to trial. However, where, as here, this court is required to assess

whether, and if so to what extent, it can truly be said that there were changes in underlying external circumstances which led to the

discontinuance of the criminal trial then it is impossible for this court to carry out any reasonable analysis of the situation without

information and evidence.

5.3 For example, on the facts of this case, one question which might well have to be asked was as to whether any changed

circumstances pre or post-dated the trial of the judicial review proceedings for it is difficult to see how circumstances that were

already in being when Ms. Cunningham was put to the expense of running the trial of these judicial review proceedings in the High

Court could have any significant bearing on the proper order for costs. To the extent that there might be changed circumstances in

existence which were unknown to the prosecuting authorities at any material time then the reason why the changed circumstances

had not been discovered at that time might itself be an important factor. There may, of course, be limits as to the extent to which it

would be appropriate for this court to go into minute detail on questions such as those which I have noted (there would be little point

in replacing a full hearing on the merits of a moot appeal with an overly detailed consideration of the minutiae of why the trial might

be said to have become moot). On the other hand it does seem to me that this court is left in a position where the amount of

information available to it as to the circumstances in which these proceedings became moot falls far short of being sufficient to allow

the court to form a view on the issue of the real reason why these proceedings became moot. This court does not know whether

there were sufficient external factors arising after the judicial review proceedings were heard in the High Court, or if such factors

were present but unknown at that time, whether knowledge of those factors could reasonably have been obtained by the prosecuting

authorities prior to that time, sufficient to justify characterising these proceedings as ones which have become moot by virtue of

external factors. As pointed out earlier the onus is on the statutory officer or body who wishes to assert external factors to at least

put sufficient information before the court to allow a judgment to be made on such questions.

5.4 In those circumstances it seems to me that it is appropriate to characterise these proceedings as being at the end of the

spectrum where it can be said that they became moot due to a unilateral decision of the D.P.P. Against that finding it is finally

necessary to turn to the other factors which counsel for the D.P.P. suggested ought be taken into account.

6. The D.P.P.'s argument

6.1 Counsel for the D.P.P. first argued that, as there was no specific appeal in respect of the costs order of McKechnie J. and no

obvious error in that order, this court should not disturb the High Court order as to costs. However, for the reasons already analysed,

it seems to me that this is not a case where it is said that McKechnie J. was wrong, in the light of his judgment, to make no order as

to costs. Rather it is said that the costs of both the High Court and this court would have been dependent on the result of the appeal

on the merits which is not now going to occur.

6.2 Next it was said, correctly so far as it goes, that this court cannot and should not form a view as to whether the appeal was

likely to succeed or not. However, it seems to me that that very fact leads into a consideration of the proper approach to be taken in

cases which have become moot precisely because there never will be a decision on the merits.

6.3 Next it was said that, so far as Professor Hoppe was concerned, the defence was told of his death as soon as the prosecuting

authorities became aware of it. That does appear to be the case. It was also argued that this court should not find that any blame

attaches to the prosecuting authorities for the way in which this matter was handled. It does not seem to me that it really is a

question of blame. Rather it is a question of deciding on the just course of action to be adopted in relation to the costs of issues

which have become moot. There may well, in many cases, be compelling reasons why a change of course is adopted by one or other

party. Indeed, there might well be cases where it would be wrong not to adopt a changed position. However, that is not really the

question. The problem with which the court is faced is that costs will have been incurred up to the point in time where proceedings

become moot and some basis for dealing with those costs on an principled and rational basis needs to be adopted. In my view the

proper basis to adopt is that already analysed in this judgment. A finding that proceedings have become moot by reason of the

unilateral act of one party does not necessarily imply any blame on that party. Rather it is an acknowledgement that, by reason of

that unilateral act, the merits of the case will not now come to be determined.

6.4 Finally, counsel for the D.P.P. placed reliance on the submission, already adverted to, that it was not just the problems which

resulted from the unfortunate death of Professor Hoppe that gave rise to the further investigations and review by the D.P.P. which in

turn led to the termination of the criminal proceedings against Ms. Cunningham. However, the problem with that submission is that the

D.P.P. has just not placed before the court any sufficient information to allow even a general assessment to be made of those

circumstances and whether same could reasonably be said to have either post-dated the incurrence of the costs at issue or were not

reasonably capable of being discovered prior to the incurrence of those costs.

6.5 It follows that none of those factors seem to me to be of sufficient countervailing weight to place against the general rule that

the costs of a moot issue, which has become moot by the unilateral action of one party, should be awarded against that party.

7. Conclusions

7.1 For the reasons analysed earlier in this judgment it seems to me that it is appropriate to characterise this case as one which has

become moot by reason of the unilateral action of the D.P.P. If it was desired by the D.P.P. that this court should treat these

proceedings as having become moot by reason of external factors, then it was incumbent on the D.P.P. to place sufficient evidence

before the court to enable the court to determine the extent and materiality of such factors and whether they arose, or were

reasonably discoverable, before or after the costs in this case were incurred. The D.P.P. failed to put forward such evidence.

7.2 In addition, it does not seem to me, for the reasons already analysed, that there are any sufficient weighty countervailing factors

such as might lead the court to depart from what should be the general rule that costs of an issue which has become moot by the

unilateral action of one party should be awarded against that party.

7.3 This not being an appeal against the costs order made by McKechnie J. as such but rather being an appeal where this court is

invited to deal with those costs in the new circumstances that now arise by virtue of the proceedings becoming moot, it seems to me

that it is appropriate to allow the appeal on the issue of costs and vary the order of McKechnie J. by directing that Ms. Cunningham

be awarded the costs of both the High Court and this appeal to be taxed in default of agreement.