Minister's appeal against High Court costs order in EAW surrender refusal dismissed as not covered by s.16(11).

THE SUPREME COURT

[Appeal Nos. 217/11 & 410/12]

Murray J.

MacMenamin J.

Charleton J.

BETWEEN:

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

3. As is explained later in this judgment an issue arises in this appeal, which the Court has treated as a preliminary issue in the light of

the statutory restrictions on an appeal in s.16(11) of the Act of 2003, as to whether the appellant is entitled to appeal the decisions

of the High Court in each of these cases on a question of costs only.

Background Facts in the Case of Noel McPhilips

4. A European Arrest Warrant in respect of Mr. Noel McPhilips was endorsed for execution by the High Court on the 2nd June, 2010,

which led to that respondent being arrested and brought before the High Court on the 19th June, 2010, pursuant to the provisions of

s.13(5) of the European Arrest Warrant Act, 2003, as amended. At that point it is accepted that an indication was given to the High

Court by the respondent’s counsel that the respondent would be seeking a recommendation concerning costs of legal representations

pursuant to the Attorney General’s Scheme. This was in accordance with the requirements of that scheme, where a litigant must

indicate his or her intention to apply for the scheme at the outset of proceedings.

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:

“I have reached the conclusion that there is no estoppel, if you like, which arises from the fact that the Attorney

General’s Scheme was sought at the outset. It was inevitable in extradition matters, European Arrest Warrant matters,

that when a person is first brought before the court following arrest, there would not be sufficient time between the

arrest and his being brought before the court for all the issues that might arise in the proceedings to be known and

considered at that point. It would be a wiser caution, in my view, for a Respondent who may feel it necessary to avail of

the Attorney General Scheme to so indicate at the outset. But I don’t feel that the Respondent should be precluded from

altering that course at some stage, should legal advice to that effect be given to them.”

Background Facts in the Case of Gerry McGinley

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:

“That the Respondent do recover his costs against the Applicant on the following basis:

(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.”

12. Apparently the reason for the stay was that the appellant had indicated his intention to appeal against the order for costs

awarded in this case.

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

14. Each of these applications for the respective surrender of the respondents on foot of the relevant European Arrest Warrants came

before the High Court for a decision pursuant to s.16(1) as to whether or not an order should be made directing their surrender.

15. Section 16(11) provides as follows:

“An appeal against an order under sub-section (1) or (2) or a decision not to make such an order may be brought in the

Supreme Court if, and only if, the High Court certifies that the order or decision involves a point of law of exceptional

public importance, and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.”

16. It is common case that the High Court did not certify any point of law for the purposes of an appeal to this Court, in either case.

No application was made for any such certificate. Indeed it is difficult to envisage a discretionary and fact specific question of legal

costs ever constituting a point of “exceptional public importance”, which it is desirable in the public interest should be appealed.

Absent a certificate there can be no appeal against the ‘decision’, within the meaning of the section, of the High Court. That is self-

evident.

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

18. Counsel for the respondents in this case relied essentially on the decision of this Court in Browne v. Kerry County Council

(Supreme Court, Unreported, 24th March, 2014). They also relied on the judgment of this Court in Canty v. Private Residential

Tenancies Board [2011] IESC 28. It was submitted that s.16(11) of the Act of 2003 should be interpreted in the same manner and to

the same effect as the substantially similar section considered and interpreted in the Browne case. Accordingly, it should be found, it

was submitted, that no separate or distinct appeal lay in this case on the question of costs alone in the absence of a certificate from

the High Court pursuant to s.16(11).

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

22. It is self-evident that proceedings which concern the surrender of persons, particularly citizens and residents, to another country

for the purposes of being prosecuted for criminal offences, can give rise to important issues of law concerning their liberty and other

fundamental rights. Some of those issues may be of grave importance to the person whose surrender is sought, or even of public

importance but not, in the words of the section, “of exceptional public importance”, in which case there is no right of appeal from a

decision in first instance. It is a serious constraint on the right of appeal normally enjoyed by persons adversely affected by a decision

in a court of first instance, in this case the High Court. It is a provision which applies equally to the State as it does to the individual,

although in practice it impinges more on the right of appeal of an individual.

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. 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:

“The determination of the Court of an application for section 50 leave or of an application for judicial review on foot of

such leave shall be final and no appeal shall lie from the decision of the Court to the Supreme Court in either case save

with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of

law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the

Supreme Court.” (emphasis added)

26. In that case the Court concluded, as regards s.50A(7), as follows:

“The Court considers that the determination of the question of costs following a decision on the merits of a case in

judicial review is an intrinsic and inherent part of the proceedings, and that the determination of the judicial review, as

referred to in s.50A(7), and in particular the reference to the “decision” of the court in that section, encompasses the

decision of the court on costs that necessarily follows in one form or the other as part of the determination of the

proceedings. Therefore, the Court considers that the question of costs is not an issue which the legislature intended

should be capable of being treated as separate from the High Court decision and the subject of a separate appeal

without the necessity of a certificate from the High Court to that effect.”

27. In the Browne case the Court also considered the decision of this Court in the case of Canty v. Private Residential Tenancies

Board. In that case, the Court was considering s.123(4) of the Residential Tenancies Act, 2004, which restricted an appeal in the

following terms:

“The determination of the High Court on such an appeal in relation to the point of law concerned shall be final and

conclusive.”

28. That section, s.123(4), of the Act of 2004, is in manifestly different terms to the provision in this case, namely, s.16(11) of the

Act of 2003. Section 123(4) is also fundamentally different in its terms from s.50A(7) of the Act of 2000, as was explained by Kearns

J. in his judgment in the Canty case. Thus, the interpretation of the Court, in the Canty case, of s.123(4) of the 2004 Act is not

relevant to the issue in this case. This appears clearly from the judgment of Kearns J. and the appellants have made no reference to

the terms of s.123(4), no doubt for that reason.

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:

“The determination of the High Court of an application for leave to apply for judicial review, or of an application for

judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either

case, except with the leave of the High Court, which leave shall only be granted where the High Court certifies that its

decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an

appeal should be taken to the Supreme Court.” (emphasis added)

30. As regards that sub-section, Kearns J., at paragraph 14 of his judgment, observed:

“It seems to me, without in any way deciding an issue which was not before this court, that the word "decision" of the

High Court in s. 50 can be taken as including any determination of the issue of costs which forms part of its decision in

the case.”

31. These observations were obiter, but in the Browne case the Court considered that they were “a correct interpretation of the

meaning and effect of a restriction excluding an appeal to this Court from a “decision” of the High Court, unless a certificate has

been granted.” I would confirm that I consider that dictum of Kearns J. to be a correct statement of the law. Thus, the determination

of the High Court of the question of costs in this case forms part of the ‘decision’ in the case.

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.