F & Others -v- Judge O'Donnell & Others, High Court Judgment was delivered by Mr Justice O'Neill on March 23rd, 2009
Judgment
Two litigants who had successfully taken separate judicial review proceedings against a District Court judge were not entitled to their costs, and this did not infringe their rights under the European Convention on Human Rights. Unless male fides or impropriety is alleged against a judge he or she should not be joined in judicial review proceedings.
Background
The two cases involved separate sets of litigants, both of which had appeared before District Court Judge Hugh O’Donnell in family law proceedings. In the first case the applicant husband and notice party wife had sought barring orders against each other.
During a hearing before Judge O’Donnell the wife was granted a barring order against the husband on the basis of allegations made about his behaviour when he visited the family home to collect the children. Judge O’Donnell refused to hear evidence from the husband’s solicitor as to what had occurred on the day in question, and granted the barring order, effective for six weeks.
A full hearing took place before another District Court judge six weeks later, and a safety order was granted to the husband against the wife, who did not renew her application for a barring order. It then expired. However, the fact that it was granted remained on his record, he is a foreign national with temporary leave to remain in the State, and feared that this may have adverse consequences for him in an immigration context.
He took successful judicial review proceedings to have the barring order quashed, on the grounds that his constitutional right to justice and fair procedures had been breached.
In the second case the applicant was the mother of a four-year-old child, and the father of the child was a notice party in the proceedings. He had sought and obtained guardianship and access rights to the child in the District Court before Judge O’Donnell.
The applicant and her solicitor vigorously opposed the application, on the grounds that the child had previously been abducted and taken from the jurisdiction by the notice party, but Judge O’Donnell had refused to hear evidence from the applicant, who wanted to give evidence, or submissions from her solicitor. The notice party made an affidavit taking issue with this account, but he did not file a statement of opposition in the proceedings.
She, too, took successful judicial review proceedings and Mr Justice O’Neill also accepted the evidence of her solicitor that there was a failure to afford the applicant a fair hearing, and quashed the orders granting guardianship and access rights to the notice party.
Following the granting of these orders, counsel for both applicants, Nuala Butler SC, applied for orders for costs against Ireland and the Attorney General. Costs were not sought against Judge O’Donnell, as he had not intervened in the proceedings, and no male fides or impropriety was alleged against him. Nor were costs sought against either of the notice parties, as they had not contributed to the breaches of natural justice that had occurred, and had not opposed the proceedings.
Mr Justice O’Neill summarised the issues as follows:
1. Is there a prohibition on making an order for costs against a judge where he or she had not intervened in the proceedings and there are no allegations of male fides or impropriety against him?
2. If there are no such allegations, is he or she a proper party to judicial review proceedings in which his or her orders are impugned?
3. If he cannot be joined in the proceedings, and no costs order can be made against him, is this a potential breach of an applicant’s rights under the European Convention on Human Rights?
4. Is the existence of a right of appeal, or the possibility of obtaining an order for costs against another party, relevant?
5. If a judge is a proper party in the proceedings, but costs should not be awarded against him or her, should the State be liable in respects of acts done by a judge in the discharge of judicial office?
Decisions
1. Mr Justice O’Neill said that the case law was clear – where there was no allegation of impropriety or male fides on the part of a judge, and where he or she does not defend the impugned order, there cannot be an order for costs against him or her.
2. Mr Justice O’Neill said that despite the fact that a number of previous judgments had questioned the joining of a judge to judicial review proceedings where his or her decision was challenged, the invariable practice of the High Court had been that the judge was joined and the other contesting party was most frequently a notice party.
“If the dictum of Murphy J is a correct statement of the law, then it should be rigorously applied and this court should, on the granting of leave for judicial review, refuse to direct service on the judge and indeed should strike the judge from the proceedings,” he said.
This was essential in order to preserve the independence of the judiciary. Otherwise, if a judge intervened in judicial review proceedings to defend his or her order, then the judge would have to engage in dispute with one or more of the parties to the litigation he had heard, thus abandoning his or her independent stance to become a combatant in the dispute, he said.
If he could not intervene in the case, what was the point of joining him at all where there was another ligitimus contradictor (opponent) available, he asked.
3. Ms Butler refuted the contention that the notice parties were the legitimus contradictors and that costs should be obtained from them, as they were not to blame for what had occurred at the District Court hearings.
Mr Justice O’Neill said they were not in any way to blame for what had happened in the District Court, and it would be wrong to fix them with costs.
4. Having examined the jurisprudence of the European Court of Human Rights, he said he was satisfied that violations of the applicants’ rights under Article 6 (right to a fair trial) occurred in both cases. Judicial review was an effective remedy under Article 13 (right to an effective remedy). If it could be shown that the high cost of proceedings had the effect of depriving an applicant of the essence of that right, then Article 6.1 could be infringed. The jurisprudence of the European Court also required a consideration of whether the prohibition on making a costs order satisfied the proportionality test. In these cases both applicants were of modest means, and the costs would be a substantial burden, amounting to a serious impediment to availing of access to the court. However, in the light of the reason for the rule excluding a judge from proceedings and/or the prohibition on making a costs order in such cases, that is, the preservation of the independence of the judiciary, Mr Justice O’Neill said it amply satisfied the proportionality test.
It was open to the applicants to appeal to the Circuit Court, which would have ensured a full rehearing on all the issues, and this would have satisfied the requirements of Articles 6.1 and 13, he said.
5. Mr Justice O’Neill said he saw no reason why the State could not indemnify judges in respect of acts done in discharge of their judicial office. However, it was difficult to envisage the circumstances where this would arise, given that the judiciary was immune from actions for damages in respect of the discharge of their duties.
An indemnity did not arise in these two cases, as the judge should not have been a party to the proceedings, so there was no liability to costs for the State to indemnify. He therefore refused the costs orders sought.
The full judgment is on www.courts.ie
Nuala Butler SC, with Anne-Marie Whelan BL and Desmond Dockery Bl, instructed by A C Pendred Co and McCartan Burke, respectively, for the plaintiffs; David Barniville SC, Ronan Murphy BL (now SC) and Eilís Brennan BL, instructed by the Chief State Solicitor, for the State