[2015] IELCA 8
THE SUPREME COURT
63/09
BETWEEN
TRAN TUAN ANH
APPLICANT
AND
JUDGE JEOFFREY BROWNE
THE DIRECTOR OF PUBLIC PROSECUTIONS
AND
THE GOVERNOR OF CASTLEREA PRISON
RESPONDENTS
1. The Applicant’s costs herein come before me for taxation pursuant to Order of the Supreme Court dated 15 November 2012 which allowed the second and third named Respondents’ appeal against the Judgement and Order of the High Court given on the 23rd day of January 2009 and made on the 6th day of February 2009. The High Court Order had granted an Order of Certiorari in respect of the Order made by the first named Respondent on 11 July 2008. The said Judgement and Order were set aside save and except in regard to costs. It was ordered that the Applicant do recover against the second and third named Respondents one third of the costs of the proceedings in the High Court when taxed and ascertained.
2. The Applicant is a Vietnamese national. On the 21st April, 2008, he was charged with an offence contrary to S. 17 of the Misuse of Drugs Acts 1977 to 1984 and an offence contrary to S. 12 of the Immigration Act, 2004. The charges arose following the search of a house at Castlerea Co. Roscommon on 20 April 2008, on foot of a search warrant. It was alleged that the Gardai discovered that the entire upstairs of the house in question was being used to cultivate cannabis plants. The Applicant was charged with further offences under the Misuse of Drugs Acts. Apart from the alleged offence under the Immigration Act all others were indictable offences.
3. The Applicant first appeared before the District Court on 21 April 2008 and was remanded in custody to 24 April, 2008 and thereafter up to 13 June 2008. On that date an application to extend time for service of the book of evidence was consented to and granted in relation to the charges under S.17 of the Misuse of Drugs Acts 1977-1984.
4. The Applicant’s then solicitor came off record and he was represented by Mr. Gerard Cullen Solicitor from 20 June 2008. Time was again extended for service of the book of evidence. An application for bail was refused and the Applicant was remanded in custody to appear before Harristown District Court on 11 July, 2008.
5. A further application was made by the prosecution to extend the time for service of the book of evidence on 11 July 2008. The application was granted and the Applicant was further remanded in custody to 18 July 2008.
6. It was the Applicant’s case that his solicitor, at the hearing on 11 July 2008, had objected to the extension of time and called for evidence to be heard in respect of the application.
7. The Applicant was granted leave by the Court on 17July 2008 to seek relief by way of Judicial Review arising out of the said decision of the first named Respondent in the terms specified in Notice of Motion ultimately issued and served on 21 July 2008.
8. An issue in the case with which the Applicant’s solicitor was greatly concerned and in respect of which he was engaged at some length, was the assertion by the Respondents that the Applicant’s solicitor had on the relevant date, consented to the, now impugned, Order for further extension of time. The Judgement of the High Court (O’Neill J.) sets out very fully the matters at issue.
9. The period within which the work was carried out is relatively short and runs from on or about 12 July to 27 November 2008 when the Court reserved its Judgement to 23 January 2009 and following which an Order granting costs to the Applicant was made on 6 February 2009. Arising out of the Order of the Supreme Court made on 15 November 2012, such costs are only recoverable from the second and third named Respondents to the extent of one third thereof. In order to achieve this end the costs must firstly be ascertained as to their full extent, albeit on the party and party basis.
10. I have now considered the Applicant’s solicitor’s files and papers, including the brief for Senior and Junior Counsel. I have already ruled in relation to the scheduled items, including the fees of Counsel up to and including the hearing of the leave application on 17 July 2008 and beyond that date, including issue of the Notice of Motion seeking relief and the preparation of Affidavits of Tony McLynn, and Alan Gannon, both solicitors and the Affidavit of Duy Linh Geraghty, interpreter.
11. The first items to be considered relate to the fees of Counsel specified at items 69, 70, 78 and 79 which concern Senior and Junior Counsel’s respective fees for preparation of written legal submissions and on the brief for the hearing of the substantive application.
12. In the unusual circumstances which arose in this case, the second and third named Respondents assert that there is no basis upon which any liability, as between party and party, can lie against them in relation to these fees. The Applicant’s solicitor asserts that liability for the fees arises given that Counsel were ready to proceed with the substantive hearing on 24 October 2008 and for reasons which were entirely the fault of the Respondents, they could not do so.
13. The solicitor accepts that subsequently he briefed alternative Counsel to act for the Applicant and that this has resulted in two sets of brief fees being claimed in the bill with both sets of fees being related to the hearing of the same application.
14. I have read all of the relevant correspondence which passed between Counsel and their instructing solicitor. It is abundantly clear therefrom that by mutual consensus, between solicitor and Counsel, both Senior and Junior Counsel withdrew from their representation of the Applicant herein and accordingly their instructing solicitor briefed new Counsel.
15. I can only allow brief fees in respect of one set of Counsel in this case. The party and party indemnity cannot, in my view, be stretched to accommodate the situation which arose herein. In essence, the consequences of a disagreement between Counsel and solicitor resulting in the withdrawal of Counsel from a case, cannot be allowed to add to the costs herein.
16. It is well settled that a barrister’s entitlement to a brief fee, in relation to a case which goes to hearing, necessarily requires that the barrister should have conducted the case in advocacy on behalf of the client. I cannot allow the disbursements claimed in relation to these brief fees.
17. Unfortunately, a similar problem arises in relation to the fees of Counsel on foot of the written legal submissions drafted by them. Fees are also charged at items 118 and 112 of the bill in relation to fees marked by the Applicant’s new Counsel in respect of written submissions. Since these latter submissions are those prepared by the two Counsel who actually represented the Applicant at the hearing, the earlier submissions are redundant and the fees arising thereon cannot be visited upon the second and third named Respondent. I cannot accept the Applicant’s solicitor’s general assertion that the withdrawal of Counsel from the case was necessitated by reason of the Respondents’ actions. It is clear that the reason for such withdrawal was rooted in fundamental disagreement between solicitor and Counsel.
18. This issue was again argued before me on 24 July 2015 and the Applicant’s solicitor has cited two decisions of the European Court of Human Rights in support of his contention that the Applicant is entitled, as between party and party, to indemnity in regard to the fees of both sets of Counsel.
19. I have considered the decisions in Meftah & Ors. v France, delivered 26 July 2002 and Largerblom v Sweden delivered 14 April 2003. The former application concerned the assertion that the procedure in the Court of Cassation was unfair and contravened Article 6, 1 and 3(c) of the Convention for the Protection of Human Rights and Fundamental Freedoms in that the Advocate General’s submissions had not been conveyed to the applicants with the result that they had been unable to reply and had not been informed of the date of the hearing or permitted to address the Court of Cassation at the hearing.
20. The second case concerned the Applicant’s assertion that his rights under Article 6 had been contravened, given that he, being a defendant in criminal proceedings before a Court in Sweden, and a Finnish National, had not been given a Finnish speaking public defence Counsel.
21. I can find no parallels in either of these cases with the circumstances of the instant case. In the former case the Court found that there was a breach of Article 6 arising out of procedural failures in communicating the tenor of the Advocate-General’s submissions to the Applicant. In the latter case the Court, in finding against the Applicant, dealt with the State’s obligation to provide free legal assistance to accused persons in appropriate cases and reviewed the law in that regard.
22. In my view neither of these decisions have any relevance to the circumstances of the instant case, given that the basis for the change of representation was rooted in disagreement between Counsel and their instructing solicitor and not any alleged procedural deficiencies.
Item 157: (Instructions fee €96,000)
23. The rationale underlying this unusually high fee is to be found at pp 1 to 18 of the bill of costs. In particular, it seems from the second paragraph at p. 1 thereof that great emphasis is laid on the circumstances which arose following the introduction by the second and third named Respondents, of an Affidavit of the first named Respondent a few days before the substantive matter was initially listed for hearing on 24 October 2008. The Affidavit was subsequently withdrawn and the original trial Judge recused himself from hearing the application.
24. A second issue is also mentioned namely, the allegation that the further employment of the interpreter retained in the case by the Courts Service had been threatened. It transpired that no threat to this interpreter‘s future employment existed. Neither of these matters were in issue before O’Neill J. when the application was heard on 26 and 27 November 2008.
25. While declaratory Orders were sought at paras 7 to 15 of the Applicant’s Notice of Motion dated 21 July 2008, including, inter alia as to the alleged unconstitutionality of section 12 of the Immigration Act 2004 and incompatibility with Article (6) (1) of the European Convention of Human Rights, such issues were not pursued before the Court. Although the appropriate Notice Parties had been put on record they took no part in the proceedings. I note that the second and third named Respondents’ Statement of Grounds of Opposition denied any infringement of the Applicant’s Human or Constitutional rights and denied that s. 12 of the said Immigration Act was unconstitutional. Neither party’s written submissions appear to address these issues.
26. It appears to me that the only issues upon which the High Court was required to adjudicate were as follows:-
1. As to fact: Did the Applicant’s solicitor object to an extension of time being granted for service of the books of evidence and did he call for evidence on oath to be heard before a determination by the first named Respondent?
2. Legal issues:
a) The construction and effect of s. 4B of the Criminal Procedure Act 1967 as amended by s. 9 of the Criminal Justice Act 1999.
b) Did the impugned District Court Order of 11 July 2008 include all 5 charges?
c) If the Court found that the Applicant’s solicitor had objected and sought evidence as described, should the principle of stare decisis be applied given the Judgement of the High Court in Dunne v Governor of Cloverhill Prison [2008] IEHC 16.
d) Whether the impugned Order of 11 July 2008 was spent and not amenable to Judicial Review.
e) Was there an error on the face of the impugned Order by reason of its inclusion of an offence under s. 12 of the Immigration Act 2004?
27. I have received four bankers boxes of documents which include files relating to bail applications; proceedings in the Circuit Criminal Court against the Applicant, and Habeas Corpus papers, none of which have any relevance to the assessment of the party and party costs of the Judicial Review proceedings.
28. I note that an application for bail was made to the High Court (Peart J.) under the title of the instant proceedings but, in my opinion, that application was separate and distinct from these proceedings and the costs thereof are not covered by either of the Orders of the High Court or the Supreme Court under which this taxation takes place. I note from Counsel’s letter of 1 August 2008 that no Order as to costs was made on 31 July 2008 on foot of this application, in any event.
29. Having heard the submissions on behalf of the respective parties, I assess the instructions fee as follows:
1. All work relating to the application for leave to
proceed, taking into account the urgency involved;
instructing Counsel; perusing draft Statement of
grounds and Verifying Affidavit; assembling all
exhibits and relevant documents; briefing Counsel
and attending at High Court when leave granted:
(Work period 11 July to 17 July 2008) €5,000.00
2. Consideration of Affidavit of first named Respondent;
correspondence thereon; urgent instruction of Counsel
to attend Court on 22 October 2008 when the Applicant’s
objections were ventilated; consideration of letter from
Senior Counsel reporting; noting on 23 October that the
Affidavit was withdrawn by Respondents and attending
Court on 24 October 2008 for hearing of substantive
application when the presiding Judge recused himself:
(Work period 21 to 24 October 2008) €3,000.00