angelakerins

Angela Kerins before the Public Accounts Committee in 2014

The Public Accounts Committee will have to pay two thirds of former Rehab boss Angela Kerins’ legal costs after her failed High Court action.

Ms Kerins lost her personal injury claim against PAC [concerning two days of grilling about payments to the charity] after the court said it could not make any judgment on utterances made inside the oireachtas (see REDACTED for details).

So…why are ‘we’ lumbered with the bill?

Legal Coffee Drinker writes:

Order 99 Rule 1(1) of the Rules of the Superior Courts provides that the

“costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those courts respectively…”.

Order 99 Rule 1(4), further provides:

“…the costs of every issue of fact or law raised upon a claim or counterclaim, shall, unless otherwise ordered, follow the event…”.

This gives the courts a wide discretion in relation to costs which has been limited by rules laid down in case law.

The leading case is the decision of the Supreme Court in Dunne v Minister for the Environment [2008] 2 IR 775. The issue under appeal was whether or not an individual who had brought an unsuccessful legal challenge to the construction of a motorway near a site of archaeological interest should be entitled to their costs.

The Supreme Court held that that the normal rule was that the costs of every proceeding followed the event but that the courts always retained discretion in relation thereto.

There was no fixed rule or principle determining the ambit of that discretion and, in particular, no overriding principle which determined that it had to be exercised in favour of an unsuccessful plaintiff in specified circumstances or in a particular class of case.

The fact that a plaintiff was not seeking a private personal advantage and that the issues raised were of special and general public importance were factors which could be taken into account along with all other circumstances of the case in deciding whether there was sufficient reason to exercise a discretion to depart from the general rule that costs followed the event.

However, the two principles, in themselves, were not the determining factors in any category of cases which could be described as public interest litigation.

In that case the Supreme Court overturned an order awarding the unsuccessful applicant his costs, saying that:

“undoubtedly the fact that a plaintiff is not seeking a private personal advantage and that the issues raised are of special and general public importance are factors which may be taken into account, along with all other circumstances of the case, in deciding whether there is sufficient reason to exercise a discretion to depart from the general rule that costs follow the event.

However, insofar as the learned High Court Judge may have considered that the two principles to which she referred are in themselves the determining factors in a category of cases which may be described as public interest litigation, I do not find that the authorities cited support such an approach…”.

Recently United Left TD Joan Collins was awarded 75% of her legal costs in her unsuccessful challenge to the promissory notes issued by the Minister for Finance in favour of Anglo Irish Bank and the Educational Building Society.

The three-judge divisional High Court ruled that it was an exceptional case which merited a departure from the normal rule regarding costs. Given the exceptional nature of the litigation, it awarded her 75%.

In that case, Joan Collins had no ‘private personal advantage’ in the success of her legal claim. The Kerins case is different in this respect.

However the decision in Dunne, while acknowledging that lack of private personal advantage might be a factor to be taken into account in deciding on costs, did not absolutely rule out an award of costs in such a case.

The test which is applied in deciding on costs is ‘exceptionality’ – something which still leaves a lot of discretion to the trial judge.

In the Kerins case, the court appears to have regarded the issue involved as of sufficient public importance to override the fact that the case was of private personal advantage.

FIGHT!

PAC must pay two-thirds of Kerins’ legal costs (RTÉ)

Pic: Oireachtas.ie

38 thoughts on “Compo Claim Madness

  1. Knucklchino

    So the judges’ principles governing their discretion basically say….. they have discretion?

    1. Legal Coffee Drinker

      Yes. They do however give some factors which may be relevant in exercising that discretion.

      1. Knucklchino

        But they can still ignore one or more of these factors in exercising their discretion…

        1. Legal Coffee Drinker

          They must take them into account but they can be outweighed by other factors e.g. where the public interest in having the matter clarified by the courts is very strong then it might outweigh any element of private gain involved.

    2. Sheik Yahbouti

      The Sheik reprises the earlier post (in the Easter Egg thread!) ” Sorry lads. but just saw this report (not featured on BS) ” PAC must pay two thirds of Kerins ‘ costs”)?!? This is NOT good enough.” PAC will pay nada. Who will pay for this fatuous bint’s hubris? Yeah, you and me folks. NOT GOOD ENOUGH.

  2. me...

    Dear Broadsheet.ie,
    on your merry travels across the interweb, have you ever wondered why no one has ever copied your website layout? After all this time? Not one…

    1. curmudegon

      I’m pretty sure they just paid for the html, the css was an optional extra deemed not worth it.

  3. Andyourpointiswhatexactly?

    How much is it, I wonder?
    The aul bat would’ve probably declared bankruptcy anyway and we’d have had to pay the whole lot.

  4. Fact Checker

    Welcome back LCD!

    Would it be fair to say that judges are more likely to use the discretion in favour of the losing party when the losing party is a sole individual and the winner a large organisation of some sort with deep pockets?

    This is my (casual) analysis of it down the years.

    1. Legal Coffee Drinker

      Based on an empirical examination of the very few reported cases where this discretion has been exercised in favour of the losing party, yes. But if you look at the ‘large organisations’ they tend to be state-related and therefore the reason could be that there is a stronger public interest basis for the challenge rather than the status of the defendant. Also, most unsuccessful claimants against the State end up paying their own costs, and the State’s costs. The Kerins’ case is one of a very small group of exceptional cases.

      It’s not unusual for a winning party to have to pay its own costs in some cases against private individuals e.g. boundary disputes (though these tend to be at lower court level so don’t get reported in the Law Reports), you’ll find reference to them in the newspapers from time to time.

      1. Harry Molloy

        Thanks LCD. Will you come back if the justification for awarding 75% costs in this instance is reported?

  5. Boj

    This seems inside-down and upside-out to me.
    ‘The law’ is a strange beast altogether.

  6. bisted

    …thanks for that LCD..but I shall curtail my righteous indignation and side with Mr Bumble – the law is a ass, a idiot…

  7. Scundered

    What a fuppin’ inept legal system we have. A disgrace to the country, like herself.

  8. Sheik Yahbouti

    Have just seen that the Sheik’s comment on this is “in moderation” – why?

  9. Junkface

    I can’t believe that the State will help with the legal costs of this Fat, tub of Goo! Dispicable people like her are what drags Ireland down morally and culturally. The legal system here needs a total overhaul. It is disgraceful

  10. dav

    LCD – The issue of “Costs” is it a Common Law thing, does similar things arise on the continent?

    1. Legal Coffee Drinker

      Legal costs arise wherever there is litigation involving lawyers, this website gives a very good view of costs in different EU member states.

      https://e-justice.europa.eu/content_costs_of_proceedings-37-fr-en.do?member=1

      The French Code of Procedure leaves costs to the discretion of the court, but they generally follow the event:-

      https://books.google.ie/books?id=zyBCCwAAQBAJ&pg=PT250&lpg=PT250&dq=legal+costs+france+follow+the+event&source=bl&ots=kaXxa65JCe&sig=t8wm8jRCKGnttNYPJbgOUC7l5Xk&hl=en&sa=X&ved=0ahUKEwjDgMLk5I3TAhWKBsAKHSBdC40Q6AEIJzAC#v=onepage&q=legal%20costs%20france%20follow%20the%20event&f=false

    2. Legal Coffee Drinker

      Dav, legal costs arise wherever there is litigation involving lawyers.

      According to Palmer “Access to Justice” (available on google books) legal costs in France are at the discretion of the court but usually follow the event.

      The e-justice.europa/eu website has a good section on costs in different jurisdictions in Europel.

  11. Gorev Mahagut

    Roses are red,
    judges’ wigs are grey
    I’d like a costs ruling
    that says someone else has to pay.

    1. nellyb

      If you translate this into Chinese (Angela’s partners at one time) and back to English again – that’s what comes out – “Rose is red, the judge’s wig is gray I want a cost to say that someone else wants to pay”

  12. Kenny U-Vox Plank

    With a perspective, at least its over 200K she won’t be able to spend on cake.

Comments are closed.