Supreme Court allows appeal on costs under European Arrest Warrant Act despite general appeal ban.

An Chúirt Uachtarach

The Supreme Court

Murray J

MacMenamin J

Charleton J

[Record No. 2010/232 EXT]

[Appeal No. 410/2012]

Minister for Justice, Equality and Law Reform

Applicant/Appellant

And

Gerry McGinley

Respondent

[Record No. 2010/231 EXT]

[Appeal No. 217/2011]

Minister for Justice, Equality and Law Reform

Applicant/Appellant

And

Noel McPhillips

Respondent

Judgment of Mr Justice Peter Charleton delivered the 20th day of May 2015

1. A different view is possible as to the restriction on appeals from decisions of the High Court that is imposed by section 16 of the

European Arrest Warrant Act 2003, as amended. Central to this appeal was the desire of the Attorney General to clarify if it was ever

possible for a person arrested under the Act of 2003 for the purpose of extradition to another European Union country and whose

legal representatives had opted at the first appearance of the requested person to ask the judge to note that they would be seeking

a recommendation for the form of legal aid known then as the Attorney General’s scheme, to later disavow that request and to

instead seek costs as a successful respondent. A preliminary point, however, intervened as to the jurisdiction of this Court to hear

such an appeal. In these cases, the respondents were sought on extradition applications, applied for the Attorney General’s scheme

and at a time proximate to the ultimate decision announced that they were no longer seeking to rely on that scheme. This meant that

costs in the ordinary way were sought when they succeeded, each in different circumstances, in not being extradited.

2. At the time relevant to the two decisions made to award costs to the requested persons, consequent in one case on the

requesting country withdrawing the application for extradition and in the other to a decision against extradition, the Court of Appeal

had yet to be established. Consequently, the relevant Articles of the Constitution were Article 34.4.1º, which provided that the court

of final appeal in our court system should be “called the Supreme Court”, and Article 34.4.3º, which gave to the Supreme Court

“appellate jurisdiction from all decisions of the High Court” but “with such exceptions and subject to such regulations as may be

prescribed by law”. A regulation, in this context, will order the form of an appeal, for example, when it may be brought or through

what form of pleading. An exception to the appellate jurisdiction of the Supreme Court from all decisions of the High Court is an

exclusion from the general rule of the complete entitlement under the Constitution of a litigant to appeal High Court decisions to the

Supreme Court. Thus far, in these circumstances, a rule of law that here requires something akin to strict construction has not been

identified; a cannon invariably applied in this jurisdiction to criminal statutes or legislation which impacts on the liberty of the citizen.

This exclusion is, nonetheless, a deviation from the ordinary rule, as set out in the Constitution, that decisions of the High Court are

appealable.

3. As Murray J states in the majority judgment, exclusions from appellate jurisdiction have commonly been incorporated in legislation

dealing with planning and with refugee status. In the field of planning, the exclusion may be presented in argument, without now

deciding the point, to be near universal in respect of all decisions of the High Court. Section 50 of the Planning and Development Act

2000, as amended, requires the speedy initiation of a judicial review claim of any “question” as to “the validity of any decision made

or other act done” by either a planning authority or An Bord Pleanála. Section 50A (7) thereof excludes appeals to the Supreme Court

without certification of a point of law of “exceptional public importance”. When it comes to claims of refugee status, section 5 of the

Illegal Immigrants (Trafficking) Act 2000 also requires most applications to be by way of judicial review and excludes appeals except

by leave of the High Court on an exceptionally important point of law. That legislation appears to be less universal in its scope. In

providing a list of 14 decisions subject to such restrictions, that Act makes a decision of the High Court final in relation to the making

of a deportation order but refusal to revoke a deportation order under section 3(11) of the Immigration Act 1999 is not included and

may, notwithstanding that it is apparently anomalous, be appealed in the ordinary way. What both those instances have in common,

and it is to be wondered if this is a defining characteristic, is that prior to any High Court hearing, an enquiry followed by the right to

a quasi-judicial appeal will ordinarily have held in respect of the impugned decision. Hence, there may be reasons for the Oireachtas to

restrict further appeals. This is, as Murray J for the majority so carefully reasons, a matter of statutory construction. The planning

code does not appear to treat decisions as to costs as separate, indeed it could be argued that the restriction is against appeals

“from decisions” in those cases. In other words, a universal exclusion could be argued to have been adopted. Under the legislation

dealing with applications for refugee status, in apparent contrast, the restriction is in respect of particular decisions; listed “as

aforesaid” is how the legislation puts it.

4. Neither sets of legislation mentions or separately deals with any question of costs. It is easily to be appreciated that it could be

argued to be incongruous to allow appeals on issues of costs while at the same time excluding the substantive issue. Normally, both

travel together but that may not be the determining factor. The trouble of especially legislating for or excluding an appeal on costs in

our system, where costs under Order 99 rule 1(4) of the Rules of the Superior Courts ordinarily “follow the event”, could be argued to

be unnecessary. Nonetheless, it must come down to a question of construction as to whether the legislature has chosen, by failing to

exclude an appeal on costs chosen, to allow such an apparently anomalous situation.

5. While respecting both the majority judgment of Murray J and the earlier decisions cited therein, this question appears to not to

have previously arisen in this different legislative context; Canty v Private Residential Tenancies Board [2008] 4 IR 592; (Unreported,

Supreme Court, 24th March, 2014).

6. Here, on the way the matter is put in the Act of 2003, the wording does not specifically exclude an appeal as to costs. Reasoning

from what is in fact excluded, where another aspect of what the High Court may decide is not covered by wording that is sufficiently

specific, the general right of appeal as provided for in Article 34.4.3º is not displaced.

7. In that regard, the wording of section 16(11) of the Act of 2003, quoted in full in the judgment of Murray J, only permits an appeal

to the Supreme Court on a certificate. However, that prohibition is specifically in relation to “an order under subsection (1) or (2)”;

meaning a negative or positive order to allow surrender to a requesting country. Turning to those subsections, these specifically allow

the High Court to “make an order directing that the person be surrendered to such other person as is duly authorised by the issuing

state to receive him or her”, in the instance of subsection (1), or, as to subsection (2) in identical wording, the only difference being

to the subsection directing the setting of the date for such surrender. In referencing “a decision not to make such an order”, as well

as “an order” of surrender, what subsection 16(11) contemplates is not any decision of the High Court but, instead, only those two

specific decisions.

8. There may also be reasons why the Oireachtas would not bar an appeal in respect of costs. Moving from State funded legal aid, a

recommendation in that regard having been sought, to the hazard of perhaps recovering costs in the ordinary way under the Rules of

the Superior Courts, has serious implications for the funding of such schemes. Cherry picking can destroy a universal benefit. In the

ordinary way, further, costs operate as a separate application upon the delivery of judgment in High Court cases. Costs are often

urged not to “follow the event” because this rule is not automatic; costs being as Order 99 rule 1(1) states “in the discretion of those

Courts”. Sometimes, where an application for a restriction order in respect of the directors of a failed company seems justified under

section 150 of the Companies Act 1990, as amended, costs may not follow the event even though the application fails: Re Doherty

Advertising [2006] IEHC 258. Similarly, in criminal cases an accused who is not legally aided but in respect of whom the burden of

proof beyond reasonable doubt is not displaced, may not necessarily be awarded costs: The People (Director of Public Prosecutions) v

Kelly [2008] 3 IR 202; The People (Director of Public Prosecutions) v Bourke Waste Removal Limited & Others [2011] 1 ILRM 126; The

People (Director of Public Prosecutions) v McNicholas [2011] IECCC 2; The People (Director of Public Prosecutions) v Ryan [2014]

IECC 1. Even decisions that clearly go against an applicant can sometimes result in a loosing party achieving an award, usually

against the State, of some small portion of their costs; Dunne v The Minister for Environment [2008] 2 IR 775, but this is a genuine

rarity. Had the Oireachtas wished to exclude all appeals to the Supreme Court in respect of all decisions under the Act of 2003, were

not clear forms of wording available to achieve this result? That intention is not apparent from the wording of this legislation,

especially read in the light of the provision in the Constitution.

9. Since the Act of 2003 does not specifically exclude an appeal as to costs and since costs is a matter which would not necessarily

automatically follow as an integral part of an order, the doubt that arises as to the meaning of the prohibition on appeals to the

Supreme Court requires resort to the Constitution to find the fundamental rule. That rule is as stated Article 34.4.1º and has not here

been displaced.

10. Hence, the reasoning for this dissent from the majority.