High Court dismisses costs for Article 40 bail inquiry where applicant breached bail terms and failed to attend hearing.

Neutral Citation: [2016] IEHC 361

THE HIGH COURT

IN THE MATTER OF ARTICLE 40 OF THE CONSTITUTION

[2016 No. 587/SS]

BETWEEN:

ION ILIE

APPLICANT

-AND-

GOVERNOR OF CASTLEREA PRISON

RESPONDENT

THE HIGH COURT

IN THE MATTER OF ARTICLE 40 OF THE CONSTITUTION

[2016 No. 588/SS]

BETWEEN:

ADRIAN MARACINE

APPLICANT

-AND-

GOVERNOR OF CASTLEREA PRISON

RESPONDENT

JUDGMENT of Mr. Justice Twomey delivered on the 27th day of June, 2016

1. This case involves a costs application heard on the 20th June, 2016, in connection with a release sought by both applicants

pursuant to Article 40 of the Constitution. The applications are linked, as almost identical circumstances apply to both of them and

they are represented by the same solicitors and barristers. They both had bail pending against sentence in respect of a sentence

imposed in the District Court, which they had appealed to the Circuit Court, with a hearing date set for the 9th June, 2016.

2. Both applicants fulfilled all of the conditions of the bail save that the Gardaí failed to approve the address at which both applicants

proposed to reside pending their appeal, at 1 Bridgewater Mews, Dundalk, County Louth.

3. The applicants’ legal representatives moved an application for an Inquiry before Mr. Justice Binchy on the 23rd May, 2016. He

ordered an Inquiry returnable for 24th May, 2016. On the 24th May, 2016, the matter came before Ms. Justice O’Regan for the

hearing of the said Inquiry, which was during the vacation. The Respondent sought an adjournment which was granted to the

following day, the 25th May, 2016, with a direction for the Inquiry to proceed on that day.

4. On the 25th May, 2016, the Inquiry commenced before this Court. During the course of the Inquiry a witness was called on behalf

of the applicants, which had not been anticipated by the respondent. As it was now after 6 pm and the relevant member of the

Gardaí Síochána was not available to deal with the evidence called on behalf of the applicants, the hearing had to be adjourned and

the respondent indicated that it would consent to the applicants being released on bail pending the determination of the Inquiry under

Article 40.

5. This Court released both applicants on bail on condition that they reside at 1 Bridgewater Mews, Dundalk and attend the hearing of

their appeal in the Circuit Court on the 9th June, 2016. Accordingly, the Inquiry under Article 40 finished on the 25th May, 2016

before this Court, without the respondent having had an opportunity to present their case. It is relevant to note that the first

applicant, Mr. Ilie duly turned up at the Circuit Court hearing on the 9th June, 2016. However, the second applicant, Mr. Maracine

failed to turn up at the Circuit Court hearing and so breached the terms of the bail granted to him by this Court.

6. The case came before this Court again on the 26th May, 2016, when it was listed for mention regarding the resumption of the

hearing. At this stage, this Court queried the basis for completing the Article 40 hearing, when the applicants were no longer

detained. The respondent made clear to the Court that he was of the view that that he would be successful on the resumption of the

Article 40 hearing on the grounds that, inter alia, there was more to approving an address for the purposes of bail, than simply

ascertaining that it existed and that in this case there was an issue of whether it was a suitable address to be approved for bail.

7. At the costs hearing (on the 20th June, 2016) counsel for the respondent also argued, in reliance on the Supreme Court case of

Roche v. Governor of Cloverhill [2014] IESC 53, that the applicants should not have dealt with their complaints regarding bail by

invoking the jurisdiction of the High Court under Article 40, but they could have done so at less expense to the taxpayer by returning

to the District Court or an appeal to an appellate court. It is not necessary for this Court to consider the merits of these arguments

for the purposes of this costs application.

8. It is relevant that it became clear to this Court on the 26th May, 2016, that the respondent did not concede that the Article 40

application was justified. The respondent wished to resume the adjourned hearing at a later date. However, counsel for the

respondent did accept that the primary benefit of a finding that the Article 40 application was unjustified, would have been the

awarding of costs against the applicants (or perhaps more realistically that the State would not have to pay the costs of the

applicants).

9. This Court understands the interest the State had in winning the case and thus not being liable for costs. However, on the 26th

May, 2016 when this Court considered the issue of resuming the hearing, the completion of the Inquiry was academic (save for costs

reasons), since the applicants were at liberty. The Court had regard to the fact that court resources would be used in hearing the

remainder of the Inquiry. The Court also had regard to the interests of the taxpayer, that there was no guarantee that the State

would win the case, and so the Court was not in favour of the State incurring further legal costs in the hope of saving legal costs.

10. For this reason, on the 26th May, 2016, this Court took the view, that in the interests of the taxpayer, it did not make sense to

complete the hearing of the Inquiry under Article 40. On this basis, the parties accepted that all that was left to deal with was the

matter of costs of the partial Inquiry. The State sought some time to discuss the costs issue with the applicants to see if agreement

could be reached, but it is clear that no such agreement was reached between the parties and so this Court must now determine the

costs issue of the partial Inquiry under Article 40.

11. The Court in exercising its discretion regarding costs in this matter takes account of the following factors:-

i. The respondent was anxious to complete the Inquiry on the grounds that he felt that he would win the case, but the

Court decided not to do so in the circumstances. This Court cannot eliminate the possibility that the respondent might

have won his case, if the Court had facilitated the completion of the Inquiry.

ii. However, it is significant that the applicants had very same address for bail approved in the High Court, which the

Gardaí had failed to approve up to the holding of the Inquiry. In this sense the Article 40 application achieved its purpose,

namely the liberty of the applicants.

iii. On the other hand, the respondent has argued that the applicants could have achieved their liberty in a manner at less

expense to the taxpayer than a High Court application, which is a matter which would have to be considered if the

hearing had been completed.

iv. It is also relevant that the two applications were practically identical so that there would not have been that much

additional work in doing the second application, since both applications were done by the same legal team.

v. Finally, one cannot ignore the fact that Mr. Maracine has breached the terms of bail granted by this Court and also has

not turned up at the costs application hearing, yet he is asking this Court (or perhaps more accurately, his legal team is

asking this Court, since no evidence was provided that he had provided instructions to his legal team) to exercise its

discretion to award the costs of his application for the partial Inquiry, which was resolved by the bail which he breached.

12. Taking all of these factors into account, this Court believes that the appropriate costs order to make is that 75% of the legal

costs of just one of the applicant’s, Mr. Ilie, be awarded to him and no costs be awarded to Mr. Maracine.