The Cost of Potential Bias- Downey, Application for Judicial Review (Costs) [2022] NIQB 2

Holly Clegg considers the recent decision of Mr Justice Rooney in Downey, Application for Judicial Review (Costs) [2022] NIQB 2 (12 January 2022)).

Background

A Judicial Review application was brought by the family following a decision taken at a Pre-Inquest Review (PIR) hearing relating to the Inquest touching upon the death of Michelle Downey. The Respondent in the Judicial Review was the Coroner who was assigned to hear the inquest and the issue arose when discussing/deciding upon the engagement of Article 2 ECHR.

At the PIR hearing the Respondent outlined a preliminary view that Article 2 was not engaged but indicated that he would receive submissions on the issue. It later came to light that the Respondent had corresponded with the Legal Services Agency (LSA) specifically stating that he did not believe it was engaged.

Upon receiving this correspondence the Applicant argued that the Respondent should recuse himself from the Inquest on the basis that he had demonstrated actual or apparent bias to the extent that he had predetermined the issue without hearing submissions. The Respondent refused the application to recuse himself and thereafter the family made their application to Judicially Review this decision.

The Judicial Review:

In the Determination Rooney J confirmed that he had dismissed the application for Judicial Review on the basis that although he had significant concerns about the Respondent predetermining the issue and not recusing himself he gave the Respondent the benefit of the doubt (para 18).

The Determination also discusses the background of the application for Judicial Review itself. This was an important issue which ultimately impacted the decision to make no order as to Costs.

The Applicant contended that it was necessary to serve a Pre-Action Protocol (PAP) Letter on the Respondent as he had not provided written reasons for his decision not to recuse himself.  There was a dispute between the parties as to whether/when this decision was finalised, however Rooney J confirmed (at para 7) that:

“In the context of the disputed background, one matter is clear, namely that the respondent did not provide a written decision within a short period after the hearing. Rather his written decision was not delivered until after the PAP letter”.

The Respondent failed to provide a PAP response at all nor did he send an interim reply or request an extension, this breached the relevant Practice Direction. The Respondent also failed to comply with an order requiring him to file an affidavit by a specific date, serving a sworn affidavit more than a month later.

The Application for Costs

The Determination of Costs arose when the Respondent sought his costs in the matter. This was following the general rule that costs follow the event and the unsuccessful party (in this case the Applicant) ought to pay the costs of the successful party.

In denying the Respondent his costs, Rooney J adopted the approach as set out in the case of Ritter v Godfrey [1920] 2KB 47 at 60,  where Atkin LJ stated as follows:

“In the case of a wholly successful defendant, in my opinion, the Judge must give the defendant his costs unless there is evidence that the defendant:

(1) brought about the litigation, or

(2) had done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense, or

(3) has done some wrongful act in the course of the transaction of which the plaintiff complains.”

Rooney J determined that the Arkin LJ’s three exceptions to the general rule all applied, on the basis that:

• The Application was properly made and was stimulated by the Respondent’s acknowledged poor choice of words in response to the LSA questionnaire;
• The Applicant was never provided with any form of response to its Pre-Action Correspondence (thereby affecting the decision the court could make on costs as per R (on the application of M) v Croydon LBC [2012] EWCA 595);
• The respondent failed to comply with an order of the court by failing to serve a sworn affidavit until 6 weeks after the expiry of the order.

Lessons

The decision provides valuable lessons, both in relation to the fine line that has to be toed when considering perceived/potential bias in the Coroner’s Court and also into the impact of failing to comply with Court Orders and Practice Directions if you are going to seek to have your Costs paid by an unsuccessful party.

Holly Clegg – Park Square Barristers

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