In Cunningham v President of the Circuit Court, the Irish Supreme Court was considered who should pay costs when a case becomes moot. Legal proceedings are moot when there is no longer a legal dispute between the parties. PILA is interested in cases where mootness is an issue, because is a barrier to public interest litigation as it means that a plaintiff cannot pursue their claim if their individual problem, on which their claim is based, has been resolved.
This Supreme Court case concerned Ms Cunningham, an employee of the Blood Transfusion Board, who was prosecuted for her role in the contraction of Hepatitis C via contaminated Anti-D injections by a number of Irish women in the 1970s. Cunningham had been charged under Section 23 of the Offences Against the Person Act 1861. Ms Cunningham had argued that the prosecution should be halted due to delay. Although the High Court rejected this argument and Ms Cunningham appealed, the DPP decided to end the prosecution because an expert witness had died.
As the prosecution was now terminated the judicial review proceedings were moot, but Ms Cunningham was claiming the costs of bringing the action. The general rule is that the losing party pays the costs of the winning party, however when a case becomes moot the problem arises that there is neither a winning or a losing party. Judge Clarke made reference to a previous case in which a similar matter had arisen. He stated that as a general rule a court should lean towards not making any award as to costs where the mootness arose as a result of a factor outside the control of the parties, but if a case became moot due to the unilateral action of one of the parties, the court should lean towards awarding costs against that party who took some form of unilateral action. In Ms Cunningham's case therefore the DPP was ordered to pay costs as the DPP unilaterally chose to end the prosecution.
Click here for a post about the case by the Extempore blog.
Click here to read the judgment.
Meanwhile, Chief Justice Susan Denham has said that the Irish Constitution be amended to enable the Oireachtas to establish specialist courts. Speaking at a conference marking the 75th anniversary of the Irish Constitution in the Royal Irish Academy, the Chief Justice said that specialist courts to deal with family and environmental law and a court of appeal that could hear appeals from the High Court should be established. The establishment of such courts could help reduce delays faced by litigants. She gave examples of the types of delay that can be currently be expected by litigants, stating that an appeal from the High Court is likely to take three and a half years to be heard by the Supreme Court. Chief Justice Denham stated that, “the drafters of the Constitution could never have anticipated the growth in the volume of litigation…throughout the legal system…The court structure required in 2012 is different to that of 1937”.
Readers may recall the analysis featured in a previous Bulletin on delay in the Irish courts. The piece, written by FLAC Senior Solicitor Michael Farrell noted that the issue that has led to the most decisions against Ireland at the European Court of Human Rights in Strasbourg (ECtHR) is delay in legal proceedings.
Click here to access Michael Farrell's analysis.