The High Court has refused John O’Connell leave to seek judicial review of a Taxing Master’s decision not to recuse himself from the taxation of costs in earlier proceedings between O’Connell and BATU.
Mr Justice Brian O’Moore delivered the judgment on 9 September 2020. He said the proposed challenge concerned Taxing Master Paul Behan’s decision of 12 July 2019, which refused to recuse from further involvement in taxing costs awarded to O’Connell in proceedings against BATU.
O’Connell’s proposed grounds included claims that rules governing objections to taxation were invalid, that the Taxing Master had not provided adequate reasons or access to notes and other material, and that he should have disclosed alleged conflicts of interest. Those were O’Connell’s claims; the High Court did not determine them after a full judicial review hearing.
The intended respondents argued that BATU had a direct interest in the outcome and should have been joined. The judge noted that O’Connell had been told of the objection and given an opportunity to add BATU, but did not do so. BATU had not declined to participate: its solicitor had said it was not a party and therefore had no part to play, while indicating that a representative might attend on a watching brief.
The judge said the recusal issue had been contested by BATU during a May 2019 hearing before the Taxing Master. O’Connell had made written submissions on bias but did not attend that hearing, according to the decision later provided to the High Court. The judge also noted that O’Connell had not put the Taxing Master’s decision and related documents before the court when seeking leave.
The court separately accepted the respondents’ submission that a challenge to the relevant Order 99 review procedure had already failed in the Supreme Court case D.M.P.T. v. Moran. The judge said O’Connell had not shown an arguable case for the declarations he sought on that point. He also observed that the July 2019 recusal decision did not result from the Order 99 review process.
The court’s decision was limited to refusing permission to bring the proposed judicial review. It did not make a substantive ruling on whether the Taxing Master was biased or whether his recusal decision was legally correct.