The High Court has declined to impose wasted costs on solicitors who brought Article 40 applications for two Chinese prisoners without first investigating key facts surrounding their sentences and proposed release arrangements.
Zhong He and Xue Hong Zhong had each pleaded guilty to cultivating cannabis and were sentenced in Mullingar Circuit Criminal Court in September 2014 to four years' imprisonment. The balance of their sentences was to be suspended once they produced travel documents and airline tickets, entered a €300 bond and left Ireland for ten years under Garda National Immigration Bureau supervision.
New solicitors later applied to the High Court, arguing that the requirement to obtain airline tickets and travel documents from prison was impossible and could result in the men serving the full four-year terms.
Those Article 40 applications were withdrawn two days after an inquiry was directed, once fuller information became available.
Mr Justice McDermott found that the new legal teams had failed to make basic inquiries. They had not contacted the solicitor who handled the criminal cases, although he had been corresponding extensively with Gardaí, the Chinese Embassy and immigration authorities. They also did not establish that €1,200 had already been held for one applicant's ticket or that travel documents had been arranged.
The court said the original sentencing judge had anticipated practical difficulties and had expressly invited the parties to return to him if problems arose. The High Court found that portraying the release conditions as inherently impossible was inconsistent with the actual history.
The State and DPP sought wasted costs personally against the solicitors under Order 99 rule 7. The court held that costs had been unnecessarily incurred and that there had been a serious breach of duty to the court.
However, McDermott J. exercised his discretion not to make the order. He relied on the solicitors' full apologies and the early withdrawal of the applications, while warning that similar conduct in future would weigh heavily against legal practitioners.