The High Court quashed a costs order imposed on Edward McCoppin after two mobile phones rang during a civil hearing in Longford Circuit Court, ruling that he had not been given an opportunity to be heard before the sanction was imposed.
In a judgment delivered on 14 April 2005, Mrs Justice Fidelma Macken set aside the 21 April 2004 order only insofar as it awarded “thrown away” costs against Mr McCoppin. She found that the contempt finding and costs order, made without a hearing, were beyond the judge’s powers and disproportionate to the interruptions.
The underlying case concerned a horse injured in an accident. During the plaintiff’s witness examination, Mr McCoppin’s phone rang. The Circuit Court judge directed a garda to remove him until he was due to give evidence. A short time later, his counsel’s phone rang during cross-examination. After counsel apologised, the judge said the hearing was “aborted” by the plaintiff’s contempt, adjourned the case to be heard by another judge, and ordered Mr McCoppin to pay the defendant’s costs on a thrown-away basis.
The judicial review challenged the contempt finding and sanction, arguing that Mr McCoppin had been excluded and could not respond or instruct counsel. The parties did not object to certiorari being granted, but disputed whether the applicant could recover the costs of the judicial review from the judge’s side or from the defendant in the civil case.
Justice Macken considered the decision to end the hearing and adjourn it to another judge legitimate. She said the judge had indicated that the change was intended to ensure justice was done and seen to be done. But she held that before a contempt finding or costs sanction could lawfully be made, Mr McCoppin had a right to be heard on the allegation and sanction, whether the phone was his or his counsel’s. She also described the response as irrational in the legal sense.
The court refused Mr McCoppin costs against the judge or the Attorney General, finding no mala fides or impropriety of the kind required for such an award. It also found the defendant had not caused or contributed to his judicial review costs. No costs order was made in favour of any party.
Separate arguments under Articles 6 and 13 of the European Convention on Human Rights and section 5 of the European Convention on Human Rights Act 2003 were left unresolved. The court directed that those issues be sent to an appropriate Judicial Review List for written submissions and determination by a judge at a future date.