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A man who was initially refused bail on theft charges and later secured bail through Article 40 constitutional proceedings is not entitled to recover up to €45,000 in legal costs. The High Court ruled that because conventional bail was granted pending the criminal case, the Article 40 inquiry had become moot, as there was no ongoing detention for the court to examine.
The man had challenged the legality of his detention in proceedings under Article 40 of the Constitution. Photograph: Bryan O'Brien/The Irish TimesA man who got bail on theft charges after an earlier refusal is not entitled to legal costs of up to €45,000 for aAgainst the backdrop of the continuing withdrawal of services by many criminal defence solicitors over a new legal aid fees model for the district courts, he challenged the legality of his detention in proceedings under Article 40 of the Constitution.
When those proceedings came before the High Court on August 10th, his counsel told Judge Denise Brett bail had been agreed on written conditions and Brett made an order on those terms. Man jailed for murder of father of five in Cork golf-club attackThe man’s lawyers sought to pursue the Article 40 inquiry but, in a judgment on Monday, Judge Garrett Simons said there is no current detention under which an order for the man’s release could have been made in his inquiry proceedings.
The grant of “conventional bail” by Brett, made pending the determination of the criminal case, was different from an interim release order pending the hearing and determination of an Article 40 inquiry, Simons said. An applicant who institutes an Article 40 inquiry and then seeks to be released before completion of that inquiry was in effect making an application for conventional bail, he said.
In the circumstances it would be inappropriate to examine the legal status of the detention between July 30th and August 10th, the judge said. The question of the legal status of that detention was a “moot” point in the sense that its determination could not affect the outcome of the inquiry as the man was no longer detained, he said.
The general position is that a court will not determine a moot point in proceedings, for reasons including the importance of a full adversarial context for a legal decision and the management of scarce and expensive court resources, he said. While the courts have discretion to decide moot points, this was not an appropriate case to do so, he held.
There was nothing peculiar to the facts of this case, which differed from other recent challenges to bail refusals and the relevant legal principles have been analysed in those cases. In relation to costs, Simons said the man is not entitled to recover any costs associated with the inquiry.
His provisional view is that the costs “properly recoverable” on the bail application were likely to represent “a fraction” of the inquiry fee estimate, exclusive of VAT, of between €42,815 and €45,815, including a solicitors’ general instruction fee of between €42,815 and €45,815. If the man wished to pursue a claim for damages or declarations arising from his detention, it was open to him to do so in other proceedings but such matters were not suitable for disposal in an Article 40 inquiry, Simons also said.
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