Butterly v Cullinane (Approved)

Factual and Procedural Background

The Applicant sought judicial review relief to direct the Respondent Coroner to instruct a jury that a verdict of "unlawful killing" was not an available verdict in the inquests concerning 47 deceased persons who died in a fire at a nightclub in 1981. The application was heard during a vacation sitting of the High Court, with legal representatives for the families of the deceased present and making submissions. The Coroner had made two impugned rulings concerning the availability of the unlawful killing verdict and the scope of jury instructions. The Applicant contended that the Coroner's rulings risked the jury acting without statutory authority by permitting a verdict linked to identifiable individuals. The Court refused the relief sought, finding no sufficient grounds for judicial review at that stage.

Following the refusal of leave, the families of the deceased applied for their legal costs incurred during the leave application hearing. The Court considered written and oral submissions on the costs application. The Court acknowledged the novel circumstances of the case, including the late stage of the inquests and the involvement of multiple parties. It exercised its discretion to order the Applicant to pay the costs of the families limited to the hearing and judgment on the leave application. The matter of the amount of fees was referred to the High Court Costs Adjudicator.

Legal Issues Presented

1. Whether the families of the deceased should be considered parties to the judicial review proceedings at the leave stage.
2. Whether the Court has discretion under the Rules of the Superior Courts to award costs to the families against the Applicant in respect of the leave application.
3. Whether the Applicant was entitled to judicial review relief directing the Coroner to exclude the verdict of unlawful killing from jury consideration during the inquests.
4. The appropriateness and timing of judicial review applications made during the currency of inquest proceedings.

Arguments of the Parties

Families' Arguments

• The families had a clear interest in the application and had not objected to being represented at the leave hearing.
• The Court could have exercised its discretion to allow the families to be heard at the application for leave.
• The approach taken at the hearing minimized costs and was in the interest of all parties.
• The claim for fees was limited to one senior counsel, one junior counsel, and one solicitor for the families.
• There was no binding case law for the costs application; the application for leave was treated as an inter partes application by acquiescence.

Applicant's Arguments

• Order 84(20) of the Rules of the Superior Courts provides that the leave application should proceed on an ex parte basis, and thus was not an application on notice.
• The approach adopted was not in the Applicant’s ease; an adjournment to place all parties on notice would have allowed the Applicant to properly respond to submissions.
• There was a catch-22 situation where the Applicant needed to move before the jury returned a verdict but was also constrained by timing.
• Counsel for the families, supported by the State, were entitled to be paid for their appearance at the leave hearing.
• Work done for the families’ legal representatives largely arose from their representation at the inquests.

Coroner's Position

• The Coroner did not address the vindication of the families’ rights or cite authorities in the leave application hearing.
• The Coroner provided factual clarity, confirming that final instructions to the jury were delayed to allow the leave application.
• The Coroner did not seek an order for costs.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court acknowledged the novel and sensitive nature of the proceedings involving the inquests of 47 deceased persons. It recognized the families’ clear interest and accepted them as parties for the leave application under Order 125 of the Rules of the Superior Courts, which defines parties broadly.

The Court considered the competing interests: the Applicant’s right to seek judicial review and the potential prejudice and delay caused to the inquests and other parties. It found that the Coroner was well placed to instruct the jury properly and that the Applicant had not demonstrated a sufficient prima facie case that the Coroner's rulings were incorrect or that the jury would act without authority.

The Court emphasized the importance of balancing constitutional rights and procedural fairness, noting that judicial review applications during ongoing proceedings are exceptional and require urgent balancing of interests. It relied on case law cautioning against intervention at late stages of inquests and criminal trials due to risks of delay and prejudice.

Regarding costs, the Court exercised its discretion under the Rules of the Superior Courts to award costs to the families, recognizing their legitimate interest and active participation. It noted that while the families might receive legal aid for inquest proceedings, this did not automatically entitle them to recover all fees for the High Court hearing. The Court declined to determine the quantum of fees, leaving that to the Costs Adjudicator.

Holding and Implications

The Court REFUSED THE APPLICATION FOR LEAVE TO JUDICIAL REVIEW seeking to direct the Coroner to exclude the verdict of unlawful killing from jury consideration.

The Court ORDERED that the Applicant pay the costs of the families limited to one senior counsel, one junior counsel, and one solicitor for their participation in the leave hearing and judgment delivery. The assessment of costs was referred to the High Court Costs Adjudicator in default of agreement.

The decision directly affects the parties by concluding the leave application without granting relief and by imposing costs on the Applicant. The Court did not establish new precedent but applied established principles regarding judicial review timing, party status, and costs discretion in the context of coronial inquests.