Between:
JUDGMENT of Justice William McKechnie delivered on the 12th March 2010

Background:
1. This judgment is given in respect of an application for costs by the applicants following their acquittal in the Central Criminal Court sitting in Galway on the 2nd July 2009. The allegation made by the prosecution was that the corporate applicants had entered into an agreement prohibited by s. 4 of the Competition Act 2002 (“CA 2002”), and thus were guilty of offences under s. 6 of that Act. The allegation against the personal applicants (save for Mr. Hughes) was that as directors, they had authorised their respective companies to enter into such an agreement and as a result were guilty of an offence under s. 8(6) of the CA 2002. As against Mr. Hughes, it was alleged that he aided, abetted, counselled and procured each of the companies to enter into such an agreement and as a result committed a number of offences contrary to the 2002 Act as provided for by the Criminal Law Act 1997. All charges arose out of a tender process initiated by Mayo County Council for the purposes of disposing of its waste collection business and certain customer databases relating thereto. Further particulars of such charges will be set out below.

2. On the 4th December 2008, the applicants herein were sent forward to the Central Criminal Court for trial on indictment. The trial date was fixed for the 23rd June 2009. On the morning of the hearing, the indictment in final form was lodged and the accused were duly arraigned and pleaded not guilty on all counts. The trial then commenced with each undertaking and their respective directors, as well as Mr. Hughes, being represented by Senior and Junior Counsel. None of the applicants were eligible for legal aid and, therefore, were privately represented by solicitors and such counsel. In all, the prosecution was at hearing for eight days between the 23rd June 2009 and the 2nd July 2009. Having been duly charged by the trial judge, the jury, after a short deliberation, returned unanimous verdicts of not guilty on all counts.

3. Following that verdict the within application was moved. It was grounded on an affidavit sworn by Mr. Dara Robinson of Gareth Sheehan & Partners, Solicitors, for the first and second defendants, and opposed on the basis of an affidavit and written legal submissions presented by the Director of Public Prosecutions (“D.P.P.”). Oral submissions were made on behalf of all applicants but primarily by Mr. Diarmaid McGuiness S.C. on behalf of Bourke Waste Removal Limited and Stanley Bourke. Counsel for the other applicants substantively adopted his position. Mr. Paul McDermott S.C. made replying submissions on behalf of the D.P.P. The court is grateful for such assistance.

The Indictment:
4. For the sake of clarity, the terms of the indictment should be set out. The final indictment relied upon at trial contained 20 counts against eight accused. There was substantial repetition in relation to the first seven accused who were waste collection operators. The final accused was not an operator on the market. The indictment, as against Bourke Waste Removal Ltd. and Mr. Stanley Bourke, read as follows:

“CHARGES PREFERRED TO THE JURY AS AGAINST BOURKE WASTE REMOVAL LIMITED

Count No 1

Statement of Offence

Entering into an agreement which had as its object the prevention, restriction or distortion of competition contrary to Section 4(1) and 6 of the Competition Act 2002 being an offence to which s. 8(1) of the Act applies.

Particulars of Offence

Bourke Waste Removal Limited, between the 24th August 2005 and the 2nd day of September 2005, both dates inclusive, within the County of Mayo, being an undertaking within the meaning of Section 3 of the Competition Act 2002, did enter into an agreement with other undertakings, also within the meaning of Section 3 of the Competition Act 2002, which had as its object the prevention, restriction or distortion of competition in the provision of domestic waste collection services in County Mayo by sharing the market for the provision of waste collection services in County Mayo. [Emphasis added]

Count No 2

Statement of Offence

Entering into an agreement which had as its object the prevention, restriction or distortion of competition contrary to Section 4(1) and 6 of the Competition Act 2002 being an offence to which s. 8(1) of the Act applies.

Particulars of Offence

Bourke Waste Removal Limited, between the 24th August 2005 and the 2nd day of September 2005, both dates inclusive, within the County of Mayo, being an undertaking within the meaning of Section 3 of the Competition Act 2002, did enter into an agreement with other undertakings, also within the meaning of Section 3 of the Competition Act 2002, which had as its object the prevention, restriction or distortion of competition in the provision of domestic waste collection services in County Mayo by sharing customers for the provision of waste collection services in County Mayo. [Emphasis added]

CHARGES PREFERRED TO THE JURY AS AGAINST STANLEY BOURKE

Count No 3

Statement of Offence

Being a Director of an undertaking which entered into an agreement which had as its object the prevention, restriction or distortion of competition contrary to Section 4(1), 6 and 8(6) of the Competition Act 2002 being an offence to which s 8(1) applies.

Particulars of Offence

Stanley Bourke between the 24th day August 2005 and 2nd day of September 2005, both dates inclusive, within the County of Mayo, was a Director of Bourke Waste Removal Limited, an undertaking within the meaning of Section 3 of the Competition Act 2002, which said company entered into an agreement with other undertakings, also within the meaning of Section 4 of the Competition Act 2002 and contrary to section 4(1) and section 6(1) of the Competition Act 2002, which had as its object the prevention, restriction or distortion of competition in the provision of domestic waste collection services in County Mayo by sharing the market for the provision of waste collection services in County Mayo and authorized or consented to the doing of acts constituting the entering into the said agreement. [Emphasis added]

Count No 4

Statement of Offence

Being a Director of an undertaking which entered into an agreement which had as its object the prevention, restriction or distortion of competition contrary to Section 4(1), 6 and 8(6) of the Competition Act 2002 being an offence to which s 8(1) applies.

Particulars of Offence

Stanley Bourke between the 24th day August 2005 and 2nd day of September 2005, both dates inclusive, within the County of Mayo, was a Director of Bourke Waste Removal Limited, an undertaking within the meaning of Section 3 of the Competition Act 2002, which said company entered into an agreement with other undertakings, also within the meaning of Section 4 of the Competition Act 2002 and contrary to section 4(1) and section 6(1) of the Competition Act 2002, which had as its object the prevention, restriction or distortion of competition in the provision of domestic waste collection services in County Mayo by sharing customers for the provision of waste collection services in County Mayo and authorized or consented to the doing of acts constituting the entering into the said agreement.” [Emphasis added]

5. The Statement of Offence and Particulars thereof, of Counts Nos. 1 and 2 were identical, save for the subject, in relation to McGrath Industrial Waste Limited (Counts Nos. 5 and 6) and Wheeley Environmental Refuse Services Limited t/a Wers Waste (“Wers Waste”) (Counts Nos. 11 and 12). The Statement of Offence and Particulars thereof, of Counts Nos. 3 and 4 were also identical, save for the subject, in relation to Patrick McGrath (Counts Nos. 7 and 8), Declan McGrath (Counts Nos. 9 and 10) and Paul Francis Gleeson (Counts Nos. 13 and 14). The substance of the charges were that the companies accused, had entered into an agreement which had as its object the prevention, restriction or distortion of competition in the provision of domestic waste collection services in County Mayo, either by sharing the market or by sharing customers. The Directors of those companies were charged with being Directors of companies which had entered into such an agreement and who had authorised or consented to their respective companies so doing.

6. The eighth accused, who was not an undertaking or director of any accused company, was charged as follows on the Indictment:

“CHARGES PREFERRED TO THE JURY AS AGAINST PADRAIG HUGHES

Count No 15

Statement of Offence

Entering into an agreement which had as its object the prevention, restriction or distortion of competition contrary to Section 4(1) and 6 of the Competition Act 2002 being an offence to which s 8(1) of the act applies and as provided for by s 7(1) of the Criminal Law Act 1997.

Particulars of Offence

Padraig Hughes, between the 24th day of August 2005 and the 2nd day of September 2005, both dates inclusive, within the County of Mayo, did aid, abet, counsel or procure Bourke Waste Removal Limited, being an undertaking within the meaning of Section 3 of the Competition Act 2002, to commit an offence contrary to section 4(1) and section 6(1) of the Competition act 2002 within the State, namely entering into an agreement with other undertakings, also within the meaning of Section 3 of the Competition Act 2002, which had as its object the prevention, restriction or distortion of competition in the provision of domestic waste collection services in County Mayo by sharing the market for the provision of waste collection services in County Mayo. [Emphasis added]

Count No 16

Statement of Offence

Entering into an agreement which had as its object the prevention, restriction or distortion of competition contrary to Section 4(1) and 6 of the Competition Act 2002 being an offence to which s 8(1) of the act applies and as provided for by s 7(1) of the Criminal Law Act 1997.

Particulars of Offence

Padraig Hughes, between the 24th day of August 2005 and the 2nd day of September 2005, both dates inclusive, within the County of Mayo, did aid, abet, counsel or procure Bourke Waste Removal Limited, being an undertaking within the meaning of Section 3 of the Competition Act 2002, to commit an offence contrary to section 4(1) and section 6(1) of the Competition act 2002 within the State, namely entering into an agreement with other undertakings, also within the meaning of Section 3 of the Competition Act 2002, which had as its object the prevention, restriction or distortion of competition in the provision of domestic waste collection services in County Mayo by sharing customers for the provision of waste collection services in County Mayo.” [Emphasis added]

Four other Counts were proffered against Padraig Hughes in the same terms except that they related to the two other accused companies; McGrath Industrial Waste Limited (Counts Nos. 17 and 18) and Wers Waste (Counts Nos. 19 and 20). He was therefore charged with aiding, abetting, counselling or procuring the accused companies to enter into an agreement which had as its object the prevention, restriction or distortion of competition in the provision of domestic waste collection services in County Mayo either by sharing the market, or by sharing customers. He was therefore distinct from the other accused, as it was not alleged he actually entered into any agreement.

Jurisdiction Regarding Costs in the Central Criminal Court:
7. This application raises two issues, one relates to the courts jurisdiction to make an award for costs in the present circumstances and the second, assuming there is such jurisdiction, relates to the manner in which the court should approach that decision. Although it is now well established that this Court has such a jurisdiction, it will be useful nonetheless to set out, in brief form, how that jurisdiction evolved. The following appears to be the position:-

(i) Prior to the Supreme Court of Judicature Act (Ireland) Act 1877 (“the 1877 Act” or “the Act of 1877”), the power of common law courts to impose liability for costs rested exclusively upon Statute, whereas the equivalent power of chancery courts, which was discretionary, stemmed from long established and well recognised precedent (Garnett v. Bradley [1878] 3 App. Cas. 944; Whitmore v. O’Reilly [1906] 2 I.R. 357). Since 1877, all such power is legislative dependent.

(ii) Under s. 53 and s. 65 of the Act of 1877, provision was made for the appropriate rule making authority to make rules with regard to costs in criminal proceedings, including indictable trials tried in the then High Court of Justice. No such provision was made either in the 1891 or the 1905 Rules of Court. That situation pertained up to the time when that Court, created by the 1877 Act, ceased to exist in1924.

(iii) Upon the establishment of the Courts of Saorstát Éireann, as provided for by the 1922 Constitution, such courts had the following jurisdiction; firstly, that as given by the Constitution, secondly, that as given by the Courts of Justice Act 1924 (“the 1924 Act” or “the Act of 1924”) and thirdly, that as transferred from the former system, established under the 1877 Act, which ceased to exist, as a system, in 1924.

(iv) Section 22 of the 1924 Act provided that the jurisdiction of the newly created High Court, Supreme Court and of the Chief Justice, shall “as regards pleading, practice and procedure generally, including liability as to costs” [emphasis added] be exercised in the manner provided by Rules of Court. Rules were first made in 1926 pursuant to s. 36 of the 1924 Act, but no provision was made in the relevant Order, namely Order XXVIII, for costs in criminal cases.

(v) Section 22 also provided that in default of any such provision being contained in rules made under the said s. 36, the jurisdiction of the courts referred to, and that of the Chief Justice, in respect of the aforesaid matters, should be “exercised as nearly as possible in the same manner in which it might have been exercised by the respective courts from which such jurisdiction shall have been transferred”. The affect of this part of the section was that any material provision which lawfully existed on the enactment of the 1924 Act, could be applied, inter alia, by the new High Court of Justice in the absence of comparable Rules of Court having been made under the 1924 Act.

(vi) Upon the enactment of the 1924 Act, the 1905 Rules, as such, ceased to exist. However, by virtue of both the default provision contained in s. 22 of that Act and Order XXVIII, r. 4 of the 1926 Rules (which conditionally reinstated the equivalent Order in the 1905 Rules), the newly established courts could apply the practice and rules relating to costs as these existed immediately prior to the enactment of the 1924 Act.

(vii) However, these enabling provisions had no value as rules did not exist, in any regard, to costs in criminal cases.

(viii) This situation did not alter whilst the former High Court continued to exist, that was until 1961.

(ix) The present courts were established by the Courts (Establishment and Constitution) Act 1961, and the High Court in particular, was established by s. 2 thereof. Under s. 14(2) of the Courts (Supplemental Provisions) Act 1961, it was stated that “the jurisdiction which is by virtue of this Act vested in or exercisable by… the High Court… [and] the Central Criminal Court… respectively shall be exercised so far as regards pleading, practice and procedure generally, including liability to costs, in the manner provided by Rules of Court…” [Emphasis added].

(x) In 1962 Rules for the Superior Courts (“RSC 1962”) were made pursuant to that section and certain other enabling provisions. Order 85 dealt with the Central Criminal Court but make no reference to costs. Order 99 dealt with costs. By virtue of the combined effect of s. 14(2) of the Act of 1961 and the said O. 99 RSC 1962, the High Court, to the extent hereinafter referred to, was vested with jurisdiction to deal with costs in criminal cases, being those cases pursued in the Central Criminal Court.

(xi) The provisions last mentioned are those which found the jurisdiction which I have been called upon to exercise on this application.

8. The RSC 1962 were replaced by the Rules of the Superior Courts 1986 (“RSC 1986”). Order. 99 r. 1, which is in identical form to the same provision contained in the RSC 1962, is a simple continuation of the power conferred by the previous Rules and is not the original source of the courts jurisdiction. It reads as follows:-

“1. Subject to the provision of the Acts and any other statutes relating to costs, and except as otherwise provided by these rules:

(1) The costs of and incidental to every proceeding in the superior courts shall be in the discretion of these courts respectively.

(2) No party shall be entitled to recover any costs of or incidental to any proceedings from any other party to such proceedings except under an order or as provided by these Rules.

(3) The costs of every action, question, or issue tried by a jury shall follow the event unless the court, for special cause, to be mentioned in the order, shall otherwise direct.

(4) The costs of every issue of fact or law raised upon a claim or counterclaim shall, unless otherwise ordered, follow the event.

(5) …

(6) …”

9. The summary outlined at para. 7 supra. is a general history of the jurisdictional issue relative to the High Court’s power to deal with, rather than to decide on, an application for costs in a criminal case. As stated this power comes from (i) the enabling section, s. 14(2) of the Courts (Supplemental Provisions) Act 1961, and in particular that part thereof which refers to “…including liability for costs…”, and from (ii) the implementing rule, namely O. 99, r.1 of the RSC 1986 and in particular, by virtue of the phrase therein used “…every proceeding in the Superior Courts” [Emphasis added]. Nothing further turns on the statutory provision but within O. 99 a distinction must be made between civil and criminal proceedings. This arises because the Order applies to criminal proceedings only by reference to the phrase herein emphasised, and not otherwise. This phrase has been held to be sufficiently wide to include trials in the Central Criminal Court: but without it the words used in sub-r. 3 and sub-r. 4, such as, ‘action, question, or issue’, would not cover criminal cases. It has been so decided by The People (Attorney General) v. Bell [1969] I.R. 24: see also Order 125 RSC 1986. Therefore, sub-rr. 3 and 4 are inapplicable to the current application but the remainder of O. 99, r. 1 applies. This distinction may or may not affect the manner in which the court should address the issue before it.

10. Before continuing, mention should also be made of s. 24 of the Criminal Justice Act 2006. This provides at subs. (1) that:

“Where a person tried on indictment is acquitted (whether in respect of the whole or part of the indictment) the Attorney General or the Director of Public Prosecutions, as may be appropriate, may appeal against an order for costs made by the trial court against the Attorney General or the Director of Public Prosecutions in favour of the accused person to the Court of Criminal Appeal.”

However, this section is of little use presently since it provides no indication as to the factors or otherwise which may be relevant or determinative of such an appeal. Nonetheless, it provides explicit recognition of the trial Court’s jurisdiction to award costs against the D.P.P. or Attorney General to an acquitted accused.

11. The seminal case in the present context is The People (Attorney General) v. Bell [1969] I.R. 24 (“Bell”), which gives a complete history of this issue. This case was the first to explicitly recognise the jurisdiction of the Central Criminal Court to grant costs to an acquitted defendant. In the Supreme Court’s decision, which affirmed the High Court, Walsh J., having reviewed the historical situation, outlined what the jurisdictional basis was for the exercise of such power, and confirmed the applicability of O. 99, r. 1, sub-rr. (1), (2) and (5) of the RSC 1962 but not sub-rr. (3) and (4) thereof. The relevant passages of his judgment appear at pp. 49, 51 and 52 of the report. At p. 49 the learned judge said:

“…I take the view that the words “including liability to costs” appearing in s. 14(2) of the Act of 1961 is sufficient to give the High Court the statutory basis for its jurisdiction to impose liability to costs where rules to this effect have been made for the High Court by the rule making authority for the High Court”.

Walsh J. went on, at pp. 51 and 52 to say:-

“Even if one is to raise the centuries-old rule, that an accused person who is acquitted at a trial on indictment was not entitled to any costs of the trial, to the status of a distinct and positive rule, I think that the wording of Order 99, r. 1, sub-r. 1 [of the Rules of the Superior Courts 1962, as made under the Courts (Supplemental Provisions) Act 1961] is sufficiently clear to alter the pre-existing rule or practice. I fail to see how the expression ‘every proceeding’ can be described as a general expression. The phrase ‘every proceeding’ can only be held to include all proceedings of a civil or criminal nature which are within the jurisdiction of the High Court. In my view the case of The State (Minister for Lands and Fisheries) v. Judge Sealy [fn. [1939] IR 21] correctly decided that the words ‘any proceeding in the Court’ contained in the then Rules of the Circuit Court were sufficient to include all proceedings of a civil or criminal nature which the then Circuit Court had power to entertain. This was in contrast to an express provision in the then Rules of the District Court which denied the District Justice, when adjudicating in a criminal charge or complaint, the power to make an order for costs against the Attorney General or a member of the Garda Síochána in his official capacity. … I merely mention these instances of rule-making to support my view that when a rule-making authority uses a phrase like ‘every proceeding’ it means every proceeding within the jurisdiction of the court in question.

I am of the opinion, therefore, that the provisions of Order 99, r. 1, sub-rr. 1, 2 and 5 are applicable to the trial of a criminal charge by indictment in the High Court. … It follows therefore, that under the rule the High Court may impose a liability to costs on either the prosecutor or the defendant … subject to appeal to this Court.”

So the jurisdiction aspect of this application is not in doubt.

The Exercise of the Discretion:

Influence of Civil Cases:-
12. It would appear that there are very few cases on the criminal side in which the High Court has dealt with the issue of costs, but as one might imagine, there are multiple such cases on the civil side. Given the variety of circumstances which may attract inter partes litigation, it is neither possible nor desirable to extensively review these decisions. However reference to some must be made as, in my view, whilst points of distinction arise, assistance can be obtained from such cases.

13. The first decision which I have been referred to is Cooper Flynn v. RTÉ & Ors [2004] 2 I.R. 72. This was an action in which the plaintiff sued the defendants, before a jury, for libel and costs. The trial judge awarded costs against her in favour of the defendants, namely RTÉ, Mr. Charlie Bird and Mr. Michael Howard. She appealed on this and other issues. With regard to costs, she claimed that in two respects there existed “special cause” within O. 99, r. 1 sub-r (3) of the RSC 1986 (see para. 8 supra) and, therefore, the trial judge had erred in his treatment of the cost issue.

14. She argued firstly that by reason of the jury’s finding on Question No. 1, the defendants had failed to establish that she had induced Mr. Howard to avoid his tax obligations and secondly, that the broadcast by RTÉ of Mr. Howard’s allegations in the first place, were central in the initiation of her proceedings. She claimed that these factors, coupled with the length of court time occupied by Mr. Howard’s allegations, constituted “special cause” and accordingly, the order for costs so made should not stand.

15. The Supreme Court rejected her argument, with Keane C.J. pointing out that costs were discretionary and that notwithstanding the answer to Question No. 1, she had otherwise failed to satisfy the jury that her reputation had been damaged. She had been unsuccessful in the core allegation and thereby in having “the sting” of the libel removed: which was that she had advised or encouraged some actual or potential customers of the bank to evade their tax obligations in a certain manner. Consequently, the matters relied upon had no material bearing on the end result. Accordingly, they could not constitute “special cause”.

16. Apart from one particular matter, it is difficult to see how this case can offer much guidance on the present application. The plaintiff, in this private inter partes civil litigation, was unsuccessful. Sub rules (3) and (4) of O. 99, which applied in that case, do not on this application, but this point of difference may have only limited impact in practice. The fact that the judgment relied upon was that of an appellate court reviewing the exercise of a discretionary power, is likewise not highly material as the core rule, sub-r (1) of O.99 was not discussed. However, for present purposes, the case is of note in that the focus of the court’s approach was very much result orientated and not otherwise.

17. Veolia Water UK Plc & Ors v. Fingal County Council [2006] IEHC 240, is another case which has been cited. There Clarke J. made a number of comments about costs in the context of multiple issue complex litigation most frequently seen in the Commercial Court. In essence the learned judge said:-

(i) that notwithstanding the presumptive rule that costs follow the event, the nature of the Court’s discretion is such, that any special or unusual circumstances should be considered and, where existing, should be appropriately weighted, and

(ii) that in certain cases it may be possible for a Court to rely on matters, in addition to the result of the litigation as a whole, when dealing with costs. He instanced cases where discreet or stand alone issues had been identified and had been disposed of by way interlocutory order.

In such circumstances it may therefore be that the ultimate costs award will not solely reflect the eventual outcome.

18. In my view the ultimate issue before a criminal jury is always one of guilt or no guilt. It is not otherwise called upon to decide. Apart perhaps from some argument in the context of a voir dire, I therefore cannot see any direct connection between what Clarke J. was speaking of, as arising in commercial cases, and those at issue in criminal cases.

19. Sometimes it is claimed that by reason of the case falling within a certain class or category, the Court’s discretion, when dealing with an application by an unsuccessful party seeking his costs, is exercised differently. Such cases may relate to a constitutional challenge on educational, religious, environmental or other such grounds, or a challenge based on or derived from EU Law. It is said that such cases usually involve a public interest element and that the issues determined have an overarching influence on society generally or on a particular sector thereof. Examples might be seen in O’Sheil v. Minister for Education [1999] 2 I.R. 321, Lansford Limited v. An Bord Pleanála (No.2) [1999] 2 I.R. 270 and McEvoy v. Meath County Council [2003] 1 I.R. 208 at 228.

20. In more recent times such types of cases have been described as “public law litigation” or as involving “public law challenges”. Dunne v. Minister for the Environment, Heritage and Local Government & Anor [2008] 2 I.R. 775, is a case in point. In that case both the High Court and the Supreme Court dismissed the plaintiff’s constitutional challenge to a provision of the National Monuments (Amendment) Act 2004. Notwithstanding such a result, the learned High Court judge awarded the applicant his costs against the respondents. On appeal the Supreme Court set that order aside and made some general observations on s. 14(2) of the Courts (Supplemental Provisions) Act 1961 and or O. 99 of the RSC 1986 (see para. 7, sub-paras. (ix) and (x) supra). Before referring to those, it is noteworthy to recall that Murray C.J. declined to accept a submission that costs could ever be governed solely by the nature of the issues raised or the designation of the particular proceedings or the personal position of the moving party; for example, an individual having no personal interest in and seeking no personal gain from such proceedings.

21. During the course of the Court’s judgment the Chief Justice said:

“…Order 99……provides that the costs of and incidental to every proceeding shall be in the discretion of the Superior Courts and in particular, at sub-r.4, that costs shall follow the event unless the court otherwise orders. Moreover the Act of 1961 and the Rules of the Superior Courts adopt and incorporate the procedure and practice which applied in our courts for a very long time. There has been no fixed rule or principle determining the ambit of that discretion [Order 99]…”

That passage in conjunction with the remainder of his judgment makes it abundantly clear that all proper matters are to be considered and, depending on context and circumstances, appropriately weighted.

22. Despite the fact that the decision in Dunne was from the appellate court, that the litigation was civil and that Mr. Dunne had lost his challenge in both courts, the judgment of the Court on one aspect of the case has some relevance to the present application. It would appear that the High Court took the view that the Court’s discretion regarding costs in public law litigation was not “in any way dependent on one or more of the issues of fact or law raised, being decided in favour of the plaintiff or the applicant”. In other words outcome was not influential. Commenting specifically on this point, the Chief Justice said:

“Such an approach seemed to discount excessively, if not altogether exclude from consideration, the normal rule that if the issues in the case have been decided in favour of one party that normally means that the successful party is entitled to his or her costs.”

Whilst that observation may be referring back to O. 99, r. 1, sub-rr. 3 or 4, which do not apply to criminal proceedings, (but see para. 35(4) infra.) nonetheless it is clear that in terms of importance and weight, the overall result and conclusion is high amongst the most significant factors to be considered.

23. Whilst the jurisprudence derived from such cases, and others on the civil side, may have to be adapted to meet criminal cases, nevertheless the same is quite valuable in an application such as that presently before me. The jurisdiction for both types of case rests on the same statutory and rule making basis, albeit, with the exclusion of sub-rr. (3) and (4) of r. 1 of O. 99 RSC 1986. Otherwise O. 99 applies to criminal proceedings, as it does to civil proceedings, with the result that the discretionary nature of the order as provided for in r. 1(1), likewise applies to such proceedings

Influence of Court of Criminal Appeal:-
23. Under s. 34 of the Courts of Justice Act 1924 the Court of Criminal Appeal, (“CCA”), in addition to its substantive jurisdiction, had power to make “any order as to costs as may be necessary for the purposes of doing justice” in the case before it. That provision was restricted by s. 8 of the Criminal Justice (Legal Aid) Act 1962 and was repealed in its entirety by s. 13 of the Criminal Procedure Act 1993. The other statutory provision dealing with costs in the CCA was that contained in s. 5 of the Criminal Justice Act 1928, but that section related to the Court’s power, in certain circumstances, to order that the costs of a successful appeal and a subsequent retrial shall be borne by the State. That section, which was repealed by the Criminal Procedure Act 1993, was substantially replaced by s. 4 of that Act.

24. Under O. 125 of the RSC 1986, the CCA is expressly included within the expression “Superior Courts”. Consequently that court would appear to come within O. 99, r. 1 of the 1986 RSC In fact The People (DPP) v. Redmond [2001] 3 I.R. 390 at 409 confirms this point. Thus that court would appear to have power, under the said Order, to award costs in cases determined by it.

25. Redmond is of interest for another reason. In that case, the D.P.P. sought a review of the sentence imposed on Mr. Redmond under s. 2 of the Criminal Justice Act 1993 on the basis of undue leniency. The application failed and Mr. Redmond sought his costs. A debate was had as to what was the jurisdictional basis for the making of such an order. Both s. 34 of the 1924 Act and O. 99 RSC 1986 were identified in that regard. It is clear that neither base could incorporate sub-rules (3) and (4) of O. 99, r. 1. How therefore, should the court exercise its discretion? It held that its previous decision in The People (DPP) v. Hughes (Unreported, CCA, 22nd March 2000) was correct and quoted with approval from page 7 of the judgment of Barron J. in that case who said:-

“The basic facts, we think, are that the Director has brought this application on the basis that he has taken the view that the learned trial judge was unduly lenient. This court has found that this was not so. The event has therefore gone in favour of the accused. It seems to the court that the event having gone in his favour, there is no particular reason why he should not get his costs, … in those circumstances the Court will award him his costs.”

As can be seen, even though the rule-based presumption that costs follow the event did not apply, nonetheless the reasoning within the decision, closely parallels the rule; in that, in the absence of a particular reason, once the event goes in favour of an accused person, costs should follow that event. Therefore, despite the obvious differences between the role of the Central Criminal Court and the CCA, both Redmond and Hughes are helpful in that regard.

Conclusion:
26. On the point at issue, apart from Bell, the only decision which I have been referred to is that of The People (D.P.P.) v. Kelly [2008] 3 I.R. 202 (“Kelly”). No authorities external to this jurisdiction were cited and whilst I recognise that substantive criminal law is peculiar to each State, and is therefore in that regard non-transnational, nonetheless it would have been interesting to note if, and under what circumstances, other similar jurisdictions have dealt with this issue. In any event, before looking at Kelly, it should be noted that the Supreme Court in Bell explicitly refrained from deciding what principles should guide a judge in making such an order, as the appeal before it related solely to jurisdiction. In the High Court, Kenny J. dealt with the issue, although he did not discuss what principles should apply. He made an order granting costs to one of the six acquitted persons but declined to do so with regard to the other five. His reasons appear at pages 36 to 38 of the Report. From that section of the judgment, it is not possible to deduce any rules of general application.

27. The learned Judge’s approach was to consider a practice direction issued by the Lord Chief Justice of England, and to have regard to the decision in R. v. Sansbury, [1959] 1 WLR 1091, and thereafter to make certain observations relative to the case before him. In particular he declined to criticise the Attorney General for proceeding with the prosecution after one of the accused persons had succeeded in a civil action for conspiracy to imprison. In addition it seems clear that he was influenced by a prior ruling of his, which allowed into evidence statements of five of the accused persons but not that of the sixth, who was the only successful applicant in her costs application. Apart from these matters it is not possible to otherwise apply Bell to the present application.

The People (Director of Public Prosecutions) v. Kelly [2008] 3 I.R. 202:-
28. Anthony Kelly, together with several others, was charged with taking part in a plot to murder Brian Fitzgerald at this home in Limerick on the 29th November 2002. After a fifteen day trial he was acquitted, as were two co-accused; one by direction and one by finding. A Mr. Gary Campion was found guilty by the jury of Mr. Fitzgerald’s murder and one James Martin Cahill, who had earlier pleaded guilty to the same murder, was serving, at the time of the trial in November 2007, a life sentence for that crime.

29. The only evidence against Mr. Kelly was that of the said James Martin Cahill, who had been contracted in 2002 to murder Mr. Fitzgerald for €10,000. In essence, this witness claimed to have driven from Portlaoise to Kilrush via Limerick City and arrived back at a particular city location by 20:17 on the relevant date: this timing was a critical element in the prosecution’s case. He went on to say that at Kilrush he went to the home of Mr. Kelly and there, from him, obtained the murder weapon.

30. At least one line of cross-examination pursued by defence counsel was that James Martin Cahill had never travelled to Kilrush on the day in question and that he could have obtained the gun from friends of his or through other criminal enterprises. In furtherance of this challenge, inter alia, two suggestions were made:-

(i) that timing information, obtained by reference to mobile phone calls made by Mr. Cahill or those travelling with him, which had been routed off various masts proximate to the journey, made it physically impossible for this witness to have completed the journey in the time frame required to fit with the prosecution’s case, and

(ii) that the route from Limerick City to Kilrush was “along country roads”.

31. Apart from utilising information via cross-examination, the only evidence called by or on behalf of Mr. Kelly was that of an engineer, who in 2007 had undertaken a similar car journey from Portlaoise to Kilrush and back to Limerick City. This he did for the purposes of getting an approximate time for such a journey. He said that, having left Portlaoise at approximately the same time as Mr. Cahill had, he drove at a constant speed, not exceeding 55 mph: he stopped for petrol for eight minutes and spent extra time getting through Limerick City because of traffic congestion. His ultimate destination time was approximately one hour later than the 20:17 which the prosecution had put on this significant event. In considering whether James Martin Cahill had, in fact, gone to Kilrush the jury was left with this information regarding timing and also with the impression that some part of the route was “along country roads”.

32. Having been found not guilty by verdict, Mr. Kelly applied for his costs against the D.P.P. The application was heard by the trial judge, Charleton J., who having considered the case law set out a number of questions, not intended to be definitive, which should guide the Court in exercising its discretion in this regard. These questions, can be split broadly into two categories; those aimed at the conduct of the prosecuting agencies, and those aimed at the conduct of the acquitted person (although Questions (4) and (5) of the former relate to a Judge’s ruling on an acquittal application, if one should be made). Those which relate to the conduct of the prosecution can be set out in the following abbreviated form:

1. Was the prosecution justified in taking the case through it being founded on apparently credible evidence?

2. Did anything in the investigation by the Gardaí give rise to the existence of a serious inherent doubt as to the guilt of the accused?

3. Was there any indication that the case had been brought against the accused through being based on an abuse of his rights through oppressive questioning which contributed to a confession that was unreliable in law?

4. Was there an acquittal by direction of the trial judge, and if so what were the reasons for such?

5. If there was an acquittal by direction of the trial judge, was this based upon a decision that required the exclusion of evidence, and if so, whether that exclusion was based upon serious, as opposed to a mistaken, abuse of the accused’s rights?

6. Has the prosecution made any serious error of law or fact whereby the case came to be presented on a wrong premise?

The questions aimed at an acquitted person, were:

1. What answer had the accused given to the charge when presented with an opportunity to answer of it?

2. What was the conduct of the accused in the context of the charge that was brought, specifically in terms of whom he was associating with, on what ostensible basis and whether he was responsible for attracting suspicion by such association?

3. What was the conduct of the accused in meeting the case at trial?

4. Whether any positive case was made by an accused such as might reasonably be consistent with innocence: whether any right was exercised to testify as to that case or whether an opportunity was used under the Prosecution of Offences Act 1974 to communicate with the D.P.P. as to the nature of that defence?

5. As with the prosecution, did the defence make any serious error of law or fact whereby the case came to be presented on a wrong premise?

33. In dis-applying the “normal rule and order costs in favour of a successful defendant” (p. 215 of report), the learned judge, in the exercise of his discretion felt entitled to have regard to other information on the timing issue which had not been placed before the jury, apparently because of the illness of a potential witness, and also to take into consideration certain documents made available on disclosure but which likewise had not been placed before the jury: in fact they had never been referred to during the course of the trial. By so doing, when examining the positive case put forward by Mr. Kelly at trial, the judge on the costs application:-

(i) Was told that mobile phone evidence placed James Martin Cahill, and those travelling with him, on the Kilrush side of Ennis at 18:00 or 18:10 on the relevant date: being “the very case the prosecution was making”, and

(ii) Found as a fact that the suggestion, left with the jury, that the roads between Kilrush and Limerick were “country roads”, was in his opinion seriously misleading and lacked candour, as a substantial portion of it comprised dual carriageway with the remainder being a good straight stretch of road. Therefore one could drive in excess of 55 mph and on a substantial portion of it one could pass traffic at speed. The roads were in fact main national thoroughfares, and the description given to a Dublin jury was misleading. The Judge concluded that since:-


“a fact not revealed to the jury in contradistinction to all of the facts which might assist the applicant, calls into serious issue the only positive case as to timings for journey made by the applicant at trial.” (ibid. at para. 25)

34. In addition, the learned Judge contrasted the co-operative attitude of the prosecution with that of Mr. Kelly who, for no reason that the court could see, declined to speak when confronted with the issue at the interview stage of the investigation. Furthermore, James Martin Cahill, a man whom the applicant associated with, was a well known career criminal who had been involved in two armed robberies and had served several periods of imprisonment. He was also friendly with Mr. Kelly’s son, frequented his house and had a relationship with a blood relative. These matters were left unexplained. In view of these facts Charlton J. could see:-

“no basis on which the applicant would not have known the character of James Martin Cahill as it was in 2002. How it was that a friendship existed with the applicant’s son and how it was that he was frequently in the applicant’s house in Kilrush, even leaving clothing there … is unexplained. This was a case of suspicion being drawn by the conduct of the accused onto himself.”

35. Having considered such authorities as were open, the approach which commends itself to me, when applying O. 99 RSC 1986 in practice, is based on the following:-

(1) The primacy of the rule itself: O. 99, r. 1 confers a discretionary jurisdiction regarding costs. It applies to civil cases and since the RSC 1962 (except for sub-rr. (3) and (4)) to criminal cases tried on indictment in the Central Criminal Court. No variation has been made to the rules since then. Therefore, one must assume that the legislature remains satisfied that criminal proceedings should be within its provisions. This is not surprising. Kenny J., in Bell (p. 36), said:

“to most of our citizens it seems wrong that the High Court should not have power to award costs to a person who is accused of a criminal trial and is acquitted. I think that the words of O. 99 are sufficiently clear to make the change.”

(2) The principal rule is sub-r. (1): As I have said it applies to all proceedings in the Superior Courts. It is a discretionary rule. Its scope and extent has been pronounced upon on multiple occasions. Its exercise is not determined by any preset approach, or rigid rules or by fixed principles. It is, of course, influenced by the remainder of O. 99 and, in particular, by sub-rr. (3) and (4). But its discretionary nature remains paramount. However, it would not be correct to say that such discretion is “open ended”; in the sense that it is without limit. When exercising this jurisdiction due cognisance must be had to legal principles and constitutional provisions, neither of which should be impaired nor undermined; unless there exists, external to the jurisdiction, a clear legal basis for so doing. Otherwise, in a matter such as costs, conferred, vested and acquired rights could be seriously eroded.

(3) This rule can apply whether an applicant is successful or unsuccessful in the proceedings in which he is involved. Reference has been made earlier to its application on the civil side, vis-à-vis an unsuccessful party: however, I know of no similar type application on the criminal side and, therefore, I offer no view on whether a different approach should be adopted or different factors should apply in such circumstances.

(4) Subs-rr. (3) and (4) of O. 99 RSC 1986, do not apply to criminal cases: so consequently an acquitted person does not have the benefit of the presumptions therein contained. However, the most significant event in my view is and remains the outcome/conclusion of the case. On the criminal side this is straightforward: guilty, or not guilty. An acquittal, in my opinion, is therefore a highly significant factor which, when appropriately weighted, should be measured as being closely akin to the position of an applicant to whom sub-rr. (3) and (4) apply. Without in any way restricting the discretion involved, the primary approach should be result driven. If this is correct there cannot be any question of weighing up the various factors and whoever tips the scales gets the costs. The starting question must be: why should an acquitted person not get his costs?

(5) In providing for the inclusion of criminal cases within the rule, the legislature was fully aware of the procedural aspects of a criminal trial and also, the substantive provisions of criminal law; both of which differ substantially from actions and proceedings on the civil side. Therefore, I do not believe that the positioning of the onus of proof or the value of the standard of proof are matters of material concern.

(6) Of more significance is the legislature’s knowledge of the respective roles of judge and jury within such a trial. The judge, on application or objection being raised, is frequently called upon to make decisions which, based on well established rules and principles, regulate what evidence, questions or propositions can and cannot be properly put before the jury. In addition, as part of the charge, he must give a balanced view of the admissible evidence and, if necessary, take the opportunity of correcting counsel’s speech, if that should be required. He ensures a trial in due course of law. It is on this evidence, adduced by reference to these safeguards, that the jury returns its verdict.

(7) Given the Judge’s duty to have a trial so conducted, which includes the power to adjourn, or if it comes to that, to discharge the jury, one must assume that trials are conducted in a regular and proper manner. Therefore, I would be extremely reluctant to consider evidence or consult documents available at the time of trial, but which, for whatever reason, were not utilised within that trial.

(8) Furthermore, I believe that the verdict of the jury must be respected and their conclusion should not be second guessed. The entire structure of trial by jury and the substantive constitutional rights of an acquitted person could be impaired if the resulting verdict was undermined. I therefore cannot believe that the D.P.P. can resist an application for costs on the basis that the jury got it wrong.

(9) In furtherance of sub-para (2) supra, it seems to me that on a costs application, no adverse inference should be drawn from the exercise of protected rights. One such right is the right against self-incrimination or the right to silence, which is not only provided for in Article 6 of the European Convention of Human Rights, but also undoubtedly has a constitutional status: see Heaney v. Ireland [1996] 1 I.R. 580. If the situation was otherwise, these rights could be collaterally undermined.

(10) The situation in my view is the same with legislation which under pain of criminal sanction obliges a person to answer, or legislation which allows inferences to be drawn from a person’s failure to account: e.g. ss. 18 and 19 of the Criminal Justice Act 1984. If such provisions are in play at trial, it must be assumed that the appropriate legal consequences (if any) have been dealt with intra trial and that, where material, the verdict reflects these consequences.

(11) Akin to this point is an individual’s right to associate with others, subject to any law regulating such interaction. One of the great protections inherent in an accusatorial system of justice is that an individual cannot be guilty simply by association. If this is correct, as I take it to be, it seems to me that post acquittal, the calibre of that person’s associates is immaterial. As with the right to silence, or the drawing of inferences therefrom, if perchance the character of one’s associates should be material, it must likewise be assumed that any legal effect will have been accounted for as part of the trial and if necessary reflected in the verdict itself.

36. In moving this application, counsel on behalf of their respective clients, referred to Kelly, but distinguished it from the present case and in the process suggested that some of the questions listed by Charleton J. were neither relevant nor material. Counsel complained about the inadequacy of the preceding investigation and, in particular, criticised the Competition Authority in this regard (see para. (F) of the Schedule infra.). They argued that their clients were at all times co-operative, answered questions, even made statements (save for Mr. Gleeson) and supplied all relevant documentation: they had a constant case, acted openly and transparently and they were responsible businessmen with no previous convictions. Finally, they placed much reliance on the short period occupied by the jury with their deliberations.

37. In response, the D.P.P. submitted that the prosecution was not at fault and did not otherwise misconduct itself, that the acquittal application had been unsuccessful and that the prosecution failed because ultimately an essential witness simply “did not swear up”.

38. The proceedings in this case involved cartels; hardcore offences within competition law. These are classic examples of white collar economic crime. The entities charged were trading companies and successful businessmen, with Mr. Hughes being a retired civil servant. None of them were eligible for legal aid. Their defence, therefore, was privately funded, quite a rare occurrence in criminal law. Accordingly, any flood gate argument can be discounted. The trial lasted eight days. At the conclusion of the D.P.P.’s case, applications were made for acquittal by direction. The court refused. The jury deliberated for a total of about 50 minutes, during which time they were redirected after submissions were made. The verdict of not guilty on all counts was unanimous.

39. From the principles outlined above, the starting point in my opinion is that each of the acquitted persons should be entitled to their costs unless substantial reason can be found to the contrary. In considering this matter, I find it unnecessary to review the scope of the investigation which led to the applicants being charged, or the evidence given at trial or the rulings made intra trial. If such an exercise became the norm on a costs application, it would give rise to a case within a case and would lead to the type of analysis which I have conducted but which I do not intend to rely upon. Purely for reference purposes however, I have scheduled that analysis to this judgment.

40. What, therefore, are the substantial grounds which should deny the applicants their costs? As summarised above, the D.P.P. in its submissions sought to distinguish the cases of The People (AG) v. Bell [1969] 1 I.R. 24 and The People (D.P.P.) v. McGinley [1987] I.R. 340 on the grounds that both involved a clear element of prosecution fault, and therefore unless such fault could be established, costs should not be granted to an acquitted person. I cannot agree with this proposition. It is entirely clear from cases such as Dunne and many others, and also from this Court’s view of the relevant principles (see para. 35 supra), that the fundamental starting position must be that costs follow the successful party unless there is some special cause to depart from such practice; and where that provision is departed from, it must be reasoned; based on the overall circumstances of the case. While I accept that in this case the prosecution has not been guilty of any specific misconduct or fault, this cannot in and of itself prevent a successful party from recovering costs. The application of such a presumption would be to read into O. 99 RSC 1986 that which is not there. It would significantly re-write the rules.

41. The direction of an acquittal by the trial judge will mitigate strongly against any resistance to costs being granted to a successful defendant; however, the converse is not the case. The fact that the trial judge, following an application for a direction, refuses to do so, cannot mean that a person then acquitted by a jury may never recover their costs. That would set at nought the value of the verdict. At best this is a weight point and no more. On several occasions the Court of Criminal Appeal has issued strongly worded judgments to the effect that cases should not be withdrawn from juries unless, even with proper charging, the evidence is quite incapable of sustaining a prosecution verdict. That was not the situation in this case. Therefore, the case was left go to the jury. Their verdict speaks for itself. Accordingly, in the circumstances of this case, I attach little significance to the Court’s decision on the direction application.

42. The third point made by the D.P.P. was that its principal witness, as he was described, “simply did not swear up”. In relation to the evidence of Mr. Michael Monaghan, I have reviewed it in extensor (see para. (A) of the Schedule infra.). There is simply no basis to even suggest that this witness was in any way partial, committed perjury, that he obstructed justice, or had deliberate memory loss, or anything like or similar to these occurrences. I found his evidence to be candid and believable. He gave an extensive account of his meetings with Paul Francis Gleeson and the discussions had thereat. He also, on the other hand, believed quite genuinely that none of those involved were engaged in any wrongdoing, and he acknowledged that those of the applicants whom he knew, despite being business adversaries, were persons of good character. I had and have no reason to believe that he was anything other than truthful in his presentation to the jury, and that any evidence left unsaid was not by design on his part. In fact, I think the criticism of him has a strong element of self-service to it. Therefore, the point has no value in this case.

43. As the matters raised by the D.P.P. could not be said to have established substantial grounds or special cause, the above is sufficient to dispose of this application. However, in deference to the submissions made on behalf of the applicants, I should briefly deal with some of the more important points as raised. There is no doubt but that the applicants were all cooperative with the investigations of the Competition Authority, answering all questions put to them, making statements (save for Mr. Gleeson) and providing all required documentation. At all times they maintained their innocence and were consistent as to the grounds upon which they claimed to be so. None of them, as was their right, gave evidence at trial. The meetings between the applicants were to discuss options relating to a joint tender for submission to the local authority and in this regard they engaged the external services of Mr. Hughes. They even consulted with the County Council itself. Therefore, they could not be faulted in this regard. All parties in this case were otherwise respectable persons with no prior convictions. Thus, the facts stand in sharp contrast to those in Kelly.

44. I refer to this submission only because the applicants relied upon it. In my view, if as a result of exercising a legal or constitutional right, the applicants were not in fact in a position to have made the submission last-mentioned, I would still have looked favourably upon their application. In the context of their rights as interviewees, suspects, or accused persons, I could not attribute blame if their conduct was that as permitted by law.

45. With regards to the short time which the jury took to deliberate upon the charges, such could be imbued with a number of meanings, for example: inattention; predetermination; decisiveness; understanding; conviction. Indeed, the reasons for such speed in decision could be due to many causes. However, it is not for this Court to go behind the verdict of a jury. The verdict is the jury’s prerogative, and they may come to that conclusion in any manner those within it so wish; provided it is in line with the oaths they take before the Court when sworn in. For that reason the speed with which the jury returned a verdict cannot be a decisive consideration for this Court in deciding whether or not to grant costs. It is not alleged that any party unduly influenced the jury’s verdict; there is no question of jury tampering or the improper presentation of evidence peculiar to one party so as to mislead the jury. I cannot therefore see how the duration of jury deliberation can determine the matter: if it was otherwise, a deliberation of length, even followed by an acquittal, could deprive an accused person of his costs. That is not the law. A tight verdict is as good as a stunning one. Therefore, the duration point is of little value.

46. In relation to the adequacy or otherwise of the prosecution’s investigation into the matter, short of being glaringly deficient, in which case a direction to acquit may have been granted, this is within the provenance of the prosecution. They may make such inquiries as they deem necessary. It may be that they should have made more extensive investigations as to the circumstances of the agreement, but as was clear from the Court’s refusal to direct an acquittal, they were not woefully inept. Ultimately it must be a matter for the prosecution to decide their lines of inquiry. Nonetheless, undoubtedly in some circumstances, this may be a factor on a costs application.

47. The prosecution in this case ultimately failed to convince the jury beyond reasonable doubt that the accused had committed the crimes with which they had been charged. In this respect one simply cannot say whether the jury may have believed, in whole or in part, the positive case advanced by the accused parties, or else otherwise concluded that the prosecution had failed to make out its case beyond a reasonable doubt. In either situation, the acquittal of the applicants can in no way be attributed to any wrongdoing on their part. As stated by Murray C.J. in Dunne v. Minister for the Environment [2008] 2 I.R. 775 at 784:

“The rule of law that costs normally follow the event, that the successful party to proceedings should not have to pay the costs of those proceedings which should be borne by the unsuccessful party has an obvious equitable basis. As a counterpoint to that general rule of law, the court has a discretionary jurisdiction to depart from that rule of law if, in the special circumstances of the case, the interests of justice require that it should do so.”

Since the applicants were successful in their defence, costs should follow that success. I can see no special reason or circumstance which would require the Court to depart from that position in the interests of justice. In fact, I am firmly of the opinion that, in circumstances where the applicants, having been charged with serious offences, had the means to pay for their own representation, the interests of justice support their application for costs.

48. Ultimately, whilst I acknowledge that subrr. (3) and (4) of O. 99 RSC 1986 do not apply to criminal cases, and therefore a successful party may not rely on the presumption contained therein, the exercise of the Court’s discretion is not unbounded. In exercising that discretion, different weights will attach to the facts which the Court considers. The fact that an accused person has been acquitted must carry with it the greatest weight. The decision as to costs must therefore in reality be primarily result driven. I accept that in some circumstances there may be factors relevant to a particular application which, despite the acquittal of an accused, may ultimately weigh in favour of the exercise of the Court’s discretion against an acquitted person: however such circumstances would have to be weighty and substantial, and, in my opinion, in all likelihood, most notable.

49. In those circumstances, and for the reasons I have given, I therefore grant the applicants the costs incurred by them in, and incidental to, their defence in the Central Criminal Court.

SCHEDULE

(A) The Trial:

The trial took place over the course of eight days between 23rd June 2009 and 2nd July 2009. A number of specific issues should be mentioned in relation to the running of the trial.

The Evidence of Michael Monaghan:-
(1) The first of these relates to the evidence given by a Mr. Michael Monaghan, another waste collection operator in County Mayo, in competition with particularly, inter alia, Wers Waste. He was initially a party to discussions relating to the alleged anti-competitive agreement, but ultimately decided against entering into the agreement, since he did not feel that it was worthwhile financially. Mr. Monaghan was the main prosecution witness, and had made a statement to the Competition Authority in relation to the forming of the agreement between the accused. He was not subject to any agreement to immunity from prosecution, and he was not charged in relation to the alleged agreement. Following an application by Mr. Diarmaid McGuinness S.C., he was informed by the Court that in those circumstances he was not obliged to answer any questions which might or which might tend to incriminate him in any criminal offence. It should be noted that it is not alleged that Mr. Monaghan in any way committed perjury on the Court, and in this regard I would note that the Court found Mr. Monaghan an honest and candid witness. It was not put to Mr. Monaghan at any point by counsel for the D.P.P. that he had altered his position from that given to the Competition Authority, so as to make his evidence more supportive of the accused than the D.P.P., as is now implied. No application to treat him as hostile was made. From the review of evidence below, taken at its highest, Mr. Monaghan’s evidence would, without more, have been sufficient to make out a prima facie case against the accused. However, it is clear that Mr. Monaghan was of the opinion that the accused were persons of good character, who would not have wanted to do anything wrong. Although some concerns had crossed his mind in relation to the heating oil cases (for a brief synopsis see: http://www.tca.ie/EN/Enforcing-Competition-Law/Criminal-Court-Cases/Home-Heating-Oil.aspx), he felt that there was no issue in this case since he was not involved in any price fixing. I would note, however, that much of his evidence implied that there was an objective justification for the alleged anti-competitive agreement, and in that way he supported the defence advanced by the accused parties.

(2) Mr. Monaghan gave evidence at trial that in his opinion the manner of the tender put out by Mayo County Council was “unfair” since it was clear that no single operator, then operating in County Mayo, would be capable of tendering for the whole county, as was required by the Council. It was because of this that discussions were had between the parties so as to submit a joint tender for the County Council’s waste collection service and database. This was the only possible way to defeat a tender from a large operator, for example Greenstar Limited, whose name had been mentioned at the time. He had obtained from Paul Francis Gleeson a draft proposal as to what the split up of the Council’s routes might be, should they submit a joint tender.

(3) Following this, a meeting took place on or about the 24th or 25th August 2005, in the D’Alton Inn Hotel, between Michael Monaghan, Paddy McGrath, Declan McGrath, Paul Gleeson, Stanley Bourke and Padraig Hughes, where further discussions took place. Mr. Hughes acted as mediator in assisting them to reach agreement on submitting a joint tender by the 2nd September 2005 (the deadline date). Attempts were made to agree a tender price of about €1.5 million and the division of routes between the parties should the tender be successful. Discussions also took place about the transfer of certain customers from one operator to another in exchange for certain of the Council’s customers, so as to minimise overlap on routes. A document was circulated which contained suggested shares of customers. Mr. Monaghan stated that he was never of the mind to accept that.

(4) Mr. Monaghan emphasised that the submission of a joint bid was the main topic; with discussion as to routes being more concerned with the practical division of labour, so as not to overlap and replicate work unnecessarily; which was obviously sensible in his opinion. The group did discuss the heating oil cases, but to a man, they all felt that merely by submitting a tender they were doing nothing wrong or illegal. Mr. Padraig Hughes was of a similar opinion. He further felt that there would still have been some competition since not all operators in County Mayo would have been parties to the agreement; there were a number of other operators in the County which were not involved in the discussions, including, inter alia, “Greenstar”, “Hire Service”, “Sweeney”, and “Loftus”.

(5) A further meeting in the D’Alton Inn Hotel took place in the presence of Padraig Hughes, on 29th August 2005, at which further negotiations occurred in relation to the division of customers and routes. He shook hands and agreed in principle to certain divisions between himself and Paul Francis Gleeson, but such was conditional on him considering the matter overnight. A further meeting was then held the next day on 30th August 2005. Mr. Monaghan informed the others that he was not happy with the arrangements for a number of reasons and that he would instead go it alone. Padraig Hughes tried once more to gain his agreement, but ultimately failed to obtain it and, having explained there was no more on offer, Mr. Monaghan left the meeting.

(6) In the course of his evidence at trial he stated that his reasons for withdrawing were that: (i) he had been asked to provide a copy of his audited accounts which he did not wish to provide; (ii) the sharing of bins and routes might be illegal; (iii) the price being paid for the tender was too high since the suggested sum of €1.5 million, for an enterprise which was losing €1.2 million a year, made no sense and, (iv) in any event, because of the number of the Council customers who had already promised to switch to him, regardless of who the business was assigned to, he would be better going it alone.

(7) In relation to the submission of the tender, it was proposed that a new company, nominally called “BMG” or “BMMG”, which would have Stanley Bourke, Declan McGrath, Paul Gleeson and Michael Monaghan as its directors, would submit the tender. Mr. Monaghan was unclear as to what the status of this company would be, e.g. if it would actually trade and if so for how long, but it was clear to him that the routes as divided would, in reality, be operated by the respective companies as they then were. Bourke Waste Removal Ltd. also submitted a tender at approximately the same price, in case there was any issue with the new company not having a waste collection permit.

(8) During cross-examination, Mr. Monaghan was clear that he was not in competition with Bourke Waste Removal Ltd. He felt that Stanley Bourke was a man of good character, who would never have intended to do anything wrong. He also felt that Stanley Bourke would not have gone to the meetings to give away his existing customers or share them. Similarly with Messrs. McGrath he was of the opinion that they were men of good character operating a good service, whom he was not in direct competition with. In his opinion had they believed anything was wrong with what they were doing they would have walked out of the door ahead of him.

(9) In relation to Paul Francis Gleeson, in cross-examination he admitted that he was in competition with him. However, he made it clear that no agreement was ever reached between them that either would give up customers to the other. Any proposed split was purely in relation to the Council customers, which was a matter of practicality if the operators wished to enter any sort of joint bid. Further, he noted that of course no one operator could “own” the customers following the tender and that all that was being purchased was good will. Ultimately, the local operators were left with no choice but to get together if they wanted to make any tender to the Council, since all of them were too small to tender individually, and the only meaningful way to apportion the Council customers was on a geographic basis, based on the location of the operator’s current routes.

(B) Application to Direct Acquittal:-
On 30th June 2009, Counsel on behalf of the accused applied for a direction on the basis that the prosecution had not adduced sufficient evidence, or evidence of sufficient certainty and authority, upon which it would be safe to leave the matter in the hands of the jury. After submissions from Counsel for the D.P.P. and the accused, the Court found on 1st July 2009 that there was a sufficient prima facie case to be put before the jury. The Court was satisfied that the evidence presented at trial was such that it should be left to the jury, based on the Court’s understanding of the relevant law, in particular the application of ss. 4 and 6 CA 2002. Without going into too much detail, the Court found, inter alia, that:

• The opening of the D.P.P. was not unfair or misleading;

• There was evidence that the parties intended a division of areas and/or that the parties intended an exclusivity of certain areas;

• There was therefore evidence which could show that there was an agreement to share markets and/or customers;

• The D.P.P. had adduced sufficient evidence under the heading of agreement and/or the scope of agreements;

• The market for the purposes of the Indictment is County Mayo;

• Once the agreement in question is of the type mentioned in s. 6(2) subss. (a), (b) or (c) of CA 2002, then a presumption comes into play that its object is anti competitive;

• Nonetheless, s. 6(2) CA 2002 only applies to “competing undertakings”, as defined by s. 6(7), and therefore a finding of such would be required before the section is activated;

• The test under s. 6(7) CA 2002 for “competing undertakings” involves a supply-side test, the Court having previously considered what constitutes the “applicable market”;

• In this regard the Court ruled that there was sufficient evidence, if accepted, for the jury to so find;

• The presumption under s. 6(2) CA 2002 could therefore be applicable;

• In relation to mens rea, s. 6(2) CA 2002 operates to impute a presumption that an agreement to share markets or customers has as its object the prevention, restriction or distortion of competition;

• This presumption is of course refutable, and s. 6(3) CA 2002 provides that it shall be a defence to show that the agreement meets the requirements under s. 4(2) CA 2002;

• Even if s. 6(2) CA 2002 did not apply, there was evidence that could go before a jury to the effect that there was an agreement, whereby the parties to it agreed to share customers or markets, and that it could be taken as being calculated to be a restraint on competition in relation to such markets or customers, and could therefore have such as its object;

• Evidence of efficiencies, such as might be considered under s. 4(5), through s. 4(2) CA 2002, will not render the leaving of the case to the jury unsafe;

• The question of whether there is sufficient evidence of efficiencies under s. 4(5) is a matter of fact for the jury to determine;

• Therefore, grounds were not presented which were sufficiently compelling to withdraw the case from the jury.

(C) Following this ruling, it was submitted that, in essence, the D.P.P. had conceded that if the agreement related purely to the sharing of the Council’s customers it would not be prohibited. In those circumstances Mr. McGuinness S.C., supported by the other Counsel for the accused, sought clarification that the case would be left to the jury only on the narrow basis as implied in the opening of Mr. McDermott S.C. Having consulted Counsel for the D.P.P. as to their position, the Court was satisfied that it would be wrong not to allow the accused the concession provided by the D.P.P. and would therefore direct the jury on the more narrow ground of alleged illegality.

(D) The Time Taken for the Jury’s Deliberation:-
Having been duly charged and directed by the Court on 2nd July 2009, the jury retired at 12:32. Requisitions were raised in relation to the direction, some of which were acceded to by the Court. The jury, having been re-directed, were sent to lunch at 13:04. The jury retired for deliberations again at 14:23 and returned with their verdict at 14:45. The accused were found not guilty of all charges laid against them. The total time taken for deliberation by the jury was therefore approximately 50 minutes, for a case involving eight accused and twenty Counts, which had been presented over the course of eight days.

(E) Other Factors raised for consideration in the exercise of the Court’s discretion:

Apart from the issues identified above in relation to the trial, the applicants contend that the manner in which the investigation was carried out by the Competition Authority is a relevant factor for the Court in deciding how to exercise its discretion. In particular the applicants argue, in broad terms, that:

i) The investigation by the Competition Authority was inadequate, and if such had been carried out properly, no prosecution would have been brought;

ii) The prosecution should have looked more closely at potential justifications under s. 4(5) CA 2002, since, if satisfied that the agreement would not be prohibited under s. 4(1) CA 2002, it could not therefore be illegal;

iii) The applicants were engaged in competitive tendering, as envisaged by the Competition Authority in their Greenstar, North Wicklow, decision (Case COM/108/02).

(F) Investigations:-

(1) The applicants contend that the Competition Authority’s investigations into the alleged anti-competitive agreement were inadequate. In particular they say that it failed to properly investigate or establish:

i) the extent of the business of the accused;

ii) the number and location of the customers served by the accused;

iii) what market or markets the accused served;

iv) whether, or if at all, any other company or person competed with the accused in the same market or markets, if any or at all.


As a consequence of the above, no such materials, which would have been of obvious relevance to the case, were forwarded to the D.P.P. or disclosed or put in evidence at the trial in support of the charges. The investigation took a very formalistic approach, and never went beyond identifying that certain persons had been seen together, never fully investigating whether and to what extent the accused were in actual competition with one another.

(2) It was further noted that the accused fully co-operated with the investigation of the Competition Authority in the matter; providing all documentation required of them and making formal statements. Only Paul Francis Gleeson did not provide a formal statement. I might also note that, as was their right, no accused chose to give evidence at trial.

(3) In reply to this allegation, the D.P.P. in its submissions has noted that there is no rule or principle to the effect that expert economic evidence should have been adduced or looked for in this case. Such may or may not be necessary depending on the circumstances of each case.

(4) With regards to the applicability of s. 4(5) CA 2002, I would say that this was dealt with to some extent in the application to withdraw the case from the jury. The Court’s ruling in that regard made it clear that the question of whether or not the agreement was objectively justified was a matter for the jury. In those circumstances I can, at this stage, say unequivocally that it was not improper for the D.P.P. to proceed with prosecution where an accused has merely raised this defence as a possibility. Further investigation may have been prudent, but such is a matter exclusively for the D.P.P.

(G) The Competition Authority decision in Greenstar:

(1) The applicant contends that the prosecution failed to take into account the decision of the Competition Authority in the Greenstar case (Case COM/108/02). In particular, in Enforcement Decision Series (No. E/05/002) on “Alleged excessive pricing by Greenstar Recycling Holdings Limited in the provision of household waste collection services in northeast Wicklow”, Executive Summary, p. 1, and pages 46 and 47 thereof, state that:

“international experience demonstrates that competitive tendering is the best method of ensuring that household waste collection providers deliver consumers good service at competitive prices. This system of competition for the market should replace the existing model of competition within the market, i.e., where waste providers compete side-by-side with each other” (Original emphasis)

The applicants thus argue that they were merely engaging in the method of competition which is expressly sanctioned by that Competition decision.

(2) In this regard I must state, firstly, that in that case no abuse was found. Secondly, I believe that this decision must now be looked at in light of this Court’s decision in Nurendale Limited t/a Panda Waste Services v. Dublin City Council & Ors. [2009] IEHC 588 and Greenstar Limited v. Dublin City Council & Ors [2009] IEHC 589 (both delivered on 21st December 2009), subject to the obvious qualification that those cases related to the Dublin market. Those cases found that even competitive tendering for the household waste collection market may not be objectively justified under s. 4(5) CA 2002, where there is already competition within the market. Nonetheless, I do not feel that the question of whether or not that Competition Authority decision was considered by the prosecution is of any particular relevance in determining this application. I would also add that the complaint is not that the accused engaged in competitive tendering, rather that there was an anti-competitive agreement involving competitive tendering, and therefore the comments relied upon are not strictly relevant in this case in any event.