Canada could Teach us a Lesson
Recently in the Supreme Court, Kevin Tracey, a lay litigant, won two important cases against the Irish State and Courts Service. In one case  he was co-prosecutor with his wife Karen, in the other  he was alone. But for the sole reason that he was a lay litigant, he got no costs awarded for his time and labour. Only solicitors and barristers are allowed costs when they win. The rulings not to allow him costs for time and labour were made in the Supreme Court on 25 June 2021. Their hands are tied by Irish legislation. In Canada however lay litigants are awarded such costs. One of the reasons given for this by the Canadian judges was based on Equity. Kevin Tracey’s arguments based on Equity were not dealt with in the rulings - rather were completely ignored by the Supreme Court.
FIRST WIN: SIX PLENARY ACTIONS RESCUED FROM THE BIN
The first of the two cases was won in 2016. He had been fighting it for many years. The background is this: Mr Tracey had been the victim of egregious harassment and persecution by the Irish State and its Courts Service, going all the way back to 2000, as a result of which he prepared and filed six plenary actions against both of them for damages. While he was ill, at the request of the defendants, all six plenary actions were thrown out by the President of the High Court “for want of prosecution” His illness was discounted after his medical certificates (from his general practitioner and the hospital) were rejected as “inadequate”. He applied to the the Supreme Court to have these six cases reinstated in the High Court and he won. [See Indymedia article 27 July 2016]
SECOND WIN- CONTEMPT CONVICTION QUASHED
The second case that he won was in February 2019 and it was a landmark one: During a District courtroom confrontation in May 2006, when trying to clear his name, he was convicted of contempt of court, sentenced to seven days in prison, refused judicial review of the matter - and he served the sentence in the Bridewell and Mountjoy.. This was a big mistake on the part of the Irish State and Courts Service. They had landed themselves in trouble not, as you would expect, for the reason that both of them, through their agents, had maliciously prosecuted Kevin Tracey 31 times on trumped-up charges, but for a technical mistake they made in the process. The judge before whom the alleged contempt had been committed was the same who pronounced the contempt judgement and sentence. This, as he had argued, was contrary to both Irish and European law. The Supreme Court therefore allowed Kevin Tracey’s appeal and quashed his conviction. Contempt will never be the same in Irish courts again. This was a resounding victory. [See Indymedia article http://www.indymedia.ie/article/106913
"COSTS FOLLOW THE EVENT"
Normally, lawyers like to tell us, “costs follow the event”, that is, if you win a case in court, apart from damages, your opponents must cover all the costs you have incurred along the way. These can be quite considerable. Imagine the long hours a legal expert could spend in a law library or elsewhere preparing motions, affidavits, submissions, replying affidavits and replying submissions, Cause Books (in quintuplicate) that satisfy the Rules of Superior Courts, the judges and registrars – not to speak of all the case law they would have to access and study in the process. And the barristers, instructed by their solicitors, must absorb most of that knowledge and present it orally and convincingly to a judge. They have often employed a whole army of helpers to do the heavy lifting of typing, printing, formatting, binding, registering, filing, dealing with the Courts Service, queueing at counters, carrying boxes of files to court, devilling. Barristers, solicitors and their army of helpers must then spend time in the courtroom, maybe a day, maybe a week, maybe longer. It seems fair that those who work so hard to win a case should be paid for all of those services. It seems especially fair when their cause is just.
And, since costs normally follow the event, normally they do get paid for their work by the losers. But there is one glaring exception.
BUT WHEN YOU ARE A LAY LITIGANT, COSTS DO NOT FOLLOW THE EVENT,
In order to win a case, a lone lay litigant must do all the same back-breaking work as the work done by the combined army of barristers, solicitors, secretaries, messengers, devils etc, and must spend far more time consulting legal books or the internet without the benefit of a law library, paid secretary or staff. The time spent is time lost. A layperson’s normal work is not in a courtroom or studying law. Kevin Tracey was a chartered engineer of very high standing who commanded a high salary. But when he was set up by agents of the State and Courts Service and decided to clear his name, his own work had to take second place. Court time interfered with work time. The new work was to clear his name not once or twice but over 30 times in the courts. There were pitfalls along the way, including prison and assaults. Now, when he won two important cases, unlike the barristers and solicitors, he will not get paid for his time and labour. The losers – in this case, the recalcitrant Irish State and Courts Service – will get every penny owed to them in costs. Their wages also. But for the work done by the successful lay litigant – nothing.
Nineteen years ago the Irish Supreme Court amazingly ruled that a lay litigant, even one who is wrongfully obliged to institute or defend legal proceedings, cannot recover any costs. That might appear unjust, Chief Justice Keane remarked, but it was “a matter for the legislature to address.” Nineteen years later, as Kevin Tracey found out last month, the Irish legislature has changed nothing. He too was denied his costs because he is not a solicitor or barrister. In his case, there was no comment from the bench concerning apparent injustice. So, all lay litigant labourers must continue to be deprived of their wages. When I was going to school, depriving labourers of their wages was called “a sin crying to heaven for vengeance”.
When Counsels representing the Irish State and Court Service had objected to his receiving costs because of his lay litigant status, the Court ordered Kevin Tracey to write yet another submission making a case as to why, as a lay litigant, he might be awarded costs. He wrote and filed his submission. He argued from fairness based on the Constitution, from Equity which is still a recognised section of Irish law, and also from case law. In England, since 2011, lay litigants are allowed £18 per hour compensation for time spent and work done. Paltry as the sum is, it’s better than the Irish denial of all wages.
IN CANADA, WINNING LAY LITIGANTS ARE AWARDED COSTS
In British Columbia in 1995, the Court of Appeal went one giant step further. In Skidmore v Blackmore, costs were awarded to the plaintiffs who were lay litigants. The practice has since spread throughout Canada. Judge Cumming and his fellow judges stated scathingly: “the view that costs are awarded solely to indemnify the successful litigant for legal fees and disbursements incurred is now outdated.”
The judges made reference to a passage by Lord Coke in 1884 and its interpretation by Lord Justice Bowen. Interestingly this passage was used by Chief Justice Keane and resurrected by Counsel against Kevin Tracey. But in the words of Mr Justice Cumming: “Bowen L.J. interpreted this passage from Coke to have meant that a party is entitled only to costs that are ‘the exact and natural result of his having been forced into litigation’ . . In my view, the costs that ‘naturally result from having been forced into litigation’ include the costs of preparing and presenting one's own case in court. If this be so, the successful self-represented litigant should be entitled to some indemnification as fair compensation for the time and effort expended.”
The justice and fairness is palpable.
A DIFFERENT STORY IN IRELAND
But on 25 June 2021 in Ireland, Chief Justice Clark with fellow Justices McMenamin and Charleton of the Supreme Court ignored those words of wisdom and ruled that successful self-represented litigants should NOT be entitled to any such fair compensation for their time or labour.
They also ignored the statement of the BC Supreme Court judges who said that there were sound reasons for awarding costs to successful self-represented lay litigants and no good reason why costs should be denied to them.
Having conceded that Canada now adopts a different, fairer approach, their only argument to counter that fact was the rather bald statement: “However, it is clear that those developments [in England, Wales and Canada] stemmed from legislative or rule changes in those jurisdictions which do not have a counterpart in Ireland.” No explanation was given as to how such a presumption is clear. No facts were presented to illustrate its truth. It is not clear. It sounds very similar to an argument I think I heard from Counsel for the Courts Service in oral submission on the day of the hearing. [At the virtual hearing it was difficult to hear Counsel].
And in a direct answer to those who plead that “it is a matter for the legislature to address” here is an
enlightening rebuttal from Canada again: “When everything considered relevant has been weighed and an overruling decision commends itself to a judge, he ought not at that stage to stay his opinion and call upon the legislature to implement it. A final court must accept a superintending responsibility for what it or its predecessors have wrought, especially when it knows how little time legislatures today have (and also, perhaps, little inclination) to intrude into fields of law fashioned by the courts alone, although legislatures may, of course, under the prodding of law reform agencies and of other public influences, from time to time do so.” (at 42)
ARGUMENT FROM EQUITY IGNORED BY IRISH JUDGES
The Irish judges also ignored completely the argument from Equity presented by Kevin Tracey.
In direct contrast, Judge Cumming in Canada had said:: “The common law is moulded by the judges and it is still their province to adapt it from time to time so as to make it serve the interests of those it binds”.
This statement – that it is within the jurisdiction of judges, and their duty, to mould and adapt the law to make it serve the interests of the people who are bound by the law – this is straight from the doctrines and rules of Equity.
In the course of the oral hearing, Kevin Tracey asked the judges if they had read his submission and they said they had. Now, having read their rulings, where so many substantive arguments have been ignored, it is difficult to imagine that their reading of his submission was the rigorous, exhaustive, scrupulously vigilant and conscientious reading that we should have expected of eminent judges whose decisions can often mean life or death to the mere humans that stand before them.