Former prisoner to get one third of €1m legal costs of taking case

A former prisoner will get just one third of the estimated €1m legal costs of his action in which he got €7,500 damages over his conditions of detention in Mountjoy Prison in 2013, including having to slop out, the Supreme Court has ruled.

The fact Gary Simpson might, "hypothetically" end up owing obligations to his lawyers "is entirely due to his own decisions and conduct", Mr Justice John McMenamin said.

He urged a “common sense” approach by all sides concerning how some 1,500 other cases over conditions of detention should be dealt with.

In cases involving a clear violation of constitutional protections, it might be appropriate for the State to establish, and parties to avail of, formal or informal procedures to vindicate rights, he remarked.

In this case, while Mr Simpson had succeeded on the conditions issue and parts of his claim were “ultimately indisputable”, dishonesty and exaggeration by him in aspects of his evidence was so serious he must pay a “significant penalty” in reduced costs.

A "just and proportionate" response was to award him one third of the adjudicated costs of the 30 day High Court case, he ruled.

After 30 days in the High Court, and two in the Supreme Court, there “must be a question mark whether there was a real correlation between the means adopted to achieve justice and the end achieved in this case”, the judge added.

He also said describing Mr Simpson’s case as a “slopping out” case was “misleading” because his claim concerned a range of features which previously led the court to conclude an infringement of rights and duties. Those concerned a range of issues “of which in-cell sanitation was but one factor, albeit an important one”.

The State previously agreed Mr Simpson was entitled to his costs of the Supreme Court appeal because that had determined the general principles applicable to such cases.

In his 2017 High Court judgment on Mr Simpson's case, Mr Justice Michael White found Mr Simpson's conditions of detention over seven and a half months in Mountjoy in 2013 breached his constitutional right to privacy and his dignity but not his right not to be subject to inhuman and degrading treatment.

Those findings were made in the context of the particular circumstances of Mr Simpson’s imprisonment - a protected prisoner doubled up in a single cell with no in-cell sanitation and on 23 hour lock-up.

Damages were refused because of the judge’s finding that Mr Simpson told some lies and grossly exaggerated some of his evidence.

He also refused Mr Simpson his legal costs against the State but did not order him to pay the State’s costs because of the judge’s criticism of matters including limited access to showers for prisoners on 23 hour lock up.

Both sides appealed aspects of the High Court findings.

Last November, the Supreme Court declared Mr Simpson’s constitutional right to protection of his person was violated by his conditions of detention over the seven and a half months in 2013, including lack of in-cell sanitation, and he was entitled to €7,500 compensatory damages because the conditions to which he, a protection prisoner, was exposed fell “seriously below those to be expected in an Irish prison in the year 2013”.

In its reserved costs ruling on Friday, Mr Justice MacMenamin stressed prisoners, or former prisoners, who bring cases over “very substandard” conditions are entitled to a fair hearing, which Mr Simpson received, and issues of credibility arise in a wide variety of cases.

In deciding costs, he took into account the High Court findings, case law, the nature of the “hard fought” case and Mr Simpson’s conduct.

He said key factors were that the extended scope of the case lay largely with Mr Simpson, he must bear a significant sanction for dishonesty in a number of areas, he had not proven some aspects of the case and the damages were far below the High Court’s jurisdiction.

Countervailing features included the case may have some precedential value and assist in establishing principles or guidelines, that the Supreme Court had varied the declaration in Mr Simpson’s favour and the High Court’s dismissal of a “vast” range of procedural and legal objections by the respondents to the claim.