A SOLICITOR has been successful in fighting for his costs to be paid whilst defending a client against whom charges brought by Inland Fisheries Ireland were ultimately struck out.
Gabriel A. Toolan of WP Toolan and Sons Solicitors in Leitrim, instructing Frank Martin BL, brought the application before Judge Sarah Berkley at the District Court Appeals sitting of Cavan Circuit Court.
The initial case was struck out back in December 2023 by Judge Raymond Finnegan when no order as to costs was made. But in the interim, the Circuit Court heard that Mr. Toolan, representing Charles (Charlie) Dolan of Gubaveeny, Blacklion, brought the matter of costs to the Supreme Court for consideration.
Mr. Dolan had been charged by Inland Fisheries Ireland (IFI) with two counts in respect of alleged interference with a fishing spawning ground at Moneen, in the townland of Teebane, on September 20, 2021.
The case was first listed for hearing before Judge Susan Fay in October 2023 when the IFI purported Mr. Dolan, a farmer, had “damaged the bed” of a spawning stream. The defence indicated that Mr. Dolan was entitled to carry out work in the course of protecting his own land from flooding.
The court heard Mr. Dolan had used an excavator to remove “material,” including large boulders, from the stream. These had been swept down by strong currents following heavy rain in the area the month before.
Mr. Martin stated to Judge Berkley that Mr. Toolan, on behalf of Mr. Dolan, had presented a “complete defence” of the allegations. It was then put back to December for additional submissions.
However, a letter was received informing Mr. Toolan that the IFI were “withdrawing the prosecution.”
Mr. Martin said the defence had come at “enormous expense,” which included seeking an engineering report. He added that a prosecution of such nature could have had “significant consequences” for Mr. Dolan had he been convicted.
“Not good enough”
It was “not good enough” that the defence was not entitled to costs. Shane P. Geraghty BL, instructed by solicitor Jacquie Maloney, said that the prosecution had been conducted with “diligence” and on a “bona fide” basis after an IFI official witnessed Mr. Dolan removing material from the stream using an excavator.
“There was no agreement” to allow Mr. Dolan to carry out the digging, and Mr. Geraghty said the defence engineer’s own report accepted the farmer “should have put the IFI on notice” beforehand.
Summonses were issued in March 2022, and Mr. Geraghty said the prosecution had almost a dozen witnesses, including officials from Coillte prepared to testify.
He informed Judge Berkley, when asked why the prosecution case was withdrawn, that “further consideration” was given and there was an unwillingness to allocate any further resources to the matter.
“I’m very surprised to hear that. I don’t think that’s an adequate reason,” remarked Judge Berkley, who suggested that the prosecution should have written to the President of the District Court to seek a special hearing date.
She awarded costs to the defence, taxed on default of agreement.
When asked by Mr. Geraghty whether she would refer the awarding of costs back to the District Court, Judge Berkley asked incredulously: “Are you really asking me for another day out?”
She said she was certain there had been attempts to address this in the background, but she was not willing to refer it to a different court sitting for “another hearing date.”
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