The High Court ordered the Irish Coursing Club to pay 75% of the respondents’ costs of its interlocutory injunction application, following the court’s refusal of that application in January 2021. The remaining costs, including the costs of affidavits relied on by both sides, are to be costs in the cause.
In a judgment delivered on 5 March 2021, Ms Justice Niamh Hyland considered the parties’ submissions on costs. The Club had asked for the costs to be costs in the cause. The Minister for Health and the Minister for Housing, Local Government and Heritage sought an order for their costs.
The respondents argued that the injunction had principally been refused because the court lacked jurisdiction, having regard to the separation of powers, to grant the mandatory relief sought. They said that issue would not be revisited at the full hearing. They also argued that the court could decide costs because the balance of convenience independently favoured refusing the injunction.
The judge applied Order 99, rule 2(3) of the Rules of the Superior Courts, which provides that costs should be awarded on an interlocutory application unless it is not possible to adjudicate justly on liability at that stage. She said the strength of the Club’s case would be considered again at trial, but the injunction had not been refused because the Club failed to show a strong case likely to succeed. The concern that a trial might reach a different conclusion on that point therefore did not apply.
The judge accepted that the affidavits would form part of the Club’s case at the substantive hearing. She ordered the costs of affidavits relied on by both parties to be costs in the cause, so the Club could potentially recover those costs if successful at trial.
Some separation-of-powers issues might also be revisited at the full hearing, including in connection with declaratory relief or permanent mandatory orders. However, the balance-of-convenience decision would not be revisited, because that test would not apply at trial; the judge had refused the injunction on that basis independently of her conclusions on separation of powers.
Taking the issues together, and adopting what she described as a “broad brush approach”, the judge awarded the respondents 75% of their costs. The rest, including the affidavit costs, were made costs in the cause. The judgment addressed costs only; it did not determine the underlying judicial review.