The Court of Appeal has awarded the Commissioner of An Garda Síochána and the Minister for Justice the costs of an unsuccessful appeal by John Barrett, while staying execution of those costs pending the outcome of the substantive hearing.
In a judgment on costs delivered on 31 August 2023, the court said Barrett had failed to overturn the High Court’s refusal to grant an interlocutory injunction. It also upheld the High Court’s costs order. The court decided the costs issue on written submissions and did not hold the oral hearing requested by Barrett.
The appeal judgment, delivered on 23 May 2023, had treated Barrett’s delay in seeking interim relief as a standalone reason to refuse it. The Court of Appeal said that delay was extraordinary and dispositive of the appeal. It had also discussed arguments concerning protected disclosures, including an error in the High Court’s treatment of the burden of proof. But the court said those observations were obiter and did not change the result on the injunction.
Barrett argued that he should receive the costs of both courts, or alternatively that costs should be dealt with at trial or reserved. He submitted that he had gained a real benefit from the appeal, that damages would not be adequate if he succeeded at trial, and that the protected disclosures issues and the respondents’ conduct justified departing from the usual costs rule.
The respondents argued that Barrett had not obtained the injunction or a tangible benefit, and that the delay finding was an independent basis for refusing relief. They accepted that the appeal judgment identified an error in the High Court’s analysis of some issues, but said it did not affect the outcome.
The Court of Appeal concluded that the respondents were entirely successful in relation to the relief sought. It rejected the arguments that the respondents’ conduct or the protected disclosures discussion warranted departing from the usual rule that costs follow the successful party.
The court stayed execution of the costs until the substantive hearing, saying a set-off issue might arise if Barrett succeeds there. It invited any further views from the parties on delayed execution by email before 15 September 2023, and said it would rule later if necessary.