The High Court has ordered Denis O’Brien to pay the defendants’ costs after ruling that the case did not meet the threshold for the exceptional costs order he sought.
The costs judgment, delivered by Ms Justice Ni Raifeartaigh on 2 May 2017, followed the court’s substantive judgment on 31 March 2017. Both sides sought an order requiring the other to pay costs. The defendants relied on the usual rule that costs follow the event; O’Brien argued the court should use its discretion to award costs to a losing party in exceptional circumstances.
The judge said O’Brien brought the proceedings primarily to vindicate his own interests. The issues could also affect others in similar positions and had a public-interest dimension, but the case was not brought solely on a matter of general public importance without potential personal benefit. That factor did not materially advance his claim for costs.
The judge considered whether the case raised novel and important legal questions. O’Brien’s side argued that the case involved the deliberate disclosure in the Dáil, on successive dates, of confidential information covered by a court injunction. It said this raised new questions about the scope of constitutional privileges and immunities and whether an exceptional jurisdiction could apply. The defendants argued that established principles governing Article 15 of the Constitution resolved the issues.
The court found that some parts of the case involved straightforward application of existing law. Other aspects required more than that, given the unprecedented factual scenario and the need to examine the scope of Article 15.12 and 15.13 and whether an exceptional jurisdiction existed. But the legal novelty was insufficient to justify departing from the ordinary costs rule.
The judge also rejected several other considerations as grounds for awarding costs to O’Brien. She was not persuaded that changes in his position during the proceedings showed bad faith, though they made the defendants’ response more complex and time-consuming. She treated the decision not to sue individual deputies or seek damages as tactical choices based on legal advice, and left aside O’Brien’s statement that he would have sued even if the Committee had ruled in his favour because it could be interpreted in different ways.
The court did not take account of alleged damage to O’Brien, saying that doing so would indirectly censure the Oireachtas, which the substantive judgment had declined to do. It also did not weigh his financial means, finding no issue of hardship. The order was limited to costs: the plaintiff was directed to pay the defendants’ costs.