The Court of Appeal has corrected its account of remarks made at a High Court costs hearing and set the share of costs recoverable by appellant Harry McHugh for two periods of litigation.
In a judgment delivered on 7 April 2025, Ms Justice Hyland said the court had relied in its 11 March judgment on Mr McHugh’s account that the High Court judge said he was unfamiliar with the Aarhus Convention. That account had not been contradicted by the respondents, and the transcript of the costs hearing had not been supplied to the appeal court before it delivered judgment.
After the judgment, the respondents’ solicitors provided the transcript. Hyland said it showed that Mr Justice Nolan had said he was unsure of the procedure for a protective costs order under the Convention. The judge had not said he was unaware of the Convention itself. Hyland described the mischaracterisation as regrettable and said it was important to correct it. She added that the earlier judgment’s basic point remained: State counsel must advise the trial judge on the law, including the Convention’s potential application to the respondents’ costs application.
The April judgment also resolved costs. In March, the appeal court had proposed that Mr McHugh receive 80% of his expenses of defending the High Court motion and bringing the appeal, when he was unrepresented. He sought 80% of his costs from 3 March to 13 December 2023, when solicitors came off the record.
Hyland said that rate would normally be appropriate for that period, but noted that Mr McHugh had drafted three affidavits himself while solicitors remained on record. The court ordered that he receive 50% of costs for that period, limited to costs vouched by his solicitor. For the period after 13 December 2023 to the date of the order, he is entitled to 80% of his expenses in the High Court and Court of Appeal.
The March judgment had allowed Mr McHugh’s appeal against the striking out of the proceedings, while upholding the striking out of his claim that his lands had been unlawfully compulsorily acquired. The April judgment dealt with the correction and costs; it did not revisit those March rulings.