Two defendants acquitted of competition offences were awarded 50% of their costs after the Central Criminal Court found that the time the charges remained pending, together with the formality, stress and expense of a jury trial, justified a partial costs award.
In a judgment delivered on 20 December 2011, Mr Justice Cooke said the prosecution had been properly brought and fairly conducted. He rejected claims that investigators had failed to test the credibility of five witnesses or adequately investigate notes suggesting contractors had met for lunch after the meeting at the centre of the alleged agreement.
The defendants had applied for the Director of Public Prosecutions to pay their costs after a jury returned not guilty verdicts on all charges on 27 May 2011, following an eight-day trial. The charges concerned an alleged agreement to submit tenders at no less than €50,000 for each 12-mile stretch of work clearing vegetation along the Ennis to Athenry railway line. The judgment records that this alleged agreement arose after contractors attended a project briefing at Athenry railway station in January 2007.
The court rejected the defendants’ argument that acquittal should create a starting presumption in favour of costs. It held that costs in criminal proceedings are at the court’s discretion, and that an acquittal does not by itself establish an entitlement to an award. The judge said the discretion must be exercised by weighing relevant circumstances in each case.
The defendants argued that the Competition Authority and the DPP had not sufficiently investigated the five witnesses’ accounts or obtained relevant procurement records. Notes disclosed during the trial referred to people meeting for lunch and hearing about alleged mistreatment of an engineer by two defendants. Witnesses denied meeting together or discussing the tenders. The court found that the notes did not establish a culpable investigative failure warranting costs.
The judge identified the time taken to resolve the charges and the jury trial as factors favouring the defendants. The alleged offences dated to 15 January 2007; proceedings began in 2008, were interrupted by a procedural and jurisdictional issue, and the trial concluded in May 2011. The court said the defendants were not responsible for the delay.
It also considered that the Competition Authority had initially assessed the case as suitable for summary trial. The judge described the alleged conduct, on the evidence originally provided, as an ad hoc or spontaneous attempt that came to nothing beyond the collapse of the procurement process. The order awarded 50% of the costs incurred to John Joe McNicholas, trading as John Joe McNicholas Plant Hire, and Oliver Dixon (Hedge Cutting and Plant Hire) Limited. The judgment does not award costs to Oliver Dixon personally.