The High Court has ordered each side to bear its own legal costs after refusing an application for an inquiry into the detention of a Castlerea Prison inmate.
In a supplemental judgment delivered on 14 June 2023, Mr Justice Garrett Simons said the application had been refused in a principal judgment on 19 May. The supplemental judgment dealt only with costs. The court had drawn up its order before deciding costs so the applicants could pursue any appeal without delay.
The Governor of Castlerea Prison argued that costs should follow the outcome, which would require the unsuccessful applicants to pay the respondent’s legal costs under the usual approach in civil proceedings. The applicants argued that no costs order should be made, submitting that the constitutional procedure protects the fundamental right to liberty.
The judge said the court had to consider whether it was reasonable to bring the application, even though it had failed. He noted that costs orders may be appropriate where an Article 40.4.2 application was unreasonable, and can discourage misuse of the urgent procedure in cases where an appeal is the proper remedy.
The case raised whether Section 10 of the Non-Fatal Offences against the Person Act 1997 was constitutionally valid. The applicants had argued that it disproportionately interfered with freedom of expression. That argument was rejected in the principal judgment, which also found no proper basis to state a case to the Court of Appeal under Article 40.4.3. The judge nevertheless considered the constitutional validity issue to be of general public importance.
He said most of the applicants’ complaints were more properly matters for an appeal and did not concern the lawfulness of the inmate’s detention. But, taking account of the public importance of the constitutional issue, he exercised his discretion under section 169 of the Legal Services Regulation Act 2015 to make no order as to costs. Each party must bear its own costs.
The judgment also recorded that the applicants had been offered access to the Legal Aid – Custody Issues Scheme and declined. The second applicant presented his case himself with the assistance of a McKenzie friend. The judge said further matters raised by the first applicant were outside the costs issue before the court, which was functus officio. Challenges to the High Court outcome, or to the second applicant’s conviction and sentence, should be brought by appeal.