The Court of Appeal has ordered John O’Connell to pay the costs of three respondents after dismissing his appeal in proceedings concerning a Taxing Master’s refusal to recuse himself from a costs taxation. The order is stayed if O’Connell applies for leave to appeal to the Supreme Court.
The ruling, delivered by Mr Justice Murray on 6 October 2021, dealt with the costs of the appeal. In an earlier judgment dated 1 July 2021, the court had upheld the High Court judge’s refusal to grant O’Connell leave to seek judicial review. That challenge concerned the Taxing Master’s refusal to withdraw from further involvement in the taxation of costs in proceedings between O’Connell and the Building and Allied Trades Union (BATU). The court had also rejected his challenge to the validity of provisions in Order 99 of the Rules of the Superior Courts.
O’Connell argued that he had succeeded on an issue about whether a party had to be put on notice at the leave stage, and asked the court either to award costs in his favour or make no order for costs. He also raised concerns about alleged conflicts of interest and bias involving the Taxing Master, arguing that the matter was of public importance.
The third, fourth and fifth respondents sought an order for their appeal costs, to be assessed if the parties could not agree. They argued that they had been entirely successful and that there were no special reasons to depart from the usual costs rule. They relied on the costs principles under section 169 of the Legal Services Regulation Act 2015 and cited *Chubb European Group SE v The Health Insurance Authority*.
Murray J agreed with the respondents. He said O’Connell had not succeeded on any issue. The court’s explanation that a notice party can be joined after the leave stage did not alter the fact that the High Court judge was entitled to refuse leave, including because BATU had not been formally brought into the proceedings. The appeal judgment had also identified other procedural failures, including O’Connell’s failure to put the challenged decision before the High Court.
The court said O’Connell had failed to establish an arguable case of bias. It ordered costs against him in favour of the third, fourth and fifth respondents, subject to a stay if he applies for leave to appeal to the Supreme Court. Whelan J and Pilkington J agreed with the ruling and proposed order.