The High Court has divided costs among four judicial review cases involving prison officers and the Irish Prison Service, ordering each side to bear costs in parts of one case, awarding costs to the respondents in another, and making no costs order in a third.
In a judgment delivered on 28 January 2021, Ms Justice Ní Raifeartaigh dealt with costs and final orders after refusing the four applications in judgments delivered on 3 March 2020. The cases had been heard in June, July and September 2019. The court applied the former costs regime because the proceedings pre-dated the relevant provisions of the Legal Services Regulation Act 2015 and revised court rules, and the parties had not argued that the new regime should apply retrospectively.
In David McDonald’s two cases, the court awarded him costs up to 2 November 2018, including reserved costs, in recognition that the respondents had consented to an order quashing the first transfer decision. The respondents were awarded costs from that date onwards, also including reserved costs. The two sets of costs are to be set off against each other. A legal costs adjudicator may determine the amounts if the parties cannot agree; the judge declined to measure the costs herself. Costs must relate to McDonald’s cases alone, with hearing costs apportioned by the time those cases took. The court also stayed the costs order pending any appeal, with the stay to expire seven days after the appeal period if no appeal is lodged.
The court awarded the respondents their costs, including reserved costs, in Gerald Dowling’s case, limited to costs relating to his proceedings and the portion of the hearing allocated to them. The costs are to be adjudicated if the parties cannot agree, and the same appeal-related stay applies. In the substantive judgment, the court had held that the decisions challenged by Dowling were not amenable to judicial review and, alternatively, found no breach of fair procedures or natural or constitutional justice.
For James Ben Buckley, the court made no order for costs, despite refusing his application. The judge cited the respondents’ unsuccessful argument that the proceedings were moot, the basis on which relief was refused not having been explicitly pleaded or clearly signposted, possible value in clarifying transfers in State employment, shortcomings in the respondents’ evidence noted in the substantive judgment, and Buckley’s distress at the transfer, after which he took early retirement. The costs judgment does not reverse the earlier refusal of the applications.