The Court of Appeal has affirmed High Court costs orders in favour of the Minister for Justice and awarded her the costs of two unsuccessful appeals, to be assessed if the parties cannot agree.
In a ruling dated 27 July 2021, Ms Justice Faherty rejected the appellants’ request to set aside the High Court costs orders and make no order for costs in either the High Court or the appeals. Justices Donnelly and Binchy agreed with the ruling.
The appeals had been dismissed in the court’s principal judgment on 12 April 2021. The appellants accepted they had lost, but argued that the cases concerned an important point of statutory interpretation that had not previously been addressed by an appellate court. They asked the court to depart from the usual rule that costs follow the outcome.
The Minister opposed the request. She argued that the same legal issues had been decided in her favour in earlier High Court cases and that the taxpayer should not bear the cost of unsuccessful litigation. She sought to retain the High Court costs orders and recover the costs of the appeals, including reserved costs, subject to agreement.
Justice Faherty said the Minister was entirely successful in the appeals. She considered whether the statutory factors that can justify departing from the ordinary costs rule applied, and found none did. The appellants had not alleged that the Minister’s conduct in either court justified withholding costs.
The judge also rejected the argument that the lack of an earlier appellate ruling on the interpretation of Regulation 4(5) of the European Communities (Eligibility for Protection) Regulations 2006 was, by itself, enough to justify a different costs order. The appellants’ arguments on that regulation, including reliance on European and Supreme Court decisions, had not succeeded; nor had their other appeal grounds.
The court therefore affirmed the High Court orders and awarded the Minister her appeal costs, to be adjudicated if the parties cannot reach agreement. The ruling concerned costs after the appeals had been dismissed; it did not revisit their substantive outcome.