The Court of Appeal has ordered Michael O’Callaghan to pay the State respondents 77.5% of their costs after dismissing his appeal, reducing the award to account for his reasonable pursuit of a claim concerning delay in the criminal appeal system.
The costs judgment, delivered by Ms Justice Ní Raifeartaigh on 9 October 2020, followed an earlier judgment dismissing O’Callaghan’s appeal on all grounds. The court had also upheld the respondents’ cross-appeal against an extension of time to pursue a claim under section 3 of the European Convention on Human Rights Act 2003.
O’Callaghan asked the court to depart from the usual rule that costs follow the event, arguing that his appeal raised novel legal issues and that it was reasonable to pursue its grounds. The respondents argued that they had been entirely successful and were presumptively entitled to their costs under section 169 of the Legal Services Regulation Act 2015.
The court treated the claims separately. It found no reason to depart from the usual costs rule for the miscarriage of justice claim, rejecting O’Callaghan’s argument that it was inseparable from the delay claim. The respondents had also succeeded on the ECHR cross-appeal, which the judgment said took up a small part of the hearing.
The court reached a different conclusion on the delay claim. Although O’Callaghan lost that part of the appeal, the court said it was reasonable to pursue it because the law on damages for breach of the constitutional right to a trial with reasonable expedition had not been fully defined. It also considered relevant that the earlier judgment had described the case as “borderline”.
The court estimated that the three issues accounted for about 45% of costs for the miscarriage of justice claim, 10% for the ECHR cross-appeal and 45% for the delay claim. It allowed the respondents full costs on the first two issues and reduced by half the costs attributable to the delay issue. The resulting order gives the respondents 77.5% of their costs.