The Court of Appeal has ordered Olumide Smith to pay Cisco Systems Internetworking (Ireland) Limited’s costs of his unsuccessful application to recuse two judges from hearing his appeal. It stayed execution of the costs order until the appeal concludes.
The judgment, delivered by Ms Justice Máire Whelan on 4 October 2023, dealt only with costs arising from the recusal application heard on 16 March 2023. The court had already rejected that application in a judgment reported as [2023] IECA 186. The present judgment did not determine the underlying appeal.
The court said the recusal application was wholly unsuccessful and that Cisco was entirely successful in opposing it. Applying the statutory and court rules on costs, it said the successful party should generally receive its costs unless the circumstances justify a different order.
Smith argued that it would be unfair to make him pay costs because he had complied with confidentiality obligations under the Judicial Council Act 2019. The court said he could have alerted Cisco that he intended to seek recusal without disclosing confidential details. Cisco had no advance warning of the application when the appeal hearing was due to begin, but the court said this was not a reason to depart from the usual costs approach.
Smith also relied on his unemployment and financial circumstances. The court accepted that he was unemployed and understood that he was experiencing financial hardship, but held that this alone did not justify refusing Cisco’s costs. It found no relevant conduct by Cisco that warranted reducing or denying the award. The court also said Smith had not established that it was reasonable or proportionate to pursue the recusal application.
The order awards Cisco the costs of the interlocutory recusal application, to be ascertained if the parties cannot agree. Execution is stayed pending the conclusion of Smith’s appeal. Whelan J said Justices Binchy and Allen concurred.