The High Court made no order as to costs after Cork County Council succeeded in having an arbitrator’s award quashed in a dispute over social and affordable housing obligations. The costs judgment was delivered by Mr Justice Clarke on 12 October 2007, following a substantive judgment on 19 July 2007.
The original challenge concerned how many houses Murphy Construction (Carrigtwohill) Limited had to transfer to Cork County Council under the Planning and Development Act 2000, as amended. The arbitrator had, in substance, accepted Murphy Construction’s proposed method of calculating the number. In the substantive judgment, the court found the arbitrator had erred in law and set aside the award. The arbitrator did not participate in the proceedings.
On costs, the judge said Cork was the winner and was prima facie entitled to its costs against Murphy Construction, despite the company being a notice party rather than a respondent. The court considered Murphy Construction to have acted as the main defender of the challenge. The council had sought costs; Murphy Construction argued that special circumstances justified departing from the usual rule that costs follow the event.
Murphy Construction submitted that the case was a test case on an issue of general application, arising from the difficulty of interpreting the legislation. The judge rejected the argument that the company qualified for the exception sometimes applied to public-interest challenges: its interest was a direct commercial one, in minimising the number of houses it would have to transfer.
The court nevertheless found there was a basis to depart from the ordinary costs rule. It described the legislation as extremely difficult to construe and said the dispute had arisen in part because a public authority had to grapple with it. The judgment noted that similar issues were being litigated alongside a case involving Dún Laoghaire/Rathdown County Council.
The judge declined to award costs to Murphy Construction, which had lost, but concluded that the justice of the case was met by making no costs order. He said Cork should not suffer financial loss for failing to recover costs and expressed the view that the responsible Minister should take appropriate steps within the Minister’s remit to prevent that disadvantage. The court expressly said it had no jurisdiction to require the Minister to pay the costs. The costs judgment did not direct the Minister to make a payment.