The Court of Appeal has ordered Thomas Fox to pay the respondents’ costs of his unsuccessful appeal and removed his earlier award of 50% of his High Court costs. The court instead made no order for costs in the High Court.
In a ruling delivered on 16 November 2020, President Birmingham, with whom Edwards and McCarthy JJ agreed, addressed costs after the court had dismissed Fox’s appeal on 22 May 2020. The ruling concerned costs only; the appeal had already been decided.
The respondents, who had succeeded on appeal, argued that they should receive their appeal costs and that the High Court costs order should be changed to no order. Fox argued that he should receive the appeal costs, relying on the usual approach that costs follow the event and, alternatively, on the claim that the case raised novel and important legal questions warranting a departure from that approach.
Fox said the relevant “event” was a Programme for Government published on 15 June 2020, after the appeal hearing and judgment. As quoted in his submissions, it committed to access by an independent international judicial figure to original documents concerning several historical events, including the murder of Seamus Ludlow. Fox contended that the commitment was substantially explained by his proceedings. The respondents disputed that position.
The court rejected Fox’s costs arguments. It said the proceedings concerned the murder of Seamus Ludlow, while the programme addressed several historical events that had long prompted public concern and political controversy. The court did not accept that the programme justified the proceedings, and considered the issue one that should have been pursued politically rather than through the courts. It also found that the cited decision in *Godsil v Ireland* did not assist Fox.
The court accepted that the respondents had wholly succeeded on appeal. Applying section 169 of the Legal Services Regulation Act 2015, Order 99 of the Rules of the Superior Courts, or both, it ordered costs of the appeal in their favour. It also set aside Fox’s 50% High Court costs award and substituted no order for costs there. The ruling does not specify the amount of costs.