The Supreme Court has ordered that Thomas Fox recover half of his costs in the High Court and Court of Appeal, following its earlier dismissal of his substantive appeal. It made no order as to the costs of the appeal to the Supreme Court.
In a ruling delivered by Chief Justice Frank Clarke on 29 September 2021, the Court considered costs after inviting submissions following its 14 September judgment dismissing the appeal. The ruling addresses costs only; it does not alter the dismissal of the substantive appeal.
The High Court had awarded Fox 50% of his costs. The Court of Appeal later made no order as to the High Court costs and awarded the State its costs of that appeal. The State asked the Supreme Court to make no order as to costs in any court. Fox sought his costs in all courts, arguing that the proceedings raised novel and important public-interest issues and that developments outside the litigation had advanced his interests.
The Court rejected the argument based on external developments, including proposed reviews concerning the murder of Mr. Ludlow. It said the statutory costs framework focuses on the result of the proceedings, while leaving open that outside developments might matter in very limited circumstances. It found those developments did not justify departing from the usual approach here.
However, the Court agreed that the case raised novel and important issues and concerned significant failures in the initial investigations by An Garda Síochána. It held that the High Court judge was entitled to treat the case as falling within the public-interest exception to the general rule that costs follow the event, and that the 50% award was within the range reasonably open to her. It therefore restored that award.
For the appellate costs, the Court considered that the case had changed substantially during the appeal process, particularly at the Supreme Court hearing, making the process more complicated and expensive. It ordered that Fox recover 50% of his Court of Appeal costs, varying that court’s costs order. It made no order as to costs in the Supreme Court. The recoverable costs are to be adjudicated if the parties cannot agree.