The High Court has ordered the Minister for Justice and Equality to reimburse Barry White for costs he is liable to pay to the Bar Council of Ireland in his judicial review proceedings, with those costs to be taxed if the parties cannot agree.
Mr Justice Max Barrett delivered the judgment on 31 March 2017. It concerned a further hearing on costs after the court had indicated in December 2016 that it would award costs to Mr White against the State parties and to the Bar Council against Mr White. The issue addressed in this judgment was whether Mr White could recover from the Minister the costs payable to the Bar Council under section 78 of the Courts of Justice Act 1936.
The court considered whether that section allowed a direct “order over” requiring an unsuccessful defendant to pay a successful defendant’s costs. It described the availability of that form of order as a moot point, but said the section empowered a court to order full or partial recoupment of costs that a plaintiff had been ordered to pay and paid to a successful defendant.
The Minister argued that Mr White had brought fundamentally different claims against the Minister and the Bar Council, and that the claim against the Council was unnecessary. The Minister also submitted that the challenge to the Minister’s decision was the relief Mr White wanted, while the findings concerning the Bar Council’s conduct rules were not relevant to that decision.
Mr White’s counsel argued that the Minister’s decision had been influenced by exchanges between the Minister’s representatives and the Bar Council, and that both respondents’ involvement was necessary to address the legal issues. Counsel also said the Bar Council’s court papers disclosed correspondence and a meeting not referred to in the Minister’s initial opposition papers and affidavit.
Justice Barrett concluded that the earlier cases did not confine section 78 to claims involving the same cause of action or a genuine alternative claim. In his view, the central question was whether it had been reasonable in the circumstances to join both respondents. He found that it had: the claims were connected by the underlying issue of how a barrister who had previously been a judge was regulated.
The court therefore ordered the Minister to pay Mr White, in addition to his own costs, the costs he was liable to pay and paid to the Bar Council. The order was for recoupment to Mr White; the judgment did not order the Minister to pay the Bar Council directly.