The Court of Appeal has set aside a High Court order requiring a Garda superintendent to pay costs in proceedings over an application to revive off-licences for a Spar supermarket in Cloghan, Co Offaly.
The appeal was limited to the costs order. The Court of Appeal did not reconsider the High Court’s opinion on the legal questions referred to it, or decide the underlying licence application. That application may proceed in the District Court.
Galfer Filling Station Limited applied in June 2019 to revive wine, beer and spirits off-licences attached to the premises. The District Court judge was not satisfied that Galfer’s franchise agreement established the necessary entitlement to apply. She referred two questions to the High Court: whether the agreement gave Galfer a sufficient estate or interest in the premises, and whether its lawful occupation entitled it to apply in its own name.
The superintendent, served as a statutory notice party, told the District Court there was no Garda objection. In the High Court, he maintained a neutral position on the answers to the questions. The High Court concluded that Galfer had a clear entitlement to occupy the premises, sufficient for the licence application, and later ordered the superintendent to pay Galfer’s costs. The judge considered there had been an “event” because the opinion allowed the application to proceed.
The superintendent appealed that costs decision. Galfer argued, among other things, that the appeal required High Court leave under section 52(2) of the Courts (Supplemental Provisions) Act 1961. The Court of Appeal rejected that jurisdictional objection, finding the provision did not clearly extend its leave requirement to a separate appeal confined to costs.
The Court of Appeal held that the superintendent had not opposed the application, had no private interest in its outcome and had not caused the District Court to seek the High Court’s opinion. The referral was made by the District Court judge, who wanted legal advice in light of an earlier Court of Appeal decision. The court said the superintendent’s submissions were appropriate to assist the High Court and did not undermine his neutrality.
The court allowed the appeal and set aside the High Court costs order. It concluded that, in the circumstances, the superintendent could not fairly be treated as an unsuccessful party, and there was no basis to make him pay Galfer’s costs. The court’s judgment stated that Galfer should pay the superintendent’s appeal costs, subject to written submissions if Galfer sought a different order. The judgment does not record a final determination of that appeal-costs issue.