The High Court has ordered Hugh McElvaney to pay the Standards in Public Office Commission’s costs after dismissing his judicial review application in its entirety. The order includes reserved costs, the costs of the costs hearing, discovery and written legal submissions.
Mr Justice Garrett Simons gave the ex tempore ruling on 10 September 2019. The court was deciding costs following its principal judgment, delivered the previous week, which dismissed the judicial review. That earlier judgment is identified as *McElvaney v Standards in Public Office Commission* [2019] IEHC 633.
Counsel for McElvaney sought an order that each side bear its own costs. The arguments included that the application had been dismissed as premature on a complaint of alleged entrapment, although the Commission had argued in its opposition papers that the proceedings were delayed and out of time. Counsel also relied on discovery, saying documents had revealed the precise involvement of a Commission employee in making the television programme at issue.
The Commission argued that the usual rule applied: costs follow the event. The judge agreed. He said the judicial review had failed in full, and that prematurity was only one aspect of the principal judgment. The court had also rejected on their merits other grounds, including the claim that McElvaney should have had a right to cross-examine the undercover journalist.
The judge noted that the Commission had written to McElvaney several times, but he and his solicitors had not responded substantively. He said further engagement might have avoided the perceived need to bring judicial review proceedings.
The ruling also relied on the court’s criticism of the conduct of the case. The judge referred to a serious allegation of actual bias against the Commission that had not been pleaded, and an affidavit filed by the applicant’s solicitor that did not comply with the rules and engaged inappropriately with legal submissions.
On discovery, the judge said no application had been made to amend the proceedings based on the documents disclosed. He concluded that discovery had not advanced the case and should not be treated differently from the other costs. The formal order was to dismiss the judicial review in its entirety and award costs to the Commission on the stated basis.