The Court of Appeal has ordered Graham Whelan to pay the Criminal Assets Bureau’s costs of his unsuccessful appeal against a High Court order under the Proceeds of Crime Act 1996.
In a judgment delivered on 24 April 2023, Ms Justice Butler said the appeal had been rejected in a judgment dated 23 December 2022. The court had then invited submissions on costs within 28 days. CAB made submissions on 12 January 2023; Whelan’s solicitor later said he was awaiting instructions. The court allowed extra time, but no submission was received before that extended period expired.
CAB argued that the usual rule that costs follow the event should apply. It submitted that the appeal raised no issues of general importance or constitutional or European law, and that the nature of the proceedings and order meant public policy considerations weighed against awarding costs to Whelan.
The court said a party that successfully defends an appeal is generally entitled to costs against the unsuccessful appellant unless particular circumstances justify a different order. Under section 169(1) of the Legal Services Regulation Act 2015, the court must consider the case’s nature and circumstances, the parties’ conduct and the statutory factors when deciding whether to depart from that position.
Justice Butler said Whelan had lost on all issues raised and had made no submissions explaining why costs should not be ordered against him. She therefore did not consider CAB’s arguments in detail, but accepted its basic submission that it was entitled to costs as the successful party. The order covers the costs of the appeal. The judgment does not state an amount.