The High Court refused to revisit its decision to dismiss Sean O’Brien’s proceedings for inordinate and inexcusable delay, and awarded the defendants their costs of the proceedings, including the dismissal motion.
In a ruling delivered on 19 March 2021, Mr Justice Mark Sanfey considered written submissions filed after his substantive judgment of 22 January 2021. That earlier judgment had indicated that the claim would be dismissed and invited submissions on costs and other relevant matters.
The defendants sought their costs, relying on section 169 of the Legal Services Regulation Act 2015 and the usual rule that costs follow the event. The plaintiff’s submissions arrived one working day after an extended filing deadline. The defendants objected to their being considered, but the judge declined that request and took the submissions into account.
The plaintiff argued that the court should have considered a Supreme Court judgment in Andrew Mangan v Julian Dockeray and others, delivered two days before the hearing of the dismissal motion. The judge said it would have been preferable for the decision to have been brought to his attention. However, its omission did not amount to an error in jurisdiction. Any challenge that the wrong legal test had been applied, or that another error of law had occurred, could be pursued on appeal. The High Court could not now use Mangan to reverse the dismissal and move the case into case management. The judge added that, having read Mangan, he would have reached the same decision.
The plaintiff also asked the court to revisit findings and argued that the High Court could not strike out a constitutional challenge without a hearing. The judge said those submissions sought to reargue matters already decided. The statement of claim did not challenge the constitutionality of section 5 of the Civil Service Regulations Act 1956, and the court had not been prepared to address a possible future amendment as though that challenge were already in the proceedings.
The court refused the other requested orders, including liberty to apply in light of unspecified new evidence, a stay of dismissal pending appeal and making the costs of the motion costs in the cause. It ordered dismissal for the reasons in the substantive judgment and awarded the defendants their costs of the proceedings, including the motion, against the plaintiff. The ruling did not determine any appeal.