The Court of Appeal set aside a High Court order requiring Clare County Council to pay half the costs of a judicial review over accommodation for a family rendered homeless by two fires. It ordered no costs for the High Court proceedings, but awarded the council the costs of a motion by the family to amend its case. The court’s provisional view was that the council should receive its appeal costs, subject to further written submissions from the family.
The judicial review was brought by David Mongans and Margaret Lisa Mongans, including Margaret Lisa Mongans as mother and next friend of three minor children. The family, members of the travelling community living in County Clare, had been accommodated by the council at St. Enda’s Park, Ennis, and later at a house at 1 Knockanean, Ennis. The judgment says the properties were subjected to arson attacks, with the second fire in May 2015 leaving the family homeless. It records no suggestion that any family member was involved in the fires.
The family received leave to seek judicial review in December 2016, seeking, among other relief, an order requiring the council to provide appropriate accommodation and assess their needs. In March 2017, the council offered the refurbished Knockanean house, but required the family to indemnify it against malicious fire because its insurer excluded such fires from cover. The family rejected the offer as discriminatory. Their attempt to add an ethnicity discrimination claim was refused by the High Court in October 2017, and that decision was not appealed.
At the judicial review hearing in May 2018, the family accepted an offer of another house, subject to the same insurance condition. This effectively disposed of the accommodation issue, leaving costs to be decided. The High Court awarded the family 50% of the costs of the entire proceedings, reasoning that it had been reasonable for them to bring the case and to continue it until the March 2017 offer.
On appeal, the family argued that continuing the case had secured a home in a private estate not designated for travellers. The Court of Appeal rejected that submission, noting the point had not formed part of the pleaded case and that the family had accepted the same insurance condition with the later offer. It found no tangible benefit from continuing after March 2017.
The appeal court said the test of whether it was reasonable to start or continue proceedings was no longer the correct test for costs in a case that had become moot. It concluded there should be no costs order for the High Court proceedings. The family had failed on its amendment motion, so the council was entitled to that motion’s costs. The court also said the council had been entirely successful on the appeal and cross-appeal and gave its provisional view that the council should receive its appeal costs. The family had 14 days to submit written arguments for a different order, with the council given the same period to respond.