The High Court has ordered Brian Murphy to pay the respondents’ costs after dismissing his judicial review challenge, but continued a stay on two criminal prosecutions while he has time to appeal.
In a supplemental judgment delivered on 15 June 2022, Mr Justice Garrett Simons ruled on costs and whether the prosecution stay should remain in place pending a possible appeal. The main judicial review had already been dismissed in a judgment delivered on 5 May 2022. Murphy accepted that the respondents were entitled to the costs of the substantive hearing, but opposed paying costs linked to applications for cross-examination and discovery.
The judge said the respondents were justified in resisting Murphy’s application to cross-examine seven people who had sworn affidavits. The central dispute concerned alleged statements by Anna Lynch, a legal executive at the firm acting for the Revenue Commissioners in seeking unpaid tax. The respondents accepted there was conflicting affidavit evidence about a telephone conversation in August 2015, but argued that the dispute did not relate to a legal issue set out in Murphy’s pleaded case.
The judge agreed that the alleged oral statements were not part of the case as pleaded, so resolving that factual dispute was unnecessary to decide the judicial review. Although the main judgment addressed the issue in case it mattered, that did not make cross-examination necessary. The judge also noted that the only other witness actually cross-examined, Aidan Duffy, revealed no significant factual dispute. The respondents were entitled to recover the costs of the cross-examination application.
On discovery, the Court of Appeal had ordered production under one modified category and directed that the appeal costs be costs in the cause. The judge said Murphy had sought more extensive discovery than either court allowed, and applied the same costs approach to the High Court discovery application. As Murphy lost the judicial review, those costs were awarded to the respondents.
The judge ordered the respondents’ costs, including reserved costs, the discovery and cross-examination applications, the substantive hearing, written submissions and the Court of Appeal discovery appeal. Costs are subject to adjudication if the parties cannot agree. Execution of the costs order is stayed pending determination of any appeal, but adjudication may proceed.
The judge described a possible appeal as unlikely to succeed, saying Murphy relied on a written agreement to which the Director of Public Prosecutions was not a party and had not established a link between the Revenue Commissioners’ actions and the independent prosecution office. However, he said the consequences of allowing prosecutions to proceed could be grave if Murphy ultimately succeeded on appeal. The stay on the two criminal proceedings therefore continues for 28 days from perfection of the order and, if an appeal is brought, until its first return date in the Court of Appeal. Both sides have liberty to apply.