The Court of Appeal made no order for costs against Judge Cormac Dunne after Brendan Kilty won an appeal over the High Court’s handling of costs in long-running judicial review proceedings. The court said the separate question of costs in the original High Court case remained for that court to determine.
In a judgment delivered on 22 March 2018, Mr Justice Gerard Hogan said the appeal would ordinarily have led to costs being awarded to Kilty against the losing party. But the court held that Dunne could rely on the judicial quasi-immunity from costs described in earlier cases.
The dispute began after Dunne, then a District Court judge, rejected Kilty’s objections to the renewal of an auctioneering licence for Campion Property Consultants Ltd. Kilty sought judicial review, alleging objective bias and close connections between the judge and the company’s legal team. In October 2011, the High Court found a breach of Kilty’s right to fair procedures and quashed the challenged orders. It made no finding of subjective bias.
The High Court initially ordered Dunne to pay costs to Kilty and Campion. The Supreme Court later set aside that costs order because Dunne had not been given notice that costs might be sought against him. It remitted the costs question to the High Court. On its return, the High Court made no order as to costs, considering itself bound to do so by the Supreme Court’s order. Kilty appealed, and the Court of Appeal ruled on 17 October 2017 that the High Court had to reconsider the question.
The issue before the Court of Appeal in this judgment was narrower: who should pay the costs of Kilty’s successful appeal. Hogan J said the judge’s participation in the later costs proceedings did not amount to defending the validity of the District Court order that had been quashed. The court also found no mala fides or impropriety in Dunne’s conduct of this appeal; his interpretation of the Supreme Court order had been an error, but not impropriety in the relevant sense.
The court therefore made no costs order against Dunne for the appeal. Hogan J stressed that the ruling expressed no view on the merits of the wider costs question, which remained for the High Court in light of the Supreme Court order and the Court of Appeal’s October 2017 ruling.