The High Court made no order as to costs in proceedings brought by Ryanair Limited and Aer Lingus Ltd, treating the applications as a test case involving a novel question about litigation privilege.
Mr Justice Max Barrett delivered the costs judgment on 5 May 2017, following the court’s principal judgment in Ryanair Limited v The Revenue Commissioners & ors [2016] IEHC 727. The issue at this stage was how the costs of the applications should be dealt with. The judgment does not repeat the underlying findings.
The court said the issue remaining at the hearing had been whether litigation privilege could apply to communications between Ireland and the European Commission during a State aid investigation. It noted there was no authority directly on point. In the principal judgment, the State parties had won that issue.
The State parties argued that costs should follow the event. The airlines sought a more nuanced costs order or no order, relying on principles concerning complex litigation and test cases.
Mr Justice Barrett said the principles for apportioning costs in especially complex litigation did not fully apply. However, he found that the parties’ exchanges before the hearing and the State’s practical difficulties in meeting discovery obligations warranted considerable allowance when apportioning costs. About 22 months passed between agreement on the discovery to be made and the plaintiffs receiving an affidavit of discovery. The court said it could not determine whether discovery would have been made by then without the approaching hearing date.
The judge also concluded that the applications qualified as a test case. The legal question was uncertain, had the potential to affect many cases, and the applications were among the small number first tried that clarified the legal issues. He noted that the principal judgment placed emphasis on Article 4(3) of the Treaty on European Union and could potentially affect other cases involving the State and the European Commission, subject to any appeal.
Having regard to that test-case conclusion and the discovery circumstances, the court ordered that there be no order as to costs. The judgment determined costs only.