The High Court awarded the Director of Public Prosecutions 75% of its costs in proceedings brought by William Kiely, who had sought to prohibit his pending criminal trial in the Circuit Court.
In a judgment delivered on 6 May 2021, Ms Justice Miriam O’Regan said she was deciding the appropriate costs order following her judgment of 5 March 2021, when she found against Mr Kiely on his application for prohibition. The May judgment addressed costs; it did not revisit the refusal of the requested order.
The judge considered section 169(1) of the Legal Services Regulation Act 2015, which provides for costs to a party entirely successful in civil proceedings unless the court orders otherwise, taking account of the case’s circumstances and the parties’ conduct. She said the application raised one issue: whether Mr Kiely was entitled to prohibit the pending trial.
Mr Kiely acknowledged at the hearing that establishing prosecutorial delay alone would not be enough; another factor was also required. The court had found prosecutorial delay, but less than Mr Kiely had contended. The additional factor he relied on was not sufficient to justify prohibiting the trial.
The DPP stopped pursuing its assertion that there had been no prosecutorial delay, but Justice O’Regan said this effective concession came only after Mr Kiely’s submissions. The judge also noted that the DPP had argued the issues should more properly be dealt with by the Circuit Court trial judge. The High Court ultimately held that the basis for the prohibition application was properly before it.
Taking those matters into account, the judge departed from the general costs rule and awarded the DPP 75% of its costs of and incidental to the proceedings. She also continued the stay on the Circuit Court criminal trial until the time to lodge an appeal had passed or, if an appeal was lodged, until the Court of Appeal’s first directions hearing.