The Court of Appeal has directed the Minister for Justice and Equality, the Attorney General and Ireland to pay the appellant’s full costs of the High Court proceedings, while reducing the appellant’s appeal costs by 10%. The ruling on costs was delivered remotely on 26 July 2022 by Mr Justice Tony O’Connor, with Ní Raifeartaigh and Power JJ indicating their agreement.
The appeal concerned a review decision made by the Minister on 5 October 2016. In its judgment delivered on 7 April 2022, the Court of Appeal indicated it would quash that decision by an order of certiorari. After the parties addressed what should happen next, the court said the decision would be remitted to the Minister for reconsideration. The appellant’s solicitors also confirmed they would not pursue further argument about whether the available review mechanisms provided an effective remedy under Articles 30 and 31 of an EU directive.
The remaining question was costs. The appellant sought full costs, saying it had succeeded on the issues determined and that the effective-remedy argument had not prolonged the oral hearings. The respondents argued for a partial costs order because the appellant had included that issue in the appeal and later chose not to pursue it.
The court distinguished between the High Court proceedings and the appeal. For the High Court, it found no evidence that the effective-remedy issue took time in oral submissions. It also noted that the appellant had not pursued the issue to any significant extent in that court. The judge said that, had the High Court found for the appellant as the Court of Appeal had now done, the appropriate course under the costs rules then in force would have been to award the appellant costs.
For the appeal, the court said the issue had featured in detailed written submissions and remained technically live until after the April 2022 judgment. The Minister had to prepare a detailed response, and written submissions were particularly important given the limited oral hearing time in the Court of Appeal. The court therefore ordered the respondents to pay 90% of the appellant’s appeal costs, including any reserved costs and costs of written submissions.
The ruling also said the appellant’s earlier offer to compromise the appeal did not materially affect the reduction because it did not refer to the abandoned argument. The costs ruling did not itself determine the effective-remedy issue; that argument was not pursued to final determination.