The High Court has awarded costs to the Central Bank of Ireland and the State respondents after Liam McCaffrey and Kevin Lunney’s judicial review applications failed.
In a judgment delivered on 1 November 2017, Mr Justice Noonan considered the parties’ applications about costs following his principal judgment of 3 October 2017. He concluded that the respondents were entitled to their costs and that there was no basis to depart from the usual rule that costs follow the event.
The applicants’ counsel accepted that his clients had lost the litigation but submitted that it raised novel points of public importance. He did not seek costs for the applicants, instead asking the court to make no order as to costs. The Bank and the State respondents sought their costs, arguing that the case was not exceptional.
The applicants relied on two issues: whether inquiry members could order costs against them but not in their favour, and what standard of proof applied at inquiries. The judge said those issues could be viewed as novel and of public importance. However, his conclusions on them were essentially obiter because he had already found that the applications failed in limine on time grounds. He said the issues could not be regarded as finally determined.
The judge also considered the applicants’ conduct and how the case had been litigated. He referred to a third issue introduced on the morning of trial without notice to the respondents or the court’s leave. That issue concerned whether the inquiry amounted to the administration of justice and was constitutionally impermissible, and whether the court was bound by a prior determination in Purcell. The judge said the late issue added significantly to the trial’s length and had not been satisfactorily explained.
He also noted that new facts and grounds had been introduced in support of the application for an extension of time without the court’s leave, requiring detailed argument. The principal judgment had described the applicants’ explanations for the delay as contradictory and mutually exclusive. The judge further referred to his conclusion that pursuing judicial review while participating in the inquiry to see which approach might prove more advantageous amounted to an abuse of process and an impermissible collateral attack on unchallenged decisions of the inquiry members.
Taking these matters together, the court ordered that the respondents receive their costs. The judgment addressed costs only; it did not revisit the dismissal of the judicial review applications.