The Supreme Court has awarded the estate of prisoner P McD half of his High Court legal costs despite his negligence proceedings against the Governor of X Prison ultimately failing.
The costs ruling followed the Supreme Court's unanimous decision in September 2021 upholding the Court of Appeal's reversal of a High Court finding that the Governor had been negligent. A majority of the Supreme Court had also refused to make a declaration concerning P McD's detention conditions and the prison complaints system.
P McD had died by the time of the costs ruling. His representatives accepted that the litigation had ultimately been wholly unsuccessful. Ordinarily, that would mean costs followed the result and could be awarded against his estate.
The Governor sought the costs of the High Court, Court of Appeal and Supreme Court proceedings. The court noted, however, that P McD's estate probably had no assets to meet such an award.
The Supreme Court held that this was an exceptional case. It arose after the Governor himself had commenced separate proceedings when P McD embarked on a hunger strike that threatened his life. The Irish Penal Reform Trust contacted solicitors who agreed to represent the prisoner despite his lack of resources.
The court said the litigation, legal representation and High Court's attention contributed to resolving the crisis and to P McD ending his hunger strike. The proceedings also exposed problems in the prison complaints system and raised wider questions about the legal relationship between prisons and prisoners and the law governing duties of care.
Those factors justified departing from the normal costs rule. However, the court held that P McD should not receive costs for appeals in which he wholly failed.
It ordered that his estate recover 50% of the High Court costs, to be assessed if the parties could not agree the figure. No order was made for the costs of either the Court of Appeal or Supreme Court proceedings.