The Court of Appeal ordered John Casey to pay C’s properly incurred expenses of an appeal that secured leave to issue intended civil proceedings. Payment and execution are stayed until those proceedings are finally determined. The court reserved the costs and expenses of the High Court leave application to the judge who will determine the intended proceedings.
The costs judgment, delivered electronically on 21 March 2022, followed the court’s 2 February 2022 decision allowing C’s appeal from an order made by Barrett J. on 31 May 2018. The appeal court substituted an order granting C leave under section 73 of the Mental Health Act 2001, as amended, to issue proceedings in the form of a draft Civil Bill submitted to the court.
The costs judgment addressed the High Court application heard on 13 February 2018 and the appeal. It said the Court of Appeal had no jurisdiction to make an order about costs or expenses from an earlier application, because that application was not the subject of an appeal. The earlier application, made on 18 January 2016, sought retrospective leave concerning Circuit Court proceedings begun by C in 2014. Barrett J. had initially granted that application but revoked the order on 24 April 2017, citing lack of jurisdiction to grant leave retrospectively.
The court said costs of a section 73 leave application would generally be reserved because granting leave does not decide whether the intended claim will succeed. The leave threshold requires refusal only in specified circumstances, including where the proceedings are frivolous or vexatious, or where there are no reasonable grounds to contend that the person acted in bad faith or without reasonable care. The court therefore set aside the High Court order that had awarded costs to the respondent and reserved both sides’ High Court costs or expenses to the trial judge.
For the appeal, the court applied the normal rule that costs follow the event: Casey had opposed the appeal and lost. The court said its conclusion followed from examination of affidavit evidence, including a Custody Record, hospital records and later emails exchanged by the parties. It considered that Casey should have allowed leave to be granted, avoiding a second hearing. C was self-represented and could not claim legal or professional costs; the award was limited to properly incurred expenses. The intended proceedings’ merits remain for determination, and the judgment did not decide their outcome.