The High Court made separate costs rulings in four judicial review proceedings concerning the taxation of legal costs. In a judgment delivered on 5 September 2018, Mr Justice White awarded the consolidated applicants the costs of a hearing on mootness, made no order as to costs in three of the individual cases, and ruled that the respondent was entitled to costs in Louise McCutcheon’s case. He invited further submissions on the costs of the costs hearing itself.
The court had decided the substantive mootness issue in November 2017. The proceedings did not go to a full hearing on their underlying disputes. Justice White rejected the applicants’ argument that costs should follow simply because the cases had become moot. He said the court had to consider each case and whether a genuine dispute had arisen, whether proceedings were unnecessary or vexatious, and whether a prima facie issue existed.
The applicants were awarded the costs of the 23 March 2017 mootness hearing, including its preparation and attendance for the reserved judgment. That award did not cover pleadings in the individual judicial reviews.
In James O’Regan’s case, the court found a genuine dispute about the approach to taxation, delay and a later decision by the Taxing Master to recuse herself. Although the court accepted that allegations of wrongdoing had not been established and that some wording in the papers was intemperate, it said the case could have been decided either way had it proceeded to trial. It made no order as to costs.
The court reached the same costs outcome in Michael O’Driscoll’s case, brought on his behalf by his mother and next friend, Breda O’Driscoll. It found a genuine dispute about methodology and delay, and said a court could have decided the matter for either side. The Law Society’s participation as amicus curiae did not affect the costs decision.
Nicola Lambert’s case raised disputes about a taxation hearing that had begun before being adjourned, the Taxing Master’s recusal, and whether another Taxing Master could hear the matter. Justice White found justiciable issues, including the recusal, but concluded that the applicant was not entitled to costs. Because substantial issues could have been litigated, he also declined to award costs against her.
In McCutcheon’s case, the court accepted the respondent’s position that the judicial review was vexatious and bound to fail. It found that information about related proceedings and the respondent’s earlier attempted recusal had not been put on affidavit in the ex parte leave application. The respondent was entitled to her costs. The judgment said the court did not appear to have heard the application on notice and directed that six separate orders be drawn. Costs of the 11 April 2018 costs hearing remained for further submissions.