The Court of Appeal has set aside an order requiring the Minister for Justice and Equality to reimburse Barry White for costs he was liable to pay to the Bar Council of Ireland after losing claims against it.
The appeal concerned only that additional costs order, known as an “order over”. The High Court had refused Mr White’s claims against the Bar Council but granted some relief against the Minister. It awarded the Bar Council its costs against Mr White and awarded Mr White his costs against the Minister, Ireland and the Attorney General. That part of the costs order was not appealed.
The Minister appealed the separate order requiring the Minister to cover Mr White’s liability for the Bar Council’s costs. The High Court had made it under section 78 of the Courts of Justice Act 1936, which allows a successful claimant, in certain circumstances, to recover from a successful defendant the costs payable to another defendant against whom the claimant failed.
The Court of Appeal allowed the Minister to raise a new argument that judicial review was not a “civil proceeding” under the section, although that point had not been made in the High Court. It rejected the argument: judicial review proceedings are civil in nature and are not excluded from section 78 on that basis.
However, the court held that section 78 applies where defendants may be liable, jointly or separately, for the same wrong arising from the same facts, and the claimant cannot know which may be found liable. It said the provision did not extend to distinct claims merely because they shared some factual background.
Mr White’s claims against the Bar Council concerned the lawfulness of a rule in its Code of Conduct and related decisions about his readmission to the Law Library. His claims against the Minister challenged the refusal to include him on the panel of counsel eligible for payment under the Criminal Legal Aid Regulations and related conditions. The court said the relief sought against either respondent could not have been granted against the other.
The High Court had considered the proceedings “fundamentally joined together by the circumstances”, including the regulation of a barrister who had previously been a judge. The Court of Appeal said that shared context did not establish jurisdiction under section 78 to make the order over. It allowed the appeal and vacated only the part of the High Court’s 5 April 2017 order requiring the Minister to reimburse the Bar Council costs. The other costs orders were not before it.