The Supreme Court has awarded Gavin Sheridan all of his costs in the High Court proceedings arising from a Freedom of Information Act appeal. It made no order for costs in the Supreme Court and did not make an order concerning Court of Appeal costs.
Sheridan applied for costs against the Minister for Communications, Energy and Natural Resources. The Minister argued that Sheridan’s opposition to the appeal had been unsuccessful and that a notice party would usually bear their own costs. The Minister also argued that Sheridan’s submissions echoed those of the Information Commissioner, without a separate legal opposition.
The Supreme Court said Sheridan’s arguments were not wholly successful. It found that his focus was primarily to support the Commissioner’s argument, and that he could not be said to have succeeded in the appeal. However, the Court said the submissions had benefited its consideration of the correct approach to the issues.
The underlying judgment, delivered on 25 September 2020, quashed the Commissioner’s decision of 30 November 2015 and remitted the matter to the Commissioner for further consideration in light of the Court’s reasoning. The Minister had succeeded in arguing that the Commissioner applied too high a threshold by requiring “exceptional circumstances” to justify refusing release. The Court also rejected the Minister’s position that the statutory presumption in favour of release did not apply to exempt records or to both parts of the public interest test under section 36 of the 2014 Act. The Minister’s cross-appeal was dismissed.
The Court said the FOI Act’s costs provisions did not provide for costs to a notice party or costs against another party. It considered the general principle in section 169 of the Legal Services Regulation Act 2015 that an entirely successful party is entitled to costs, subject to specified factors.
The Court chose to award Sheridan all of his High Court costs as the more just and cost-effective approach. It made no order as to costs in the Supreme Court. Because Sheridan had not applied for costs in the Court of Appeal, the Court made no order for that stage. It said the net effect was that he obtained full costs in one court only.