The Court of Appeal has ordered Thomas Fox to pay the costs of his unsuccessful appeal and set aside an earlier order awarding him 50% of his High Court costs.
In a costs ruling delivered on 16 November 2020, President Birmingham, with Edwards and McCarthy JJ agreeing, said the respondents had wholly succeeded in the appeal. The court ordered costs in their favour. It also ruled that there should be no order for costs in the High Court, replacing the earlier award of 50% of Fox’s costs.
The appeal itself had been dismissed in judgments delivered on 22 May 2020. The respondents—the Minister for Justice and Law Reform, the Attorney General and Ireland—argued that their success entitled them to the appeal costs and that Fox should not retain the partial costs award made by the High Court, where he had also been unsuccessful.
Fox argued that he should receive the costs of the appeal. He said costs should follow the event, which he identified as the publication of the Programme for Government on 15 June 2020. That programme included a commitment to provide an independent international judicial figure access to original documents relating to several historical events, including the murder of Seamus Ludlow, the subject of these proceedings.
In the alternative, Fox submitted that the case raised novel and important legal points warranting a departure from the usual costs rules. He relied on the Supreme Court decision in *Godsil v Ireland* [2015] 4 IR 535.
The Court of Appeal rejected those arguments. It said *Godsil* did not assist Fox and was not persuaded that the Programme for Government commitment was substantially explained by these proceedings. The ruling noted that the programme addressed several historical events that had long been the subject of public concern and political controversy. In the court’s view, the issue should have been pursued in the political arena rather than through the courts.
The ruling addressed costs only. It did not revisit the dismissal of the appeal. The court said its costs order followed from the respondents’ success, under section 169 of the Legal Services Regulation Act 2015, Order 99 of the Rules of the Superior Courts, or both.