The Court of Appeal has refused Barry Sheehan’s request to avoid costs after his statutory appeal was dismissed, ruling that he could not establish a basis for departing from the usual rule that costs follow the event.
In a costs judgment delivered on 4 June 2020, Ms Justice Costello said the rule under Order 99 of the Rules of the Superior Courts had also been given statutory effect by section 169(1) of the Legal Services Regulation Act 2015. The losing party bore the onus of showing special circumstances to justify a different order. The court rejected Sheehan’s submissions seeking no order for costs in favour of the Solicitors Disciplinary Tribunal or the Law Society of Ireland.
The judgment said neither body was acting as an amicus curiae. Sheehan had joined the Tribunal as a respondent despite its objections, and the court said both the Tribunal and the Law Society had been placed on notice because they were likely to have an interest in the jurisdictional challenge. It described as misleading the suggestion that either could have chosen not to participate in that part of the appeal.
The court found no qualifying exception to the usual costs rule. It said the case had not clarified transcendent issues of law and there had been no failure by the Tribunal or Law Society to accept a settlement offer, or equivalent conduct that might engage the statutory jurisdiction.
The Law Society had been joined to the proceedings by a High Court order on 12 January 2017 to address legal arguments raised by Sheehan that the other respondents could not address. Those arguments arose from grounds of appeal against the Tribunal’s misconduct finding. The Court of Appeal said it was reasonable and proper for the Society to participate in the High Court and appeal hearings. It also emphasised that the Society and Tribunal are separate, independent bodies, with the Tribunal’s disciplinary functions transferred from the Society’s Disciplinary Committee under the Solicitors (Amendment) Act 1994.
The court rejected the Covid-19 pandemic as a reason to withhold costs, observing that leniency for one affected litigant could be at the expense of another equally or more affected party. It said the proceedings arose from professional regulatory proceedings and that the regulatory role did not support withholding costs where the professional had sued the regulator and lost.
The court concluded that Sheehan could not escape the normal consequences of losing. It also said the second and third respondents, Bernard and Viola Bingham, were entitled to their expenses as litigants in person. The judgment does not state a quantified costs amount.