The High Court has awarded the State respondents their costs of resisting John O’Connell’s application for leave to seek judicial review, with a stay on the costs order if he appeals the refusal of leave.
In a ruling delivered on 11 November 2020, Mr Justice Brian O’Moore said O’Connell had been refused leave on 9 September 2020. The court had then invited the parties to communicate electronically about issues arising from that judgment. The ruling addressed the State respondents’ costs request and a separate concern O’Connell raised about the earlier judgment.
The State respondents argued that costs should follow the event or be awarded to a party that was entirely successful, and that there were no special reasons to depart from the usual rule. The judge said O’Connell had to show special circumstances justifying a departure.
O’Connell sought his own costs, including an immediate €2,000 payment to pursue an appeal. He argued that the Taxing Master’s procedures allowed the decision to be judicially reviewed. The judge said leave had been refused because of how O’Connell approached the application, notably his failure to join necessary parties, and that this did not justify awarding him costs.
O’Connell also argued that he and his family had suffered from what he called a “relentless attack” on his constitutional rights, and that the underlying rights complaint had not been determined. The judge said he had no detail supporting those claims and saw no connection between them and the unsuccessful leave application. He said the State respondents had acted responsibly and reasonably and had incurred expense in responding. The unresolved underlying complaint was not a reason to deny them costs, the judge said, because the reasons it remained undetermined were attributable to O’Connell.
The ruling also addressed O’Connell’s email of 14 September, in which he questioned a reference in the earlier judgment to an order directing that his application be made on notice. The judge said State counsel had described the procedural history at the leave hearing, including that an earlier judge had directed the application to proceed on notice, and O’Connell had not disputed that account at the time. The judge did not know whether the direction had been recorded in a formal order, but said that was unnecessary for the relevant passage. He added that no party had sent him a document without O’Connell’s knowledge. The ruling did not amend the earlier judgment or determine the underlying constitutional complaint.