The High Court has ordered Ryanair DAC to pay the respondents’ costs after dismissing its challenge to government travel advice. Aer Lingus Ltd, which supported Ryanair’s application and took part on a limited basis, is to bear its own costs.
The costs judgment, delivered by Mr Justice Garrett Simons on 31 December 2020, followed the dismissal of Ryanair’s judicial review application. The judge said the respondents had succeeded on the issues that accounted for almost all the legal costs, even though some preliminary objections they raised had not been accepted.
Ryanair argued that the case raised matters of general public importance, including the separation of powers between the executive and legislative branches. It also said it had prevailed on issues of whether the travel advice could be reviewed by a court and whether the case was moot. The judge found that those preliminary issues did not materially add to the hearing’s length or the volume of documents because they were closely tied to the substantive issues.
The court declined to depart from the ordinary approach to costs. It said the proceedings were brought by a well-resourced company in pursuit of its commercial interests, so the risk of an adverse costs order was not a deterrent of the kind that might discourage public-interest litigation. The judge also concluded that the case was ultimately resolved on the narrow ground that the government’s travel statements were not mandatory in their terms.
Ryanair further argued that the wording of the travel advice had changed in response to its proceedings. By the first week of September 2020, the word “required” had been replaced with “advise”. The judge rejected Ryanair’s attempt to rely on the change as a basis for costs, noting that it had continued to a full hearing and had not argued then that the case had become moot. On the limited evidence, he said, a causal link between the proceedings and the change was not obvious; the advice was subject to ongoing review during the evolving health crisis.
The order allows the respondents to recover the costs of a solicitor and two counsel for the three-day hearing, as well as written submissions and the paper-based costs application. The costs are to be measured by the Office of the Chief Legal Costs Adjudicator if the parties cannot agree. Aer Lingus is to pay no contribution toward Ryanair’s liability.