The Supreme Court has refused to reduce Fionuala Sherwin’s appeal costs to 66%, but varied a High Court costs order relating to an unsuccessful application for leave to appeal to the Court of Appeal.
In a costs ruling delivered electronically on 18 July 2024, the four-judge panel rejected CWTC Multi Family ICAV’s request to exclude the costs Sherwin incurred opposing the notice party’s application for leave to appeal to the Supreme Court. Under Practice Direction SC19, the costs of a leave application become costs in the appeal when leave is granted.
The costs dispute followed the Supreme Court’s dismissal of CWTC’s appeal on 11 April 2024. That appeal concerned a High Court order quashing An Bord Pleanála’s decision to grant permission for development by CWTC. The Board told the Court it had agreed with CWTC how to discharge any liability for Sherwin’s costs in the Supreme Court appeal and did not file submissions on the costs dispute.
CWTC argued that Sherwin should receive only 66% of her appeal costs because she had not succeeded on an issue about the interpretation of section 57(10)(b). It said that issue was significant in the hearing and judgment and had materially increased litigation costs. Sherwin opposed a reduction, submitting that the issue had not caused extra time or wasted legal work.
The Court said dividing costs on that basis is exceptional and requires the unsuccessful issue to have materially affected overall costs. It found that Sherwin’s oral submissions on the issue were limited, the appeal would have run into a second day regardless, and the issue occupied around 13 pages of the substantive judgment, compared with around 33 pages for the other two issues. The Court therefore declined to reduce her appeal costs.
The Court did, however, vary the High Court’s order for costs concerning CWTC’s unsuccessful application there for leave to appeal to the Court of Appeal. It ordered that there be no costs order for that application, finding that the statutory interpretation point should have justified the High Court granting leave. The ruling addressed costs only; it did not alter the outcome of the substantive appeal.