The Supreme Court has allowed Brendan Kilty’s appeal over the costs of a Court of Appeal case and awarded him those costs against Judge Cormac Dunne. The Court held that the rules protecting judges from costs orders in judicial review proceedings did not govern the costs of that appeal, where Dunne had taken part as a litigant to protect his own interests.
The dispute began with judicial review proceedings brought by Kilty over Dunne’s handling of an objection to the renewal of a qualification certificate for Campion Property Consultants Limited. The High Court granted relief to Kilty in 2011, including orders concerning the certificate and a purported “Isaac Wunder” order. It awarded costs to Kilty and the notice party against Dunne. Dunne had not participated in the substantive proceedings, and the Supreme Court later held that he had not been given notice that costs might be sought against him. It remitted the costs issue to the High Court.
On remittal, the High Court made no order for costs. The Court of Appeal later held that the High Court judge had misunderstood the Supreme Court’s earlier judgment and sent the costs issue back again. But it made no order for the costs of that appeal, applying the principles of judicial quasi-immunity.
Kilty appealed that costs decision. He argued, among other points, that the Court of Appeal had misapplied the principles in McIlwraith v. Fawsitt and that those principles should be reconsidered. Dunne argued that the principles protected him in the costs appeal. The Attorney General appeared as amicus curiae.
Writing for the Supreme Court, Ms Justice O’Malley said the Court could not revisit the broader McIlwraith principles in this appeal: an earlier Supreme Court direction required the remitted High Court costs issue to be considered under existing law, and the broader challenge had not been argued in the High Court.
The Court nevertheless held that the Court of Appeal had applied the test to the wrong question. That test concerns a judge’s conduct while acting as a judge in the decision challenged by judicial review, and whether the judge later tried to defend that decision. In the Court of Appeal costs proceedings, the conduct of Dunne’s original District Court decision was not at issue. He participated to protect his interests and argued as a litigant. Whether his argument was made in good faith or reflected a reasonable error did not determine costs under ordinary principles, the Court said.
The Supreme Court allowed the appeal and awarded Kilty the costs of his appeal to the Court of Appeal. The earlier remittal of the substantive judicial review costs issue to the High Court was not challenged in this appeal and remains separate. The judgment also noted that the proceedings pre-dated a 2015 amendment to the rules governing judicial review.