The Court of Appeal has dismissed John O’Connell’s appeal against the High Court’s refusal to grant him leave to seek judicial review over a taxing master’s decision not to recuse himself from a costs taxation involving the Building and Allied Trades Union (BATU).
The dispute concerned a July 2019 ruling by Taxing Master Paul Behan. O’Connell alleged that Behan had failed to give adequate reasons, denied him access to notes and a digital audio recording, and should have recused himself because of alleged prior business links with BATU’s cost accountants. O’Connell also challenged provisions of Order 99 of the Rules of the Superior Courts, arguing that they were unconstitutional and breached the European Convention on Human Rights.
The appeal court said the challenged rules apply to reviews of decisions allowing or disallowing items in a bill of costs. No such decision had been made: the taxation had been adjourned, and the only decision at issue was Behan’s refusal to recuse himself. The court said O’Connell could in principle seek judicial review of that recusal decision. It upheld the refusal of leave on the separate challenge to Order 99, noting that the Supreme Court had already rejected the central argument that the rules’ review process was unfair.
The court also declined to interfere with the High Court’s discretionary refusal of leave on O’Connell’s other grounds. It said BATU, as the opposing party in the underlying costs process, should normally have been included or otherwise brought into the proceedings. O’Connell had been advised that BATU was the proper opposing party but did not formally involve it. He also failed to put Behan’s detailed ruling before the High Court when seeking leave, though it was central to the challenge.
The appeal court noted that the ruling gave detailed reasons and recorded Behan’s position that he had no ownership connection with Behan and Associates after 2008 and no contact after 2011. The court said O’Connell had not addressed that account or provided a basis at the leave stage to support his allegation of bias. It did not determine the unaddressed claims in O’Connell’s July 2019 email about alleged ongoing business links; the appeal judgment said those claims were not properly before the courts and lacked the supporting documents.
The Court of Appeal dismissed the appeal. Its proposed costs order was that O’Connell pay the costs of the second to fifth respondents. That view was provisional: he was given seven days to notify the court if he disagreed, followed by ten days to file written submissions.