The High Court ordered Michael Kavanagh to pay the defendants’ costs after he lost his action, including reserved costs and costs related to voluntary discovery and a court direction. The costs are to be taxed if the parties cannot agree the amount.
In a judgment delivered on 21 November 2007, Mr Justice T.C. Smyth said the usual rule was that costs follow the event. The underlying judgment had been delivered on 31 July 2007, and Kavanagh had lodged an appeal in the Supreme Court. The costs question had been dealt with separately.
Kavanagh relied on Council Directive 2003/35/EEC to resist the defendants’ costs application. His side also argued that he should receive his own costs because he had acted altruistically, had a non-pecuniary interest and raised issues of public importance. The judge said no declaratory relief concerning the Directive had been sought in the proceedings.
The court found that the proceedings were outside the Directive’s scope. It also found that Kavanagh was not a public-interest litigant, saying his affidavit showed a private interest or advantage in the outcome. The judge noted that the Directive’s requirement that relevant proceedings not be prohibitively expensive did not remove an unsuccessful litigant’s exposure to legal costs. He cited the Aarhus Convention provision preserving national courts’ power to award reasonable costs.
The judge also concluded that Kavanagh’s delay brought him outside the Directive. He said Kavanagh had continued the litigation despite legal advice given by senior counsel to Mr Merne, which had been exhibited in an affidavit filed in the proceedings.
The order concerns costs only. The judgment does not determine the pending Supreme Court appeal. The amount payable was not stated; the costs are to be taxed in default of agreement.