The Court of Appeal has dismissed Garda Keith Harrison’s appeals over a decision to award him only part of his costs for appearing before the Disclosures Tribunal. It affirmed the High Court orders, leaving in place the tribunal’s decision to cover his costs up to and including the first day of hearings.
The tribunal had examined allegations by Harrison and his partner, Marisa Simms, that TUSLA intervened in their family life under improper pressure from members of An Garda Síochána. In its 2017 report, the tribunal rejected those allegations. That report’s findings were not under challenge in the costs case.
The tribunal later decided that Harrison should not receive costs for the remainder of the hearings. It said he had persisted with allegations it considered unfounded and should have withdrawn them. Harrison challenged that decision by judicial review, arguing, among other things, that the tribunal had not found he knowingly gave false information, had applied the wrong legal approach and had treated him unfairly. The High Court dismissed the judicial review.
In the Court of Appeal, Harrison also challenged the refusal of discovery and interrogatories in the High Court proceedings. The appeal court upheld that refusal, finding that the requests were within the High Court judge’s discretion. It said the pleadings did not clearly raise a claim of discriminatory or unequal treatment, and that the material sought was not relevant or necessary to the issues actually pleaded.
On the main appeal, the court said tribunal costs decisions must focus on a person’s conduct towards the inquiry, rather than the tribunal’s substantive findings. It held that the tribunal had made express findings about Harrison’s conduct, including that he persisted in allegations knowing they were untrue. Those findings could support a conclusion of non-cooperation and be considered when deciding costs.
The court also found that the tribunal had given Harrison notice of its concerns and an opportunity to make submissions at an oral hearing. The tribunal explained why it allowed costs only through the first day, rather than applying a percentage reduction. The court found no procedural unfairness and rejected the arguments that the tribunal had imposed a penalty for failing to prove his allegations or had acted under the Protected Disclosures Act.
All grounds pursued on appeal failed. The Court of Appeal dismissed both appeals and affirmed the High Court’s orders. Its provisional view was that the respondent was entitled to costs in the High Court and Court of Appeal; Harrison could seek a short supplemental hearing on costs by notifying the court within 14 days of the judgment.