The Court of Appeal has ordered Declan O’Callaghan to pay the Solicitors Disciplinary Tribunal’s costs of defending his unsuccessful appeal over the adjournment of a statutory disciplinary hearing.
In a ruling delivered on 22 March 2023, Ms Justice Butler rejected O’Callaghan’s request for no costs order. Justices Whelan and Pilkington agreed. The ruling dealt only with the costs of the appeal; the appeal itself had been dismissed in a separate judgment on 17 January 2023.
The appeal concerned the Tribunal’s decision to adjourn a disciplinary hearing. O’Callaghan challenged whether it could adjourn at the request of, or to accommodate, Nirvanna Property Holdings Limited after ruling that people attending on the company’s behalf could not represent it. He also disputed whether the Tribunal had jurisdiction to hear the company’s underlying complaint against him. The Court of Appeal had rejected both arguments.
The Tribunal sought its costs, relying on the statutory rule that a party entirely successful in civil proceedings is entitled to costs unless the court orders otherwise. O’Callaghan argued that the court should make no costs order against him. He submitted that the appeal arose in unusual circumstances, raised substantive legal issues, and was a reasonable response to the events leading to the adjournment. He also said he was not responsible for the company’s failures that led to it and pointed to the costs he had already incurred.
Justice Butler said the party seeking a departure from the usual costs rule had to show why it was justified. O’Callaghan’s lack of blame for the procedural events was not enough: the court had also found the Tribunal’s handling of those events appropriate and fair. The judge said that not behaving badly did not, by itself, justify depriving a successful party of costs.
The judge stressed that the professional misconduct allegations underlying the Tribunal proceedings remained unproven and were not a basis for the costs decision. O’Callaghan remained entitled to defend those allegations before the Tribunal.
The court also rejected the argument that it was reasonable to bring the proceedings and therefore unfair to award costs against him. The judge said the reasonableness of starting litigation was distinct from whether it succeeded, and did not displace the default rule.
The court acknowledged the significant costs O’Callaghan said he faced, including costs from the High Court proceedings and his own appeal costs. But it said relieving him of the Tribunal’s costs would shift that burden to the Tribunal and, ultimately, other solicitors who fund it. The court made an order for the Tribunal’s costs of the appeal. The ruling did not determine costs incurred before the Tribunal, over which the Court of Appeal said it had no jurisdiction.