The High Court has declined to rule in advance on whether a County Registrar could be liable for costs if a judicial review brought by farmer Robert Bradshaw succeeds.
In a judgment delivered on 6 December 2016, Mr Justice Max Barrett said the question should be raised after the judicial review judgment, when submissions on costs are heard. He declined to “re-affirm” the legal position sought by the County Registrar, giving no view on the issue.
The judicial review concerns a County Registrar’s refusal to transfer to Dublin a motion by Bradshaw to set aside a Circuit Court office judgment. The High Court had granted leave to challenge that refusal. The underlying judgment followed a claim by animal-food supplier JH Roche & Sons to recover money from Bradshaw, who apparently did not file a defence.
The dispute arose after Bradshaw sought to have the matter transferred. The judgment recounts that office staff refused his request on 7 December 2015 and directed him to apply at the County Registrar’s public call-over the next day. The Registrar refused the application there, saying she lacked jurisdiction to make the transfer Bradshaw sought.
The County Registrar’s counsel argued that the decision was made in a quasi-judicial capacity, because it followed a formal application in open court. The judgment said whether that was correct, if it needed to be decided, was for the judge hearing the judicial review.
There was also disagreement over the status of JH Roche & Sons as a notice party. The Registrar’s counsel said Bradshaw had allowed the company to withdraw; Bradshaw’s counsel said it remained a party but had chosen not to participate actively. Justice Barrett left that issue for the judicial review judge if it required determination.
The Registrar’s solicitor had indicated she would not take part in the judicial review and that no costs order should be sought against her at its conclusion. The Registrar then brought the application seeking an advance statement that a person performing a judicial or quasi-judicial function, whose actions are challenged in an uncontested judicial review, would not be liable for the applicant’s costs if the challenge succeeded, absent bad faith. The judgment noted that bad faith was not said to arise.
Justice Barrett said the application was not properly made at that stage. He also observed that addressing it might turn what was intended to be an uncontested judicial review, as regards the Registrar, into a partly contested one, and might be seen as constraining the later judge’s discretion on costs. The court did not decide the merits of the judicial review or determine costs.