The Supreme Court has ordered Electricity Supply Board to pay Peter and Rose O’Reilly 90% of their legal costs in both the High Court and Supreme Court following litigation over compensation connected with electricity infrastructure affecting their land.
The costs ruling follows the Supreme Court’s earlier substantive judgment in the case. ESB had sought to quash compensation awards made by arbitrator Paul Good under legislation governing the assessment of compensation for land acquisition and related interference.
The High Court granted ESB an order quashing the awards. The O’Reillys appealed, while ESB brought a cross-appeal after the High Court rejected its separate claim that the arbitration process had infringed fair procedures.
In its earlier Supreme Court decision, the court held that the arbitrator had made an error which justified certiorari. Specifically, it agreed with ESB that compensation should not have been awarded for future access to the lands under section 53(9) of the Electricity (Supply) Act 1927.
However, ESB lost what the Supreme Court described as the critical and most substantial issue: its argument that the arbitrator had no power to award compensation for “injurious affection”, meaning loss in value or adverse effect on retained land caused by the relevant statutory works. ESB’s cross-appeal was also dismissed.
ESB argued that, because both sides had achieved partial success, there should be no order as to costs. The O’Reillys sought their appeal costs and asked that the High Court’s earlier award of 90% of their costs remain intact.
The Supreme Court held that the O’Reillys had succeeded on the issue which occupied most of the written and oral argument and was of significant public importance. It also noted that the resulting clarification would benefit ESB by providing greater certainty for future compensation assessments.
The court therefore confirmed that the O’Reillys should receive 90% of their costs in each court. No costs order was made against the Attorney General.