The High Court refused Donegal County Council’s application for summary judgment for its costs in proceedings against councillor Frank McBrearty, and allowed the council to discontinue its claim on terms that it pay his costs up to discontinuance.
In a judgment delivered on 5 May 2023, Ms Justice Eileen Roberts said the council had acknowledged that the substantive relief it sought had become moot after a one-month suspension of Mr McBrearty expired in February 2022. The court’s ruling concerned the costs of the proceedings; it did not decide the underlying dispute about the suspension.
The council had sought to restrain Mr McBrearty from attending council meetings during the suspension. On 17 February 2022, Mr Justice Allen granted a time-limited interlocutory injunction, running until midnight on 27 February, and ordered Mr McBrearty to pay the council’s costs of that hearing. The judgment records that he did not attend the meeting on 27 February and that no issue arose about compliance with the injunction.
The council later sought summary judgment for its costs, arguing that Mr McBrearty had no arguable defence. It also sought permission to discontinue while recovering its costs. Mr McBrearty’s defence disputed the suspension’s lawfulness and procedures, and his counterclaim alleged that he had been sanctioned after making a protected disclosure. Those were his pleaded claims; the High Court did not determine their merits.
Justice Roberts held that summary judgment was inappropriate. The council was asking the court to award costs on the assumption that it would have succeeded at a hypothetical trial, despite the proceedings being moot and the substantive issues not having been finally decided. The earlier injunction hearing had not made final findings of law or fact.
The judge said the council could have discontinued after the suspension expired on 28 February 2022. Instead, after acknowledging in July that the proceedings were substantially moot, it pursued a statement of claim, sought a defence and brought a motion concerning the failure to deliver one. The judge found the council was not compelled to take those steps because Mr McBrearty did not respond to its proposal to end the case; he had simply failed to respond, and could not be required to consent to discontinuance.
The court granted leave, insofar as necessary, for the council to discontinue and ordered it to pay Mr McBrearty’s costs to the date of discontinuance, excluding reserved costs for the short-service motion. Those costs are to be taxed if the parties cannot agree. The order did not affect the separate costs order made in the council’s favour for the injunction hearing. With Mr McBrearty’s consent, the court also directed that his defence and counterclaim be struck out upon discontinuance. The judge reserved any argument about the costs of the council’s motion for a hearing listed on 17 May.