The Court of Appeal has confirmed that Colum Browne must pay the Minister for Agriculture, Fisheries and Food, Ireland and the Attorney General the full costs of his unsuccessful appeal, including the costs of his application to change the costs order.
In a judgment delivered electronically on 24 February 2022, Mr Justice Edwards said no cogent reason had been given to depart from the general rule that costs follow the event. Justices Donnelly and Noonan agreed. The costs are to be adjudicated if the parties cannot agree their amount.
The ruling followed the court’s July 2020 dismissal of Mr Browne’s appeal against a High Court decision on preliminary issues. That decision had dismissed his claims, which sought declarations and damages over alleged tort and alleged breaches of his constitutional and European human rights. The appeal was dismissed in full.
After the 2020 judgment, the Court of Appeal provisionally indicated that the respondents were entitled to appeal costs. Mr Browne sought a different order, arguing that the appeal raised issues that had not previously been decided and was a test case. He also said that costs would worsen the hardship he had suffered, including the loss of his fishing livelihood and the expense of lengthy litigation.
The respondents opposed the application. They argued that the appeal involved established law and that Mr Browne had delayed bringing proceedings concerning earlier public-law decisions. Those were submissions by the respondents, rather than new findings made in this costs judgment.
The court rejected the test-case argument, finding that the issues were not of general importance and had not significantly clarified the law. It said the appeal was resolved by applying established law, that there was no constitutional dimension, and that the European-law issue was acte clair and did not require a reference to the Court of Justice of the European Union. The court also said there was nothing to suggest a failure to comply with the principles of equivalence and effectiveness.
On hardship, the court accepted that paying the costs order and his own legal costs could be onerous for Mr Browne. It nevertheless declined to exercise its discretion in his favour, describing the litigation as misconceived and initiated by him. The court refused his application for his costs and confirmed the provisional ruling in favour of the respondents.