The Supreme Court has struck out the Minister for Justice’s appeals over costs orders in two European Arrest Warrant cases, ruling that the appeals could not proceed without certificates from the High Court.
The appeals concerned High Court proceedings in which Belgium had sought the surrender of Noel McPhilips and Gerry McGinley. The Minister argued that each respondent, having initially indicated an intention to rely on the Attorney General’s costs scheme, could not later withdraw from it and seek ordinary costs from the court.
The Supreme Court dealt first with whether it could hear appeals limited to costs. Section 16(11) of the European Arrest Warrant Act 2003 permits an appeal against an order for surrender, or a decision not to make such an order, only where the High Court certifies that the case involves a point of law of exceptional public importance and that an appeal is desirable in the public interest. Neither case had such a certificate, and no application for one had been made.
The Court held that a High Court decision under section 16 includes its decision on costs. The statutory restriction therefore applies to a costs appeal, even where costs were decided later or on a separate day from the substantive issue.
McPhilips had indicated at the outset that he would seek a recommendation under the Attorney General’s scheme. Before the High Court hearing, his solicitor informed the Chief State Solicitor that he did not intend to rely on it. The High Court refused the surrender application and later awarded costs against the Minister, limiting costs up to the hearing to the scheme’s rates and allowing ordinary party and party costs thereafter.
In McGinley’s case, counsel initially indicated reliance on the scheme, but his points of objection filed on 8 March 2011 stated that he would not avail of it. In July 2012, the Belgian authorities decided not to pursue the surrender request. The High Court refused and struck out the application, then awarded costs against the Minister, with different limits applying before and after 8 March 2011.
The Minister also argued that section 16(11) did not apply to McGinley because there had been no decision to grant or refuse surrender. The Supreme Court rejected that argument: the High Court had decided not to make a surrender order, and Belgium’s decision to discontinue its request did not change the nature of the High Court’s decision.
The Court did not decide whether either respondent was entitled to withdraw from the costs scheme. It held that the Minister was not entitled to appeal either High Court costs decision without the statutory certificate and proposed that both appeals be struck out.