The High Court ordered that Treasury Holdings and its co-applicants could include 50% of their costs of a judicial review leave application in any costs later awarded against the National Asset Management Agency (NAMA) and KBC Bank Ireland, if the applicants ultimately succeed in the proceedings.
In a costs judgment delivered on 12 June 2012, Ms Justice Finlay Geoghegan also ordered Treasury to pay Ireland and the Attorney General’s reasonable costs of defending the interlocutory injunction application and the part of the leave application concerning declarations that sections of the National Asset Management Agency Act 2009 were unconstitutional. Those costs are to be based on a four-day hearing, with the amount to be agreed or determined after further submissions.
The costs decision followed a six-day hearing on Treasury’s application for leave to bring judicial review proceedings and for interlocutory relief. In a judgment delivered on 22 March 2012, the judge had granted leave on most of the grounds advanced, but refused leave on allegations of improper purpose and bad faith. The court did not determine the substantive judicial review claims in this costs judgment.
Treasury had also sought an injunction restraining receivers appointed by NAMA and KBC from acting while the proceedings were pending. NAMA initially pursued opposition to that application but withdrew it on the fourth day of the hearing. Treasury did not pursue the injunction to the end of the hearing. It also did not pursue at the oral hearing its requests for leave to seek damages or declarations of unconstitutionality; the judge said those matters were neither expressly abandoned nor considered in the earlier leave judgment.
The judge treated the costs of obtaining leave as a mandatory step in starting judicial review proceedings, which would ordinarily be dealt with alongside the eventual outcome. She also considered the additional costs arising because NAMA and KBC contested leave, alongside costs incurred over the unpursued injunction and unsuccessful or unpursued grounds. The resulting order made half of Treasury’s leave-application costs “costs in the cause”; it did not require NAMA or KBC to pay them immediately.
The State’s costs order was limited to defending the injunction application and the constitutional declarations aspect. The court left the amount of those reasonable costs to agreement or further submissions, as required by the statutory costs procedure.