The Court of Appeal ordered Ciara Gannon Maguire to pay Eileen O’Callaghan’s costs of the appeal, including the costs of a stay application that had been reserved. The court also refused the relief sought in the Notice of Appeal and affirmed the High Court order directing a trial of preliminary issues.
The costs judgment, delivered by Ms Justice Power on 4 March 2021, followed the court’s dismissal of the appeal on 6 October 2020. The appeal concerned whether a court could order a preliminary trial when a party intended to challenge the constitutional validity of legislation in the proceedings.
In the High Court, Mr Justice Noonan had granted Ms O’Callaghan’s application to determine first whether Ms Gannon Maguire’s claim was statute-barred under section 9(2)(b) of the Civil Liability Act 1961. Ms Gannon Maguire argued that, if the limitation provision barred her claim, it was repugnant to the Constitution. The High Court ordered that the limitations issue be heard before the constitutional issue.
In the costs submissions, Ms O’Callaghan argued she had been entirely successful in defending the appeal and was entitled to her costs. Ms Gannon Maguire sought to reserve costs to the trial judge. She argued that the appeal judgment had improved her position on evidence, the Attorney General’s participation and how the preliminary issues might be heard. The Attorney General took a neutral position on costs and sought no costs order in his favour.
Justice Power rejected the arguments that the appeal judgment had changed the High Court directions or that the Attorney General’s stated intention to participate in the limitations issue justified reducing the respondent’s costs. The court said the trial judge retained discretion to give directions addressing any evidential deficiency and to manage the preliminary trial. Its comments that it would be preferable for both issues to be considered in one preliminary trial with all parties represented were not a finding that altered the High Court order; the judgment described them as obiter and said the trial arrangements were for the trial judge.
The court concluded that Ms O’Callaghan was entirely successful and that no circumstance justified departing from her entitlement to costs. The award includes outlays and disbursements, to be adjudicated if the parties cannot agree.