Brendan Kilty v Judge Cormac Dunne

• Jurisdiction: Ireland
• Judge: O'Donnell J.,McKechnie J.,Charleton J.,O'Malley J.,Baker J.
• Judgment Date: 05 February 2021
• Neutral Citation: [2021] IESC 4
• Docket Number: S:AP:IE:2018:000059
• Court: Supreme Court
• Date: 05 February 2021

Between/

Brendan Kilty

Appellant

and

Judge Cormac Dunne

Respondent

and

Campion Property Consultants Limited

Notice Party

2021 IESC 4

O'Donnell J.

McKechnie J.

Charleton J.

O'Malley J.

Baker J.

S:AP:IE:2018:000059

THE SUPREME COURT

Judicial review – Costs – Principles – Appellant seeking costs – Whether the appellant should be awarded the costs of his appeal to the Supreme Court

Facts: The judicial review proceedings of the appellant, Mr Kilty, in which he sought to quash orders made by the respondent, Judge Dunne, were heard by the High Court (Hedigan J) on the 13th October, 2011. The Court granted the relief sought and then, despite the fact that an order had earlier been made directing that the matter should proceed without the participation of the respondent, awarded costs against him. The respondent subsequently appealed the order of costs to the Supreme Court. In a judgment delivered on the 7th December, 2015, the appeal was allowed on the basis that it had been made in the absence of fair procedures. The question of the High Court costs was remitted to the High Court, and the Court made no order in respect of the costs of the appeal. The matter came before Hedigan J again on the 25th July, 2016. He reached a mistaken conclusion that the Supreme Court had in effect directed him to make no order, and that was what he did. The appellant appealed that decision to the Court of Appeal. In a judgment delivered on the 17th October, 2017, that Court agreed that Hedigan J had erred, and the matter of costs was again remitted to the High Court. That order was not appealed by either party. The Court of Appeal then dealt separately with the costs of the appeal before it. It determined, in a judgment delivered on the 22nd March, 2018, that the principles of judicial immunity applied in the circumstances of the case and accordingly it made no order in relation to costs. That order was appealed to the Supreme Court. In the substantive judgment on the 20th October, 2020, the Supreme Court held that the Court of Appeal had erred in its application of the relevant jurisprudence. The costs of the appeal to the Court of Appeal were therefore awarded to the appellant. It was agreed between the parties that the appellant was entitled to the costs of both the appeal to the Court of Appeal and the appeal to the Supreme Court. However, the appellant also sought his costs in respect of the hearing in the High Court on the 25th July, 2016, which resulted in the decision of Hedigan J to make no order in relation to costs. The appellant said that, having won this appeal, he was entitled to his costs in the Supreme Court and below. He submitted that the order of remittal made by the Court of Appeal concerned only the costs of the 2011 hearing, and that the High Court would not, when dealing with that, have jurisdiction to make any order regarding the July 2016 hearing. The respondent said that no order should be made in respect of that occasion, noting that the Supreme Court had made no order in respect of costs when he succeeded in his appeal against the original order made against him.

Held by the Supreme Court that the leave to appeal to the Supreme Court was granted on foot of the appellant’s application, which expressly sought leave only in respect of that part of the order of the Court of Appeal which declined to award to the appellant his costs of that appeal. The Supreme Court held that the application for leave, and the determination granting leave, were not concerned with any aspect of the order made on the 25th July, 2016. The Supreme Court held that the appellant was incorrect, therefore, in employing the “above and below” terminology; the Supreme Court was not dealing with the High Court order. The Supreme Court held that the position was that the High Court needed reach a decision as to how the costs incurred by the parties...