Cork County Council v Shackelton and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 12 October 2007
• Neutral Citation: [2007] IEHC 334
• Court: High Court
• Date: 12 October 2007

Cork Co Council v Shackleton

BETWEEN

CORK COUNTY COUNCIL

APPLICANT

AND

JOHN SHACKELTON

RESPONDENT

AND

MURPHY CONSTRUCTION (CARRIGTWOHILL) LIMITED

NOTICE PARTY

[2007] IEHC 334

[No. 315 JR/2007]

[No. 55 COM/2007]

THE HIGH COURT

COMMERCIAL

PRACTICE AND PROCEDURE

Costs

Costs follow event - Test case - Public body - Whether one party responsible for legislation - Whether notice party entitled to costs - Whether court had discretion to depart from rule - Appropriate principles to depart from rule - Whether test case - No order for costs made (2007/315JR - Clarke J - 12/10/2007) [2007] IEHC 334

Cork County Council v Shackleton

Facts: The Court had held that the applicant was entitled to an order setting aside the award of the respondent. The applicant was opposed in its costs application by the notice party in whose favour the arbitrator had ruled.

Held by Clarke J. that the arbitrator had been wrong in law. The notice party was in the position of a defendant or respondent. The applicant was prima facie entitled to their costs against the notice party. Different principles applied from the realm of test cases where a public authority was involved. It would be going too far to award the notice party its costs. Justice would be met by making no order as to costs. While the Court could not require the relevant Minister to pay, the onus was on the Minister to ensure that the applicant was not financially disadvantaged.

Reporter: E.F.

CORK CO COUNCIL v SHACKELTON UNREP CLARKE 19.7.2007 2007 IEHC 241

VEOLIA WATER UK PLC & ORS v FINGAL CO COUNCIL UNREP CLARKE 22.6.2006 2006 IEHC 240

PLANNING & DEVELOPMENT ACT 2000

USK DISTRICT RESIDENTS ASSOCIATION v EPA 2006 1 ILRM 363

EIRCOM PLC v DIRECTOR OF TELECOMMUNICATIONS REGULATION & ORS 3003 1 ILRM 106 2002 IEHC 72

DUBSKY v GOVERNMENT OF IRELAND & ORS UNREP MACKEN 13.12.2005 2005 IEHC 442

HARRINGTON v BORD PLEANALA & ORS UNREP MACKEN 11.7.2006 2006 IEHC 223

1. Introduction

2 2 1.1I have already given judgment in relation to the substantive issues between the parties in this case ("the substantive judgment"). See Cork County Council v. Shackelton (Unreported, High Court, Clarke J. 19 ^th July, 2007). This judgment is directed to the question of costs. As appears from the substantive judgment I was satisfied, for the reasons which I set out, that Cork County Council ("Cork") was entitled to an order setting aside the award of the respondent arbitrator ("the arbitrator"). As is also clear from that judgment the arbitrator did not take any part in the proceedings.

3 3 1.2 Cork was opposed in its application by the notice party ("Murphy Construction") in whose favour, on the point in question, the arbitrator had ruled. In those circumstances Cork maintains that it has succeeded in the proceedings and that it is entitled to costs. Equally for what are contended to be unusual and special reasons, Murphy Construction maintains that it too is entitled to its costs notwithstanding the fact that it lost.

2. The Event

2 2 2.1 The starting point for the award of costs has to be to identify who the winner is. See Veolia Water UK plc and Others v. Fingal County Council [2006] IEHC 240. There can be no doubt but that, on the facts of this case, Cork was the winner. The proceedings involved a challenge to the award of the arbitrator in respect of the number of houses to be transferred to Cork on foot of the social and affordable housing provisions of the Planning and Development Act, 2000 as amended. Murphy Construction had proposed a particular basis to the arbitrator as to how that number was to be calculated. The arbitrator, by implication, accepted the arguments put forward on behalf of Murphy Construction and, in substance, on this point, ruled completely in favour of Murphy Construction. For the reasons set out in the substantive judgment I came, despite having very great sympathy for the difficulties with which the arbitrator was faced, to the view that the arbitrator was wrong in law and that it was an appropriate case in which the arbitrator's award should be quashed. It follows, therefore, that Cork won all of the issues in the case before me and that, if costs are to follow the event, same must be awarded in favour of Cork.

3 3 2.2 Before passing on to the reasons put forward on behalf of Murphy Construction as to why costs should not follow the event, I should touch on one question which was raised in the course of the argument before me in relation to costs. It is, of course, the case that Murphy Construction was a notice party rather than a respondent. It has sometime been questioned as to the extent to which costs orders both in favour of and against notice parties are appropriate. That notice parties may, in appropriate circumstances, be entitled to the costs of proceedings is clear. See for example the judgment of the Supreme Court in Usk and Distirct Residents Association v. EPA 1 ILRM 363 and of this Court in Eircom v. Director of Telecommunications Regulation [2003] 1 ILRM 106. I am also satisfied that it is open to the court to order costs against a notice party, at least in some cases. Leaving aside the more general question as to when it may be appropriate to consider awarding costs against a notice party, I am satisfied that amongst the cases when that situation pertains is one where, in substance, the notice party is in the position of a defendant or respondent.

4 4 2.3 In some judicial review applications the decision making body whose decision is challenged takes the same position as that adopted by the arbitrator in these proceedings. For example where judicial review is sought against a decision of a court of local and limited jurisdiction, it is most unusual for the judge whose decision is sought to be reviewed to participate in the judicial review application. The reasons given for adopting such a position (apart from the undesirability of judges becoming involved personally in litigation) is that, in almost all cases, the decision under review will have been given on the urging of one party to the proceedings before the judge concerned. In those circumstances it is normally considered appropriate to allow the party who persuaded the judge to make the decision which is challenged, to justify that decision before this court on review. Similar considerations, doubtless, lead arbitrators not to participate in review applications unless, perhaps, the grounds of challenge contain personal allegations.

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