Jackson way Properties Ltd v The Information Commissioner

JurisdictionIreland
JudgeMr. Justice Binchy
Judgment Date08 December 2022
Neutral Citation[2022] IECA 280
Year2022
CourtCourt of Appeal (Ireland)
Docket NumberAppeal Record Number: 2020/89
Costs Ruling in the Matter of Jackson Way Properties Limited and James Patrick Kennedy
Appellants
and
The Information Commissioner
Respondent

and

Dun Laoghaire/Rathdown County Council
Notice Party

[2022] IECA 280

Donnelly J.

Noonan J.

Binchy J.

Appeal Record Number: 2020/89

THE COURT OF APPEAL

Costs – Request for information – Freedom of Information Act 2014 s. 15(1)(c) – Respondent seeking to recover his costs – Whether costs should follow the event

Facts: The Court of Appeal (Binchy J), on 30th September 2022, delivered a judgment (the Judgment), in an appeal brought by the appellants, Jackson Way Properties Ltd and Mr Kennedy, from a decision of the High Court whereby that court had dismissed an appeal of the appellants from a decision of the respondent, the Information Commissioner, made on 23rd January 2019, whereby the respondent had upheld a decision of the notice party, Dún Laoghaire-Rathdown County Council, to refuse a request for information made by the appellants. Binchy J held against the appellant on all grounds of appeal. The Court invited the parties to make submissions on the issue of costs. The appellants submitted that the Court should depart from the normal rule that the entirely successful party should recover its costs because: (a) the wording of s. 15(1)(c) of the Freedom of Information Act 2014 is unclear; and (b) the clarification provided by the Judgment would be of assistance to the respondent, public bodies and FOI requestors. The appellant submitted that it should be awarded some or all of its costs, or alternatively that there should be no order as to costs. The respondent submitted that the Judgment ruled emphatically against the appellants, and that he was entitled to an order for payment of all of his costs by the appellants.

Held by Binchy J that, as was apparent from the Judgment, he did not consider there to be any ambiguity in the provisions of the 2014 Act under consideration. He held that the proceedings involved the straightforward interpretation of ss. 15(1)(c) of the Act; as such, it was difficult to see how any benefit accrued either to the respondent or to other FOI bodies arising out of the Judgment. Binchy J held that there was no issue of “exceptional public importance” for the purposes of s. 24(8) of the 2014 Act. He held that while the matters raised by the appellants had been clarified by the Judgment, it did not follow that those matters were in need of clarification, or that the smooth operation of the 2014 Act required such clarification, simply because the appellants raised those issues; moreover, if that were the case the decision of the High Court provided the necessary clarification.

Binchy J held that there was no reason to depart from the general rule provided for by s. 169(1) of the Legal Services Regulation Act 2015 and, as the respondent had been entirely successful in the appeal, he was entitled to recover his costs incurred in the appeal from the appellants.

Costs awarded to respondent.

Costs Ruling of Mr. Justice Binchy delivered on the 8th day of December 2022

1

On 30th September 2022, I delivered a judgment (the “Judgment”), with which the other members of the Court agreed, in an appeal brought by the appellants from a decision of the High Court whereby that court had dismissed an appeal of the appellants from a decision of the respondent made on 23rd January 2019, whereby the respondent had upheld a decision of the notice party to refuse a request for information made by the appellants. That request had been refused on the grounds provided for in ss. 15(1)(c) of the Freedom of Information Act 2014 (the “Act of 2014), which provides that a freedom of information request made under the Act of 2014 may be refused where: “in the opinion of the head [of the relevant body to whom the FOI request is made] granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the FOI body concerned”.

2

The appeal to the High Court centred around, inter alia, what constitutes the “work” of an FOI body for the purposes of s.15(1)(c) and whether or not “substantial” and “unreasonable” interference with or disruption of work of an FOI body are different concepts requiring separate consideration by the head of the FOI body. Relatedly, the appellant raised questions as to whether what is “unreasonable” within the meaning of the subsection must have regard to the resources of the FOI body concerned, and the evidential burden on an FOI body when invoking the subsection to justify a refusal of an FOI request. Before this Court, the appellant contended that the trial judge had erred in her determinations on each of these issues, and in my judgment of 30th...

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